Norfolk Shipbuilding & Drydock Corporation v. Robert T. Nance

HARRISON L. WINTER, Chief Judge:

Norfolk Shipbuilding & Drydock Corporation (Norfolk) petitions to set aside an order of the Benefits Review Board (the Board) affirming the decision and order of an Administrative Law Judge that required Norfolk to reinstate Robert T. Nance to his former position with back pay and to pay a penalty to the Deputy Commission.1 The decision and order were entered pursuant to § 49 of the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C. § 948a (1976) (the Act.).2 The AD found that Nance had proved that Norfolk retaliated against him in violation of § 49 of the Act by discharging him from his job after the parties entered into an agreement to settle Nance’s pending claims for disability compensation, age discrimination and dis*184crimination under § 49, and a grievance to his union.

The principal questions before us are whether testimonial evidence purportedly demonstrating that Nance voluntarily agreed to quit his job as partial consideration for the settlement was erroneously excluded by the AU, and whether the Board erred in sustaining the AU’s finding that Norfolk had the requisite discriminatory intent to violate § 49.

We perceive no reversible error on the part of the AU or the Board, and conclude that the Board’s order should be affirmed and enforced.

I.

On January 18, 1983, Norfolk and Nance entered into an agreement to settle Nance’s various claims against Norfolk for a lump sum payment. They stated the terms of the settlement on a government settlement form, Form LS-471, signed by their respective counsel, and submitted it to the Deputy Commissioner, all as required by 83 U.S.C. § 908(i) and 20 C.F.R. § 702.241-243. On the same day, the agreement was approved by Deputy Commissioner Basil Voultsides of the Office of Workers’ Compensation Programs. As the AU found, the LS-471 did not contain a “provision expressly or impliedly permitting Employer to discharge Claimant after consummation of the settlement.” In addition to making no mention that Nance would be discharged or that he would quit his employment, the parties described the type of employment that Nance, despite his injuries, could still perform. Shortly after March 7, 1983, Nance, who had been in lay-off status, received a letter from Norfolk advising him that his job had been terminated and all of his insurance benefits had been cancelled. Before the AU, Norfolk proffered evidence that as part of the settlement Nance and it had verbally agreed that Nance’s employment would be terminated. Nance’s proffered evidence was a denial of the existence of any such agreement. The AU ruled that Norfolk’s evidence was inadmissible and he refused to receive it.

Noting that Paragraph IV of Form LS-471 provides for “Action of the Deputy Commissioner” in order to make the settlement effective, the AU concluded that settlement procedures under the Act clearly contemplated that the complete agreement must be set forth in writing as a prerequisite to approval:

[T]he text of an LS-471 makes it clear that agreements extrinsic to that document are not to be considered in the approval process. It is apparent from the face of the LS-471 that it is intended to be the complete and integrated statement of the agreement between Claimant and Employer. Nor are there any ambiguities in the document requiring resolution. The LS-471 must, on its face, be considered an integrated agreement incorporating into a single written memorial all prior negotiations. There is accordingly, a conclusive presumption that the LS-471 incorporates the whole contract and is the sole evidence of the agreement. Employer may not, therefore, adduce evidence to show that Claimant had as part of the settlement agreed to voluntary termination of his employment after the settlement in an attempt to vary the terms of the agreement.

Accordingly, he refused to receive Norfolk’s evidence of an oral agreement as part of the settlement to terminate Nance’s employment.

The AU further found the requisite discriminatory intent for a § 49 violation in Norfolk’s testimony as to why it sought a voluntary termination agreement. Norfolk employees testified that Norfolk had a practice of settling only those compensation claims in which the employee agreed to leave his or her job. The AU decision quoted the following testimony by Norfolk’s Director of Safety and Workmens’ Compensation:

All lump sum settlements have worked around the employee voluntarily quitting. The employee is usually unhappy at that point, and we want a clean slate.
* * * * * *
*185[N]ormally, the employee is unhappy. The medical information is becoming conflicting, that there are several doctors involved. You build a hostility situation where no matter what you do everybody is not going to be happy.
AU: This is because of the previous dealings on the claim, is that correct? Witness: That is correct. So what you arrive at, a lump sum settlement to me means a clean slate for everyone and off you go on with the rest of your life and we close up our books, and that is it.
* * * * * *
AU: You are talking about a clean slate. If I understand you correctly is that what you are saying is that you felt that in view of the preceding history of this Workers’ Compensation claim that there may have been some friction, and as a result you wanted Mr. Nance out of the company for a clean slate, is that correct?
Witness: That is correct.

