LeBlanc v. Cooper/T. Smith Stevedoring, Inc.

• Citation: 130 F.3d 157
• Decision Date: 12 December 1997
• Docket Number: No. 96-60767,96-60767
• Parties: Donald LeBLANC, Petitioner, v. COOPER/T. SMITH STEVEDORING, INC., et al, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 157

130 F.3d 157

Donald LeBLANC, Petitioner, v. COOPER/T. SMITH STEVEDORING, INC., et al, Respondents.

No. 96-60767.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1997.

Malcolm J. Dugas, Jr., Donaldsonville, LA, for Petitioner.

John L. Duvieilh, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Cooper/T. Smith Stevedoring, Inc.

Thomas O. Shepherd, Jr., Clerk, Benefits Review Board, Carol DeDeo, Assoc. Solicitor, U.S. Department of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Department of Labor.

Petition for Review of an Order of the Benefits Review Board.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellant Donald LeBlanc appeals the final order of the Benefits Review Board ("BRB") affirming the order of an administrative law judge ("ALJ") calculating LeBlanc's disability compensation based on his weekly wage at the time of the accident causing his injury, rather than the date when LeBlanc's injury caused him to permanently leave his stevedoring job. The 1984 Amendments to the Longshore and Harbor Workers' Compensation Act ("LHWCA") added § 910(i), which provides that the statutory "time of injury" in cases of occupational disease is "the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability." 33 U.S.C. § 910(i) (1997). Similarly, although the 1984 LHWCA Amendments did not change the limitations period for all compensable injuries, they did amend § 912(a) to require a one-year limitations period for claims of disability resulting from an occupational disease, as opposed to the thirty day period previously required. 33 U.S.C. § 912.

This Court reviews decisions of the BRB for errors of law, but will disturb the factual findings of the ALJ only if they are not supported by substantial evidence. Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th Cir.1995); Munguia v. Chevron U.S.A., Inc., 999 F.2d 808, 810 (5th Cir.), reh'g denied, 8 F.3d 24 (5th Cir.1993), cert. denied sub nom. Munguia v. Director, Office of Workers' Compensation Programs, 511 U.S. 1086, 114 S.Ct. 1839, 128 L.Ed.2d 466 (1994). Under this standard, we hold that the ALJ correctly considered LeBlanc's disability to be the result of a traumatic injury rather than an occupational disease, and correctly considered LeBlanc's statutory time of injury to be the time of his accident rather than the date his disability became manifest.

Factual and Procedural Background

On November 2, 1987, while working for appellee Cooper/T. Smith Stevedoring, Inc. ("Cooper/T. Smith"), LeBlanc fell from a ship ladder and injured his lower back. At the time, LeBlanc's average weekly wage was $92.87. On doctor's orders, LeBlanc missed a few months of work but returned to work in March, 1988. LeBlanc continued working for Cooper/T. Smith until April, 1992, with intermittent absences due to back pain. In April, 1992, LeBlanc's doctor, Dr. Clifford, diagnosed LeBlanc's condition as degenerative facet disease in the lumbar region of the spine. Dr. Clifford attributed this condition to the 1987 accident and LeBlanc's continued work as a longshoreman. When he stopped working in 1992, LeBlanc's average weekly wage was $439.65.

LeBlanc brought a claim for disability compensation under the LHWCA. 33 U.S.C. §§ 901-950 (1997). After a hearing, an ALJ found that LeBlanc's disability was causally related to his 1987 work injury and that his claim was timely, as LeBlanc was not aware of the potential impairment of his earning capacity until Dr. Clifford's April 1992 diagnosis. The ALJ further found that LeBlanc's residual wage earning capacity was $170 per week, based on the existence of suitable alternative employment as of August 25, 1993. The ALJ also concluded that LeBlanc had not tried with reasonable diligence to secure suitable alternative employment. As such, the ALJ held that LeBlanc could not establish total disability after August 25, 1993 and awarded LeBlanc permanent and total disability compensation from April 30, 1992, when LeBlanc reached maximum medical improvement, through August 30, 1993.

The ALJ then adjusted LeBlanc's residual earning capacity downward to $141.11, its equivalent as of the 1987 accident. ¹ LeBlanc's adjusted residual earning capacity of $141.11 was greater than his average weekly wage of $92.87 at the time of the accident. Based on this disparity, the ALJ found that LeBlanc had suffered no loss of wage earning capacity and was, therefore, not entitled to disability compensation after August 25, 1993, the date Cooper/T. Smith established suitable alternative employment.

