National Steel & Shipbuilding Co. v. Bonner, No. 77-1584
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before HUFSTEDLER and GOODWIN; GOODWIN |
| Citation | 600 F.2d 1288 |
| Parties | NATIONAL STEEL & SHIPBUILDING CO. and Fireman's Fund American Insurance Co., Petitioners, v. Emma J. (Evans) BONNER and U. S. Dept. of Labor, Respondents. |
| Docket Number | No. 77-1584 |
| Decision Date | 17 July 1979 |
Page 1288
American Insurance Co., Petitioners,
v.
Emma J. (Evans) BONNER and U. S. Dept. of Labor, Respondents.
Ninth Circuit.
Page 1289
William H. Taylor, San Diego, Cal., for petitioners.
Laurie M. Streeter, Asso. Sol., U. S. Dept. of Labor, NDOL, Washington, D. C., Mary A. Sheehan, Washington, D. C., Donald W. Zellman, Brundage, Williams & Zellman, San Diego, Cal., for respondents.
On Petition to Review a Decision of the Benefits Review Board.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and GRAY *, District Judge.
Page 1290
GOODWIN, Circuit Judge:
National Steel & Shipbuilding Co. appeals an award of disability benefits to its employee, Emma Bonner, under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 Et seq.
The Benefits Review Board of the Department of Labor (BRB) affirmed an administrative law judge's determination that Bonner's average weekly wages were $189.93. It also affirmed an assessment by the ALJ of 10 percent of the difference between the amount of benefits voluntarily paid to Bonner before the award and the amount of the award.
I.
Bonner, a pipefitter-helper for National Steel, injured her back while on the job on May 15, 1973. She left work the next day because of the injury, and has been unable to work since. Shortly after the injury, National Steel began paying Bonner disability benefits, at the rate of $118.94 per week. The Longshoremen's and Harbor Workers' Compensation Act sets the level of weekly benefits for temporary total disability, such as Bonner's, at 662/3 percent of the average weekly wage of the employee. 33 U.S.C. § 908(a)-(b). Thus, the early payments from National Steel were based on an average weekly wage of $178.41.
A week before the first anniversary of the accident, the employer reduced the disability payments to $70 per week. No statement by the employer explaining the reasons for this cutback appears in the record. 1 Bonner promptly filed an informal claim for compensation with the Department of Labor. On March 25, 1975, the parties and an assistant deputy commissioner of the department held a conference. The assistant deputy commissioner concluded that the old rate of compensation $118.94 per week should be resumed. The employer refused to resume the $118.94 payments.
Bonner then filed for a formal hearing on her claim for higher payments. At that hearing, she sought disability benefits of $167 per week, the maximum allowed under the statute. She also asked the ALJ to assess an additional 10 percent of the difference between what she had been paid and what she was owed, under 33 U.S.C. § 914(e). The employer and its insurer contended that her average weekly wage was even lower than $178.41, and thus that their early voluntary payments had been too high. They also protested the proposed 10 percent assessment.
The ALJ held that the employee's average weekly wage was $189.93, warranting a compensation rate of $126.68. This rate was $7.74 higher than the company's first weekly payments, and $56.68 a week higher than its payments since May 9, 1974. The ALJ also assessed the additional 10 percent payment under 33 U.S.C. § 914(e). The company and its insurer appealed to the BRB, which affirmed.
II.
We begin our analysis by noting jurisdiction. The employee-claimant urges us not to exercise jurisdiction over this appeal. We have power to review the case and controversy pursuant to 33 U.S.C. § 921(c), which provides in relevant part:
"Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court, to the Board, and to the other parties, and thereupon the Board shall file in the court the record in the proceedings as provided in section 2112 of Title 28. Upon such filing, the court shall have jurisdiction of the proceeding
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and shall have the power to give a decree affirming, modifying, or setting aside, in whole or in part, the order of the Board and enforcing same to the extent that such order is affirmed or modified. The orders, writs, and processes of the court in such proceedings may run, be served, and be returnable anywhere in the United States * * *."The employee asks this court to decline to review the BRB decision because, she claims, the appeal to the BRB of the ALJ's findings did not raise "a substantial question of law or fact", as required by 33 U.S.C. § 921(b)(3). This section provides in relevant part:
"The Board shall be authorized to hear and determine appeals raising a substantial question of law or fact taken by any part in interest from decisions with respect to claims of employees under this chapter and the extensions thereof * * *."
This court's jurisdiction under section 921(c) appears to be mandatory: "Any person * * * aggrieved by a final order of the Board may obtain a review * * *." If the BRB improperly heard the case, then the proper course for this court would be to vacate the Board's order. However, we defer to the BRB's implicit indication that the questions posed to it were "substantial". And even if we were to look more closely at the Board's decision that it had jurisdiction, we would affirm that decision. As will be seen, the issues in this case are complex. The case is full of substantial questions of statutory construction.