On the basis of what he terms “generalized animus against longshore claimants as a class” because of friction engendered in the claim process, and specific testimony that Norfolk wanted a “clean slate” in the case of Nance, the AU found that Norfolk discriminated against Nance for filing a compensation claim in violation of 33 U.S.C. § 948a.3

Finding sufficient specific evidence of retaliatory intent in the case before him, the AU declined to reach the question of whether Norfolk’s policy of conditioning settlement on voluntary termination was consistent with § 49. But on appeal, the Board ruled, in addition to affirming the findings and conclusions of the AU, that Norfolk’s general policy of conditioning settlements upon a termination of employment was a violation of § 49 as a practice running “counter to the beneficent purpose of the Act.”

II.

This appeal presents two issues: whether the AU correctly excluded the proffered evidence; and whether there was substantial evidence of discriminatory intent against Nance to hold Norfolk in violation of Section 49, or, in the alternative, whether the Board erred in holding that Norfolk’s general policy of conditioning settlement on voluntary termination agreements violated the Act. Because we conclude that the AU correctly excluded the proffered evidence of the alleged oral agreement, and because we conclude that there was substantial evidence to support the finding of a violation of § 49 of the Act, we do not address the broader question of whether the Board erred as a matter of law in holding Norfolk’s general policy to be a violation of § 49.4

III.

In reviewing cases arising under the Act, our standard of review is limited to the determination of whether the AU’s findings are supported by substantial evidence in the record considered as a whole. If findings are so supported and are not arbitrary, they may not be disturbed. Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74, 76 (4 Cir.1981).

The AU rejected Norfolk’s proffered evidence of an oral agreement partly on the basis of the parole evidence rule. The parole evidence rule is a substantive rule of law, not a rule of evidence, which bars the admission of extrinsic evidence to vary or contradict the terms of a complete and integrated written agreement. While the AU referred explicitly to the rule, he also noted that the settlement form itself requires that the Deputy Commissioner approve settlements on the basis of the information disclosed in the form. The Board further noted that the Act both requires such approval and prohibits an employee from waiving rights to compensation ex-*186eept through approved settlements. Section 8(i)(l), 33 U.S.C. § 908(i)(l), provides that the settlement be approved only under certain conditions:

[T]he deputy commissioner or administrative law judge shall approve the settlement within thirty days unless it is found to be inadequate or procured by du-ress_ No liability of an employer ... shall be discharged unless the application for settlement is approved by the deputy commissioner or administrative law judge....

Claimants are not permitted to waive their right to compensation except through settlements approved by the deputy commissioner, see 33 U.S.C. §§ 915, 916. A regulation passed pursuant to the Act, 20 C.F. R. § 702.242(a), expressly provides that the Form LS-471 must be a “self-sufficient” document, and 20 C.F.R. § 702.242(b)(1) further provides that the settlement agreement include “[a] full description of the terms of the settlement.”5 Thus this

appeal presents an even stronger case for the exclusion of evidence not disclosed in the settlement form than a case involving a general application of the parole evidence rule in administrative proceedings. The terms of the settlement agreement, in conjunction with the statutes and regulations that govern its effect, prohibit enforcement of any verbal agreement by Nance to leave his job not included in the settlement terms set forth in the LS-471 agreement.6 The AU and Board were therefore not only justified in regarding the settlement form as a complete, unambiguous, and self-sufficient document, but they would have lacked authority, to enforce an extrinsic verbal agreement as part of the Act’s approval process, even if the AU had admitted evidence of such an agreement and found it credible.

Norfolk argues that the § 49 claim discharged in the settlement agreement refers to the instant legal proceedings. But this can not be so, because it would be absurd for the agreement to anticipate and discharge a § 49 claim which had not yet arisen. Moreover, even if such a vague reference to § 49 somehow anticipated the instant litigation, such a reference would not be a sufficient disclosure under the Act and regulations, see 20 C.F.R. § 702.242(b)(1) (“a full description of the *187terms”) (emphasis supplied), of the settlement to allow the Deputy Commissioner to make an informed review of the parties’ Form LS-471.

