(dissenting).
I cannot accept the majority’s strained construction of the 1972 Amendments, a construction which has the effect of denying Elizabeth O’Keefe benefits to which, in my view, she is entitled under the Act. In the face of Congress’ obvious primary concern for the needs of claimants, the majority has done what Congress did not do: it has carried forward the limitation of benefits, to the boon of employers and their insurance companies and to the bane of claimants.
The question before this court is purely one of statutory construction. I readily concede that there is logical form to the majority’s interpretation. But almost eight decades ago the great Holmes would teach: “Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conelusion a logical form. You always can imply a condition in a [statute]. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy . . . .”1
It is a fundamental difference as to policy that separates me from my brothers of the majority. Like them, I find nothing in the statute itself which applies the maximum limitation of § 6(b)(1) to death benefits; like them, I find no specific indication of a legislative intent to apply such a limitation; unlike them, however, I have no inclination to construct or endorse a tour de force that resembles more an apologia for Herbert Spencer’s Social Statics2 than a reflection of Twentieth Century legislative and jurisprudential concerns for widows and orphans of American workers. Accordingly, I would deny the petition for review and accept the interpretation of the Benefits Review Board.
I associate myself completely with the well-reasoned, unanimous opinion of the Benefits Review Board in Rasmussen v. Geo Control, Inc., BRB Nos. 74-204 and 74-204a (April 3, 1975):
In these appeals, the employer and carrier and the Director, Office of Workers’ Compensation Programs, contend that death benefits awarded pursuant to Section 9 of the Act are limited by the maximum weekly amount provided for disability benefits in Section 6(b)(1). 33 U.S.C. §§ 906(b)(1), 909. . . .
The clear language of Section 9(b) of the Act, 33 U.S.C. § 909(b), provides the method 0f computation of death benefits and pregCribes the maximum amount payable:
«... [T]he total amount payable 8hall in no case exceed 60% per centum of suoh [average weekly] wages. . . . ”
Prior to amendment of the Act in November 1972, Section 9(e), 33 U.S.C. § 909(e), had provided both a maximum limit and a minimum limit in computation *349of death benefits. The maximum provided was, in effect, $70.00 per week, the same maximum limit prescribed by Section 6(b), 33 U.S.C. § 906(b), for disability payments at that time. However, in amending the Act, Congress eliminated the maximum and retained only a minimum limit. Section 9(e) now reads as follows:
“In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 6(b) but the total weekly benefits shall not exceed the average weekly wages of the deceased.” 33 U.S.C. § 909(e).
Elimination of the provision limiting the maximum amount payable in death benefits to the same figure provided for disability compensation creates an anomalous situation. If an employee were rendered permanently, totally disabled by an employment-related accident, his maximum compensation would be limited by the provisions of Section 6(b)(1) of the Act, 33 U.S.C. § 906(b)(1), no matter what his actual average weekly wage was. If the same employee subsequently died, or if he had been killed outright in the accident, his survivors could be entitled to a larger sum in death benefits than was payable in disability compensation.
Given this apparent incongruity, the Board finds it appropriate to look beyond the plain language of the statute and consider persuasive evidence of legislative intent. Boston Sand and Gravel Co. v. United States, 278 U.S. 41, 49 S.Ct. 52, 73 L.Ed. 170 (1928). We are mindful that in construing a statute, the intent of Congress is to be ascertained and given effect. United States v. N. E. Rosenblum Truck Lines, Inc., 315 U.S. 50, 62 S.Ct. 445, 86 L.Ed. 671 (1942). However, in construing a statute, a court must construe what Congress has written and may neither add, subtract, delete nor distort words used. 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 71 S.Ct. 515, 95 L.Ed. 645 (1951). Moreover, although consistent administrative construction of a statute is entitled to great weight in interpreting the statute, Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), a court need not defer to the administrative construction when there are compelling indications that it is wrong, Espinoza v. Farah Manufacturing Co., Inc., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). Where the words of a later statute differ from those of a previous one on the same or related subject, the legislature must have intended them to have a different meaning. Klein v. Republic Steel Corp., 435 F.2d 762 (3d Cir. 1970). Finally, where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded. J. Ray McDermott and Co. v. Vessel Morning Star, 457 F.2d 815 (5th Cir. 1972), cert. denied sub nom., Fish Meal Co. v. J. Ray McDermott and Co., 409 U.S. 948, 93 S.Ct. 271, 34 L.Ed.2d 218 (1972).
In his Decision and Order in this case, the administrative law judge exhaustively analyzed the applicable provisions of the Act and the relevant legislative history. Having reviewed that Decision and Order in light of the principles enumerated in the preceding paragraph, the Board concludes that the administrative law judge correctly determined that the maximum limit on disability compensation according to the provisions of Section 6(b)(1) of the Act does not apply to death benefits awarded under Section 9(b). 33 U.S.C. §§ 906(b)(1), 909(b).
The Report of the Senate Committee on Labor and Public Welfare, which described the major provisions of the bill amending the Act, discussed maximum and minimum benefit amounts. With reference to surviv- or benefits, the report states,
“. . . The amended Act will provide a fifty percent award to surviving wives or husbands and 16% percent to the children, subject to a maximum of 66% percent of the average weekly wages.
