Logara v. Jackson Engineering Co.

• Decision Date: 04 June 2001
• Docket Number: BRB 00-0887
• Parties: DIMITRA LOGARA (widow of STAVROS LOGARA), Claimant-Petitioner v. JACKSON ENGINEERING COMPANY and CIGNA INSURANCE COMPANY, Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Party-in-Interest
• Court: Longshore Complaints Court of Appeals

DIMITRA LOGARA (widow of STAVROS LOGARA) Claimant-Petitioner v. JACKSON ENGINEERING COMPANY and CIGNA INSURANCE COMPANY, Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

BRB No. 00-0887

June 4, 2001

Appeal of the Decision and Order and the Decision and Order Denying Motion for Reconsideration of Paul H. Teitler, Administrative Law Judge, United States Department of Labor.

Ralph J. Mellusi (Tabak & Mellusi), New York, New York, for claimant.

Keith L. Flicker and Robert N. Dengler (Flicker, Garelick &amp Associates), New York, New York, for employer/carrier.

Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Claimant appeals the Decision and Order and the Decision and Order Denying Motion for Reconsideration (99-LHC-1627) of Administrative Law Judge Paul H. Teitler 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 which 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).

Decedent, Stavros Logara, a naturalized United States citizen, suffered a work-related back injury on April 21, 1980, and received total disability compensation from April 23 to June 25, 1980. Mr. Logara died on June 25, 1980, as a result of complications from the injury, and was survived by his widow Dimitra Logara (claimant) and two dependent children. Employer accepted claimant's claim for death benefits, and paid appropriate widow's and survivor's benefits pursuant to Section 9 of the Act, 33 U.S.C. §909, with corresponding cost-of-living adjustments pursuant to Section 10(f) of the Act, 33 U.S.C. §910(f). A citizen of Greece, claimant returned to Greece with her children in December 1981, and has resided there since that time.

In January 1999, employer notified the district director that it wished to assert its right to have claimant's death benefits commuted to one-half of all future installments of compensation due pursuant to Section 9(g) of the Act, 33 U.S.C. §909(g). The district director calculated claimant's future installments of compensation to total $283, 191.03, one-half of which is $141, 595.51. Claimant contested the district director's calculation, and asserted that Section 9(g) is unconstitutional.

In his Decision and Order, the administrative law judge rejected the commutation calculations of economist Dr. Andrew Verzilli, as Dr. Verzilli applied a range of estimates of future increases in the National Average Weekly Wage. By contrast, the administrative law judge found that the district director's calculations in commuting claimant's future compensation, which applied a flat five percent discount factor, were reasonable and not an abuse of discretionary function. The administrative law judge further found that Section 9(g) is constitutional. Accordingly, the administrative law judge concluded that claimant is not entitled to an award of compensation exceeding $141, 595.51. In a Decision and Order Denying Motion for Reconsideration, the administrative law judge rejected the commutation calculations contained in a supplemental report by Dr. Verzilli, and again found that the district director's calculations were reasonable.

On appeal, claimant contends that Section 9(g) violates the national treatment provision of the Treaty of Friendship, Commerce and Navigation (FCN Treaty) between the United States and Greece. Claimant further avers that Section 9(g) is unconstitutional; assuming Section 9(g) is constitutional, claimant contends that it was improperly applied to claimant due to the doctrine of laches. Lastly, claimant contends that the commutation method applied by the district director was improper. Employer responds, urging affirmance of the administrative law judge's decisions. Specifically, employer points out that claimant did not allege that Section 9(g) violates the FCN Treaty before the administrative law judge, implying that this issue should not be considered by the Board. Employer further avers that the FCN Treaty does not prohibit the application of Section 9(g), and that Section 9(g) is not inconsistent with any constitutional provision. Claimant has filed a reply brief, arguing that although the issue of whether Section 9(g) violates the FCN Treaty with Greece was not raised before the administrative law judge, the Board should consider this issue as it concerns a question of law.

At the outset, it is noted that claimant did not raise before the administrative law judge the issue of whether Section 9(g) violates a treaty between the United States and Greece. Generally, a party may not raise a new issue on appeal. See Turk v. Eastern Shore Railroad, Inc., 34 BRBS 27, 32 (2000); Boyd v. Ceres Terminals, 30 BRBS 218, 223 (1997). Nonetheless, the issue raised by claimant concerns purely a question of law, and under such circumstances it is appropriate for the Board to address the issue. See generally Aurelio v. Louisiana Stevedores, Inc., 22 BRBS 418 (1989), aff'd mem., No. 90-4135 (5^th Cir. March 5, 1991); see also Martinez v. Mathews, 544 F.2d 1233 (5^th Cir. 1976). Section 9(g) of the Act is a commutation provision that affects only death benefits payable to alien nonresidents. Section 9(g) provides:

Aliens: Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the injury, and except that the Secretary may, at [her] option or upon the application of the insurance carrier shall, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the Secretary.

33 U.S.C. §909(g)(emphasis added); see also 20 C.F.R. §702.142.^[1] As Section 9(g) distinguishes between residents of the United States and alien non-residents, claimant asserts that it violates the U.S.-Greece FCN Treaty. Treaties of friendship, commerce and navigation have been made in order to strengthen friendly relations between two countries, and provide for the protection of citizens of one country residing in the territory of another. Specifically, Article XI of the U.S.-Greece FCN Treaty provides:

1.Nationals of Greece shall be accorded within the territories of the United States of America, and reciprocally nationals of the United States of America shall be accorded within the territories of Greece, national treatment in the application of laws and regulations that establish a pecuniary compensation, or other benefit or service on account of disease, injury or death arising out of and in the course of employment, or due to the nature of employment.

2. In addition to the rights and privileges provided in paragraph 1 of the present Article, nationals of Greece shall be accorded within the territories of the United States of America, and reciprocally nationals of the United States of America shall be accorded within the territories of Greece, national treatment in the application of laws and regulations establishing systems of compulsory insurance, under which benefits are paid without individual test of financial need: (a) against loss of wages or earnings due to old age, unemployment, sickness or disability, or (b) against loss of financial support due to the death of father, husband, or other person on whom such support had depended.

Treaty of Friendship, Commerce, Navigation between the United States and Greece, Aug. 3, 1951 (FCN Treaty), art. XI, 5 U.S.T. 1829, 1853. Article XXIV of the FCN Treaty defines national treatment as that treatment which is "accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such Party." Id., art. XXIV, 5 U.S.T. at 1907; see generally Vagenas v. Continental Gin Co., 988 F.2d 104, 106 (11^th Cir.), cert. denied, 510 U.S. 947 (1993).

Under the Supremacy Clause of the United States Constitution, duly-ratified treaties are equal in stature to enacted federal statutes, and are subordinate only to the Constitution.^[2]U.S. CONST. art. VI, §2; see Reid v. Covert, 354 U.S. 1, 16-17 (1957). Generally, treaties and statutes should, wherever possible, be read to be compatible. See David P. Stewart, Address Before the United States Department of Labor Seminar on International Treaties and Constitutional Systems of the United States, Mexico and Canada (Dec. 4, 1997) in 22 Md. J. Int'l L. & Trade 221, 228-229 (1998-1999). Where a conflict between a treaty and federal statute is irreconcilable, the dates of enactment of the treaty and statute become dispositive; a subsequently enacted statute will overrule a previous inconsistent treaty provision, and vice versa. This is known as the "latter in time" rule. See Reid, 354 U.S. at 18.

The question of whether a treaty is binding internationally is separate from the issue of whether the treaty is legally effective in domestic courts. It is possible for the United States to be bound by an international treaty, but...