Norfolk further contends that because the AU and Board found that its practice of seeking voluntary termination as a part of any settlement was evidence of discriminatory intent, both administrative decisions are internally inconsistent in ignoring the alleged application of this practice in the case of Nance. While this line of reasoning may appear persuasive at first glance, a closer analysis of the AU and Board’s position persuades us that their positions are not internally contradictory. The evidence of Norfolk’s general practice of seeking voluntary terminations, and its desire to obtain such an agreement in its negotiations with Nance, is highly probative as to whether Norfolk had the requisite discriminatory intent in discharging Nance. However, the finding of discriminatory intent does not, in itself or by logical implication, entail a finding that Norfolk and Nance did, in fact, enter into such a voluntary termination agreement. Whether or not such an agreement was entered into, Norfolk’s testimony on its desire to enter into such an agreement in the case of Nance in order to “clean the slate” of friction or hostility associated with his claim is substantial evidence of discriminatory intent.

We therefore conclude that the finding that Norfolk had discriminatory intent and thus violated § 49 is supported by substantial evidence and should not be disturbed.

IV.

Norfolk’s further contentions that the Board’s decision is contrary to the policy of the Act and unlawfully modifies the settlement agreement are, in light of what is said above, without merit.

AFFIRMED; ENFORCEMENT GRANTED.

. Nance v. Norfolk Shipbuilding and Dry Dock Corporation, No. 86-2436, 20 Ben.Rev.Bd.Serv. (MB) 109 (Nov. 23, 1987)

. That statute, in pertinent part, reads as follows:

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this Act. Any employer who violates this section shall be liable to a penalty of not less than $100 or more than $1,000, as may be determined by the deputy commissioner. All such penalties shall be paid to the deputy commissioner for deposit in the special fund as described in section 44, and if not paid may be recovered in a civil action brought in the appropriate United States district court. Any employee so discriminated against shall be restored to his employment and shall be compensated by this employer for any loss of wages arising out of such discrimination: Provided, That if such employee shall cease to be qualified to perform his duties of his employment, he shall not be entitled to such restoration and compensation. ...

. See n. 2, supra.

. The Board's ruling, in this respect, necessarily encompasses fact patterns, such as a settlement agreement which did list a voluntary termination as a term of settlement on Form LS-471, which are not present in this case. We think that it is premature in this case to address the issue.

. Norfolk contends on appeal that the alleged voluntary termination agreement was not a part of the settlement agreement and therefore should not be held to these statutory procedures. We disagree. The provision of 20 C.F.R. § 702.242(a) that such agreements be self-sufficient mandates that the agreement be included, at least where, as in this case, the alleged agreement to quit was in partial compensation for monies listed in the Form LS-471. 20 C.F.R. § 702.242(a) provides:

The settlement application shall be a self-sufficient document which can be evaluated without further reference to the administrative file. The application shall be in the form of a stipulation signed by all parties and shall contain a brief summary of the facts of the case to include: a description of the incident, a description of the nature of the injury to include the degree of impairment and/or disability, a description of the medical care rendered to date of settlement, and a summary of compensation paid and the compensation rate or, where benefits have not been paid, the claimant’s average weekly wage.

Furthermore, 20 C.F.R. § 702.242(b) requires that the terms of the settlement be set forth in detail:

(b) The settlement application shall contain the following:
(1) A full description of the terms of the settlement. ...
(2) The reason for the settlement, and the issues which are in dispute, if any.
* * * * * *
(4) Information on whether or not the claimant is working or is capable of working....
* * * * * *
(6) A statement explaining how the settlement amount is considered adequate.

. The Deputy Commissioner’s approval also contemplates full disclosure of all settlement terms:

The Deputy Commissioner having considered the foregoing Application for Approval of an Agreed Settlement and the best interests of the employee concerned having been considered, as required by section 8(i)(A) and (B) of the Act, it is determined that payment of compensation and/or medical benefits pursuant to the said agreement would be for the best interests of the employee. A compensation order will be prepared by the Deputy Commissioner formally approving this agreed settlement and fixing the amount of the attorney fee. Payment is not to be made by the carrier or the employer until this order is filed in the Office of the Deputy Commissioner. (Emphasis supplied)