USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-2179
BATH IRON WORKS CORPORATION
and LIBERTY MUTUAL INSURANCE CO.,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
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PETITION FOR REVIEW OF A FINAL ORDER
OF THE BENEFITS REVIEW BOARD
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Bownes, Senior Circuit Judge.
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Kevin M. Gillis, with whom Troubh, Heisler & Piampiano, P.A. were
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on brief for petitioners.
LuAnn B. Kressley, with whom J. Davitt McAteer, Acting Solicitor
__________________ __________________
of Labor, Carol A. De Deo, Associate Solicitor for Employee Benefits,
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and Janet R. Dunlop, Counsel for Longshore, were on brief for
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respondent.
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February 12, 1998
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BOWNES, Senior Circuit Judge. The Longshore and Harbor
BOWNES, Senior Circuit Judge.
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Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C.A. 901
- 950 (West Supp. 1997), requires employers to pay compensation
to certain maritime workers for disabling injuries resulting from
their employment. An exception from total liability is provided
to employers under 8(f) of the LHWCA when the employer proves,
among other things, that a permanent partial disability existed
prior to the work-related injury. 33 U.S.C.A. 908(f). In
construing this exception, this court, along with other circuit
courts of appeals, has required the employer to come forward with
proof, which is not specifically elucidated in the statutory
language, that the pre-existing disability was "manifest to the
employer" before 8(f) relief can obtain. See Part II, infra.
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In 1984 the LHWCA was amended, inter alia, to permit
claimants to receive compensation when a long-latent occupational
disease does not become apparent until after the employee has
retired. This appeal presents a novel question in the wake of
that amendment: may an employer obtain 8(f) relief when both
the claimed pre-existing disability and compensable occupational
disease do not become manifest until after the worker has retired
from employment with the responsible employer? In such
instances, of course, the employer cannot show that the pre-
existing disability was "manifest to the employer" because
employment has ceased by the time both disabilities arise.
Because the question before us is purely legal, the
facts underlying the worker's claim need only be sketched
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briefly. Phillip J. Reno voluntarily retired from Bath Iron
Works ("BIW")1 in 1985, after a total of thirty-eight years2 in
various positions. It is uncontroverted that at various stages
of his employment at BIW, Reno was exposed to asbestos. In 1989
or 1990, several years after his retirement, Reno began to
experience shortness of breath. He was diagnosed at that time
with chronic obstructive pulmonary disease (emphysema) and
interstitial lung disease. Reno had been a cigarette smoker. In
June of 1991, Reno was referred to a pulmonary specialist who
diagnosed obstructive pulmonary disease, primarily the result of
cigarette smoking, and restrictive pulmonary disease resulting
from Reno's asbestos exposure. Reno was assessed a twenty
percent whole person impairment due to the overall pulmonary
impairments. Reno filed a timely claim for workers' compensation
benefits on the basis of his partial pulmonary disability.
BIW in turn gave notice of its intent to seek relief
from the compensation liability under 8(f) of the LHWCA on the
theory that Reno's smoking-related emphysema was a permanent
partial disability which predated the work-related injury of
asbestosis. On December 3, 1993, the Administrative Law Judge
("ALJ") awarded benefits to Reno and denied BIW the 8(f)
relief. Relying on our precedent, the ALJ held that in order to
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1. We refer to Petitioners BIW and Liberty Mutual Insurance
Company collectively as BIW.
2. We feel compelled to note that, contrary to BIW's description
of Reno's work history, thirty-eight years is not properly
characterized as "employ[ment] for several years." Br. of
_______
Petitioner at 2 (emphasis added).
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obtain such relief, an employer must demonstrate that the pre-
existing disability was manifest to the employer prior to
retirement.
BIW appealed the legal basis of the 8(f) decision to
the Department of Labor's Benefits Review Board. After no
action, the ALJ's decision became the final order of the Board on
September 12, 1996. See Omnibus Consolidated Rescissions and
___ ______________________________________
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. at
___________________________
1321-219 (April 26, 1996). Our jurisdiction over the appeal is
proper under 33 U.S.C.A. 921(c). Because the issue before us
is purely a question of law, we exercise de novo review. Liberty
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Mut. Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757
______________ __________________________
(1st Cir. 1992).
