Phillips v. Marine Concrete Structures, Inc.
| Decision Date | 10 July 1989 |
| Docket Number | Nos. 88-4776,88-4789,s. 88-4776 |
| Citation | 877 F.2d 1231 |
| Parties | 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 U.S. Fidelity and Guaranty Company, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen A. Anderson, Bryan, Nelson & Allen, Gulfport, Miss., for phillips.
Paul B. Howell, Franke, Rainey & Salloum, Gulfport, Miss., for Marine Concrete Structures, Inc. and USF & G.
Nathaniel I. Spiller, Charles I. Hadden, Ann McLaughlin, Secretary of Labor, George R. Salem, Sol. of Labor, U.S. Dept. of Labor, for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.
On Petition and Cross-Petition for Review of an Order of the Benefits Review Board.
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
In this case, we are asked to decide three issues relating to whether the Benefits Review Board (BRB) properly determined the amounts of compensation due an injured maritime worker under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950. Bound by a decision of a prior panel, we affirm.
Claimant Edward R. Phillips, a supervisor for Marine Concrete Structures, Inc. (the "employer"), suffered a knee injury on May 16, 1977, when he fell from a scaffold while supervising the fiberglassing of barge compartments. Although he initially continued to work after his injury, his condition deteriorated to the point where, on September 14, 1977, he could no longer do so. Between September 1977 and April 1982, Phillips underwent five knee operations.
Phillips filed a claim for benefits against his employer and United States Fidelity and Guaranty Co. (collectively, the "employer/carrier") under the LHWCA. The parties submitted the case to an administrative law judge (ALJ), with the parties stipulating that the date Phillips reached maximum medical improvement was November 22, 1979.
When the ALJ rendered his decision, however, he rejected that stipulation and determined that Phillips did not reach maximum medical improvement until April 1, 1983. Since he found Phillips's knee injury to be totally disabling, he concluded that Phillips was temporarily totally disabled from September 14, 1977, to April 1, 1983, and permanently totally disabled thereafter. The ALJ also held that Phillips was entitled, in addition to his basic compensation of two-thirds of his average weekly wage during the year preceding his injury, see 33 U.S.C. Secs. 908(a)-(b), 910, to annual cost-of-living adjustments under section 10(f) of the LHWCA from September 14, 1977, the date he first became temporarily totally disabled. 1
Finally, the ALJ determined that, because Phillips had previously suffered an injury to the same knee, the claim involved a second injury subject to section 8(f) of the LHWCA. In accordance with the terms of that provision, the employer/carrier was ordered to pay benefits for the period of temporary total disability (September 14, 1977, to April 1, 1983) and the first 104 weeks of permanent total disability (through March 28, 1985). After that time, the Director, as the administrator of a special fund established by the LHWCA, was made liable for Phillips's benefits.
On review, the BRB modified the ALJ's award in several respects. First, it held that the date of Phillips's maximum medical improvement was November 22, 1979, the date agreed upon by the parties and the Director, Office of Workers' Compensation Programs (the "Director"), whose office was now participating in the case. Accordingly, it adjusted the periods of temporary total disability and permanent total disability to end and begin, respectively, on that date.
Second, the BRB reversed the ALJ's award of section 10(f) adjustments during the period in which Phillips was temporarily totally disabled, holding that the statute authorized cost-of-living adjustments only to "benefits payable for permanent total disability or death." 33 U.S.C. Sec. 910(f). As to the ALJ's award of section 10(f) adjustments for the period in which Phillips was permanently totally disabled, the BRB felt itself bound to follow this court's decision in Holliday v. Todd Shipyards Corp., 654 F.2d 415 (5th Cir. Unit A Aug.1981); accordingly, it adjusted Phillips's rate of compensation for the period of permanent total disability to include the three intervening section 10(f) adjustments--the adjustments on October 1, 1977, October 1, 1978, and October 1, 1979--that had occurred during the period in which Phillips was only temporarily totally disabled. 2
Finally, the BRB considered how the employer/carrier should be entitled to recoup the overpayments it had made to Phillips when it complied with the ALJ's award. Under the ALJ's decision, which was rendered in April 1985, Phillips received a lump-sum payment from the employer/carrier equal to the total amount of benefits to which he was entitled from September 14, 1977, through March 28, 1985, reflecting the period of his temporary total disability and the first 104 weeks of permanent total disability. The modifications made by the BRB to the ALJ's award meant that the award (1) resulted in an overpayment to Phillips equal to the amount of the section 10(f) adjustments made to his compensation while he was temporarily totally disabled, and (2) erroneously required the employer/carrier to be responsible for payments more than 104 weeks after the onset of permanent total disability (i.e., after November 22, 1981, 104 weeks after November 22, 1979), during which time the special fund was liable for the payments under the statute.