The BRB affirmed, adopting the ALJ's order as the BRB's final order. ² LeBlanc appeals to this Court, arguing that the ALJ erred by considering his disability to be the result of a traumatic injury rather than an occupational disease, for which compensation benefits would have been based on LeBlanc's average weekly wage of $439.65 at the time his disability caused him to permanently stop working as a stevedore. Alternatively, LeBlanc argues that, even if his disability did result from a traumatic injury, the ALJ erred by computing LeBlanc's compensation based on his average weekly wage at the time of his accident, rather than his higher average weekly wage at the time his disability became manifest.

Discussion

I. Occupational Disease vs. Traumatic Injury

The LHWCA uses an injured employee's average weekly wage "at the time of the injury" as the basis for computing that employee's compensation. 33 U.S.C.A. § 910. If a longshoreman suffers from an "occupational disease," however, the LHWCA treats the time of injury as "the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or disability." 33 U.S.C.A. § 910(i). This distinction is crucial: if LeBlanc's disability is the product of an occupational disease, his benefits will be based on his 1992 average weekly wage of $439.65 rather than his 1987 average weekly wage of $92.87, which is lower than his residual earning capacity, thereby precluding any recovery after suitable alternative employment became available.

LeBlanc's disability did not result from a disease peculiar to his line of work and, therefore, does not result from an occupational disease for LHWCA purposes. A disability is not the result of an occupational disease for purposes of the LHWCA unless the disease is peculiar to the nature of the claimant's particular line of work. McNeelly v. Sheppeard, 89 F.2d 956, 957 (5th Cir.1937). The Fifth Circuit established this precedent early in McNeelly, noting that an occupational disease is "one usually or frequently contracted by workers in [a particular] occupation." Id. at 957; see also Grain Handling Co. v. Sweeney, 102 F.2d 464, 465 (2d Cir.) ("[C]overage must be limited to diseases resulting from working conditions particular to the calling."), cert. denied, 308 U.S. 570, 60 S.Ct. 83, 84 L.Ed. 478 (1939). This distinction serves the important purpose of ensuring that "[c]ompensation under the [LHWCA] is not the equivalent of health or life insurance." McNeelly, 89 F.2d at 958; accord Sweeney, 102 F.2d at 465. Although Congress has not explicitly defined occupational disease for LHWCA purposes, "[t]he generally accepted definition of an occupational disease is 'any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally.' " Gencarelle v. General Dynamics Corp., 892 F.2d 173, 176 (2d Cir.1989) (quoting 1B A. Larson, THE LAW OF WORKMEN'S COMPENSATION § 41.00, at 7-353). LeBlanc's injury does not fit within this definition because his activities of lifting, bending, and climbing ladders are typical of the manual labor required by many blue collar occupations, as opposed to being peculiar to LeBlanc's particular line of work.

Additionally, LeBlanc's condition, degenerative facet disease, is qualitatively different from diseases within the recognized class of occupational diseases. Courts have limited the class of occupational diseases to include only those diseases contracted through exposure to dangerous substances. See Gencarelle, 892 F.2d at 176; see also Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 506 U.S. 153, 160-61, 113 S.Ct. 692, 697-98, 121 L.Ed.2d 619 (1993) (distinguishing occupational hearing loss from traditional occupational diseases such as asbestosis). In noting that hazardous conditions of employment must be the cause of an occupational disease for LHWCA purposes, the Second Circuit opined that "[t]raditionally, these hazardous conditions have been of an external, environmental nature such as asbestos, coal dust, or radiation." Gencarelle, 892 F.2d at 176. In contrast, the ALJ found that LeBlanc's condition was causally related to his 1987 work injury. This injury resulted from a traumatic physical impact, not from exposure to any external, environmentally hazardous conditions of employment, which takes LeBlanc's condition beyond the scope of the traditional class of occupational diseases.

Although some courts have recognized repetitive motion or cumulative trauma injuries as occupational diseases, see Gencarelle, 892 F.2d at 177 (collecting cases), extending the traditional class of occupational diseases to include LeBlanc's condition would be contrary to the legislative intent underlying the 1984 LHWCA Amendments. The legislative history accompanying the 1984 LHWCA Amendments makes it clear that Congress...