Liuzza v. Cooper/T. Smith Stevedoring Co., Inc.

• Decision Date: 29 June 2001
• Docket Number: BRB 00-0981
• Parties: ROSEMARY LIUZZA (Widow of JAKE LIUZZA), Claimant-Respondent v. COOPER/T. SMITH STEVEDORING COMPANY, INCORPORATED, Self-Insured Employer-Petitioner
• Court: Court of Appeals of Longshore Complaints

ROSEMARY LIUZZA (Widow of JAKE LIUZZA) Claimant-Respondent v. COOPER/T. SMITH STEVEDORING COMPANY, INCORPORATED Self-Insured Employer-Petitioner

BRB No. 00-0981

June 29, 2001

Appeal of the Decision and Order on Remand of Clement J. Kennington Administrative Law Judge, United States Department of Labor.

John F. Dillon, New Orleans, Louisiana, for claimant.

Alan G. Brackett and Daniel J. Hoerner (Mouledoux, Bland, Legrand & Brackett, L.L.C.), New Orleans, Louisiana, for self-insured employer.

Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON, Acting Administrative Appeals Judge.

DECISION and ORDER

PER CURIAM

Employer appeals the Decision and Order on Remand (97-LHC-1704) of Administrative Law Judge Clement J. Kennington rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. '901 et seq. (the Act). We must affirm the findings of fact and conclusions of law of the administrative law judge if they are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. '921(b)(3).

Jake Liuzza (decedent) worked as a longshoreman for multiple employers between 1947 and 1984, and allegedly was exposed to asbestos. Decedent voluntarily retired in 1984. In May 1993, decedent was diagnosed as suffering from malignant lung cancer, and he died on September 30, 1994, as a result. Claimant, decedent's widow, thereafter sought permanent partial disability benefits for the period prior to decedent's death, as well as death benefits. 33 U.S.C. ''908(c)(23), 909. In his initial Decision and Order, the administrative law judge determined that employer is liable for any benefits due as the responsible employer. The administrative law judge concluded, based upon the testimony of claimant and decedent's son, that claimant established the existence of working conditions, specifically exposure to asbestos, which could have contributed to decedent's lung cancer, that claimant was therefore entitled to the Section 20(a), 33 U.S.C. '920(a), presumption, and that employer had rebutted it. Based upon his weighing of the evidence as a whole, the administrative law judge found that claimant established a causal relationship between decedent's employment and his lung cancer. The administrative law judge determined that decedent was totally disabled from May 18, 1993 through the date of his death. Accordingly, he awarded decedent permanent partial disability compensation based upon a 100 percent impairment from May 18, 1993, through September 30, 1994, pursuant to Section 8(c)(23), and death benefits and funeral expenses to claimant, pursuant to Section 9.

Employer appealed, contending that the administrative law judge erred in concluding that it is the responsible employer, that claimant established a causal relationship between decedent's employment and his ultimately fatal lung cancer, and that decedent was totally disabled during the period prior to his death. The Board vacated the administrative law judge's finding regarding the extent of decedent's disability prior to his death and remanded the case for reconsideration of the extent of impairment pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (4^thed. 1993). The Board affirmed the decision in all other respects. Liuzza v. Cooper/T. Smith Stevedoring Co., BRB No. 99-0401 (Jan. 10, 2000) (unpublished). Following this decision, employer sought a credit for the overpayment of decedent's disability benefits against its liability for claimant's future death benefits.

On remand, the administrative law judge found that due to lack of medical evidence regarding the degree of impairment, decedent was not entitled to any permanent partial disability benefits from June 1, 1993, through July 27, 1994, but was entitled to compensation benefits based on a 51 percent impairment rating from May 18, 1993, to May 31, 1993, and from July 28, 1994, until his death from cancer. 33 U.S.C. ''902(10), 908(c)(23). The administrative law judge further determined, summarily, that employer is not entitled to an offset of any overpayment of benefits it made on behalf of decedent against benefits it owes claimant, decedent's widow, as these are separate claims and no statutory basis permits an offset.^[1] In the present appeal of the decision on remand, employer contends that it is entitled to a credit under Section 14(j) of the Act, 33 U.S.C. '914(j). Claimant responds, urging affirmance of the administrative law judge's determination that employer is not entitled to a credit against the death benefits owed claimant.