As to the latter overpayment, the special fund was required to reimburse the employer/carrier in a lump sum for the benefits for which it, and not the employer/carrier, was liable. As for the former overpayment, reflecting the amount Phillips was paid as a result of the section 10(f) adjustments he received while he was temporarily totally disabled, the BRB ordered the Director to reimburse the employer/carrier for that amount by withholding small increments from future benefit payments made to Phillips until such time as the employer/carrier was made whole.
Phillips asks us to review the BRB's order insofar as it directs that the Director repay the employer/carrier for the overpayment received by Phillips from his future benefits. 3 In a cross-petition, both the employer/carrier and the Director request that we overrule Holliday and hold that Phillips is not entitled to have his compensation adjusted while he is permanently totally disabled to take account of the section 10(f) adjustments that occurred while he was only temporarily totally disabled.
The BRB determined that, under the ALJ's award, Phillips received the benefit of three section 10(f) adjustments, during the period of temporary total disability, to which he was not entitled. Accordingly, when the employer/carrier complied with the ALJ's order and paid Phillips a lump sum reflecting all of the benefits to which he had been entitled since September 14, 1977, it overpaid him approximately $3,200. Phillips contends that the BRB erred in ordering that this overpayment be recouped by having the Director withhold small increments from future benefits paid by the special fund and pay them to the employer/carrier.
Section 14(j) of the LHWCA, 33 U.S.C. Sec. 914(j), provides:
If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
There is little question that, if the employer/carrier were still making payments to Phillips, it would be entitled to reimbursement under the statute by withholding the relevant amount from future payments. See Tibbets v. Bath Iron Works Corp., 10 B.R.B.S. 245 (1979). The complicating factor in this case is that the employer/carrier is no longer liable for any payments to Phillips; its liability ended on November 22, 1981, 104 weeks after Phillips became permanently totally disabled. The only party currently paying LHWCA benefits to Phillips is the Director.
The question thus is whether the statute allows the BRB to order that an employer/carrier that has made an overpayment but is no longer liable for any future payments be reimbursed from payments made by a third party--in this case, the Director. Both the employer/carrier and the Director contend that it does; for three reasons, we agree.
As always, we start with the text of the statute. See Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 630, 103 S.Ct. 2045, 2048, 76 L.Ed.2d 194 (1983). The statutory language is broad, allowing reimbursement to be had "out of any unpaid installment or installments of compensation due"; there is no requirement that the reimbursement come from installments still owed by the party that made the overpayment. Simply put, the BRB's order is authorized under the plain language of the statute and does not achieve an "absurd" result; arguably, we need not go beyond the text to resolve this question. See Public Citizen v. Department of Justice, --- U.S. ----, ----, 109 S.Ct. 2558, ----, 105 L.Ed.2d 377 (1989).
Even if we proceed to consider the congressional intent underlying section 14(j), we find no reason to reject the BRB and the Director's interpretation of the statute. The purpose of section 14(j) is apparent: If an employer has paid out, and the claimant has received, LHWCA benefits to which it is later found that the claimant is not entitled, the employer should be able to recover those...
To continue reading
Request your trial
-
Stevedoring Services of America, Inc. v. Eggert
...out of employee's recovery from third party for injuries under the Act). In another case cited by 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 pu......
-
Pool Co. v. Cooper
...have discussed Chevron in this context, we have tended to avoid giving full Chevron deference. See, e.g., Phillips v. Marine Concrete Structures, 877 F.2d 1231, 1234-35 (5th Cir. 1989) (court owes "deference" to an agency's reasonable interpretation); Texports Stevedores Co. v. Director, OW......
-
Louisiana Acorn Fair Housing v. Quarter House
...Natural Resources Defense, 467 U.S. 837, 846, 104 S.Ct. 2778, 2783-84, 81 L.Ed.2d 694 (1984); see also Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231, 1234 (5th Cir.1989) (as to two reasonable interpretations of a statute, a court owes deference to the one proffered by the agen......
-
Ceres Gulf v. Cooper
...held an employer could not recover overpaid benefits except as offsets against future payments. See Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231, 1234 (5th Cir.1989), vacated, 877 F.2d at 1237, rev'd on other grounds, 895 F.2d 1033 (5th Cir.1990) (en banc); Rivere v. Offshore......