Railco Multi-Construction Co. v. Gardner

• Decision Date: 05 October 1989
• Docket Number: No. 88-489.,88-489.
• Citation: 564 A.2d 1167
• Parties: RAILCO MULTI-CONSTRUCTION CO. and Lumbermen Mutual Casualty Co., Petitioner, v. Robert GARDNER and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: D.C. Court of Appeals

564 A.2d 1167

RAILCO MULTI-CONSTRUCTION CO. and Lumbermen Mutual Casualty Co., Petitioner, v. Robert GARDNER and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 88-489.

District of Columbia Court of Appeals.

Argued May 4, 1989.

Decided October 5, 1989.

David P. Durbin, with whom Edward J. Lopata and D. Stephenson Schwinn, Washington, D.C., were on the brief, for petitioners. Kevin B. Byrd, Washington, D.C., for respondent Gardner.

Joshua T. Gillelan II, Atty., U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., with whom George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., and J. Michael O'Neill, Washington, D.C., were on the brief, for respondent Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before ROGERS, Chief Judge, and NEWMAN and TERRY, Associate Judges.

ROGERS, Chief Judge:

In this certified appeal¹ we are asked to decide whether the District of Columbia Workers' Compensation Act of 1979, D.C. Code § 36-301 et seq. (1988 Repl.) (the 1979 Act), covers a worker's injury or disease if the employment events giving rise to the injury occurred before the 1979 Act took effect, but the worker did not become aware of the injury and its job-relatedness until after that time. We hold that the 1979 Act applies unless there is no subject matter jurisdiction of a claim under that Act or other state law, in which event, to avoid depriving an injured worker of any workers' compensation coverage, the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 (1982) (LHWCA), as extended by Congress to District of Columbia private sector workers in 1928, D.C. Code § 36-501 et seq. (1973) (the 1928 Act), will apply.

I

The relevant facts are not in dispute.² Respondent Robert Gardner worked for nine years as a construction worker on the Washington Metropolitan Area Transit Authority's subway project. His last employer was Railco Multi-Construction Company (Railco), a District of Columbia employer for whom he worked from September 1981 until September 15, 1982, when the project was completed. Until June 1982 he worked for Railco at the L'Enfant Plaza station in the District of Columbia. Thereafter, from June to September 1982, he worked in Virginia.

In January 1983 Gardner filed a claim for worker compensation benefits under the 1928 Act. He alleged that as a result of his exposure to noisy machinery while employed by Railco in the District of Columbia and in Virginia, he had suffered a hearing loss.³ An administrative law judge found that Gardner first became aware of his hearing loss on September 16, 1982. Acknowledging that the District's new workers' compensation act, the 1979 Act, had taken effect,⁴ the administrative law judge ruled that Gardner's injury was covered by the 1928 Act because "[a]lmost all of this injury really occurred prior to" the effective date of the District's Act.⁵ Petitioners Railco and its insurance carrier, Lumbermens Mutual Casualty Company,⁶ appealed to the Benefits Review Board (the Board), which affirmed the decision of the administrative law judge on different grounds, relying in part on the 1984 amendments to the LHWCA. Gardner v. Railco Multi-Construction Co., 18 BRBS 264 (1986) (Gardner I). On remand from the United States Court of Appeals for the District of Columbia Circuit for reconsideration in light of Keener v. Washington Metro. Area Transit Auth., supra, 255 U.S.App.D.C. 148, 800 F.2d 1173, the Board reaffirmed its decision on the coverage issue. Gardner v. Railco Multi-Construction Co., 19 BRBS 238 (1987) (Gardner II).⁷ Railco then appealed to the United States Court of Appeals for the District of Columbia Circuit. Following briefing and oral argument, the court certified the question of law to this Court.

