UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
SIGNAL MUTUAL INDEMNITY ASSOCIATION LIMITED,
DIRECTOR, OFFICE OF WORKER'S COMPENSATION
U.S. DEPARTMENT OF LABOR,
Petition for Review of an Order of the
Benefits Review Board
March 23, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges,
and WARD, District Judge(1):
ROBERT M. PARKER, Circuit Judge:
Petitioners Pool Offshore Company, the employer,
and Signal Mutual Indemnity Association Limited, the compensation carrier,
(collectively referred to as "Pool") petition this court for review of
the Benefits Review Board's ("the Board") affirmance of the Administrative
Law Judge's ("ALJ") award of disability benefits to claimant Randy White.
I. FACTS AND PROCEDURAL HISTORY
On April 13, 1993, White injured his shoulder
in the course and scope of his employment with Pool. Because White was
employed on a fixed drilling platform located on the Outer Continental
Shelf, the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§
901-09 (1994) ("LHWCA"), governs question regarding his entitlement to
compensation for his injury.
Pool voluntarily paid White temporary total
disability benefits from April 1993 thru May 1994. On April 25, 1994, White
underwent a functional capacity evaluation that concluded White had sustained:
Total impairment this joint [left shoulder]
Total upper extremity impairment all joints
Total whole person impairment 6%
Pool then paid White permanent partial disability
benefits pursuant to the schedule in 33 U.S.C. § 908(c)(1) and (19)(the
"Section 8 Schedule") from May 1994 to December 1994. No further benefits
were due White under the Section 8 Schedule.
On January 18, 1995, White filed a claim for
compensation alleging that his shoulder injury was not subject to the Section
8 Schedule and requested reinstatement of his benefits. White argued that
the schedule of compensation benefits for arm disabilities did not apply
to his claim because he had injured his shoulder, which is a non-scheduled
injury. The ALJ agreed with White, ruling that White's shoulder injury
was not covered by the Section 8 Schedule arm disability provisions and
ordering Pool to pay additional benefits to White pursuant to 33 U.S.C.
§ 908(c)(21), which covers LHWCA compensation for non-scheduled injuries.
Pool appealed to the Benefits Review Board ("the Board"), which affirmed
the ALJ's ruling on this issue.
Pool petitions this court to review the Board's
Order. The Director of the Office of Worker's Compensation Programs ("the
Director") filed a motion to dismiss on jurisdictional grounds, which we
denied. The Director then declined to file a brief on the merits. Further,
White has not filed a brief or otherwise appeared before this court. We
therefore address the issue raised with the benefit of briefs from Pool
a. Standard of Review
We review decisions of the Benefits Review
Board for errors of law and for adherence to the statutory principles set
forth in 33 U.S.C. § 921(b)(3). This review is de novo; because
the Board is not a policy-making agency, its interpretations of the LHWCA
are not entitled to any special deference from the courts. See Potomac
Elec. Power Co. v. Director, Office of Workers' Compensation Programs,
449 U.S. 268, 278 & n.18 (1980)("PEPCO").
LHWCA compensates workers for a permanent
partial disability in two ways:
First, if the injury is of a kind specifically
identified in the schedule set forth in §§ 8(c)(1)-(20) of the
Act, 33 U.S.C. §§ 908(c)(1)-(20), the injured employee is entitled
to receive two thirds of his average weekly wages for a specific number
of weeks, regardless of whether his earning capacity has actually been
impaired. Second, in all other cases, § 8(c)(21), 33 U.S.C. §
908(c)(21), authorizes compensation equal to two-thirds of the difference
between the employee's preinjury average weekly wages and his postinjury
wage-earning capacity, during the period of disability.
PEPCO, 449 U.S. at 269-70. In PEPCO,
the Supreme Court held that a claimant cannot elect between recovery under
§ 8(c)(1)-(20) and § 8(c)(21). The Court explained that §
8(c) provides a schedule which "covers 20 different specific injuries,"
and that § (8)(c)(21) "applies to any injury not included within the
list of specific injuries." Id. at 274.
In this case, the ALJ determined that the
claimant suffered a shoulder injury that "does not come within the Section
8 Schedule, but rather is a Section 8(c)(21) disability." Section 8 Schedule
lists various body parts, including arms, legs, hands, feet, and eyes.
