Insurance Co. of North America v. U.S. Dept. of Labor, Office of Workers Compensation Programs

• Decision Date: 16 July 1992
• Docket Number: No. 1068,D,1068
• Citation: 969 F.2d 1400
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. U.S. DEPT. OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Freelove Peterson, (Widow); Paul Peterson, (Decedent), Respondents. ocket 91-4193.
• Court: U.S. Court of Appeals — Second Circuit

Page 1400

969 F.2d 1400

1993 A.M.C. 606

INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. U.S. DEPT. OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Freelove Peterson, (Widow); Paul Peterson, (Decedent), Respondents.

No. 1068, Docket 91-4193.

United States Court of Appeals, Second Circuit.

Argued April 1, 1992.

Decided July 16, 1992.

Richard N. Curtin, Boston, Mass. (Scott E. Richardson, Parker, Coulter, Daley & White, Boston, Mass., of counsel) for petitioner.

Samuel J. Oshinsky, Washington, D.C. (Marshall J. Breger, Sol. of Labor, Carol A. De Deo, Associate Sol., Janet R. Dunlop, Counsel for Longshore, Washington, D.C., of counsel) for respondent Director, Office of Workers' Compensation Programs.

Matthew Shafner, Groton, Conn. (Amy M. Stone, Carolyn P. Kelly, O'Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., of counsel) for respondents Freelove Peterson (Widow) and Paul Peterson (Decedent).

Before: MINER and McLAUGHLIN, Circuit Judges, and MARTIN, District Judge. ¹

MINER, Circuit Judge:

Petitioner Insurance Company of North America ("INA") seeks review of a United States Department of Labor Benefits Review Board ("BRB" or the "Board") order awarding death benefits to Respondent Freelove Peterson, widow of Respondent Paul Peterson, under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. §§ 901 et seq. Decedent Paul Peterson was hospitalized in November 1984 and diagnosed as having a malignant lung tumor. The tumor was caused, at least in part, by Peterson's exposure to asbestos while working as a submarine builder in the 1960s. Approximately one month after entering the hospital for treatment, Peterson died from the ailment. Thereafter, Mrs. Peterson filed two claims under the LHWCA. The first, on behalf of her husband, sought disability benefits for the period of his hospitalization. The second sought death benefits for herself as his surviving widow.

An Administrative Law Judge ("ALJ") heard the case and found that the LHWCA in effect in 1967, the date of Peterson's last On appeal, INA argues that the BRB erred when it utilized the law in effect on the date of manifestation of the disease. INA maintains that the law in effect at the time of last exposure should govern because nothing in the language of the Act, amendments, or the legislative history indicates that the date of manifestation rule should be used to determine the applicable law. Additionally, INA contends that use of the manifestation rule results in an impermissible retroactive application of the amended Act by expanding the class of individuals entitled to recover for exposures occurring prior to the amendments' effective date. The Director, Office of Workers' Compensation Programs, United States Department of Labor (the "Director") agrees with this position but nevertheless urges us to affirm the BRB's award of benefits on the alternate ground that substantial evidence supports a finding that Peterson was exposed to asbestos upon the navigable waters of the United States as defined in the pre-1972 Act. INA, on the other hand, maintains that the ALJ was correct in finding that Peterson was not injured upon the navigable waters of the United States and that recovery therefore should be denied. We conclude that the Board did not err in holding that the law in effect on the date of manifestation of the cancer is the appropriate law to apply, and hence deny the petition for review. As such, we need not address the alternate ground for affirmance proposed by the Director.

                possible exposure to asbestos, applied.   Benefits were denied upon a finding that Peterson's injury did not meet the situs requirement, as defined in the Act prior to amendment in 1972, that the injury occur "upon the navigable waters of the United States (including any dry dock)."  33 U.S.C. § 903(a) (superseded).   Mrs. Peterson appealed to the Board, which reversed the ALJ's decision.   The Board ruled that, in cases of long latency diseases caused by exposure to harmful stimuli, the appropriate law to apply is the law in effect on the date the disease manifests.   The Board then applied the LHWCA as amended in 1972 and determined that Peterson met the definition of employee under the amended Act, 33 U.S.C. § 902(3), and that he had been injured at an appropriate situs as redefined by the amendment, 33 U.S.C. § 903(a).   Thus, the BRB awarded death benefits to Mrs. Peterson and remanded to the ALJ for calculation of disability benefits
                

