Wyknenko v. Todd Pacific Shipyards Corp.

• Decision Date: 25 February 1998
• Docket Number: BRB 97-1023
• Parties: EMMA WYKNENKO (Widow of MIKE WYKNENKO), Claimant-Respondent v. TODD PACIFIC SHIPYARDS CORPORATION and FIREMAN'S FUND INSURANCE COMPANY, Employer/Carrier-Petitioners
• Court: Longshore Complaints Court of Appeals

EMMA WYKNENKO (Widow of MIKE WYKNENKO), Claimant-Respondent
v.
TODD PACIFIC SHIPYARDS CORPORATION and FIREMAN'S FUND INSURANCE COMPANY, Employer/Carrier-Petitioners

BRB No. 97-1023

February 25, 1998

Appeal of the Decision and Order - Awarding Benefits, Order Granting Motion for Reconsideration and Supplemental Order Awarding Benefits, and Order Denying Motion to Vacate Supplemental Order and to Reopen Record of Edward C. Burch, Administrative Law Judge, United States Department of Labor.

Lance Palmer (Levinson, Friedman, Vhugen, Duggan & Bland), Seattle, Washington, for claimant.

Robert H. Madden (Madden & Crockett), Seattle, Washington, for employer/ carrier.

Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.

DECISION and ORDER

BROWN, Administrative Appeals Judge:

Employer appeals the Decision and Order - Awarding Benefits, Order Granting Motion for Reconsideration and Supplemental Order Awarding Benefits, and Order Denying Motion to Vacate Supplemental Order and to Reopen Record (96-LHC-495) of Administrative Law Judge Edward C. Burch rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). The Board held oral argument in this case on September 17, 1997, in Seattle, Washington. We must affirm the findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).

The facts involved in this case are not in dispute. Mike Wyknenko worked for employer as a pipefitter in 1941 and 1942, during which time he was exposed to asbestos. After working as a pipefitter for two other shipyards during the subsequent three years, Mr. Wyknenko left shipyard employment, worked predominantly as a truck driver, and ultimately retired in 1980. On March 18, 1987, Mr. Wyknenko was diagnosed by his treating physician, Dr. Bondi, as suffering from chronic lung disease due to smoking and his prior asbestos exposure. On May 28, 1987, Mr. Wyknenko filed a claim for benefits under the Act. In addition, he filed a third-party civil lawsuit against several asbestos manufacturers and distributors.

Mr. Wyknenko subsequently entered into settlements of his third-party lawsuit with the following third-party defendants (the pre-death settlements):

Defendant	Date of Settlement Gross	Settlement Amount
Anchor Packing	February 25, 1988	$500
Combustion Engineering	January 6, 1989	$1, 500
Eagle-Picher Industries	June 20, 1989	$3, 000
H.K. Porter Co.	September 5, 1989	$1, 383
Garlock, Inc.	November 14, 1989	$425
Center Members	February 5, 1990	$6, 000
Fibreboard	September 12, 1991	$1, 200 cash; $1, 800 deferred
UNR Asbestos
Disease Claims Trust	April 15, 1992	$400

Claimant, Mr. Wyknenko's spouse, signed as co-releasor in the settlements with Combustion Engineering, Eagle-Picher Industries, H.K. Porter Co,, Garlock, Inc., Center Members, and Fibreboard. Written approval by employer of these pre-death settlements was not obtained.

Mr. Wyknenko (decedent) died on October 22, 1992, of cardio-respiratory arrest resulting from respiratory failure related to chronic obstructive pulmonary disease and asbestosis. Claimant filed a claim under the Section 9 of the Act, 33 U.S.C. §909, for death benefits and funeral expenses on March 3, 1993. Subsequently, on May 6, 1995, claimant accepted a settlement from Manville Personal Injury Settlement Trust for a gross amount of $1, 200 (the post-death settlement). Claimant did not obtain employer's written approval of this post-death settlement.

