ITO Corp. of Baltimore v. Green, 98-1972
| Decision Date | 09 April 1999 |
| Docket Number | No. 98-1972,98-1972 |
| Citation | 185 F.3d 239 |
| Parties | (4th Cir. 1999) ITO CORPORATION OF BALTIMORE, Petitioner, v. EDWARD F. GREEN; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. (97-1072) Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
COUNSEL ARGUED: Stan Musial Haynes, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Petitioner. Andrew David Auerbach, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director; Bernard Jerome Sevel, SEVEL & SEVEL, P.A., Baltimore, Maryland, for Respondent Green. ON BRIEF: Marvin Krislov, Deputy Solicitor for National Operations, Carol A. De Deo, Associate Solicitor for Employee Benefits, Janet R. Dunlop, Counsel for Long shore, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director.
Before WILKINSON, Chief Judge, and WIDENER and KING, Circuit Judges.
Petition for review granted and award modified by published opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson and Judge Widener joined.
ITO Corporation of Baltimore petitions for review of the final Decision and Order of the Benefits Review Board (BRB) awarding disability benefits to the respondent, Edward F. Green, who was employed by ITO as a long shore worker.1 The question presented for our review concerns the proper measure of benefits under Section 8(c) of the Long shore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, where an eligible claimant has been partially but permanently disabled by each of two injuries sustained to different parts of his or her body.
The combined weekly benefit awarded by the BRB to Green in compensation for his independently disabling ankle and shoulder injuries exceeded the amount to which he would have been entitled had he been totally disabled. We agree with ITO that such a result is illogical, especially as a less onerous alternative exists that fairly and fully compensates Green for the entirety of his injuries. We therefore grant the petition for review and modify the benefit award as explained below.
On May 14, 1983, Green fell about fifteen feet from a cargo container onto the deck of a ship, fracturing his left ankle and left shoulder. ITO paid for Green's hospital stay and subsequent recovery, and it also paid him a weekly benefit for the duration of his temporary total disability.2
Though recompensed for the transitory effects of the accident, Green was entitled to additional compensation for the lasting attenuation of his physical abilities. Accordingly, Green filed a claim with the Department of Labor under Section 8(c) of the LHWCA, seeking benefits for "disability partial in character but permanent in quality." 33 U.S.C. § 908(c).
ITO timely controverted its liability for the claim, see 20 C.F.R. § 702.251, and the matter came on for hearing before an Administrative Law Judge (ALJ). Upon considering the medical and other evidence submitted by the parties, the ALJ concluded that Green had suffered a 15% permanent disability to his shoulder, and a 25% permanent disability to his ankle, "such disability prevent[ing] the Claimant from returning to his job as a longshoreman." ALJ's Decision and Order of July 22, 1987.
On a subsequent remand from the BRB, the ALJ clarified that, even absent the ankle injury, Green would have been foreclosed from engaging in his former work:
The Employer argues that the . . . injury to Claimant's shoulder does not cause Claimant to be disabled when considered alone. However, . . . the evidence of record fails to establish that Claimant can return to his previous job on the basis of such a disability. . . . Accordingly, . . . I find that Claimant has sustained a partial permanent disability based on his shoulder injury.
ALJ's Decision and Order on Remand of May 29, 1991, at 7-8. The problem remained of how to fairly compensate Green for the partial loss of function in both his ankle and his shoulder.
Section 8(c) of the LHWCA contains a schedule of benefits payable for the permanent physical deprivation of specific parts or attributes of the body. See 33 U.S.C. § 908(c)(1)-(12) (), (c)(13) (relating to the loss of hearing in one or both ears); see also § 908(c)(18) (). The compensation for the particular disability is expressed in terms of payment for a fixed number of weeks at a rate of two-thirds the claimant's average weekly wage at the time of the injury.
The complete loss (or loss of use) of a foot, for example, entitles the claimant to receive the prescribed rate for a 205-week period. § 908(c)(4). Where the loss is incomplete, however, the duration of the award is proportionately reduced. § 908(c)(19). The parties do not dispute that, in Green's case, the 25% permanent disability to his ankle requires ITO to pay him two-thirds of his average wage for 51.25 weeks. Inasmuch as Green was earning $599 per week at the time of his injury, the weekly benefit is approximately $400.
Calculating the compensation due Green solely as the result of his shoulder disability is only slightly more complex. Section 908(c)(21) is the "catch-all" provision pertaining to disabilities not included within the schedule:
In all other cases in the class of disability, the compensation shall be 66-2/3 per centum of the difference between the average weekly wages of the employee and the employee's wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.
Green's post-injury wage-earning capacity was determined to be $305 per week. ALJ's Decision and Order on Remand of May 29, 1991, at 6-7. As this figure represents a decrease of nearly $300 from Green's average weekly wage at the time of his injury, the proper compensation for Green's shoulder disability is just short of $200 per week.3
The BRB, considering the matter for the third time, finally concluded that Green was entitled to concurrent payments for his ankle and shoulder disabilities, i.e., $600 per week for 51.25 weeks and $200 per week thereafter. Green v. I.T.O. Corp. of Baltimore, 32 BRBS 67, 70 (1998).4 Under this payment scheme, the benefits disbursed by ITO during the first year would be roughly equivalent to Green's earnings at the time of his accident.
The Director maintains that the BRB's approach to compensating Green for his permanent partial disabilities cannot be logically reconciled with the LHWCA's limitation of payments for permanent total disability to two-thirds of the claimant's average weekly wage. See 33 U.S.C. § 908(a). By the terms of the statute, had Green been totally disabled by the injuries he sustained in the fall, he could never have received more than $400 in compensation in any single week. It makes little sense, the Director contends, to compel ITO to pay compensation at a greater rate for a less serious occurrence.
We are persuaded by the Director's argument. In no case should the rate of compensation for a partial disability, or combination of partial disabilities, exceed that payable to the claimant in the event of total disability. To hold otherwise would be to conclude that the whole may be less than the sum of its parts, and we are fairly certain that -although our authority extends to a myriad of matters -we are without jurisdiction to repeal the laws of mathematics.5
One solution to the problem, suggested by the Director, is to run the awards consecutively. Under this approach, Green would receive his maximum weekly benefit of $400 for the first 51.25 weeks of the award period, and $200 per week thereafter. Indeed, in cases where a claimant has sustained more than one injury listed in the schedule, the LHWCA specifies that the awards are to run consecutively. See § 908(c)(22) ().
The Director's proposed solution is imperfect, however, insofar as it fails to pay anything to Green in compensation for the disability to his shoulder during the first year of the award period. Green has demonstrated his entitlement to benefits for his shoulder, and there is nothing in the LHWCA that authorizes us to permanently deprive him of a year's worth of those payments. In...
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