LaFaille v. Benefits Review Bd., U.S. Dept. of Labor, 977
| Citation | 884 F.2d 54 |
| Decision Date | 22 August 1989 |
| Docket Number | No. 977,D,977 |
| Parties | Gaston LaFAILLE, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR; Director Office of Workers' Compensation Programs, United States Department of Labor, General Dynamics Corporation, and Insurance Company of North America, Respondents. ocket 88-4160. |
| Court | U.S. Court of Appeals — Second Circuit |
Carolyn P. Kelly, Groton, Conn. (O'Brien, Shafner, Bartinik, Stuart & Kelly, P.C., Groton, Conn., Matthew Shafner, of counsel) for petitioner.
Samuel J. Oshinsky, Washington, D.C., (Benefits Review Board, U.S. Dept. of Labor, Linda Meekins, Clerk, Washington, D.C., of counsel), for Benefits Review Bd.
Joshua T. Gillelan II, Atty., U.S. Dept. of Labor, Office of the Sol., Washington, D.C. (Jerry G. Thorn, Acting Sol. of Labor, Carol A. De Deo, Donald Shire, Associate Solicitors, J. Michael O'Neill, counsel for Longshore, of counsel), for the Director, Office of Workers' Compensation Programs.
Richard N. Curtin, Boston, Mass., (Parker, Coulter, Daley & White, Boston, Massachusetts, of counsel), for Insurance Co. of North America.
Before LUMBARD, PRATT and MINER, Circuit Judges.
Gaston LaFaille, who suffered several lung collapses while employed as a welder by General Dynamics Corp., appeals from a final order of the Benefits Review Board on his claim for disability benefits. The Board affirmed a decision of an Administrative Law Judge (ALJ) denying him permanent partial disability compensation and granting him temporary partial benefits based on his average weekly wage at the time he suffered the first lung collapse. LaFaille, proceeding under Sec. 21(c) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 921(c), makes three claims of error in the Board's decision of February 10, 1986, which remanded the case in part, LaFaille v. General Dynamics Corp., 18 Ben.Rev.Bd.Serv. (MB) 88 (1986), and the Board's subsequent affirmance on October 31, 1988 of the ALJ's decision on remand.
LaFaille first claims that the Board contravened the express language of Sec. 10(i) of the LHWCA, 33 U.S.C. Sec. 910(i), by directing the ALJ to use the date immediately prior to his injury, rather than the date on which he first became aware that his respiratory impairment was occupational in origin, to determine his average weekly wage. Second, he claims, and the Director of the Office of Workers' Compensation Programs of the United States Department of Labor (the Director) agrees, that the Board exceeded its review authority and erred in holding that he suffered no permanent partial loss of earning capacity and in not adjusting his post-injury earnings for inflation. General Dynamics and its insurer, the Insurance Company of North America (hereinafter collectively General Dynamics), however, claim that the Board acted properly. Third, LaFaille and the Director argue, and General Dynamics disagrees, that the Board erred in denying him a de minimis award because his injury left him with a permanent physical impairment which, although not currently reflected in a loss of earnings, is likely to affect his earnings in the future. We agree with all of LaFaille's claims and therefore remand for a redetermination of his benefits.
Gaston LaFaille worked as a welder for General Dynamics's shipbuilding plant in Groton, Connecticut, from May 1961 to August 1969. He constructed and repaired submarines in the wet docks at the shipyard. LaFaille was assigned a number of difficult welding jobs in tightly enclosed spaces aboard submarines, where he was exposed to particularly high concentrations of fumes and gases. He was also regularly exposed to asbestos, which he wrapped around his body to avoid being burned while welding. In addition, LaFaille regularly inhaled particles created by grinders smoothing out steel surfaces on the ships and by adjacent workers who cut and installed asbestos aboard the submarines. He left General Dynamics in August 1969, when he was earning an average weekly wage of $146.80, to work as a welder for two non-maritime employers in Connecticut, where he remained until 1977.