BIW posits that Reno's emphysema is a pre-existing
permanent disability which, when combined with his occupational
disease of asbestosis, created a greater disability. Based on
this postulate, BIW points to both the plain language of 8(f),
and the substance and legislative history of the 1984 Amendments
to argue that it is entitled to relief under 8(f). In Newport
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News Shipbuilding & Dry Dock Co. v. Harris, 934 F.2d 548 (4th
__________________________________ ______
Cir. 1991), the Fourth Circuit examined a similar situation, and
concluded that "adherence to the [manifestation] requirement [in
instances of a long-latent occupational disease] would defeat the
real purposes of the [1984] amendments," id. at 553. In cases
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such as these, the Harris court determined that "the
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manifestation requirement will not be applied." Id. BIW urges
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adoption of the Harris holding,3 as a basis for overturning the
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decision of the Board below.
We decline to follow the Fourth Circuit and therefore
affirm the decision of the Board. We find the manifestation
requirement a necessary prerequisite to 8(f) relief even where
the compensation claim is based on a post-retirement long-latent
occupational disease. Our analysis follows.
I.
I.
Under 8(f) of the Act, "the liability for permanent
partial and permanent total disability, and death benefits, [is
shifted] from employer to the Special Fund when the disability or
death is not due solely to the injury which is the subject of the
claim." A2 Benefits Review Board Service, Longshore Reporter
___________________
Desk Book D8.20, at 248 (Matthew Bender, 1996). In these
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instances, after an initial period of employer liability, the
employee is "paid the remainder of the compensation that would be
due out of the special fund established in section 944 of" the
LHWCA. 33 U.S.C.A. 8(f)(2)(A). The Special Fund is currently
financed by assessments on all covered employers, part of which
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3. Harris is the only circuit court of appeals decision to reach
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this issue as of yet. In Ehrentraut v. Director, OWCP, 30 BRBS
__________ ______________
146 (1996), the Benefits Review Board reached the question, and
decided that the pre-existing disability need only manifest
itself to someone -- not necessarily the employer -- prior to the
compensable injury, id. at 150. The Director has contested the
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Board's jurisdiction to issue the opinion on the basis of Pub. L.
No. 104-134, supra, and the case is currently pending before the
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Third Circuit. Director, OWCP v. Sun Ship, Inc., No. 96-3648.
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Regardless, the Board's Ehrentraut decision is entitled to no
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special deference here. Potomac Elec. Power Co. v. Director,
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OWCP, 449 U.S. 268, 278 n.18 (1980).
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is prorated according to the extent to which that particular
employer's compensated employees make use of the Fund. 33
U.S.C.A. 944(c).
We turn initially to the words of the statute. If
these are not clear, "we next examine the legislative history,
albeit skeptically, in search of an unmistakable expression of
congressional intent." Strickland v. Commissioner, Me. Dep't of
__________ __________________________
Human Servs., 48 F.3d 12, 17 (1st Cir. 1995).
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Section 8(f) currently reads, in relevant part:
Injury increasing disability:
(1) In any case in which an employee
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having an existing permanent partial
_____________________________________________
disability suffers injury, the employer shall
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provide compensation for such disability as
is found to be attributable to that injury
based upon the average weekly wages of the
employee at the time of the injury. If
following [certain statutorily scheduled] . .
. injur[ies] . . . , the employee is totally
and permanently disabled, and the disability
is found not to be due solely to that injury,
the employer shall provide compensation for
the applicable prescribed period of weeks
provided for in that section for the
subsequent injury, or for one hundred and
four weeks, whichever is the greater . . . .
In all other cases of total permanent
disability or of death, found not to be due
solely to that injury, of an employee having
an existing permanent partial disability, the
employer shall provide . . . compensation
payments or death benefits for one hundred
and four weeks only. If, following [a
statutorily scheduled] injury . . . , the
employee has a permanent partial disability
and the disability is found not to be due
solely to that injury, and such disability is
materially and substantially greater than
that which would have resulted from the
subsequent injury alone, the employer shall
provide compensation for the applicable
period of weeks . . . , or for one hundred
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and four weeks, whichever is the greater
. . . .
In all other cases in which the employee
has a permanent partial disability, found not
to be due solely to that injury, and such
disability is materially and substantially
greater than that which would have resulted
from the subsequent injury alone, the
employer shall provide in addition to
[statutorily mandated compensation],
compensation for one hundred and four weeks
only.
