Pierce v. Electric Boat Corp., BRB 18-0609

CourtCourt of Appeals of Longshore Complaints
Writing for the CourtPER CURIAM:
Decision Date07 December 2020
Docket NumberBRB 18-0609

Appeal of the Decision and Order Granting Modification of Jonathan C. Calianos, Administrative Law Judge, United States Department of Labor.

Aida R. Carini (Embry, Neusner, Arscott & Shafner), Groton Connecticut, for Claimant.

Robert J. Quigley, Jr. (McKenney, Quigley & Clarkin, L.L.P.) Providence, Rhode Island, for self-insured Employer.

Edward Waldman (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.



Claimant appeals Administrative Law Judge Jonathan C. Calianos's Decision and Order Granting Modification (2018-LHC-00113) rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C §901 et seq. (Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant is a voluntary retiree. In 1992, he was diagnosed with an asbestos-related lung injury and filed a claim under the Act. Employer voluntarily paid benefits beginning on June 20, 1992. Following Claimant's claim for additional benefits, Administrative Law Judge Geraghty awarded compensation in 2015 for a 57.5% impairment based on the parties' stipulations.[1] Due to his deteriorating condition, Claimant filed a motion for modification alleging his impairment had increased to 100% as of May 15, 2017.

The parties submitted joint stipulations to Administrative Law Judge Calianos (the administrative law judge) on April 6, 2018. They agreed on all issues except the extent of Claimant's impairment and set forth the dispute as follows:

The Claimant presently receives benefits based on a 57.5% rating, based on the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment. He now seeks benefits under the Act for a 100% impairment rating based on the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment. [Employer] denies that the Claimant's impairment has increased and, further, states that any rating should be determined based on the 6th Edition of the AMA Guides.

2018 Jt. Stips. at 1-2. The administrative law judge accepted the parties' stipulations and identified the issue as whether Claimant's lung impairment worsened since 2015. Based on Claimant's credible testimony[2] and the medical opinions of Drs. Stephen Matarese and Michael Teiger, he found Claimant's whole-man impairment increased to 65% based on the 6th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) and awarded benefits accordingly.[3] Decision and Order at 2-7, 9.

Claimant appeals the administrative law judge's award. Employer and the Director, Office of Workers' Compensation Programs (Director), respond, urging affirmance.[4]Claimant filed a reply brief.

Claimant contends the administrative law judge should have rated his impairment under the 3rd Edition of the AMA Guides, the version in effect at the time of his injury.[5]He argues retroactive application of newer versions to his injury deprives him of vested rights and is an unconstitutional ex post facto modification.[6] Claimant asserts the 6th Edition of the Guides:

adopted a radical and scientifically invalid 'paradigm' which greatly reduced impairment ratings, and is perceived to be violently anti-worker. The 6th Edition reduces benefits levels and impairment levels by 25 to 40 percent across the board, and in some cases eliminates benefits altogether, thereby reducing the benefit levels enacted as a matter of law by the Congress in 1984. Not surprisingly it has evoked substantial controversy, which has resulted in a significant number of jurisdictions specifically declining to adopt the 6th Edition.

Cl. Br. at 12.[7]

Claimant contends Congress improperly delegated, or the Department of Labor (Department) improperly sub-delegated, the power to calculate benefits to the AMA, a private entity. By doing so, he asserts, Congress gave the AMA significant power over claimants' benefits under the Act. In the alternative, if there was no improper delegation, Claimant contends the AMA has gone so far afield with the 6th Edition that Congress could not have foreseen such a significant departure from the Guides originally adopted, and use of this edition unconstitutionally deprives him of due process. As his injury occurred in 1992, he contends the 3rd Edition is controlling for his injury for all times, including the initial assessment and all modifications of impairment ratings related to that injury. He asks the Benefits Review Board to remand the case for the administrative law judge to award benefits using the 3rd Edition's rating scale.

Employer and the Director disagree with Claimant. They assert the administrative law judge correctly used the 6th Edition based on the plain language of Section 2(10) of the Act, 33 U.S.C. §902(10), and its implementing regulation, 20 C.F.R. §702.601(b), which instructs the use of the most current version to take advantage of scientific and medical advancements.[8]

With respect to the constitutional issues raised, the Director asserts Congress adopted the technical expertise and standards of an independent, respected authority and did not delegate its power. Because there was no delegation, there was no need for an intelligible principle for doing so, and there was no improper sub-delegation by the Department.[9] Employer contends the Board, like the administrative law judge, lacks jurisdiction to address constitutional questions; the Director, however, presumes the Board has the authority to address this question and asserts Claimant has not overcome the presumption that the statute is valid. Employer maintains Claimant's remaining challenges to the substance of the 6th Edition should be addressed by Congress. Both Employer and the Director urge the Board to affirm the administrative law judge's award on modification.

Statutory Interpretation

As Claimant is a voluntary retiree whose occupational disease manifested after his retirement, Section 8(c)(23) of the Act controls his entitlement to benefits. It provides:

Notwithstanding paragraphs (1) through (22), with respect to a claim for permanent partial disability for which the average weekly wages are determined under section 910(d)(2) of this title, the compensation shall be 662/3 per centum of such average weekly wages multiplied by the percentage of permanent impairment, as determined under the guides referred to in section 902(10) of this title payable during the continuance of such impairment.

33 U.S.C. §908(c)(23) (emphasis added). Section 2(10) of the Act states:

"Disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; but such term shall mean permanent impairment, determined (to the extent covered thereby) under the guides to the evaluation of permanent impairment promulgated and modified from time to time by the American Medical Association, in the case of an individual whose claim is described in section 910(d)(2) of this title.

33 U.S.C. §902(10) (emphasis added).[10]

When interpreting a statute, the starting point is the plain meaning of its words. Mallard v. U.S. Dist. Ct. for the Southern Dist. of Iowa, 490 U.S. 296 (1989). Courts should give effect, if possible, to every word of the statute. Conn. Dep't of Income Maint. v. Heckler, 471 U.S. 524, 530 n. 15 (1985); Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983); Mastro Plastics Corp. v. Nat'l Labor Relations Bd., 350 U.S. 270, 298 (1956). Words must be read in their context as well as within the broader context of the whole statute. Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000); Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Congress first incorporated the AMA Guides into the Longshore Act in 1984 when it introduced them in three sections related to hearing loss and retiree benefits, 33 U.S.C. §§902(10), 908(c)(13)(E), 908(c)(23); see Pimpinella v. Universal Mar. Serv., Inc., 27 BRBS 154, 159 n.4 (1993) (AMA Guides not required for other claims); see also 20 C.F.R. §702.441(d) (evaluation of hearing impairment). In doing so, it acknowledged the AMA Guides would be used in determining permanent impairment, and the AMA would update its Guides "from time to time." 33 U.S.C. §§902(10), 908(c)(13)(E).

Without more, this provision is reasonably interpreted as a mandate to use the Guides with the acknowledgement they would undergo periodic modifications. But Section 2(10) is silent on the matter of which edition of the Guides is to be used for a claimant's impairment rating and does not adopt any particular edition into the law.[11] As Congress did not convey its intent in the plain language of the statute, it left a gap, making the statute ambiguous and requiring us to look to the regulation promulgated by the Department to interpret the statute.[12] Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984); Helen Mining Co. v....

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