UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60316
POOL COMPANY;
SIGNAL MUTUAL INDEMNITY ASSOCIATION LIMITED, CARRIER,
Petitioners,
VERSUS
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS;
U.S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
March 23, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges, and WARD, District
Judge*:
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
*
District Judge of the Eastern District of Texas, sitting by
designation.
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claimant Randy White. We affirm.
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] 10%
Total upper extremity impairment all joints 10%
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
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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 only.
II. DISCUSSION
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”).
b. Background
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.
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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
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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.1 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
1
The 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’ compensation.
(2) leg loss, two hundred eighty-eight weeks’ compensation.
(3) hand loss, two hundred forty-four weeks’ compensation.
(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).
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“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
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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 suggests.
e. LHWCA’s New York Ancestry
The PEPCO Court examined the legislative history of LHWCA,
explaining that the statute “was patterned after a similar
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‘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
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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 in
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.
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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
Long, 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
1583.
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.
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Consequently, we conclude that the purposes underlying the
LHWCA lend further support to the Board’s holding.
III. CONCLUSION
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.
AFFIRMED.
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