33 U.S.C.A. 908(f)(emphasis added).
Thus two categories of resulting disability are covered
under 8(f): (1) total permanent disability found to be the
result of the workplace injury (statutorily scheduled or
otherwise) combined with the existing disability; and (2) partial
permanent disability found to be the result of the workplace
injury (statutorily scheduled or otherwise) combined with the
existing disability, where the resulting disability is
"materially and substantially greater" because of the combined
effect. Reno's situation falls under the latter category. The
first sentence of the section contains the language crucial to
all requests for relief: 8(f) cases are those "in which an
employee having an existing permanent partial disability suffers
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injury."
The statute, however, is silent on the meaning of
"existing permanent partial disability." See 33 U.S.C.A. 902
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(definitions). At first blush then, BIW's argument makes some
sense; it is, at least, an arguable reading to suggest that
Reno's emphysema was an "existing permanent partial disability"
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by the time the asbestosis made itself known. Leaving aside the
question of when injury occurs for purposes of long-latent
occupational diseases,4 the issue turns to a large degree on how
one interprets the word "existing." For purposes of this appeal,
does it mean existing during employment, or existing before
another disability becomes apparent? The manifestation
requirement, to which we now turn, was in large measure the
result of courts' determinations on the meaning of "existing"
disability.
II.
II.
The font of the manifestation requirement can be traced
to the Supreme Court's opinion in Lawson v. Suwanee Fruit & S.S.
______ ____________________
Co., 336 U.S. 198 (1949). There, the Court was asked to
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determine the proper meaning of "disability" in the context of
8(f)'s coverage for "previous disabilit[ies]." Id. at 200.
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Because the definitional portion of the LHWCA defined
"disability" in relation to an injury "arising out of and in the
course of employment," id. (quoting LHWCA 2(2)), a thorny
___
question of statutory interpretation emerged: must the "previous
disability" also arise out of an employment-related injury?
After a review of the Act's legislative history, id. at 201-04,
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4. Our inquiry would be simplified if the statutory language
explicitly defined the time of injury in such cases. Instead,
the definition of "injury" includes "such occupational disease or
infection as arises naturally out of such employment," 33
U.S.C.A. 902(2), and as we examine infra, wage calculations for
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occupational disease reference the onset of disabling effect as
the time of "injury," 33 U.S.C.A. 910(i). There is, therefore,
room for argument on the point.
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8
the Court answered in the negative, id. at 206. "If we read the
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definition [of disability] into 8(f)(1) in a mechanical
fashion, we create obvious incongruities in the language, and we
destroy one of the major purposes of the second injury provision:
the prevention of employer discrimination against handicapped
_________________________________________________________________
workers." Id. at 201 (emphasis added). It was Lawson
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generally, and this emphasized language in particular which the
courts of appeals have seized upon in developing the
manifestation requirement.
In 1970, the D.C. Circuit interpreted 8(f) as it then
existed,5 and formally extracted for the first time what has come
to be known as the "manifestation" requirement -- requiring the
employer to show that the pre-existing disability was manifest to
the employer before 8(f) relief can obtain. American Mut. Ins.
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Co. of Boston v. Jones, 426 F.2d 1263 (D.C. Cir. 1970). Denying
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8(f) relief to the employer, the court stated that "nothing in
the record gives any indication that [the claimant], up to the
time of his [work-related] injuries, showed a sufficient degree
of social maladaption due to limited intelligence that his
disability could be fairly classed as 'manifest.'" Id. at 1268.
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The American Mutual court's construction of 8(f) was informed
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by what it determined to be the primary purpose of the 8(f)
exception: "to remove that aspect of discrimination against the
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5. At the time, the language was "combin[ation] with a previous
________
disability." Longshoremen's and Harbor Workers' Compensation Act
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8(f)(1), 44 Stat. 1424, 1429 (1927) (emphasis added). We
examine the lack of import in the language change infra.
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disabled which would otherwise be encouraged by the very statute
intended to protect them." Id. at 1267. Thus, it was reasoned,
___
"discrimination . . . must rest upon knowledge of the
characteristic upon which the discriminationis to be based." Id.
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It was not long before other circuit courts of appeals
adopted the same requirement. See e.g., Dillingham Corp. v.
_________ _________________
Massey, 505 F.2d 1126, 1128 (9th Cir. 1974); Atlantic & Gulf
______ ________________
Stevedores, Inc. v. Director, OWCP, 542 F.2d 602, 606 (3d Cir.
________________ ______________
1976); Duluth, M. and I. R. Ry. Co. v. United States Dep't of
______________________________ _______________________
Labor, 553 F.2d 1144, 1148-51 (8th Cir. 1977).
