UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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No. 92-2417

JOSEPH D'ERRICO,

Petitioner,

v.

GENERAL DYNAMICS CORPORATION,

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

AND BENEFITS REVIEW BOARD, U.S. DEPARTMENT OF LABOR

Respondents.

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ON PETITION FOR REVIEW OF AN ORDER OF

THE BENEFITS REVIEW BOARD

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Before

Torruella, Circuit Judge ,

Feinberg,* Senior Circuit Judge ,

and Boudin, Circuit Judge .

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Donald E. Wallace with whom was on brief for Joseph D'Errico.

Norman P. Beane, Jr. with whom and Diane M. Broderick were on brief for General Dynamics Corporation.

Laura J. Stomski , Attorney, U.S. Department of Labor, Office of the Solicitor, with whom Judith E. Kramer , Deputy Solicitor, Carol A. DeDeo , Associate Solicitor, and Janet R. Dunlop , Counsel for Longshore, were on brief for the Director, Office of Workers' Compensation Programs.

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June 25, 1993

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*Of the Second Circuit, sitting by designation.

FEINBERG, Senior Circuit Judge . Joseph D'Errico

petitions for review of a decision and order of the Benefits Review Board of the United States Department of Labor (the Board). The Board affirmed a decision and order of an administrative law judge (ALJ) awarding D'Errico benefits under the Longshore and Harbor Workers' Compensation Act (the Act), but also granting D'Errico's employer, General Dynamics Corporation (General Dynamics), an offset for the amounts paid to D'Errico under the terms of an earlier consent decree pursuant to a state workers' compensation law. D'Errico challenges this offset.

1:

In his brief to this court, D'Errico also argued that the ALJ had erroneously awarded a credit to General Dynamics for the amount it had paid in attorney's fees under the state consent decree. D'Errico withdrew this claim at oral argument.

I. Background

D'Errico was an employee of General Dynamics. On July 19, 1984, he suffered injury to his right foot and back when he was struck during the course of his employment by a 2,500 pound steel "ring" at General Dynamics's facility at Quonset Point, Rhode Island. The ring knocked him over, crushing his foot. All five toes and part of the foot itself had to be amputated. D'Errico has been unable to return to work since the accident.

This appeal followed.

II. Discussion

"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992). Section 3(e) of the Act provides in relevant part:

Prior to oral argument, the Director moved to "amend and reform" the caption in this appeal by "substituting" himself as respondent in place of the Board. Implicit in this motion was a request to dismiss the Board as a party. We granted this motion to the extent of naming the Director in the caption as a respondent, but denied the implicit request to dismiss the Board. The latter request having been renewed at oral argument, we again deny it. See Prolerized New England Co. v. Benefits Review Bd., 637 F.2d 30, 40-41 (1st Cir. 1980), cert. denied, 452 U.S. 938 (1981).

They argue that the award D'Errico received under the consent decree and the award he received under the Act were obviously for the "same injury" and that the credit to General Dynamics was therefore appropriate.

or

We are aware that D'Errico, because he did not meet the Act's requirements, was awarded nothing under the Act for the disfigurement resulting from his injury, even though he did receive $30,000 for disfigurement under the less restrictive requirements of the state consent decree and state law.

3:

We are also aware that the result we reach provides D'Errico with less overall compensation for his undoubted injury than would the result D'Errico urges, and that from his perspective this is a "painful outcome." Bouchard, 963 F.2d at 544. We believe, however, that the governing principles of statutory construction leave us no other choice.

For the foregoing reasons the petition for review is denied.