Phillips v. Marine Concrete Structures, Inc., Nos. 88-4776

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE; JERRY E. SMITH
Citation895 F.2d 1033
PartiesEdward R. PHILLIPS, Petitioner-Cross-Respondent, v. MARINE CONCRETE STRUCTURES, INC., and United States Fidelity and Guaranty Company, Respondents-Cross-Petitioners, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. Edward R. PHILLIPS, Marine Concrete Structures, Incorporated, and United States Fidelity and Guaranty Company, Respondents.
Docket NumberNos. 88-4776,88-4789
Decision Date07 March 1990

Page 1033

895 F.2d 1033
1991 A.M.C. 608
Edward R. PHILLIPS, Petitioner-Cross-Respondent,
v.
MARINE CONCRETE STRUCTURES, INC., and United States Fidelity
and Guaranty Company, Respondents-Cross-Petitioners,
and
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Respondent.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Petitioner,
v.
Edward R. PHILLIPS, Marine Concrete Structures,
Incorporated, and United States Fidelity and
Guaranty Company, Respondents.
Nos. 88-4776, 88-4789.
United States Court of Appeals,
Fifth Circuit.
March 7, 1990.

Page 1034

Stephen A. Anderson, Bryan, Nelson, Allen, Gulfport, Miss., for Edward R. Phillips.

Paul B. Howell, Franke, Rainey & Salloum, Gulfport, Miss., for Marine Concrete Structures, Inc. and U.S. Fidelity and Guar. Co.

Nathaniel I. Spiller, Charles I. Hadden, Ann McLaughlin, Sec. of Labor, George R. Salem, Sol. of Labor, U.S. Dept. of Labor, Washington, D.C., for Director, Office of Workers' Compensation Programs.

Petition and Cross-Petition for Review of an Order of the Benefits Review Board.

Before CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this matter, a panel of this court, viewing itself bound by the holding of a prior panel in Holliday v. Todd Shipyards Corp., 654 F.2d 415 (5th Cir. Unit A Aug. 1981), affirmed the calculation of benefits to petitioner Edward Phillips made by the Benefits Review Board (BRB) under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950. Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231 (5th Cir.1989). In his presentation to the panel, the Director of the Office of Workers' Compensation Programs (the "Director") took the position that Holliday was wrongly decided. We granted rehearing en banc in order to determine whether Holliday should be overruled. 877 F.2d at 1237. Today we answer that question in the affirmative and, in so doing, we vacate and remand the order of the BRB.

I.

The relevant facts and course of proceedings in this case are set forth in the panel opinion, id. at 1232-33, and we need not repeat them at length here. In summary, Phillips suffered from "temporary total disability" from September 14, 1977, to November 22, 1979 (the latter being the date of his "maximum medical improvement"), and from "permanent total disability" thenceforward. The question for en banc review concerns whether, under section 10(f) of the LHWCA, 33 U.S.C. Sec. 910(f), 1 Phillips was entitled, in addition to his basic compensation of two-thirds of his average weekly wage during the year preceding his injury, 2 to annual cost-of-living adjustments for the period of his temporary total disability.

Stated another way, the question is whether, upon attaining the status of permanent total disability, Phillips was entitled to an increase in his payments to reflect section 10(f) adjustments that arguably accrued, respectively, on October 1 of 1977, 1978, and 1979, i.e., during the period of his temporary total disability. By way of hypothetical example, the panel demonstrated the substantial difference in payments that is occasioned if the interim adjustments are recognized beginning November 22, 1979. See 877 F.2d at 1233 n. 2.

In their cross-petitions, the employer and carrier, Marine Concrete Structures, Inc., and United States Fidelity and Guaranty Company, as well as the Director request that we overrule Holliday and hold that Phillips is not entitled to have his compensation adjusted, upon assuming the status of permanent total disability, to recognize any section 10(f) adjustments for the period of his temporary total disability. Phillips, while not specifically agreeing that Holliday-

Page 1035

should be overturned, offers no argument why it should not; instead, he asks that any overruling should have only prospective application so as not to apply to him.

II.

In deciding this question of statutory interpretation, we begin, of course, with the words of the statute. In section 10(f), those words are plain and unambiguous: The only adjustments provided by the section are increases to "benefits payable for permanent total disability" (emphasis added). There is no hint of a "catch-up" clause that would provide that the first adjustment occurring during permanent total disability shall be larger than subsequent years' adjustments in...

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82 practice notes
  • Arce v. La. State, CIVIL ACTION No. 16-14003 SECTION I
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 21, 2017
    ...the statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need ......
  • Arce v. La. State, CIVIL ACTION No. 16-14003 SECTION I
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 16, 2017
    ...the statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need ......
  • Arce v. La. State, CIVIL ACTION No. 16–14003
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 16, 2017
    ...statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc. , 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need onl......
  • Stevedoring Services of America, Inc. v. Eggert, No. 62695-2
    • United States
    • United States State Supreme Court of Washington
    • April 18, 1996
    ...SSA, Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231 (5th Cir.1989), reh'g granted and opinion reinstated in relevant part, 895 F.2d 1033 (5th Cir.1990), an employee was overpaid pursuant to an ALJ award which was subsequently modified by the BRB. Specifically, during a period o......
  • Request a trial to view additional results
82 cases
  • Arce v. La. State, CIVIL ACTION No. 16-14003 SECTION I
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 21, 2017
    ...the statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need ......
  • Arce v. La. State, CIVIL ACTION No. 16-14003 SECTION I
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 16, 2017
    ...the statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need ......
  • Arce v. La. State, CIVIL ACTION No. 16–14003
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 16, 2017
    ...statute is so lucid, we need not look to the legislative history for further guidance." Phillips v. Marine Concrete Structures, Inc. , 895 F.2d 1033, 1035 (5th Cir. 1990). Such appears to be the case with Title II, which provides a "straightforward statutory command" that the Court need onl......
  • Stevedoring Services of America, Inc. v. Eggert, No. 62695-2
    • United States
    • United States State Supreme Court of Washington
    • April 18, 1996
    ...SSA, Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231 (5th Cir.1989), reh'g granted and opinion reinstated in relevant part, 895 F.2d 1033 (5th Cir.1990), an employee was overpaid pursuant to an ALJ award which was subsequently modified by the BRB. Specifically, during a period o......
  • Request a trial to view additional results

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