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This court has required the employer to meet the
manifestation requirement since General Dynamics Corp. v.
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Sacchetti, 681 F.2d 37, 39-40 (1st Cir. 1982). We required a
_________
showing of "manifest[ation] to the employer," because we observed
that 8(f) "was designed to encourage employers to hire or
continue to employ handicapped workers by ensuring that the
employer would not have to compensate in full for a subsequently
incurred permanent disability when that disability was
attributable in part to a previously existing handicap." Id. We
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have steadfastly adhered to this requirement. Director, OWCP v.
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General Dynamics Corp., 980 F.2d 74, 76 (1st Cir.
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1992)(Lockhart);6 Bath Iron Works Corp. v. Director, OWCP, 950
________ ______________________ _______________
F.2d 56, 58 (1st Cir. 1991); CNA Ins. Co. v. Legrow, 935 F.2d
_____________ ______
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6. Because of the fact that the parties litigating disputes
under the LHWCA are frequently the same, courts generally use the
last name of the individual claimant for purposes of short-form
citation, regardless of whether that claimant is a party to the
appeal. We do so here.
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430, 435 (1st Cir. 1991); White v. Bath Iron Works Corp., 812
_____ ______________________
F.2d 33, 35 (1st Cir. 1987); Director, OWCP v. General Dynamics
______________ ________________
Corp., 787 F.2d 723, 725 (1st Cir. 1986)(Fantucchio). See also
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Director, OWCP v. Bath Iron Works Corp. (Johnson), 129 F.3d 45,
______________ _____________________ _______
50 (1st Cir. 1997)(reiterating non-discrimination purpose behind
8(f)). Our current jurisprudence therefore dictates that, in
order "[t]o prove that it is entitled to Section 8(f) relief, an
employer must show that, (1) the employee had a permanent partial
disability that existed prior to the second injury; (2) the
second injury contributed to that disability; and (3) the prior
disability was 'manifest' to the employer." Lockhart, 980 F.2d
________
at 76.
As we have noted, we turned to what has been
consistently elucidated as the core purpose of 8(f) --
prevention of discrimination -- to inform our adoption of the
manifestation requirement. Sacchetti, 681 F.2d at 40. Indeed,
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our most extensive analysis of the manifestation requirement to
date reiterated that the "crucial issue [in 8(f) relief], . . .
is the potential for discrimination against the disabled."
Lockhart, 980 F.2d at 81. We stated that "[t]he centrality of
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this issue is emphasized in all our cases interpreting the
[LHWCA]." Id. The challenged standard employed by the Board in
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Lockhart's case, which involved a question concerning the
permanency of the pre-existing disability, queried whether there
was "sufficient information regarding the existence of a serious
lasting problem which would motivate a cautious employer to
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consider terminating the employee." Id. at 80. We held the
___
standard proper because "[i]t effectuates the purpose of the
manifest requirement and Section 8(f) by making only potential
discriminators eligible for Section 8(f) relief." Id. at 82.
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To date, eight other circuits besides ours apply this
requirement: the Second, Third, Fourth, Fifth, Eighth, Ninth,
Eleventh and District of Columbia. Sealand Terminals, Inc. v.
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Gasparic, 7 F.3d 321, 323 (2d Cir. 1993)(per curiam); Director,
________ _________
OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 455
____ ______________________________________
(3d Cir. 1978); Director, OWCP v. Newport News Shipbuilding & Dry
______________ _______________________________
Dock Co. (Langley), 676 F.2d 110, 114 (4th Cir. 1982); Ceres
_________ _______ _____
Marine Terminal v. Director, OWCP, 118 F.3d 387, 392 (5th Cir.
_______________ ______________
1997); Duluth, 553 F.2d at 1149-51 (8th Cir. 1977); Director,
______ _________
OWCP v. Cargill, Inc., 709 F.2d 616, 618-19 (9th Cir. 1983)(en
____ _____________
banc); C.G. Willis, Inc. v. Director, OWCP, 31 F.3d 1112, 1115
__________________ ______________
(11th Cir. 1994); C & P Tel. Co. v. Director, OWCP, 564 F.2d 503,
______________ ______________
512-15 (D.C. Cir. 1977). Only the Sixth Circuit has rejected the
manifestation requirement, substituting instead the directive
that the pre-existing disability be manifest to someone -- not
necessarily the employer -- prior to the work-related injury.
American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727, 732 (6th
_______________________ ______________
Cir. 1989).
