Snowden v. Director

• Citation: 253 F.3d 725
• Decision Date: 19 June 2001
• Docket Number: No. 00-1318,00-1318
• Parties: (D.C. Cir. 2001) Florence Snowden, Petitioner v. Director, Office of Workers' Compensation Programs, United States Department of Labor, et al., Respondents
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 725

253 F.3d 725 (D.C. Cir. 2001)

Florence Snowden, Petitioner v. Director, Office of Workers' Compensation Programs, United States Department of Labor, et al., Respondents

No. 00-1318

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 13, 2001

Decided June 19, 2001

On Petition for Review of an Order of the Benefits Review Board

Richard W. Galiher, Jr. argued the cause and filed the briefs for petitioner.

Joshua T. Gillelan, II, Senior Attorney, argued the cause for respondent Director, Office of Workers' Compensation Programs. With him on the brief was Carol A. De Deo, Associate Solicitor.

Roger S. Mackey argued the cause and filed the brief for respondents Washington Hospital Center and Travelers Property Casualty Company.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Rogers, Circuit Judge:

This case is one of the last claims likely to be brought by a District of Columbia employee under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1994).¹ Florence Snowden appeals an order of the Benefits Review Board of the United States Department of Labor overturning a supplementary compen- sation order of the Office of Workers' Compensation Pro- grams. The underlying controversy is whether Ms. Snow- den's compensation rate should include annual cost of living adjustments under 910(f) of the Act for the years between her 1978 injury and the 1990 classification of her disability as permanent and total. The only question the court reaches, however, is whether the Board erred in asserting jurisdiction to review the supplementary compensation order. We join the other circuits that have addressed this question in holding that the Board lacked jurisdiction to review the order because it was issued pursuant to 918(a), and thus became final when issued, with relief available only from the district court. Accordingly, we vacate the November 15, 1999 decision and order of the Board.

I.

Florence Snowden injured her back in 1978 while working as a psychiatric nurse at the Washington Hospital Center.² After a formal hearing, an Administrative Law Judge issued a compensation order in 1992 awarding her benefits under the Act for permanent total disability, "commencing December 18, 1990 and continuing for a period of 104 weeks thereafter, including periodic increases to which she may be entitled under the Act." Both the Office of Workers' Compensation Programs ("OWCP") and Aetna appealed to the Benefits Review Board; OWCP appealed the award of 908(f)³ relief to Aetna, while Aetna challenged the determination of perma- nent total disability. The Benefits Review Board affirmed the award of compensation but remanded the claim for 908(f) relief.⁴

The 1992 compensation order did not specify the manner in which Ms. Snowden's benefit payments were to be calculated. Rather, the order simply stated that Aetna must "pay all periodic permanent total disability benefits ... including periodic increases to which she may be entitled under the Act." Thus, the order did not explicitly state whether Ms. Snowden's compensation rate should reflect the annual cost of living adjustments under 910(f), i.e., the "catch-up" adjust- ments, that had accrued in the years between her injury and the classification of her injury as a permanent and total disability.⁵ Consistent with Brandt v. Stidham Tire Co., 785 F.2d 329 (D.C. Cir. 1986), OWCP advised Aetna that Ms. Snowden's weekly compensation rate would increase from the $192.80 that she had received for temporary total disability to $357.80 for permanent total disability, a figure reflecting the 910(f) catch-up adjustments compounded since her 1978 injury. Aetna paid Ms. Snowden as OWCP instructed.

Aetna did not challenge OWCP's methodology for comput- ing Ms. Snowden's benefit payments until June 11, 1998. Then, relying on the Board's recent decision in Bailey v. Pepperidge Farm, Inc., BRB No. 97-1156, 1998 WL 285563 (Benefits Review Bd. May 19, 1998), Aetna unilaterally cut Ms. Snowden's weekly benefit payments by nearly half, from $438.00 to $236.00, and requested an order from OWCP allowing it to take a credit under 914(j) for $76,626.31 in alleged overpayments.⁶ Ms. Snowden filed a claim under 914(f)⁷ for additional compensation for overdue installments based on Aetna's failure to pay in accord with Brandt/Holli- day. OWCP issued a "supplementary compensation order" in 1998, finding Aetna in violation for failure to make more than $3500 in benefit payments, and liable, therefore, under 914(f) for a penalty equal to 20% of the shortfall. Aetna paid Ms. Snowden the past-due benefits but not the 20% penalty.⁸ Aetna then appealed the supplementary compensa- tion order to the Benefits Review Board.