Shoulders are not listed. Pool argues that the ALJ erred because, although
the shoulder injury is an unscheduled loss, it resulted in an arm disability,
which is a § 8(c) scheduled loss. We are thus called upon to decide
whether the situs of the injury (the shoulder) or the character of the
resulting disability (impaired arm) is determinative under LHWCA's Section
8 Schedule scheme.
We note first that, although this question
is res nova in the Fifth Circuit, published cases from the Board,
see, e.g., Andrews v. Jeffboat, Inc., 23 BRBS 169 (1960),
and from other circuits unanimously support the Board's holding. See
Barker v. United States Dep't of Labor, 138 F.3d 431 (1st Cir. 1998);
Long v. Director, OWCP, 767 F.2d 1578 (9th Cir. 1985). Pool nevertheless
argues that the plain language of the statute, extrapolations from the
Supreme Court's holding in PEPCO and principles undergirding the
LHWCA scheme require reversal of the Board's decision.
c. Plain Language of the Statute
Pool argues first that the plain language
of § 8(c) indicates that it is the character of the disability, and
not the situs of the injury, that controls.(2)
Pool points out that § 8c(1)-(19) uses the word "disability" rather
than the word "injury," and that subsection (18) refers to a "total loss
of use" and subsection (19) refers to "partial loss or partial loss of
use." Pool's argument does not convince us that the plain language of the
statute mandates agreement with their position. First, § 8(f), addressing
"injury increasing disability," refers to "injur[ies] falling within the
provisions of subsection(c)(1)-(20)." 33 U.S.C. § 908(f)(1). Second,
the language in subsections (18) and (19) may be explained in a way that
is consistent with the Board's holding. If there is an injury to a member
covered by the schedule, subsection (18) provides that if there is total
loss of use from the injury, then the recovery is the same as for loss
of the member. Similarly, subsection (19) provides that if there is an
injury to a member that results in a partial loss, then the compensation
is for the proportionate loss of that member (as opposed to compensation
for a total loss.) Thus, the Board's decision does no violence to the plain
language of the statute.
d. PEPCO's Dicta
Second, Pool submits that dicta in the PEPCO
decision inferentially shows that the Supreme Court would support the
statutory interpretation that Pool advances. In PEPCO, an injury
to the claimant's left knee resulted in a 5% to 20% disability to one leg.
Although the leg disability was scheduled pursuant to Section 8(c), the
claimant sought a larger recovery allowable for non-scheduled injuries
because his actual wage earning capacity was reduced by more than 40%.
See PEPCO, 449 U.S. at 271. The ALJ permitted the claimant to recover
pursuant to the provisions for non-scheduled disabilities and the Board
affirmed. The United States Court of Appeals for the District of Columbia
also affirmed, reasoning that the recent trend in workers' compensation
law was to move away from the exclusivity of the Schedule. Id. at
272. The Court of Appeals further held that the provision for non-scheduled
disabilities was a remedial alternative in cases where the Schedule proved
inadequate to fully compensate a claimant. Id. In reversing the
Court of Appeals, the Supreme Court held that, contrary to the claimant's
contention, the provision for non-scheduled injuries did not provide an
alternative for claimants who could not realize adequate compensation through
the Section 8 Schedule. Id. at 271.
PEPCO does not purport to answer the
question now before this court. PEPCO is instructive, however, in
its method of statutory interpretation. In determining the meaning of the
statute, the Court first considered the plain language of the statute.
Pool's argument focuses on the PEPCO majority opinion's statement
that, "[t]he language of the [LHWCA] plainly supports the view that the
character of the disability determines the method of compensation." Id.
at 273. Pool submits that this statement supports the view that the situs
of disability is determinative of whether the Section 8 Schedule is applicable
rather than the situs of the injury. We are not so persuaded. PEPCO
thereafter explained that the schedule covers "20 different specific injuries"
and that § 8(c)(21) "applies to any injury not included within
the list of specific injuries." Id. at 274 (emphasis added). We
find that particular PEPCO language less illuminating than Pool
e. LHWCA's New York Ancestry
The PEPCO Court examined the legislative
history of LHWCA, explaining that the statute "was patterned after a similar
'scheduled benefits' provision in the New York Workmen's Compensation Law
enacted in 1922." 449 U.S. at 275. A New York court took up the issue,
later addressed in PEPCO, as it pertained to the New York statute
after the LHWCA was passed in 1927. See Sokolowski v. Bank of America,
184 N.E. 492, 494 (N.Y. 1933). The
PEPCO court concluded that nothing
in the original legislative history or subsequent amendments "indicates
that Congress did not intend the plain language of the federal statute
to receive the same construction as the substantially identical language
of the New York ancestor." 449 U.S. at 276.
The Ninth Circuit in Long v. Director,
767 F.2d 1578 (1985), addressed whether a claimant may receive benefits
under § 8(c)(2) because of an injury to his back that impaired his
leg. The court explained that it could not find anything in the legislative
history of the statute that considered this issue. See Long, 767
F.2d at 1581. However, prior to the passage of LHWCA in 1927, a New York
court addressed this issue. See Knight v. Ferguson, 198 A.D.
