Strachan Shipping Co. v. Nash
| Decision Date | 12 February 1986 |
| Docket Number | No. 83-4332,83-4332 |
| Citation | 782 F.2d 513 |
| Parties | STRACHAN SHIPPING COMPANY and Texas Employers' Insurance Association, Petitioners, v. Earl F. NASH and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven L. Roberts, Roger Townsend, Houston, Tex., for petitioners.
T. Timothy Ryan, Sol. of Labor, Joshua T. Gillilam, II, Marianne Demetral Smith, U.S. Dept. of Labor, Washington, D.C., for respondents.
Stephen M. Vaughan, Houston, Tex., for Earl F. Nash.
Agnes G. Kurtz, Benefits Review Bd., Washington, D.C., for other interested parties.
Petition for Review of an Order of the Benefits Review Board.
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, TATE, JOHNSON, WILLIAMS, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges. *
Earl F. Nash suffered an injury to his right knee resulting in permanent partial disability while working as a longshoreman for petitioner Strachan Shipping Company (Strachan) in 1978. Pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950, Nash sought workers' compensation benefits from Strachan and its insurer, Texas Employers' Insurance Association. The Administrative Law Judge (ALJ) found that Nash had suffered (1) a 1969 high school accident which caused a twenty percent permanent partial disability to his right knee; (2) a 1974 longshoring accident while working for Chaparral Stevedoring Company (Chaparral) which was compensable under the LHWCA and for which Nash actually received compensation of ten percent permanent partial disability; and (3) the instant 1978 injury while working for Strachan which resulted in an additional four percent disability to his right knee. The ALJ determined that the LHWCA required compensation of the entire thirty-four percent. On review of the ALJ's decision awarding thirty-four percent permanent partial disability, the Benefits Review Board (BRB) of the Department of Labor agreed with the ALJ that Nash should be compensated for his entire thirty-four percent permanent partial disability to his right leg as a result of the three knee injuries but subtracted the ten percent compensation which Nash had actually received from Chaparral at an earlier date.
In subtracting the ten percent compensation which Nash had previously received from Chaparral, the BRB applied its interpretation of the "aggravation rule" and the "credit doctrine." The aggravation rule requires an employer to compensate an employee for the full extent of the employee's disability, including any preexisting disability that the work-related injury worsens. The credit doctrine, created by the BRB for the singular purpose of avoiding double recoveries, provides that an employer is not liable for any portion of an employee's disability for which the employee has actually received compensation under the LHWCA. In keeping with the credit doctrine and its policy of avoiding double recoveries, the BRB subtracted the ten percent compensation that Nash had actually received from Chaparral. Nash v. Strachan Shipping Co., 15 Ben.Rev.Bd.Serv. (MB) 386 (1983).
In the instant appeal, Strachan Shipping Company and its insurer, Texas Employers' Insurance Association, 1 petition this Court to go one step further and extend the credit doctrine to shield the employer (Strachan) from liability for any previous disability for which the employee could have, or should have, recovered benefits from a previous employer pursuant to the LHWCA. We affirm the award of the BRB.
In reviewing Nash's claim for workers' compensation benefits following his injury with Strachan, the ALJ found that Nash suffered three injuries to the right knee which contributed to his current permanent partial disability. We examine these injuries.
In 1969, Nash sustained his first injury to his right knee. Nash, a student at Ball High School in Galveston, Texas, fell while working in a shop class. The fall shattered his right patella which was surgically removed. Nash received no compensation for the accident. The ALJ found that this accident produced twenty percent permanent partial disability to Nash's right knee. 2
In 1974, Nash suffered a second injury to his right knee while working for Chaparral on the waterfront in Galveston. The accident occurred when a forklift loaded with cotton struck Nash's legs. The collision tore the medial meniscus in Nash's right knee. The doctor surgically excised the cartilage and later attributed to this second injury an additional ten percent permanent partial disability to the right leg. 3 Following this second injury to his right knee, Nash could, under the aggravation rule, have pursued compensation for both the Chaparral injury (ten percent) and the previously existing high school injury (twenty percent)--a total of thirty percent disability. Nash, who was not represented by counsel during his settlement discussions with Chaparral, testified that those discussions involved only the Chaparral injury. Nash eventually entered into an "Agreement Regarding Facts" with Chaparral's insurance carrier, Texas Employers' Insurance Association. 4 The agreement made no mention of the initial 1969 high school shop accident. The agreement did, however, recite that Nash's work injury with Chaparral caused permanent partial disability "equivalent to 10 percent loss." In April 1976, the Office of Workers' Compensation Programs of the Department of Labor acknowledged receipt of the agreement in a letter that stated: "This is your authority to dispose of this matter on payment of compensation as outlined in the Agreement."