In his January 7, 1997, Decision and Order - Awarding Benefits, the administrative law judge first found that decedent's claim was not time-barred under Sections 12 or 13 of the Act, 33 U.S.C. §§912, 913, as decedent did not become aware of the relationship between his disease, his employment and his permanent impairment until March 18, 1987. Next, the administrative law judge determined that the holding of the United States Supreme Court in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS 49 (CRT) (1992), was to be given retroactive effect; accordingly, the administrative law judge found that decedent was a "person entitled to compensation" within the meaning of Section 33(g) of the Act, 33 U.S.C. §933(g). Having determined that the compensation due decedent under the Act was greater than the aggregate gross amount of his third-party settlements, i.e., $16, 208, the administrative law judge concluded that decedent's claim for benefits was barred by Section 33(g)(1) and (2) of the Act, 33 U.S.C. §933(g)(1), (2)(1994). Additionally, pursuant to the holding of the United States Court of Appeals for the Ninth Circuit in Cretan v. Bethlehem Steel Corp., 1 F.3d 843, 27 BRBS 93 (CRT)(9th Cir. 1993), cert. denied, 512 U.S. 1219 (1994), the administrative law judge found that claimant was a "person entitled to compensation" under Section 33(g) of the Act at the time she entered into the pre-death third-party settlements, as well as the post-death settlement. As claimant's death benefits would be greater than the gross amount of the third-party settlements which she executed, the administrative law judge found that claimant was barred from receiving death benefits under Section 33(g)(2) of the Act. Lastly, the administrative law judge determined that since claimant's funeral benefits did not constitute "compensation" under Section 33(g)(2), and therefore are not barred by that subsection, claimant was entitled to receive $3, 000 for funeral expenses pursuant to Section 9(a) of the Act, 33 U.S.C. §909(a).

Employer thereafter filed a motion for reconsideration with the administrative law judge requesting that he reconsider his finding that claimant was entitled to funeral expenses. Subsequent to the administrative law judge's January 1997 Decision and Order, the United States Supreme Court issued its decision in Ingalls Shipbuilding, Inc. v. Director, OWCP [Yates], __ U.S. __, 117 S.Ct. 796, 31 BRBS 5 (CRT)(1997), wherein the Court held that a surviving spouse who entered into third-party settlements prior to the death of the employee was not at that time a "person entitled to compensation" under Section 33(g). In his Order Granting Motion for Reconsideration and Supplemental Order Awarding Benefits dated February 28, 1997, the administrative law judge ruled that since the case was before him for reconsideration, his previous decision was not yet final, and therefore, the case was subject to retroactive application of the Court's holding in Yates. Thus, pursuant to the holding in Yates, the administrative law judge found that claimant became a "person entitled to compensation" on October 22, 1992, the date of decedent's death. The administrative law judge further found that since claimant failed to obtain employer's written approval of the post-death settlement executed on May 6, 1995, claimant was barred from any compensation that would have accrued subsequent to that date. However, the administrative law judge concluded that Section 33(g) did not bar claimant from receiving the death benefits which had accrued from the time of decedent's death until the time she entered into the post-death third-party settlement. Thus, the administrative law judge awarded claimant death benefits at a compensation rate of $180.29 per week for the period October 22, 1992 until May 6, 1995. Next, the administrative law judge reaffirmed his previous finding that funeral benefits are not "compensation, " and therefore are not subject to the Section 33(g) bar. The administrative law judge further found that, in light of Yates, even if funeral benefits were considered "compensation, " claimant's funeral benefits would not be barred by Section 33(g), since those benefits accrued prior to the May 6, 1995, post-death third-party settlement. Lastly, considering employer's right to offset its liability against claimant's third-party recovery under Section 33(f) of the Act, 33 U.S.C. §933(f), the administrative law judge found that employer failed to meet its burden of showing the net third-party recovery received by claimant. Thus, the administrative law judge found that employer was not entitled to a...