USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-2106
BATH IRON WORKS CORPORATION,
BIRMINGHAM FIRE INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BENEFITS REVIEW BOARD
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Before
Selya, Circuit Judge,
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Hill,* Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Kevin M. Gillis with whom Troubh, Heisler & Piampiano was on
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brief for petitioners Bath Iron Works Corporation and Birmingham Fire
Insurance Company.
Stephen Hessert with whom Norman, Hanson & DeTroy was on brief
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for insurer respondent Liberty Mutual Insurance Company.
Gary A. Gabree with whom Stinson, Lupton & Weiss was on brief for
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claimant respondent Alvin D. Acord.
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September 10, 1997
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*Of the Eleventh Circuit, sitting by designation.
BOUDIN, Circuit Judge. Alvin Acord suffered injuries
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while employed by Bath Iron Works Corporation, and obtained
benefits after state workers' compensation proceedings. He
then sought and received a further award under the Longshore
Act, 33 U.S.C. 901 et seq. On this appeal, we hold that
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the federal award was barred by collateral estoppel, and, for
the benefit of future litigants, we address briefly the
alternative statute of limitations defense advanced by the
petitioner insurer.
The events and procedural history are complicated, but a
condensed version will set the scene. Acord began work as a
test electrician at Bath in 1974. In 1982 he suffered upper-
body injuries and in 1983, a knee injury and knee surgery;
and in 1984 he was transferred to a desk job. He sought
disability benefits under the Maine Workers' Compensation
Act, 39 Me. Rev. Stat. Ann. 1 et seq. (1989), and, in
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October 1987, was awarded 25 percent partial disability
benefits.
Between 1983 and 1987, Acord experienced a half-dozen
incidents of trauma to his knee wherein some provocation
would cause the knee to give way; one incident occurred in
June 1987, when Acord stubbed his toe and then jammed his
knee as he rose from his desk. Acord underwent further knee
surgery and returned to his desk job in November 1987, now
working only four hours a day based on his doctor's advice.
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Degenerative arthritis in his knee joints indicated that his
condition would worsen.
One year later, in November 1988, Bath's company
physician told Acord that he was being let go. The record is
murky but it was apparently Acord's own opinion that the
coming winter would aggravate his knee, and it was the
doctor's view that there would be no suitable work available
if Acord's physical restrictions increased. Acord has since
sought reemployment at Bath, without success.
Birmingham Fire Insurance Company ("Birmingham"), which
provided Bath's insurance coverage at the time of the June
1987 injury, began to pay Acord total disability benefits
when he was dismissed in November 1988. But Birmingham also
petitioned the Maine workers' compensation agency, asking it
to declare that the insurer had no continuing liability for
the June 1987 injury. In February 1989, after an evidentiary
proceeding, a Maine commissioner held that Birmingham had
proven that the June 1987 incident did not permanently
contribute to Acord's condition; this decision was affirmed
by the commission's appellate division in September 1990.
In related proceedings, Acord asked the Maine agency to
increase his previous and continuing 25 percent disability
award based on the 1983 injury; Acord urged that his
condition had worsened since 1983. After extensive
proceedings, the Maine agency ruled in June 1992 that the
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original disability payment should be increased to 50
percent, representing increased disability since 1983, and
that the payments should be made by Liberty Mutual Insurance
Company. Liberty Mutual had been Bath's insurer at the time
of the June 1983 injury.
Shortly before this new ruling, Acord in March 1992
filed for federal workers' compensation benefits under the
Longshore Act. It is not uncommon for employees connected to
maritime affairs to be covered by both federal and state
compensation statutes, and federal jurisdiction in this case
has not been disputed. In the federal proceeding, Acord took
the position that his June 1987 injury entitled him to
permanent total disability benefits because it left him
unable to fill the material handler position that he had
previously held.
Birmingham resisted Acord's federal claim on multiple
grounds: that the claim, filed almost five years after the
incident, was barred by the federal one-year statute of
limitations, 33 U.S.C. 913; that collateral estoppel
precluded Acord from claiming permanent injury based on the
June 1987 incident; and that the medical evidence failed to
support such a claim of permanent injury based on that
incident. A federal administrative law judge took evidence
on the federal claim, reserving judgment on the legal
defenses.
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In September 1993, the federal ALJ issued a decision
awarding permanent total disability benefits to Acord, and
against Birmingham, from and after Acord's last day at work
in November 1988. The decision rejected the collateral
estoppel and statute of limitations defenses, on grounds
described below, and concluded on the merits that the June
1987 incident had caused a permanent further aggravation in
Acord's knee condition.
Birmingham sought review by the Department of Labor's
Benefits Review Board, 33 U.S.C. 921(b), but the Benefits
Review Board took no action on the matter. Because the
matter had been pending before the Benefits Review Board for
more than one year and the Benefits Review Board had taken no
action on it, it became final for purposes of judicial review
in September 1996. Pub. L. 104-134, 101(d), 110 Stat.