III.
Calculation of weekly compensation rates under the Longshoremen's and Harbor Workers' Compensation Act is a three-step process. First, the employee's Average annual earnings are computed pursuant to one of three subsections of 33 U.S.C. § 910: subsection (a), (b), or (c). These average annual earnings are divided by 52 to arrive at the employee's Average weekly wages. 33 U.S.C. § 910(d). Two thirds of the weekly wages is the weekly rate of compensation for total disability. 33 U.S.C. § 908(a)-(b).
The ALJ's findings on Bonner's average weekly wages consisted of just two paragraphs, as follows:
"9. Claimant's average weekly wage at the time of the injury was $189.93.
"Claimant's work record shows that she worked substantially less than the claimed 40 hours a week with 10 hours overtime. In the 10 weeks of employment, between the probationary period and the injury, Claimant earned an average of $189.93 per week, including overtime. To include the probationary period when overtime was not available would not fairly reflect Claimant's average weekly wage at the time of the injury."
This finding did not specify under which subsection of 33 U.S.C. § 910 the average annual earnings of the employee were computed, but the BRB concluded that the subsection the ALJ used was 33 U.S.C. § 910(c), which provides in relevant part:
"(A)verage annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the service of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee."
This subsection is applied to intermittent and irregular employment, when application of the mathematical formulas of section 910(a) or (b) would be unreasonable and unfair. See California Ship Service Co. v. Pillsbury, 175 F.2d 873 (9th Cir. 1949); Fireman's Fund Insurance Co. v. Peterson, 120 F.2d 547 (9th Cir. 1941). It is also properly used when insufficient evidence is presented at the hearing to permit proper application of section 910(a) or (b). See Todd Shipyards Corp. v. Director, Office of
Page 1292
Worker's Compensation Programs, 545 F.2d 1176, 1179 (9th...To continue reading
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Kalaris v. Donovan, Nos. 82-1631
...and if they are in accordance with law. 18 33 U.S.C. Sec. 921(c) (1976). See Nat'l Steel & Page 383 Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir.1979); Presley v. Tinsley Maintenance Serv., 529 F.2d 433, 436 (5th Cir.1976). Thus the Board screens cases, administers Departmen......
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Vilanova v. U.S., No. 87-1993
...ALR Fed. 424 Sec. 4(a) (1979 & Supp.1987). 18 See the sources cited in note 17. 19 National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir.1979) (citations omitted). See also Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 574 (7th Cir.1980). Corollary to this......
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Robirds v. ICTSI Oregon, Inc., BRB 17-0635
...partial disability benefits.[5] Decision and Order at 14-15; see 33 U.S.C. §914(e); Nat'l Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1295 (9th Cir. 1979); Scott v. Tug Mate, Inc., 22 BRBS 164 (1989). In light of the Board's decision in Cox v. Army Times Publishing Co., 19 BRBS 1......
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Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, DUNCANSON-HARRELSON
...these subsections for a worker in seasonal employment would result in overcompensation. National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1291 (9th Cir. 1979); Tri-State Terminals, Inc. v. Jesse, 596 F.2d at 757-58; O'Hearne v. Maryland Casualty Co., 177 F.2d at 981; Marshall ......
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Kalaris v. Donovan, Nos. 82-1631
...evidence and if they are in accordance with law. 18 33 U.S.C. Sec. 921(c) (1976). See Nat'l Steel & Page 383 Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir.1979); Presley v. Tinsley Maintenance Serv., 529 F.2d 433, 436 (5th Cir.1976). Thus the Board screens cases, administers Depa......
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Vilanova v. U.S., No. 87-1993
...Act, 43 ALR Fed. 424 Sec. 4(a) (1979 & Supp.1987). 18 See the sources cited in note 17. 19 National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir.1979) (citations omitted). See also Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 574 (7th Cir.1980). Corollary to this......
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Robirds v. ICTSI Oregon, Inc., BRB 17-0635
...permanent partial disability benefits.[5] Decision and Order at 14-15; see 33 U.S.C. §914(e); Nat'l Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1295 (9th Cir. 1979); Scott v. Tug Mate, Inc., 22 BRBS 164 (1989). In light of the Board's decision in Cox v. Army Times Publishing Co., 19 ......
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Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, DUNCANSON-HARRELSON
...of these subsections for a worker in seasonal employment would result in overcompensation. National Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1291 (9th Cir. 1979); Tri-State Terminals, Inc. v. Jesse, 596 F.2d at 757-58; O'Hearne v. Maryland Casualty Co., 177 F.2d at 981; Marshall v......