To say that the requirement is by now well-ensconced
within the rubric of the LHWCA would be an understatement. We
must note, however, that despite the Benefits Review Board's
description of the manifestation requirement as a "well-settled
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concept," Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92, 99
_______ ___________________________
(1991), the Supreme Court has not yet decided its validity.
III.
III.
The manifestation requirement has been properly
characterized as "a 'judicial gloss' which Congress has not
acted to erase." American Shipbuilding, 865 F.2d at 730. Nor
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could we erase it if we wanted to. It is well settled that,
"[i]n a multi-panel circuit, newly constituted panels, generally
speaking, are bound by prior panel decisions on point." Metcalf &
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Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935,
__________ ____________________________________
939 n. 3 (1st Cir. 1993). We are, however, confronted with a
situation made novel by congressional amendment, and must
therefore determine whether those amendments should effectuate a
change in our traditional analysis of requests for 8(f) relief.
As an initial matter, we remain convinced that
application of the manifestation requirement to requests for
8(f) relief is the proper way to give the Section its intended
meaning. We think the LHWCA's legislative history shows that
8(f) was designed to serve a very specific and limited purpose
with regards to the operation of the compensation scheme as a
whole. Because the manifestation requirement effectuates this
limited purpose, we affirm our adherence to it.
A.
A.
The original LHWCA was passed in 1927 in response to a
series of Supreme Court decisions that invalidated prior attempts
to cover maritime workers under existing state compensation
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structures. See G. Bober & M. Wible, Compensable Injury or Death
___ ___________________________
Arising Under the Longshore and Harbor Workers' Compensation Act,
________________________________________________________________
35 Loyola L. Rev. 1129, 1131 (1990). "It was held that the
matter [of maritime compensation] was outside state cognizance
and exclusively within federal maritime jurisdiction . . . ."
Calbeck v. Travelers Ins. Co., 370 U.S. 114, 117
_______ ______________________
(1962)(discussing Southern Pac. Co. v. Jensen, 244 U.S. 205
___________________ ______
(1917)).7 Around the time the LHWCA was debated and crafted,
workers' compensation schemes had become so popular that "[b]y
1920, all but eight states had adopted Compensation Acts." A.
Larson, The Nature and Origins of Workmen's Compensation, 37
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Cornell L. Q. 206, 233 (1952).
One of the major problems with state workers'
compensation schemes, however, was the effect that "non-
apportionment" of the cost of compensation had on the already
disabled worker. By holding the last employer liable for the
results of accumulated injury, it was argued, employers had a
significant incentive to discriminate against those workers
already physically disabled.8 Johnson, 129 F.3d at 50. The most
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commonly reiterated example of this effect derives from the
Oklahoma experience. As stated in Lawson,
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7. Justice Brennan's opinion in Calbeck provides a comprehensive
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discussion of the judicial decisions and legislative maneuvering
which led to passage of the Act. 370 U.S. 117-124.
8. "Non-apportionment" is also described as the "aggravation
rule," because it holds one employer liable for the results of an
aggravating injury.
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Nease v. Hughes Stone Co., 114 Okla. 170, 244
_____ ________________
P. 778 [(1925)], held the employer liable for
total compensation for loss of the second
eye. After the decision, Mr. Huber [of
Oklahoma] reports, "thousands of one-eyed,
one-legged, one-armed, one-handed men in the
State of Oklahoma were let out and can not
get employment coming under the workmen's
compensation law of Oklahoma. . . . Those
. . . court decisions put us in bad
shape. . . . The decision displaced between
seven and eight thousand men in less than 30
days in Oklahoma."
336 U.S. at 203-04 (quoting United States Bureau of Labor
Statistics, Bull. No. 536 at 268, 272 (1931))(first two
alterations added). As one example of the flavor of the debate,
it was stated that compensation systems without second injury
provisions, "would become an instrument of persecution . . . of
men who are physically handicapped." Id. at 203 (quoting
___
testimony of Joseph Parks of Massachusetts Industrial Accident
Commission, United States Bureau of Labor Statistics, Bull. No.
564 at 278 (1932)).
