Korineck v. General Dynamics Corp. Elec. Boat Div.

• Decision Date: 08 December 1987
• Docket Number: No. 47,D,47
• Citation: 835 F.2d 42
• Parties: Edmund M. KORINECK, Sr., Petitioner, v. GENERAL DYNAMICS CORPORATION ELECTRIC BOAT DIVISION, Director Officer of Workers Compensation Programs and United States Department of Labor, Respondent. ocket 87-4026.
• Court: U.S. Court of Appeals — Second Circuit

Page 42

835 F.2d 42

1988 A.M.C. 742

Edmund M. KORINECK, Sr., Petitioner, v. GENERAL DYNAMICS CORPORATION ELECTRIC BOAT DIVISION,

Director Officer of Workers Compensation Programs

and United States Department of Labor, Respondent.

No. 47, Docket 87-4026.

United States Court of Appeals, Second Circuit.

Argued Sept. 11, 1987.

Decided Dec. 8, 1987.

David Neusner, Embry and Neusner, Groton, Conn. (Stephen C. Embry, on brief), for petitioner.

Norman P. Beane, Jr., Murphy & Beane, Boston, Mass. (Thomas M. Bates, on brief), for respondent.

Before PRATT and MAHONEY, Circuit Judges, and BRIGHT, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

BRIGHT, Senior Circuit Judge.

This appeal arises under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901 et seq. (LHWCA) (1982 & Supp.II 1984 & Supp.III 1985). Edmund Korineck appeals from the Benefits Review Board's decision affirming the administrative law judge's (ALJ) ruling that Korineck was not entitled to permanent partial disability benefits for a permanent hearing loss after he had already been awarded benefits for permanent total disability due to back injuries. We affirm the Board.

General Dynamics employed Korineck from 1951 until March 16, 1978. During this time, Korineck suffered a series of back injuries and as a result became temporarily totally disabled from March 16, 1978, through September 10, 1978, and permanently totally disabled from September 11, 1978. By a report dated July 27, 1979, some ten months later, Korineck learned of his work-related hearing loss which was in no way related to his back injuries. His request for benefits under the LHWCA for this additional disability was denied because Korineck already had been awarded total permanent disability benefits for the back injury. The ALJ reasoned that Korineck did not qualify for additional benefits for the hearing loss as this would constitute a double recovery. The Benefits Review Board affirmed the ALJ's decision, and Korineck appeals arguing that the decision is incorrect as a matter of law and violates the equal protection and due process clauses of the United States Constitution.

Korineck argues essentially that even though his back injury alone is a total and permanent disability for which he receives benefits, he is entitled to additional benefits for disability beyond a total and permanent disability. Korineck relies on the wording of 33 U.S.C. Sec. 908(c) which reads as follows:

Compensation for disability shall be paid to the employee as follows:

* * *

* * *

(c) Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 66 2/3 per centum of the average weekly wages, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with subsection (b) or subsection (e) of this section, respectively, and shall be paid to the employee * * *.

33 U.S.C. Sec. 908(c) (Supp.III 1985) (emphasis added). Korineck contends that the emphasized language mandates that he is entitled to an award based on his hearing loss; that under this statutory scheme his post-injury earning capacity is irrelevant.

We disagree. The definitions section of the LHWCA demonstrates that the LHWCA is designed to compensate for lost wage-earning capacity. " 'Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *." Id. Sec. 902(10) (emphasis added). The scheduled benefits are likewise based upon his lost earning capacity. See 33 U.S.C. Sec. 908(c)(1)-(23) (1982 & Supp.II 1984 & Supp.III 1985). Indeed, the circuit noted years ago that compensation payments, such as those made under LHWCA, are made only for injuries that cause disability and therefore that presumptively affect earning power. Iacone v. Cardillo, 208 F.2d 696, 699 (2d Cir.1953) (citing Larson, Law of Workmen's Compensation Sec. 2.40 (1952)). See also Fleetwood v. Newport News Shipbuilding and Dry Dock Co., 776 F.2d 1225 (4th Cir.1985) (recently focusing on the centrality of wage-earning capacity to the LHWCA).

That Congress provided a schedule prescribing benefits for certain disabilities does not justify a conclusion that a claimant becomes entitled to those benefits if already receiving compensation for total permanent disability. The schedule sets a presumptive loss of earning power for specific defined injuries, thus freeing the injured worker from the inconvenience of having to litigate and prove a loss of earning power each time he or she is injured. See Potomac Elec. Power Co. v. Director of Workers' Compensation Programs, 449 U.S. 268, 281-82, 101 S.Ct. 509, 516, 66 L.Ed.2d 446 (1980) (hereinafter PEPCO ) (discussing the basic compromise inherent in workers' compensation statutes). The statute does not mandate that this predetermined amount must be paid when the claimant is already compensated for a total permanent disability. Indeed, the statute suggests the contrary where it indicates in 33 U.S.C. Sec. 908(c) that the amount to be paid "shall be in addition to compensation for temporary total disability or temporary partial disability." In Rupert v. Todd Shipyards Corp., 239 F.2d 273 (9th Cir.1956), the Ninth Circuit, adopting the district court's opinion, affirmed the denial of benefits under the schedule, 33 U.S.C. Sec. 908(c)(20), for facial disfigurement resulting from a fall when the claimant already received benefits for total permanent disability due to injuries sustained in the same fall. That court reasoned,

As a compensation statute imposing upon the employer liability regardless of fault, the Act should generally be interpreted as providing for an award intended to compensate for loss of earning capacity. Any interpretation permitting an award of compensation for facial disfigurement to be super-imposed upon an award for 'permanent total disability' which presupposes a permanent loss of all earning capacity, would run counter to the manifest...