The Board reversed OWCP's award of catch-up adjust- ments in the 1998 supplementary compensation order, while noting that because the penalty had not been paid, it "lack[ed] jurisdiction to address the propriety of the penalty." On reconsideration, the Board rejected OWCP's argument that the Board lacked jurisdiction because the 1998 supplementary compensation order was issued pursuant to 918(a), and thus was subject only to review by the district court. The Board took the position that there had never been a formal determi- nation in the 1992 compensation order that Ms. Snowden was entitled to 910(f) catch-up adjustments retroactive to the date of her injury, and thus the alleged default of the catch- up adjustments was not "compensation due under any award of compensation" pursuant to 918(a). In the Board's view, the 1998 supplementary compensation order was "an original adjudication of the Brandt/Holliday issue which is subject to review by the Board." The Board also ruled that Aetna would not receive credit for catch-up adjustments made prior to the Bailey decision but would be entitled to reduce Ms. Snowden's payments subsequent to Bailey so as to recover the amount of Brandt/Holliday overpayments.

II.

As a threshold matter, Ms. Snowden, joined by OWCP, contends that the Benefits Review Board lacked jurisdiction to review the 1998 supplementary compensation order be- cause the order was issued under 918(a), not 921(a).

Our review of decisions and orders of the Benefits Review Board is for errors of law and for confirmation that the Board acted within the scope of its review in evaluating the decision of the administrative law judge. See Brown v. I.T.T./Conti- nental Baking Co., 921 F.2d 289, 293 (D.C. Cir. 1990) (citing Stark v. Washington Star Co., 833 F.2d 1025, 1027 (D.C. Cir. 1987); Stevenson v. Linens of the Week, 688 F.2d 93, 96-97 (D.C. Cir. 1982); Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979)). The Board does not make policy; "its interpretation of the [Act] thus is not entitled to any special deference from the courts." Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980) (citing Hastings v. Earth Satellite Corp., 628 F.2d 85, 94 (D.C. Cir. 1980); Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752, 757 n.5 (7th Cir. 1979)). We hold that the Board lacked the jurisdiction to review the 1998 supplementary compensation order because it was a final order unreviewable by the Board.

The Act provides for review of compensation orders in two principal ways. Section 921 provides generally for the review of compensation orders by the Board.⁹ Specifically, 921(a) provides that a compensation order shall become "effective" upon its filing pursuant to 919, "unless proceedings for the suspension or setting aside [the] order are instituted" within thirty days. 33 U.S.C. 921(a). Until that time, the Board has jurisdiction to "determine appeals raising a substantial question of law or fact taken by any party in interest from decisions with respect to claims of employees...." Id. 921(b)(3). In contrast, 918(a) addresses the collection of defaulted payments under an award of compensation.¹⁰ Thus, where an employer has failed to make payment for thirty days after a payment is due under a compensation award, the claimant may file for a supplementary order declaring the amount in default; the supplementary order becomes "final" when issued. Id. 918(a). Review is not available by the Board, but only in an enforcement proceeding in the district court. See id. The Ninth Circuit has described the three prime distinctions between 918 orders and 921 orders:

(1) [O]rders issued under 918, unlike 921 orders, are not appealable to the Board; (2) 918 orders are final when issued unlike 921 orders which do not become final until after 30 days or, if appealed, after appeal; and (3) as a result, 918 supplementary orders can immedi- ately be filed with the federal district court for enforcement.

Providence Wash. Ins. Co. v. Director, OWCP, 765 F.2d 1381, 1385 (9th Cir. 1985). OWCP maintains that "finality" under 918(a) means that "such an order is not subject to the ordinary review process of [9]21, at least where the amount declared in default has not been paid in full, because such review would be duplicative of that available from the district court."

As other circuits have observed, the Longshore and Harbor Workers' Compensation Act is "explicitly designed to encour- age the prompt payment by employers of obligations under a compensation order notwithstanding the existence of an ap- peal." Id. at 1384. Thus, the Fifth Circuit stated that where employers fail to meet their obligations, 918(a) "provides a quick and inexpensive mechanism for the prompt enforcement of unpaid compensation awards, a theme central to the spirit, intent, and purposes of the [Act]." Tidelands Marine Serv. v. Patterson, 719 F.2d 126, 129 (5th Cir. 1983). With that statutory purpose in mind, it follows that a 914 order and a 918 standard default order differ only in immaterial ways; under the former, OWCP must compute the 20% penalty amount that should be added to the default amount. An order issued under 914(f) th...