756 (N.Y. App. Div. 1921). The New York court interpreted the New York
statute to preclude recovery of benefits under the schedule for the impairment
to the claimant's arms caused by an injury to his neck. See Long, 767
F.2d at 1581-82. The Ninth Circuit reasoned that "Congress may be presumed
to have intended to adopt the same construction when it enacted the LHWCA."
Long, 767 F.2d at 1582. The Long court concluded that an
employee who suffers an injury to an unscheduled portion of the body (back)
that impairs a scheduled portion (leg) may not receive benefits under the
§ 8 schedule. Instead, the person must recover under § 8(c)(21).
See id. at 1583. Like the Ninth Circuit, we find New York's interpretation
in Knight instructive.
f. Purpose and Intention of the Act
PEPCO also teaches that we should examine
the purpose of the Act and the intention of Congress in interpreting LHWCA.
See PEPCO, 449 U.S. at 280. Following PEPCO, the First Circuit
Barker v. U.S. Dep't of Labor, 138 F.3d 431 (1st Cir. 1998),
after considering the language of the statute and its New York ancestry,
looked to the purpose and Congressional intention behind LHWCA before joining
Long's position on the Section 8 Schedule question. The claimant
in Barker, in facts indistinguishable from the case at bar, suffered
an injury to his neck and shoulder, which resulted in a permanent partial
disability to his left arm. See 138 F.3d at 433. The court stated
that "[a]lthough the language of [§ 8(c)], taken in isolation, may
admit of differing interpretations, one thing is certain - an individual
can obtain compensation only through the statutory path appropriate to
the character of his injury. The structure and purpose of the statute demand
this construction." Id. at 434-35. The court explained that, if
an individual suffers an injury to the neck or shoulder, which is unscheduled,
then the individual must recover under § 8(c)(21), "no matter that
the petitioner's symptoms extend beyond the injured area." Id. The
schedules were set up to ameliorate administrative burdens by providing
a simple method of determining the effect on the wage-earning capacity
of typical and classifiable injuries. See id. at 435. Streamlining
compensation for arm injuries, which are unlikely to effect other body
parts, while leaving open the question of appropriate compensation levels
for injuries that may effect multiple body parts, such an as injury to
a neck, is consistent with these goals.
Further, PEPCO rejects the argument
that a court interpreting LHWCA should concern itself with the fairness
of the remedy dictated by the statute in a particular case. See 449
U.S. at 284. The structure of the statute involves compromises between
the competing interests of accuracy in determining the amount of a claimant's
loss and ease of administration. See id. at 281-82. In
it is the injured employee who is contending that his back injury produced
a leg disability which entitles him to the automatic but limited recovery
under § 8(c)(2). See Long, 767 F.3d at 1580. He took that position
because his post-injury employment resulted in higher wages than he was
making at the time of his injury and therefore he could not establish the
loss of earning capacity necessary to entitle him to recover under section
8(c)(21). See id. at 1582. Applying the situs of the disability
rule, the Ninth Circuit denied recovery to the worker. See id. at
Finally, it bears mentioning that Pool's proposed
interpretation opens the door for White to claim recovery under both §
8(c)(1)(arm) and § 8(c)(21)(unscheduled injury to shoulder). This
potential for double compensation further undercuts the simplifying purpose
of the schedule.
Consequently, we conclude that the purposes
underlying the LHWCA lend further support to the Board's holding.
Based on the foregoing, we conclude that a
claimant seeking compensation for the loss of use of a scheduled member
resulting from an injury to an unscheduled body part may recover only under
§ 8(c)(21). We therefore affirm the Board's decision.
Judge of the Eastern District of Texas, sitting by designation.
2. 1The Section
8 Schedule of the LHWCA reads in pertinent part:
Compensation for disability shall be paid
to the employee as follows:
(C) permanent partial disability: in case
of disability, partial in character but permanent in quality, the compensation
shall be 66 2/3 percentum of the average weekly wages which shall be in
addition to compensation for temporary total disability or temporary partial
disability paid in accordance with sub-section (b) or sub-section (e) of
this section, respectively, and shall be paid to the employee, as follows:
(1) arm loss, three hundred twelve weeks'
(2) leg loss, two hundred eighty-eight weeks'
(3) hand loss, two hundred forty-four weeks'
(4) foot loss, two hundred five weeks' compensation.
(5) eye loss, one hundred sixty weeks' compensation.
* * *
(18) total loss of use: compensation for total
loss of use of a member shall be the same as for loss of the member.
(19) partial loss of partial loss of use:
compensation for permanent partial loss of use of a member may be for a
proportionate loss or loss of use of the member. . . .
33 U.S.C. § 908(c).