Maryland Shipbuilding and Drydock Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 78-1799

• Decision Date: 11 April 1980
• Docket Number: No. 78-1799,78-1799
• Parties: MARYLAND SHIPBUILDING AND DRYDOCK COMPANY, Appellant, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1082

618 F.2d 1082

MARYLAND SHIPBUILDING AND DRYDOCK COMPANY, Appellant, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Appellee.

No. 78-1799.

United States Court of Appeals Fourth Circuit.

Argued Nov. 9, 1979.

Decided April 11, 1980.

Dwight C. Stone, Charles C. W. Atwater, Baltimore, Md., Mylander, Atwater & Stone, Baltimore, Md., on brief, for petitioner.

Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C., Carin Ann Clauss, Sol. of Labor, Cornelius S. Donoghue, Jr., Acting Associate Sol., Washington, D. C., on brief, for respondent.

Before WINTER, RUSSELL and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

Petitioner, Maryland Shipbuilding and Drydock Company, seeks review of a decision of the Benefits Review Board, United States Department of Labor affirming the decision of an administrative law judge in a case arising under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (the "Act"). Petitioner does not contest the award of total disability compensation but appeals that portion of the decision holding it liable for the entire disability, contending that a portion of the disability payments should be made by a special fund hereafter described.

On October 29, 1971 Paul B. Miller, an employee of petitioner, was assigned to assist in repairing a vac-o-voyer, a machine used to clean out the tanks of ships after the tanks have been sandblasted. In the course of this work, Miller fell and injured his back. He has since been forced to discontinue work because of back pains. Miller was fifty-two years old at the time of the accident and has a fourth grade education. Prior to sustaining the injury to his back in 1971, Miller had received treatment for diabetes, emphysema, and congestive heart failure. Examination after the October, 1971 accident revealed the pre-existing conditions of multiple spondylosis and arthritis in Miller's back. There was no evidence as to whether these disabilities were present when Miller commenced work in approximately 1957.

Following the October, 1971 fall, Miller made a claim for workmen's compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act. A hearing was held before Administrative Law Judge Garvin Lee Oliver on June 28, 1974.

Medical testimony indicated that the injury sustained by Claimant Miller resulted in a permanent disability of between five and twenty percent of a total permanent disability from which Claimant suffered. A condition which pre-existed the October 1971 injury, arthritis in the back, raised the disability due to back problems to between twenty and forty percent of Miller's total disability.

Judge Oliver found on February 15, 1975, that Miller was entitled to total disability benefits. He found that the work accident caused only forty percent of this total disability. Miller was, therefore, to receive full permanent total disability payments pursuant to Section 8(f) of the Act, 33 U.S.C. § 908(f). Petitioner was held responsible for forty percent of Miller's compensation payments. The remainder of the compensation would be paid out of a federally created and administered special fund, established by 33 U.S.C. § 944.

The Solicitor from the Department of Labor, representing the interests of this special fund, appealed to the Benefits Review Board, challenging the use of the fund. The Board accepted the finding that Claimant Miller had a permanent total disability, but remanded the case to the Administrative Law Judge to determine if the October 29, 1971 injury could be in itself responsible for the total disability. If such were the case, use of the special fund would be improper and petitioner would be liable for the entire compensation to be paid.

On remand, no additional evidence was taken, but the record was reviewed by Administrative Law Judge V. M. McElroy (Judge Oliver no longer being a member of that office). Judge McElroy found that the back injury alone was sufficient to prevent Miller from engaging in gainful employment, and that petitioner was fully liable for the compensation that was awarded. The Benefits Review Board affirmed the later Administrative Law Judge's decision. This appeal followed.

Section 8(f) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 908(f) states, in part:

(1) In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury . . . If following an injury falling within the(se) provisions . . . the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury, the employer shall provide compensation for the applicable prescribed period of weeks . . . for the subsequent injury, or for one hundred and four weeks, whichever is greater . . . .

(2) After cessation of the payments for the period of weeks provided herein, the employee or his survivor entitled to benefits shall be paid the remainder of...