II

Before us is a question of law regarding legislative intent and we apply the usual standard of review. See Thomas v. District of Columbia Dep't of Employment Servs., 547 A.2d 1034, 1037-38 (D.C. 1988). Accordingly, to determine which statute applies to a claim, we review the language of the statutes and their legislative histories in light of the purposes of the workers' compensation statutory scheme. Id. Such a question involves considerations generally not invoking the reasons for which courts will defer to agency expertise. Keener, supra, 255 U.S.App.D.C. at 154, 800 F.2d at 1179 (whether amended statute applies to a claim); O'Connell, supra, 495 A.2d at 1141, 9 (jurisdiction of court); Castorina v. Lykes Bros. S.S., 578 F.Supp. 1153, 1159 n. 3 (S.D.Tex. 1984) (agency's interpretation on question of law given significant consideration but not binding), aff'd, 758 F.2d 1025 (5th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985); Petrou Fisheries, Inc. v. C. C., 727 F.2d 542, 545 (5th Cir. 1984) (issues of pure statutory construction not within agency's field of technical expertise to which court necessarily owes deference). We also are guided by the well-established principle in this jurisdiction that workers' compensation statutes are to be liberally construed for the benefit of the employee in accordance with the humanitarian nature of the statutes generally. See Meiggs v. Associated Builders, Inc., 545 A.2d 631, 637 (D.C. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989); Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 655 (D.C. 1987), citing decisions of the United States Court of Appeals for the District of Columbia Circuit; see also Dunston v. District of Columbia Dep't of Employment Servs., 509 A.2d 109, 111 (D.C. 1986) (citing Wheatley v. Adler, 132 U.S.App.D.C. 177, 183, 407 F.2d 307, 313 (1968) (en banc)).

The United States Court of Appeals posed the issue of how to define the relevant "date of injury" in long-latency occupational diseases for purposes of determining whether the 1979 or the 1928 Act provides coverage, and identified it as a question of local and not federal law. Unlike an accidental injury, in which the trauma effects are felt almost immediately, it is unclear in long-latency diseases whether the injury occurs when the employee is exposed to the employment event (time of last exposure theory) or when the disease actually manifests itself (the date of manifestation theory). See generally Castorina v. Lykes Bros. S.S., supra, 758 F.2d at 1029-30. The court suggested that if the manifestation rule is adopted, then the injury occurred when Gardner first became aware of his hearing loss on September 16, 1982, and the 1979 Act applies; if the exposure rule is adopted, then the injury occurred prior to 1979 and the 1928 Act applies, pursuant to the general savings statute. The court noted, however, that this court is free to adopt some other alternative, including the one we adopt today.⁸

Railco contends that the express and complete repeal of the 1928 Act precludes its application to an occupational disease arising thereafter, regardless of when exposure occurred, and that the 1979 Act suffices to provide coverage for Gardner so long as the injury is manifested after the effective date of the 1979 Act; the matter of where Gardner worked while covered by the 1979 Act, Railco claims, is a compensation issue which should not determine whether the 1979 or 1928 Act applies. Railco also asserts that the general savings clause does not provide Gardner coverage under the 1928 Act because Gardner's exposure alone did not give rise to a proper claim.

Respondents Gardner and the Office of Workers' Compensation Programs of the United States Department of Labor (OWCP) contend that the relevant employment events determine coverage, and that here substantially all the employment events occurred prior to the 1979 Act, giving rise to coverage under the 1928 Act.

They point out that Gardner, who worked in Virginia from June to September 1982, may be without coverage under the 1979 Act because of its geographic limitations on coverage, see D.C.Code § 36-303(a) (1988 Repl.), and contend that even if Gardner's rights under the 1928 Act were inchoate as of the effective date of the 1979 Act, Railco's liability arose, and must be recognized, under the 1928 Act, particularly where the claimant may be provided no substitute coverage by the 1979 Act.⁹ Respondents also refer to a regulation promulgated by the Secretary of Labor providing that the 1928 Act "applies to all claims for injuries or deaths based on employment events that occurred prior to [the effective date of the 1979 Act]," 51 Fed.Reg. 4281, 20 C.F.R. § 701.101(b) (1987), which they claim reflects "the fundamental nature and operation of the LHWCA and the 1928 Act."¹⁰

A.

In 1928 Congress extended the provisions of the LHWCA to District of Columbia private sector employees and provided that the local act would be administered by the United States Department of Labor with review of departmental administrative decisions by the United States Court of Appeals for the District of Columbia Circuit. D.C.Code §§ 36-501, -502 (1973); see District of Columbia v. Greater Washington Cent. Labor Council, 442 A.2d 110, 112, 116 (D.C. 1982), cert. denied, 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983). Following the enactment by Congress of the District of Columbia Self Government and Governmental Reorganization Act in 1973,¹¹ the Council of the District of Columbia enacted the 1979 Act. See D.C.Code § 36-301 et seq. (1988 Repl.). The 1979 Act, designed to enable the District of Columbia to be competitive with Maryland and Virginia in attracting and retaining business, narrowed the scope of coverage¹² and lowered the level of benefits available to injured workers. See Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567 (D.C. 1985); O'Connell, supra, 495 A.2d at 1141. In many other respects, however, it retained provisions of the 1928 Act.¹³ The 1979 Act is administered by the District of Columbia...