As originally enacted, an employer was entitled to
8(f) relief "[i]f an employee receive[d] an injury which of
itself would only cause permanent partial disability but which,
combined with a previous disability, does in fact cause permanent
total disability." 44 Stat. at 1429. The legislative history of
the Act demonstrates that Congress responded to the unintended
effect of non-apportionment by including a "second injury fund"
in the statute. See Johnson, 129 F.3d at 50 (stating that
___ _______
conclusion); Ceres Marine, 118 F.3d at 389 (same). Although the
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legislative history of the original Act is not voluminous, what
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does exist drives our conclusion that 8(f) was included in the
LHWCA specifically to ameliorate the effects of non-
apportionment. Discriminatory effect was certainly seriously
considered. For instance, Representative Bowling stated during a
colloquy on a potential apportionment scheme that even under such
a system, the disabled employee was likely to remain jobless. To
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Provide Compensation for Employees Injured and Dependents of
_________________________________________________________________
Employees Killed in Certain Maritime Employments: Hearings on
_________________________________________________________________
H.R. 9498 Before the House Committee on the Judiciary, 69th
___________________________________________________________
Cong., 1st Sess. at 74 (1926) ("Well, that sounds like 'good-by'
[sic] for the [disabled employee]").
Perhaps the most telling exchange on point occurred
during hearings over the Senate version of the bill, which would
later be enacted. Mr. E. M. Braxton of the Newport News
Shipbuilding & Dry Dock Company reiterated his concern that the
Act would require employers to "examine every man who applies for
work; and the poor dog that is suffering from some disease will
be turned away from our plant because . . . as a matter of life
and death financially we will have to turn him down." Hearings
________
on S.3170 Before the House Committee on the Judiciary, 69th
__________________________________________________________
Cong., 1st Sess. at 196 (1926). In rebuttal, a witness in favor
of the legislation testified as follows:
The second injury proposition is as much to
the advantage of the employer and his
interests as it is for the benefit of the
employee. It protects that employer who has
hired, say, a one-eyed worker who goes and
loses his other eye and becomes a total
disability. The employer without this sort
of thing would have to pay total permanent
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disability compensation. Then, on the other
hand, this also protects the worker with one
eye from being denied employment on account
of his being an extra risk. Now by simply
taking this up in this way it is possible to
protect both the employer and to protect the
one-eyed employee also. It is one of the
best social inventions in legislation of
which I have knowledge.
Id. at 208 (testimony of Mr. Andrews). See also Lawson, 336 U.S.
___ ________ ______
at 202 (quoting same).
We think the foregoing demonstrates that the
development of the manifestation requirement rests on solid
ground. Because the legislative history of the original Act
demonstrates that 8(f) was specifically designed to reduce the
incentive for discrimination, it makes logical sense that "only
potential discriminators [are] eligible for Section 8(f) relief."
Lockhart, 980 F.2d at 82.
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B.
B.
In 1972, the LHWCA was amended,9 see Longshoreman's and
___
____________________
9. There were, of course, other amendments to the Act prior to
1972. According to one Report generated as part of the 1984
Amendments,
[O]ther employee groups were [eventually]
covered under the Act. The District of Columbia
Workmen's Compensation Act (1928) extended coverage
to employees of private employers in Washington,
D.C. The Defense Base Act (1941) extended coverage
to employees of federal contractors at military
bases or on public works contracts performed in any
place outside the continental United States. The
Nonappropriated Fund Instrumentalities Act (1952)
applied the LHWCA to civilian employees of
nonappropriated fund instrumentalities of the Armed
Forces (such as post exchanges). In 1953, the
Outer Continental Shelf Lands Act extended coverage
to employees on the U.S. Outer Continental Shelf
involved in exploring for and developing natural
resources.
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Harbor Workers' Compensation Act Amendments of 1972, Pub. L. 92-
576, 86 Stat. 1251 (1972), "[t]he principle purpose of . . .
[which was] to . . . upgrade the benefits, extend coverage to
protect additional workers, provide a specified cause of action
for damages against third parties, and to promulgate necessary
administrative reforms," S. Rep. No. 92-1125, at 1 (1972). As
part of the 1972 Amendments, the language of 8(f) was changed,
substituting the language of "previous disability" for the
current language of "existing permanent partial disability." 86
Stat. at 1257. The Amendments also opened the door for employers
to 8(f) relief where the resulting combined disability was not
total, but partial. Id.
___
There is nothing in the legislative history of the 1972
Amendments to suggest that the core purpose of 8(f) was being
altered along with its language. See Duluth, 553 F.2d at 1149
___ ______
(making that determination); C & P Telephone, 564 F.2d at 512
________________
(same). To the contrary, both the Senate and House Report stated
that the chosen "method of spreading the risk among all employers
is intended by the committee to encourage the employment of
handicapped workers." S. Rep. No. 92-1125, at 7; H.R. Rep. No.