On March 16, 1978, Nash suffered a third injury to his right knee while working for Strachan on the Galveston waterfront. While part of a crew handling cotton bales, Nash fell through a gap between the bales and twisted his right knee. His doctor estimated that this third injury aggravated Nash's knee condition by an additional three to four percent. The ALJ found a four percent increase in permanent partial disability. Strachan's general superintendent testified that, prior to Nash's injury, he was aware that Nash had sustained two prior knee injuries and that he had undergone surgery for those injuries.
Following this third injury, Nash sought compensation for the entire thirty-four percent disability. 5 The ALJ agreed with Nash and determined that Nash should be awarded compensation for thirty-four percent disability. 6 On review of the ALJ's award, the BRB, applying its interpretation of the credit doctrine, subtracted ten percent for the percentage of compensation Nash had actually received from Chaparral. The BRB left Nash with compensation for twenty-four percent disability, that being the percentage for which Nash had not actually received compensation.
On Strachan's petition for review of the BRB determination, a panel of this Court reversed the BRB award and held that Nash could recover only the four percent additional disability he incurred as a result of his third injury suffered while working for Strachan. 7 Strachan Shipping Co. v. Nash, 751 F.2d 1460 (5th Cir.1985). Upon Nash's suggestion for rehearing, this Court ordered the case to be heard en banc. 760 F.2d 569 (5th Cir.1985).
At the outset, it is noted that there is some common ground between the parties. The parties do not dispute the application of the aggravation rule to Nash's knee injury. Thus, the parties agree that, under the aggravation rule, the disability resulting from Nash's first injury in the 1969 high school shop accident was compensable at the time of Nash's agreement with Chaparral relative to the second injury. The parties also agree that Nash's recovery from Chaparral did not attempt to provide Nash any compensation for his original twenty percent disability resulting from the 1969 high school injury.
The question before the Court is what effect Nash's intervening injury and agreement with Chaparral has in determining the amount of Nash's compensation benefits following his third injury with Strachan. The BRB, consistent with its interpretation of the aggravation rule and the credit doctrine, held that the subsequent employer (Strachan) should be credited only for the percentage of compensation Nash actually received from the previous employer (Chaparral). Thus, the BRB limited Nash's recovery to twenty-four percent disability. Strachan argues, however, that the credit doctrine should be extended to credit the subsequent employer (Strachan) for any amount that Nash could have, or should have, recovered in his agreement with his prior employer (Chaparral). In other words, since Nash could have or should have recovered for his disability resulting from the high school injury at the time of the Chaparral agreement, Nash is forever precluded from recovery for disability attributable to his initial injury. Through this tortured interpretation of the aggravation rule and the credit doctrine, Strachan seeks to limit Nash's recovery to the four percent disability Nash incurred while working for Strachan. In examining these two contrasting interpretations, we first consider the aggravation rule and the credit doctrine.
As noted earlier, the aggravation rule is a doctrine of general workers' compensation law which provides that, where an employment injury worsens or combines with a preexisting impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable. See generally 1 A. Larson, Law of Workmen's Compensation Sec. 12.20 (1982); 2 id. Sec. 59.10. The aggravation rule is well-grounded in the statutory language of the LHWCA as interpreted by...
To continue reading
Request your trial
-
Newton-Sealey v. ArmorGroup Services Limited
... ... Finally, in order to apply the extra-statutory ... credit doctrine of Strachan Shipping Co. v. Nash , ... 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) ( en ... banc ... ...
-
Artis v. Norfolk & Western Railway
... ... See Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Adams v ... ...
-
Newton-Sealey v. Armorgroup (Jersey) Services, Ltd.
... ... 914(f) (credit for advance payments of compensation); ... Strachan Shipping Co. v. Nash , 782 F.2d 513, 522, 18 ... BRBS 45, 55(CRT) (5th Cir. 1986) ( en banc ) ... ...
-
Morehead Marine Services, Inc. v. Washnock
... ... Director, OWCP, 932 F.2d 836, 839 (9th Cir.1991); see also Strachan Shipping Co. v. Nash, 782 F.2d 513, 517 (5th Cir.1986) (en banc); Newport News Shipbuilding & Dry ... ...
-
The Small Personal Injury Practice
...underlying condition, the entire resultant disability is compensable.” Farquhanson at 17, 18 (ALJ), citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industri......
-
The small personal injury practice
...underlying condition, the entire resultant disability is compensable.” Farquhanson at 17, 18 (ALJ), citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industri......
-
The Small Personal Injury Practice
...underlying condition, the entire resultant disability is compensable.” Farquhanson at 17, 18 (ALJ), citing Strachan Shipping Co. v. Nash , 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary , 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Industri......