1321-219 (1996). Birmingham then sought review in this
court. See 33 U.S.C. 921(c). Acord, needless to say,
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supports the ALJ's decision.
We agree with Birmingham that the federal ALJ should
have given collateral estoppel effect to the Maine agency's
determination, in its February 1989 decision, that the June
1987 injury "had no lasting effect on Mr. Acord's condition."
The state agency finding, in turn, precludes Acord's present
claim. Only the first of these two propositions requires
much discussion.
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Often, respect for a prior judgment is mandated by the
full faith and credit clause, U.S. Const. art. IV, 1, or
its statutory counterpart, 28 U.S.C. 1738. A literal
reader might doubt that either has much to do with the
present case, because (among other reasons) the former
constrains states, not federal entities, and the latter is
directed explicitly to federal courts and says nothing about
federal agencies. But the policy arguments for similar
treatment--especially avoidance of duplicative litigation--
tend to be the same.
Without dwelling overmuch on the rationale, the Supreme
Court has instructed that "federal courts must give the
[state] agency's factfinding the same preclusive effect to
which it would be entitled in the State's courts."
University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986).
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Ordinarily, the state agency must have been acting in an
adjudicative capacity, United States v. Utah Constr. & Mining
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Co., 384 U.S. 394, 422 (1966), but that condition is
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satisfied in this case. And Maine does treat such agency
findings as a proper basis for precluding relitigation. Van
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Houten v. Harco Constr., Inc., 655 A.2d 331, 333-34 (Me.
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1995).
Of course, one could say that a federal court must
respect state agency factfinding but a federal agency need
not. Yet Elliott itself relied heavily upon Thomas v.
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Washington Gas Light Co., 448 U.S. 261, 281 (1980), where the
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Supreme Court said that an agency finding in one state could
bind another state's agency under the full faith and credit
clause. Elliott, 478 U.S. at 798-99. And several circuit
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decisions have held that a federal agency is normally bound
to respect findings by another agency acting within its
competence. West Helena Sav. & Loan Assoc. v. Federal Home
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Loan Bank Bd., 553 F.2d 1175, 1180-81 (8th Cir. 1977); Safir
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v. Gibson, 432 F.2d 137, 143-44 (2d Cir.) (Friendly, J.),
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cert. denied, 400 U.S. 850 (1970).
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Although the tendency is plainly in favor of applying
collateral estoppel in administrative contexts, the subject
is a complex one, with many variations; and it is perhaps
well not to generalize too broadly. See 18 Wright & Miller,
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Federal Practice and Procedure 4475, at 762-63 & n.3
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(1981). Here, no conflict exists between the tendency of the
courts and the position of the agency involved, because the
Benefits Review Board itself has declared that collateral
estoppel effect is to be given under the Longshore Act to
appropriate findings of "other state or federal
administrative tribunals." Barlow v. Western Asbestos Co.,
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20 B.R.B.S. (MB) 179, 180 (1988); see also Vodanovich v.
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Fishing Vessel Owners Marine Ways, Inc., 27 B.R.B.S. (MB)
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286, 290-92 (1994).
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In this case, the refusal of the federal ALJ to respect
the Maine finding appears to have been based on a
misunderstanding of Supreme Court case law on another
subject.1 However, Acord seeks to defend the result on
narrower and more conventional grounds. He argues that
differences in burdens of proof, and in the substantive
standards, under the Maine and federal compensation schemes
make collateral estoppel inappropriate. These are legitimate
arguments, but they ultimately do not succeed in this case.
It is quite true that collateral estoppel effect may be
denied because of differences in burden of proof (for
example, where the victor in the first case has a greater
burden in the second). Newport News Shipbuilding & Dry Dock
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Co. v. Director, OWCP, 583 F.2d 1273, 1278-79 (4th Cir.
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1978), cert. denied, 440 U.S. 915 (1979). Here, Birmingham,
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by seeking a judgment from Maine limiting its liability,
undertook the burden of proving, by a preponderance of
evidence, that the June 1987 incident had no permanent
effect. See Nichols v. Viner Bros., Inc., 573 A.2d 789, 790
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1The ALJ said that collateral estoppel could not apply
because state workers' compensation schemes and the Longshore
Act share concurrent jurisdiction. See Sun Ship, Inc. v.
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Pennsylvania, 447 U.S. 715, 722 (1980). But concurrent
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jurisdiction, and even the possibility of successive awards,
do not tell one anything about collateral estoppel. See
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Thomas, 448 U.S. at 280-82.
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(Me. 1990). The Maine agency concluded that this burden had
been carried.