92-1441, at 8 (1972).
____________________
Since original enactment, the Act has been
amended ten times. Amendments in 1934, 1938, 1948,
1956, 1960, 1961, and 1969 revised or increased
benefits. In 1958, the Act was amended to require
employers to maintain a reasonably safe work
environment.
S. Rep. No. 97-498, at 20 (1982).
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IV.
IV.
BIW's primary argument is that the 1984 Amendments to
the Act, Pub. L. No. 98-426, 98 Stat. 1639 (1984), required
abolishing the application of the manifestation requirement to
8(f) requests in cases where an occupational disease or injury
does not appear until after employment has ceased. One of the
principles of statutory interpretation is that a "settled
construction of an important federal statute should not be
disturbed unless and until Congress so decides." Reves v. Ernst
_____ _____
& Young, 494 U.S. 56, 74 (1990)(Stevens, J., concurring). We
_______
recognize that "considerations of stare decisis weigh heavily in
_____ _______
the area of statutory construction, where Congress is free to
change [the courts'] interpretation of its legislation."
Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977).
__________________ ________
Although the Amendments added a provision permitting
such claims "if filed within two years after the employee or
claimant becomes aware, or . . . should have been aware, of the
relationship between the employment" and the disease, 98 Stat. at
1649 (codified at 33 U.S.C.A. 913(b)(2)), we can find nothing
in the text of the Amendments, nor its legislative history, to
suggest that Congress intended to alter the application of the
manifestation requirement to requests for 8(f) relief.
The Harris court seized upon, and BIW directs us to,
______
language in a House Report as a basis for its argument that
8(f) applies to a pre-existing disability not manifested until
after the employee has stopped working. Harris, 934 F.2d at 552.
______
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As part of the introductory summary of the bill, the Report
stated that the Amendments were "intended to reduce the cost of
Longshore coverage for employers in the covered industries in a
manner which will disturb, to the most limited extent possible,
the rights and benefits which the Longshore Act provides." H.R.
Rep. No. 98-570, at 3 (1983), reprinted in 1984 U.S.C.C.A.N.
____________
2734, 2736. Thus, the Harris court deduced that an expansion of
______
an individual's right to file a claim should be coupled with
corresponding relief for the employer. 934 F.2d at 552. But
review of the entirety of that House Report, and other
legislative documents, demonstrates that the quoted language
cannot support the weight ascribed to it.
First, there is compelling evidence that Congress was
well aware of, and in fact endorsed, application of the
manifestation requirement to 8(f) cases. A Senate Report
states that "[a]n employer able to demonstraate [sic] actual or,
______
in some cases, constructive knowledge that an injured worker had
______________________
a permanent disability which pre-dated a compensable injury is
often able to shift to the Special Fund the responsibility for
paying a very substantial portion of the amounts payable to the
worker." S. Rep. No. 97-498, at 35 (1982)(emphases added); see
___
also S. Rep. No. 98-81, at 34 (1983)(same). We think this
____
language is most reasonably read as referring to the manner in
which courts of appeals had analyzed disputes concerning 8(f) -
- by requiring a showing of actual or constructive knowledge with
evidence of "manifestation." Similarly, the House and Senate
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Reports on the 1984 bill expressly recognized that "[s]ection
8(f) of the Act was designed to encourage employers to hire and
retain disabled workers by distributing much of the additional
cost of industrial injury attributable to pre-existing permanent
disabilities among all employers and carriers subject to the
Act." S. Rep. No. 97-498, at 34-35; S. Rep. No. 98-81, at 34
(same language). Thus "[t]he goals of Section 8(f) remain[ed]
valid," S.Rep.97-498, at35, aspartand parcelofthe 1984Amendments.
Ultimately fatal to BIW's position is evidence
concerning how Congress conceptualized its amendment allowing
claims for long-latent occupational diseases. Consider the
following language from the House Report:
The first change to the body which results
from exposure to a harmful physical agent or
a toxic substance often is not disabling.
Since it is the disability which should
trigger the compensation claim, the Committee
notes that unlike traumatic occurrences, the
___
period of time between the 'injury' and the
_____________________________________________
arising of a compensation claim in such a
__________________________________
long-latency occupational disease case may be
so long as to make the requirement that the
employee file a Notice of Injury within
thirty days of the 'injury' nonsensical. . .
.