Starting on February 9, 1977, LaFaille suffered a series of three lung collapses. After the first two lung collapses, doctors succeeded in reinflating the lung with a chest tube. After the third occurrence on April 5, 1977, however, a thoracotomy was performed which revealed pulmonary emphysema and fibrosis. Following his release from the hospital, he was totally disabled from April 5, 1977 until July 17, 1978, when he returned to work for General Dynamics as a welder. 1
After his return to work in July of 1978, LaFaille was substantially weaker. He left General Dynamics in February 1979 because the job required too much heavy physical exertion and exposure to welding smoke. He then worked as a welder and pipe-fitter at a power plant in Connecticut. This job was less physically demanding because he was assigned to relatively cleaner pipe-fitting work and his employer and co-workers were sympathetic to his needs. LaFaille's tax records reflect that he made the following:
1974 $19,785.00
1975 $21,014.00
1976 $24,469.00
1977 $17,087.00
1978 $13,549.00
1979 $24,879.00
Subsequent medical examinations established that LaFaille's recurrent lung collapses were caused by a complication of obstructive airways disease, resulting in part from his exposure to welding fumes and gases and his inhalation of asbestos dust during his eight years at General Dynamics. Even after his recovery from the 1977 thoracotomy, LaFaille still suffers from underlying progressive lung disease; he remains prone to incidents of lung collapse and lacks the strength to reach the tight locations where he previously welded.
LaFaille first became aware in early 1979 of the relationship between the conditions of his employment at General Dynamics and his impairment upon reading a newspaper article on the prevalence of similar diseases among workers exposed to asbestos. He then retained a lawyer who, on April 18, 1979, filed a report of accident and a claim with General Dynamics seeking disability compensation for his occupational disease.
After conducting a formal hearing in February 1982, ALJ Robert Glennon issued a decision in November 1982. The ALJ awarded LaFaille temporary total disability benefits for the period from May 12, 1977 to July 17, 1978 under Sec. 8(b) of the LHWCA, 33 U.S.C. Sec. 908(b), to compensate LaFaille for wages lost due to occupational injury. Section 10 provides for such compensation to be based on the worker's average weekly wage "at the time of the injury" and sets forth a scheme for determining the date upon which to measure the injured employee's lost wages in order most closely to approximate the loss. The ALJ accordingly calculated LaFaille's compensation on the basis of his average weekly wage at the time of his last exposure to the toxic materials at General Dynamics in 1969, in accordance with the then-existing Sec. 10(b).
Although the ALJ found that LaFaille had sustained a permanent, progressive physical impairment, he denied him any continuing award for permanent partial disability after his 1978 return to work because his average weekly wage of over $400.00 after his recovery demonstrated no loss of earning capacity when compared to his average wages of $146.80 in 1969, when he had last worked for General Dynamics.
The parties appealed to the Board. LaFaille and the Director argued that the ALJ's award should be revised in light of Congress's intervening 1984 addition of Sec. 10(i) of the LHWCA, 33 U.S.C. Sec. 910(i). 2 Congress therein provided that when the occupational disease does not immediately result in disability, the average weekly wage should be based on the employee's income, not as of the date of his last exposure to the deleterious substance, but as of the date he first becomes aware of the occupational cause of his disability. LaFaille and the Director therefore argued that the Board should determine his temporary total disability benefits under Sec. 10(i), rather than base the benefits on LaFaille's income in 1969, when he was last exposed to the noxious materials at General Dynamics. Second, LaFaille and the Director argued that the ALJ erred in denying benefits for permanent partial disability. The insurance carrier cross-appealed, arguing that LaFaille's last exposure prior to any alleged permanent partial disability occurred in 1978, not 1969, and that, because General Dynamics was self-insured in 1978, the carrier would not be responsible for permanent partial disability benefits.
In February 1986, the Board vacated the ALJ's ruling, which had held that the "time of the injury" was the time in 1969 of LaFaille's last exposure to fumes at General Dynamics. The Board declined, however, to use the date of awareness to calculate his average weekly wage, as dictated by the literal language of Sec. 10(i) enacted in 1984. Instead, relying on a Congressional Conference Report accompanying the 1984 amendments, it applied the standard of Sec. 10(c) and determined LaFaille's average weekly wage as of the period immediately preceding the first lung collapse in 1977, reasoning that use of that date to calculate lost earnings would more accurately compensate LaFaille for the wages he actually lost. The Board therefore remanded to the ALJ to determine LaFaille's average weekly wage in 1977, prior to the onset of his disability, and enter a revised award for temporary total disability accordingly.
Comparing his earnings of $24,469 in 1976, prior to his temporary total disability, and his earnings of $24,879 in 1979, the Board affirmed the ALJ's ruling that LaFaille had no residual permanent loss of earning capacity after his return to work in 1978. The ALJ's ruling had been based on a comparison between...
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