“A minimum death benefit tied to the applicable national average weekly wage, but not to exceed the employee’s average *350weekly wage is also provided.” S.Rep. No.92-1125, 92d Cong.2d Sess. 6 (1972).
In its section-by-section analysis of the bill to amend the Act, the Senate Committee referred to the amendment creating a new Section 6(b)(1), 33 U.S.C. § 906(b)(1), only in terms of compensation for disability; death benefits were not referred to either specifically or by implication. The pertinent section reads,
“Section 5(a) [of the bill] amends the Act by deleting subsection 6(b) and substituting new sections (b), (c) and (d).
“Subsection (b)(1) states that, except as provided in subsection (c), compensation for disability may not exceed the following percentages of the applicable national average weekly wage as determined by the Secretary under paragraph (3) . . . .” S.Rep.N0.92-1125, 92d Cong.2d Sess. 17 (1972).
In its discussion of death benefits, the Senate Committee indicated no intent to apply the maximum amount for disability compensation provided in Section 6(b)(1) to death benefits provided by Section 9(b). 33 U.S.C. §§ 906(b)(1), 909(b). The report merely states that,
“Subsection 10(b) [of the bill] amends Section 9(b) and (c) to increase all 35 percent shares of death benefits therein to 50 percent and all 15 percent shares to 16% percent.” S.Rep.No.92-1125, 92d Cong.2d Sess. 21 (1972).
It is clear that Congress did intend to relate the minimum disability compensation provided by Section 6(b)(1), 33 U.S.C. § 906(b)(1), to death benefits. Both the language of the Act and the legislative history make this apparent. In the legislative history, it is stated that,
“Section 10(d) [of the bill] amends Section 9(e) to provide that in computing death benefits the employee’s average weekly wage shall be considered as not less than the national average weekly wage. However, maximum weekly death benefits could not be more than the employee’s average weekly wages.” S.Rep. No.92-1125, 92d Cong.2d Sess. 22 (1972).
However, no reference is made to application of the Section 6(b)(1) maximum to death benefits. 33 U.S.C. § 906(b)(1). The former provision in Section 9(e), 33 U.S.C. § 909(e), which set a maximum amount on death benefits, was eliminated from the amendment. In the absence of any evidence to the contrary, we must conclude that elimination of the maximum provided for disability cases from death benefits cases was intentional. The maximum limit on death benefits is provided in Section 9(b), 33 U.S.C. § 909(b), and relates solely to the employee’s actual weekly wages.
The summary of principal amendments in the Report of the Committee on Education and Labor of the House of Representatives closely parallels the Senate Report. It is, therefore, unnecessary to discuss those provisions of that Report. They are merely cumulative of the indication of legislative intent contained in the Senate Report. Pertinent comments are contained in the “Summary of Major Provisions of the Bill" H.R.Rep.No.92-1441, 92d Cong.2d Sess. 2-4 (1972), U.S.Code Cong. & Admin.News, p. 4700.
In its “Section-by-Section Description of Committee Amendment to the Bill", the House Report contains language which indicates that elimination of the maximum benefit provision from Section 9(e) of the Act, 33 U.S.C. § 909(e), was done consciously and intentionally:
“Subsection (d) of this section amends section 9(e) of the Act, eliminating the dollar minimum and maximum set out under present law for the average weekly wages of the deceased to be used in computing death benefits. The minimum substituted by this amendment is the applicable national average weekly wage as prescribed in section 6(b) of the Act, except that the total weekly benefits may not exceed the actual average weekly wages of the deceased.” H.R.Rep.No.92— 1441, 92d Cong.2d Sess. 19 (1972), U.S. Code Cong. & Admin.News, p. 4716.
This language suggests that the Committee was aware that both the maximum and minimum benefit provisions were being *351eliminated from the old Act and that only a revised minimum benefit was substituted. There is no evidence whatever to suggest that failure to substitute a new maximum was anything other than a deliberate action.
It is argued that Section 6(d) of the amended Act refers to both maximum and minimum benefits payable under Section 9 so that both the maximum and minimum compensation payable under Section 6(b) also apply to death benefits awarded pursuant to Section 9. 33 U.S.C. §§ 906(b), 906(d), 909. Section 6(d) reads as follows:
“Determinations under this subsection with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” 33 U.S.C. § 906(d).
The administrative law judge found that this provision refers only to minimum benefits. The Director argues that this provision can be reasonably construed only if it refers to both maximum and minimum benefits, because the redetermined national average weekly wage does not apply to survivors currently receiving benefits. However, Section 10(h) of the Act, 33 U.S.C. § 910(h), provides for an upward adjustment of death benefits for persons currently receiving such benefits, calculated with reference to the redetermined national average weekly wage. Therefore, the Board finds that the administrative law judge correctly construed Section 6(d) as applying only to minimum benefits. 33 U.S.C. § 906(d).
Appendix 17-24.
. Holmes, The Path of the Law, 10 Harv.L.Rev. 457 (1897), reprinted in R. Aldisert, The Judicial Process 34 (1976).
. See generally the dissenting opinion of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905).