To the same effect, triggering the statute
of limitations for the filing of compensation
claims on the date of 'injury' makes little
sense in the context of an occupational
__________________________________
disease in which the disabling condition or
_____________________________________________
the death does not follow immediately on the
_____________________________________________
"injury."
________
H.R. Rep. No. 98-570, at 10-11 (emphases added).
What is important here is that in crafting this
particular amendment concerning occupational disease, Congress
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conceptualized the "injury" as occurring at the time of exposure
to the causative agent, which would necessarily have to occur
during employment. At the very least, this Report language
precludes the argument that Congress was removing the
manifestation requirement in instances involving these new
occupational disease claims. Because the "injury" was conceived
as occurring during employment, 8(f) retained its regular
meaning -- applying when "an employee having an existing
permanent partial disability suffers injury." 33 U.S.C.A.
8(f)(1).
This Report language is affirmed by the amended
statutory language itself; and we must read statutes as a whole,
rather than focus on isolated phrases. Conroy v. Aniskoff, 507
______ ________
U.S. 511, 515 (1993). As part of the occupational disease
amendment, there also had to be a determination made as to how to
calculate the amount of compensation paid in such cases. Because
the existing formula generally calculated compensation in
reference to "the average weekly wage . . . at the time of the
injury," 33 U.S.C.A. 910, there was concern that very long-
latent diseases would leave disabled retirees in an unfair
economic situation because wages increased over time, H.R. Rep.
No. 98-570, at 11-12. It was therefore decided that in such
instances, "the time of injury shall be deemed to be the date on
______
which the employee becomes aware, or . . . should have been
aware, of the relationship between the employment, the disease,
and the death or disability." 98 Stat. at 1647-48 (codified at
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22
33 U.S.C.A. 910(i))(emphasis added). Thus, by establishing the
time of injury at a time closer to the onset of the disabling
symptoms for purposes of wage calculation, Congress implicitly
recognized that the injury-in-fact to the physical body occurred
during the occupational exposure, but did not become disabling
until later. Although the 1984 Amendments were most certainly
designed in part to "reduce the cost of . . . coverage for
employers in the covered industries," H.R. Rep. 98-570, at 3,
quoted in Harris, 934 F.2d at 552, they did so in a multitude of
_________ ______
ways.10 Providing 8(f) relief to employers under facts such as
these was simply not one of them.
We point out additional authority for our ruling. Just
after the 1984 Amendments, the Department of Labor amended the
regulations interpreting the LHWCA to include, for the first
time, the manifestation requirement. 50 Fed. Reg. 401 (1985),
amended, 51 Fed. Reg. 4285 (1986)(codified at 20 C.F.R.
702.321(a) (1)(1997)). Thus, if we found that the legislative
history provided guidance less clear than it does, we would have
little trouble deferring to the Department's interpretation,
given our finding -- in Part III, supra -- that the manifestation
_____
requirement "is based on a permissible construction of the
statute." Chevron U.S.A. Inc. v. Natural Resources Defense
____________________ __________________________
Council, Inc., 467 U.S. 837, 843 (1984).
_____________
____________________
10. For example, the definition of "employee" was modified to
exclude clerical workers and others whose "work does not expose
them to traditional maritime hazards." H.R. Rep. No. 98-570, at
3; see 98 Stat. at 1639.
___
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The argument has also been made that, in instances such
as these, the manifestation requirement serves no useful purpose
because there is no potential for discrimination where the
employee has already retired. It is not, however, the
manifestation requirement that has an anti-discrimination
purpose, but 8(f) which has such a purpose. The requirement is
only a judicially created tool, developed in order to help
determine when the purpose of 8(f) is being served. As our
analysis demonstrates, 8(f) was designed for a very specific
reason -- to remove the discriminatory incentive created by
holding the last employer liable for the results of an
aggravating injury. The manifestation requirement ensures that
requests for 8(f) relief remain within the intended scope of
the Section. The requirement is not an additional hurdle, but
rather an integral part of 8(f). We are therefore not at
liberty to either apply or discard the requirement as different
facts are presented, especially in the absence of congressional
directive.
We do not think it is either unreasonable or unfair to
preclude access by the employer to the Special Fund under the
facts of this case. There can be little doubt that Reno was
exposed to asbestos during his working career at BIW, and BIW has
not contested that Reno's exposure to asbestos during his
employment at BIW caused his asbestosis. They are therefore
properly liable for the results of this work-related injury.
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Because they have not met their burden of establishing a right to
8(f) relief, the decision of the Board is affirmed.
affirmed.
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