This case involves an issue of first impression on the facts presented. In reviewing cases of first impression involving a statute, the Board must first look to the plain language of the statute. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS 49(CRT) (1992); E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341, 27 BRBS 41(CRT) (9^th Cir. 1993). The relevant statutory provision is Section 14(j) which provides, "If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due." 33 U.S.C. '914(j). If the intent of Congress is clear from the plain language of the statute, that is the end of the matter. The Board must give effect to the unambiguously expressed intent of Congress. See Vinson v. Newport News Shipbuilding & Dry Dock Co., 27 BRBS 220 (1993), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In this case, the plain language of the statute does not address the issue presented: whether employer is entitled to credit an overpayment of disability benefits against its liability for an award of death benefits. The Board, therefore, must look to analogous interpretations of Section 14(j) or of other similar statutory provisions.

Initially, we reject employer's contention that the Board's decision in Hawkins v. Harbert Int'l, Inc., 33 BRBS 198 (1999), supports its claim for a Section 14(j) credit. In Hawkins, the Board affirmed an administrative law judge's decision to allow an employer a credit for its overpayment of the death benefit for a decedent's child against its continuing obligation to pay ongoing death benefits to the widow. The Board's decision in Hawkins turned on the premise that the Act provides for only one death benefit, see 33 U.S.C. '909 (“If the injury causes death, the compensation therefore shall be known as a death benefit . . . .”), and thus, a credit out of the same death benefit is not prohibited. Hawkins, 33 BRBS at 202. As the two claims involved in the instant case are two separate claims, an inter vivos disability claim and a death benefits claim, Hawkins is distinguishable from the present case and does not compel the conclusion that employer herein is entitled to a credit under Section 14(j).^[2] See also Valdez v. Crosby & Overton, 34 BRBS 185 (2000) (Decision on Recon.); Lewis v. Bethlehem Steel Corp., 19 BRBS 90 (1986).

In this regard, it has consistently been held that a worker's claim for disability benefits and a survivor's claim for death benefits involve two separate and distinct rights. See Travelers Ins. Co. v. Marshall, 634 F.2d 843, 12 BRBS 922 (5^th Cir. 1981); Puig v. Standard Dredging Corp., 599 F.2d 467, 10 BRBS 531 (1^st Cir. 1979); Todd Shipyards Corp. v. Witthuhn, 596 F.2d 899, 10 BRBS 517 (9^th Cir. 1979); Nacirema Operating Co. v. Lynn, 577 F.2d 852, 8 BRBS 464 (3^d Cir. 1978), cert. denied, 439 U.S. 1069 (1979); Close v. Int'l Terminal Operations, 26 BRBS 21 (1992). In fact, a separate claim must be filed in order to receive death benefits under Section 9, Almeida v. General Dynamics Corp., 12 BRBS 901 (1980), and the right of the employee's widow to recover death benefits does not arise until the date of the employee's death. Ingalls Shipbuilding, Inc. v. Director, OWCP [Yates], 519 U.S. 248, 31 BRBS 5(CRT) (1997).

The separate nature of disability and death benefits is well demonstrated in judicial determinations interpreting other sections of the Longshore Act. The Act formerly contained a provision stating: “The total compensation payable under this chapter for injury or death shall in no event exceed the sum of $7, 500. 33 U.S.C. '914(m) (amended 1948, 1956, 1961) (repealed 1972) (emphasis added). Several courts of appeals held that the employer was liable for up to $7, 500 in disability benefits and $7, 500 in death benefits; the two types of benefits were not to be aggregated in determining if one $7, 500 limit was reached, based on the plain language of the statutory provision, which was written in the disjunctive. Hitt v. Cardillo, 131 F.2d 233 (D.C. Cir. 1942), cert. denied, 318 U.S. 770 (1943); Norton v. Travelers Ins. Co., 105 F.2d 122 (3^d Cir. 1939); Int'l Mercantile Marine Co. v. Lowe, 19 F.Supp. 907 (S.D.N.Y. 1938), aff'd, 93 F.2d 663 (2^d Cir. 1938), cert. denied 304 U.S. 565 (1938). “The amount to which the widow and dependents are entitled is for their exclusive benefit and is entirely separate from the compensation for disability granted the employee himself which . . . terminate upon his death.” Id., 19 F.Supp. at 909.

In Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773, 21 BRBS 33 (CRT) (5^th Cir. 1988), the United States Court of Appeals for the Fifth Circuit held that an employer did not have the right to withdraw from an unapproved Section 8(i) settlement of a claim for disability benefits following the death of the claimant. 33 U.S.C. '908(i). Significantly, the court rejected the employer's attempt to have the amount of the settlement credited against its...