In the federal agency proceeding, Birmingham bore no
heavier burden; if anything, it had a lighter one. Acord
himself had the burden of proving permanent injury from the
June 1987 incident, although he was aided by a conditioned
federal presumption that "the claim comes within the
provisions of this chapter." 33 U.S.C. 920(a). This
presumption merely requires an employer to provide
"substantial evidence" that the accident did not cause the
harm, and then the presumption vanishes. Brown v.
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I.T.T./Continental Baking Co. & Ins. Co., 921 F.2d 289, 295
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(D.C. Cir. 1990); Sprague v. Director, OWCP, 688 F.2d 862,
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865-66 (1st Cir. 1982). Thus, Acord's first argument fails.
Acord next argues that the federal regime employs
different substantive standards than the Maine regime, and
points to a tradition of interpreting the Longshore Act
"liberally" in favor of claimants. Voris v. Eikel, 346 U.S.
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328, 333 (1953). Certainly a difference in the legal
standards pertaining to two proceedings may defeat the use of
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collateral estoppel. See Restatement (Second) of Judgments
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28(3), (4) (1982); cf. Long Island College Hosp. v. NLRB, 566
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F.2d 833, 842, 844-45 (2d Cir. 1977), cert. denied, 435 U.S.
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996 (1978). But this is so only where the difference
undermines the rationale of the doctrine.
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Here, in the Maine proceeding, Acord's doctor, Donald
Kalvoda, as well as another treating physician, Mark Henry,
testified that Acord suffered from degenerative arthritis in
his knee which was worsening with the passage of time and
could have been temporarily exacerbated by the June 1987
injury; but both doctors said unequivocally in the state
proceeding that the June 1987 incident had no lasting effect.
The state agency so found. It is hard to see why this
factual finding should be affected by whether the pertinent
statute is broadly or narrowly construed.
Similarly, we agree with Acord that federal and Maine
law deal somewhat differently with cases where a later job-
related injury aggravates an earlier one. Federal case law
may depart from Maine's approach by making the later employer
or insurer liable for the cumulative injury, Liberty Mut.
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Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 756 (1st
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Cir. 1992), and mitigating this liability through a complex
statutory regime. 33 U.S.C. 908(f). But again, this
difference has no apparent logical bearing on the factual
question whether the June 1987 event caused permanent injury.
Our own research suggests that the most pertinent
difference between federal and Maine law may lie in a
different area. Maine case law may be more grudging in its
willingness to compensate the aggravation of an existing
condition where the aggravation appears to be part of normal
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life rather than the result of some increased risk peculiar
to the job.2 If there were any indication that this attitude
had influenced the Maine agency finding at issue in this
case, there might be reason to hesitate in giving collateral
estoppel effect to this finding.
But the expert medical evidence in the Maine proceedings
(already described) pointed directly to the conclusion
reached by the Maine agency: that the June 1987 incident
caused no permanent injury. There is no hint whatever that
the Maine agency thought that a permanent injury had occurred
in June 1987 but should be disregarded because it was not
compensable under Maine law. Whether the Maine factual
finding was right or wrong, the agency was not evidently
influenced by any difference between federal and Maine law.
The Maine finding may have been wrong, even though amply
supported by the evidence offered in that case. The federal
ALJ reached a different conclusion by crediting slightly
different deposition testimony from Dr. Kalvoda given after
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the Maine proceeding; the ALJ also chose to place weight on
Acord's testimony that he had begun to suffer a different
sort of pain after the June 1987 incident. If the ALJ
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2Compare Gardner v. Director, OWCP, 640 F.2d 1385, 1387,
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1389 (1st Cir. 1981) (aggravation from standing on hard
surfaces compensable under Longshore Act) with Hamm v.
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University of Maine, 423 A.2d 548, 550-51 (Me. 1980)
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(aggravation from chopping salad not compensable under Maine
statute).
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decision were before us on the merits, it would probably be
sustained, given the deference due to the factfinder.
But the point of collateral estoppel is that the first
determination is binding not because it is right but because
it is first--and was reached after a full and fair
opportunity between the parties to litigate the issue. Acord
has given us no reason to doubt that he had that opportunity
in the Maine proceeding. And, it is by no means clear that
the Maine result was wrong: the issue, as in many medical
causation matters, was probably a close call.
At oral argument, Acord offered yet another argument
against collateral estoppel in workers' compensation matters,
saying that in Maine (as elsewhere) a change in medical
condition often allows the reopening or renewal of a prior
claim. Admittedly, this practice (evidenced here by the 1992
increase in Acord's own award to 50 percent) is a limitation
on conventional res judicata. In a civil tort action, a
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court will not normally reopen a final judgment because later
events show that the injury was worse than supposed. Cf.
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Restatement, supra, 73(2).
