Nicklos Drilling Co. v. Cowart, 89-4944
| Decision Date | 09 August 1990 |
| Docket Number | No. 89-4944,89-4944 |
| Citation | 907 F.2d 1552 |
| Parties | NICKLOS DRILLING COMPANY and Compass Insurance Company, Petitioners, v. Floyd COWART and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H. Lee Lewis, Jr., Griggs & Harrison, Houston, Tex., for petitioners.
Lloyd N. Frischhertz, Seelig, Cosse', Frischhertz & Poulliard, New Orleans, La., for Floyd Cowart.
Joshua T. Gillelan, II, Samuel J. Oshinsky, Solicitors, U.S. Dept. of Labor, Washington, D.C., for Director, Office of Workers Comp. Programs.
Linda Meekins, Clerk, Benefit Review Bd., U.S. Dept. of Labor, Washington, D.C., for other interested parties.
Petition for Review of a Decision and Order of The Benefits Review Board, U.S. Department of Labor.
Before GEE, DAVIS, and JONES, Circuit Judges.
Today we reverse a decision of the Benefits Review Board as contrary to the unambiguous language of the Longshore and Harbor Workers' Compensation Act (LHWCA) and to what we had thought was the clear mandate of this Court. Because the Benefits Review Board (BRB) has refused to heed Congress's and our earlier pronouncements, we write somewhat at length to make our position clear beyond peradventure. We have in the past consistently held, and we now reaffirm, that future LHWCA benefits must be denied an employee who fails to obtain prior consent by his employer/carrier to the settlement of his claim against a third party tortfeasor. There are no exceptions to this rule: Congress enacted none, we engraft none, and we will tolerate the engraftment of none by the BRB in cases within our appellate jurisdiction.
Floyd Cowart was injured on July 20, 1983, on a Nicklos Drilling Company drilling rig. The rig was on a fixed offshore platform being operated by Transco Exploration Company. Mr. Cowart made a claim against Nicklos and its carrier for benefits under the LHWCA and filed suit against Transco in Federal District Court, seeking compensation for his injury. The carrier paid Cowart benefits for temporary total disability until May 21, 1984, when he was released to return to work. On July 1, 1985, without the written approval of Nicklos or its carrier, Cowart settled his third-party claim against Transco for a lump sum payment of $45,000.
Thereafter, Cowart filed this claim against Nicklos and its carrier seeking additional LHWCA compensation. Nicklos and the carrier resisted, arguing that Cowart's failure to obtain their written approval to the settlement barred his recovery of additional LHWCA benefits. The ALJ ruled in favor of Cowart, awarding him the difference between the amount prescribed by the Act for permanent partial disability and the amount of the settlement. The Benefits Review Board affirmed. We reverse.
The relevant section of the Longshore and Harbor Workers' Compensation Act provides as follows:
Sec. 933. Compensation for injuries where third persons are liable
(a) Election of remedies
If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.
* * * * * *
(g) Compromise obtained by person entitled to compensation
(1) If the person entitled to compensation (or the person's representative) enters into a settlement with a third person referred to in subsection (a) of this section for an amount less than the compensation to which the person (or the person's representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) of this section only if written approval of the settlement is obtained from the employer and the...
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Estate of Cowart v. Nicklos Drilling Company
...in reliance on Dorsey. 23 BRBS 42 (1989) (per curiam ). On review, a panel of the Court of Appeals for the Fifth Circuit reversed. 907 F.2d 1552 (1990). Without addressing the Board's specific statutory interpretation, it held that § 33(g) contains no exceptions to its written-approval requ......
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...without obtaining Ingalls' formal, written approval. This action by Ingalls was prompted by our opinion in Nicklos Drilling Co. v. Cowart, 907 F.2d 1552 (5th Cir.1990). In Cowart, a panel of this Court held that, pursuant to 33 U.S.C. Sec. 933(g)(1), failure of a claimant to obtain the appr......
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Krause v. Bethlehem Steel Corp.
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