BACKGROUND

Decedent Paul Peterson worked alternately as a carpenter and a joiner for General Dynamics Corporation in its Electric Boat Division between November 13, 1962, and January 6, 1967. The Division was located on the Thames River in Groton, Connecticut. While at General Dynamics, Peterson worked in the "Model Shop," assembling scale models of components used in submarine construction, and in the "Joiner Shop," building battery wedges for submarines. Both jobs required Peterson to perform certain tasks inside submarines located on the river, although he spent the majority of his time working in the buildings located on land adjacent to the river. Testimony before the ALJ established that Peterson inhaled asbestos in both the Model and Joiner Shops, and possibly while aboard the submarines as well.

After leaving General Dynamics in 1967, Peterson worked at a variety of occupations. On November 3, 1984, he entered the hospital with breathing problems. Tests revealed a cancerous tumor in his lung and he remained hospitalized for treatment. Approximately one month later, Peterson died of the ailment. His death certificate reported the cause of death as metastatic lung cancer due to, or resulting from, chronic obstructive lung disease.

In late 1985, Peterson's wife received a letter from one of the treating physicians, advising her of the possibility that her husband's ailment had resulted from his exposure to asbestos during his tenure at General Dynamics. Mrs. Peterson timely notified the appropriate parties of Peterson's disability and death. See 33 U.S.C. § 912(a). She filed a claim for disability benefits on behalf of her deceased husband An initial attempt to negotiate a settlement failed, and a hearing before an ALJ was scheduled. After the hearing, the ALJ concluded that the law in effect at the time Peterson was last exposed to asbestos controlled the outcome. In order to be compensated under the Act in effect on January 6, 1967, the last date Peterson possibly could have been exposed, an employee must have been disabled by, or died from, an injury occurring "upon the navigable waters of the United States (including any dry dock)." Id. § 903(a) (superseded). The ALJ found that Peterson's asbestos exposure had occurred in buildings located on land adjoining the Thames, not upon the river (or a dry dock), and therefore held that benefits should be denied because the LHWCA did not cover Peterson.

                at that time, and later submitted a claim for death benefits as his surviving widow.   Both claims were filed within the statute of limitations period set forth in the Act.   See id. § 913(a)
                

Mrs. Peterson appealed to the Board. In an en banc decision, the Board ruled that the ALJ's decision to utilize the law in effect at the time of last exposure was improper. The Board held that the law in effect on the date of manifestation of a long latency disease should be employed to determine eligibility for benefits under the LHWCA. Since Peterson's cancer manifested in 1984, the Board determined that the Act as amended in 1972 provided the appropriate test for coverage. The Board found that Peterson met the statutory definition of employee and that he was injured at a situs embraced by the amended Act. Hence, the Board awarded death benefits to Mrs. Peterson and remanded to the ALJ for calculation of disability benefits. INA appealed to this Court before the ALJ calculated the benefits, but the calculation has since been completed. Therefore, jurisdiction is appropriate under 33 U.S.C. § 921(c). See St. Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d 876, 876 n. 1 (8th Cir.1978); Nacirema Operating Co. v. Lynn, 577 F.2d 852, 853 n. 1 (3d Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34 (1979).

DISCUSSION

The issue in this case concerns the scope of coverage of the LHWCA, as amended in 1972. Prior to 1972, section 3(a) of the Act provided compensation to employees suffering a disability or death "result[ing] from an injury occurring upon the navigable waters of the United States (including any dry dock)." 33 U.S.C. § 903(a) (superseded). This language imposed an injury situs requirement in order for an employee to invoke the LHWCA such that workers in maritime-related occupations could not apply for compensation under the LHWCA if their injuries occurred on land or on structures attached to land. See generally Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). In 1972, Congress enacted the Longshore and Harbor Workers' Compensation Act Amendments, Act of October 27, 1972, Pub.L. No. 92-576, §§ 2(c), 21, 86 Stat. 1251, 1265, amending, inter alia, section 3(a) of the Act to permit compensation for injuries "occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)." 33 U.S.C. § 903(a). The amendment thereby broadened the areas at which injury could occur for employees to qualify for compensation under the Act.

At the same time, Congress enacted a status requirement for recovery, allowing only certain defined classes of employees to qualify for compensation under the Act when injured. See 33 U.S.C. § 902(3). No one disputes that Peterson, by virtue of his occupations as a carpenter and a joiner assisting in submarine...