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But a willingness to modify an award based on later
changes in medical condition is not the same as giving a
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party two chances to litigate the same historical fact (here,
whether the June 1987 injury caused permanent damage). Such
findings of historical fact are given collateral estoppel
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effect by compensation commissions, including the Maine
commission. Van Houten, 655 A.2d at 334; Vodanovich, 27
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B.R.B.S. (MB) at 290-92.3 Even assuming that Acord preserved
this final argument, it does not avail.
Historical accident has given employees like Acord the
benefit of two different compensation regimes. Apart from
limitations on duplicative recovery, occasions exist when
successive claims under federal and state law are entirely
permissible; but successive claims are still subject to
various conventional limitations, like collateral estoppel.
Overall, collateral estoppel may as easily be helpful to
claimants as to employers or insurers, and it reduces the
litigation costs for everyone.
Acord's claim is also probably barred by the Longshore
Act's one-year statute of limitations, 33 U.S.C. 913(a).
The incident giving rise to the claim occurred in June 1987;
the federal claim was filed in March 1992. The statute of
limitations defense was properly raised and it obviously
precluded Acord's claim unless the claim was rescued by the
tolling provision contained in 33 U.S.C. 913(d), which
reads as follows:
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3In this very case the Maine commission's appellate
division affirmed a commissioner's rejection of a separate,
later claim by Acord for benefits deriving from the 1987
injury, explaining that "the petition [is] barred by the
doctrine of res judicata because of a prior determination
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[i.e., in February 1989] that the effects of the injury
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ended."
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Where recovery is denied to any person, in a
suit brought at law or in admiralty to recover
damages in respect of injury or death, on the
ground that such person was an employee and that
the defendant was an employer within the meaning of
this chapter and that such employer had secured
compensation to such employee under this chapter,
the [one-year] limitation of time prescribed . . .
shall begin to run only from the date of
termination of such suit.
The wording of this provision strongly suggests that it
has nothing to do with Acord's situation. It may be doubtful
that the Maine compensation proceeding is properly described
as "a [damage] suit brought at law or in admiralty;" but,
even assuming otherwise, "recovery" in that suit was
certainly not denied "on the ground" that the claimant "was
an employee and the defendant was an employer" covered by the
federal statute. There is thus a compelling "plain language"
argument against Acord's reliance on section 913(d).
The evident purpose of section 913(d) reinforces its
language. Worker compensation statutes were an innovation by
which employers obtained statutory immunity to tort liability
in exchange for liability without fault. Especially where
there might be some doubt whether the Longshore Act covered
the employee--often a close question--a precautionary tort
suit might be filed; the tolling provision was plainly
intended to protect the employee's compensation claim if
statutory immunity defeated the precautionary suit. See
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Ayers v. Parker, 15 F. Supp. 447, 451 (D. Md. 1936). Nothing
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like this happened in Acord's case.
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Congress could also have provided that the federal
statute is tolled wherever a claimant begins state
compensation proceedings addressed to the same injury, but it
did not. It is not obvious that federal courts should
enlarge an express tolling provision on policy grounds, nor
are the policy grounds very compelling: once the ground rules
are clear, it is easy enough for a claimant to file a
precautionary federal claim within one year of the injury,
even if the claimant prefers first to pursue a state remedy.
This might seem to be the end of the matter except that
the Fifth Circuit declared some years ago that section 913(d)
does toll the Longshore Act limitations period in cases
similar to Acord's. Ingalls Shipbuilding Div., Litton
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Systems, Inc. v. Hollinhead, 571 F.2d 272 (5th Cir. 1978).
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The court's reasoning relies heavily on the general principle
of liberal interpretation of the Longshore Act, id. at 274,
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which may seem a doubtful reason for ignoring express
language. Ingalls is also at odds with several well-reasoned
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district court cases,4 and has not been adopted by any other
circuit. The Benefits Review Board apparently follows
Ingalls in the Fifth Circuit, Calloway v. Zigler Shipyards,
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16 B.R.B.S. (MB) 175, 177 (1984), but that is only to be
expected.
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4See Dawson v. Jahncke Drydock, Inc., 33 F. Supp. 668,
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669 (E.D. La. 1940); Ayers, 15 F. Supp. at 449-53; Romaniuk
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v. Locke, 3 F. Supp. 529, 530 (S.D.N.Y. 1932).
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Nevertheless, Ingalls is the only circuit precedent on
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the issue, and there might be a concern about fairness to
claimants if we departed from Ingalls without warning.
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Accordingly, we have thought it wiser to rest our decision
here on collateral estoppel but to note as dictum our
substantial doubts about Ingalls. These doubts will not
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foreclose a future panel from deciding the Ingalls issue
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afresh, but their expression now should give ample notice to
future claimants to protect their federal claims by filing
within one year.
Reversed.
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