LeBlanc v. Cooper/T. Smith ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 96-60767.
Donald LeBLANC, Petitioner,
v.
COOPER/T. SMITH STEVEDORING, INC., et al, Respondents.
Dec. 12, 1997.
Petition for Review of an Order of the Benefits Review Board.
Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Appellant Donald LeBlanc appeals the final order of the
Benefits Review Board ("BRB") affirming the order of an
administrative law judge ("ALJ") calculating LeBlanc's disability
compensation based on his weekly wage at the time of the accident
causing his injury, rather than the date when LeBlanc's injury
caused him to permanently leave his stevedoring job. The 1984
Amendments to the Longshore and Harbor Workers' Compensation Act
("LHWCA") added § 910(i), which provides that the statutory "time
of injury" in cases of occupational disease is "the date on which
the employee or claimant becomes aware, or in the exercise of
reasonable diligence or by reason of medical advice should have
been aware, of the relationship between the employment, the
disease, and the death or disability." 33 U.S.C. § 910(i) (1997).
Similarly, although the 1984 LHWCA Amendments did not change the
limitations period for all compensable injuries, they did amend §
912(a) to require a one-year limitations period for claims of
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disability resulting from an occupational disease, as opposed to
the thirty day period previously required. 33 U.S.C. § 912.
This Court reviews decisions of the BRB for errors of law,
but will disturb the factual findings of the ALJ only if they are
not supported by substantial evidence. Mendoza v. Marine Personnel
Co., Inc., 46 F.3d 498, 500 (5th Cir.1995); Munguia v. Chevron
U.S.A., Inc., 999 F.2d 808, 810 (5th Cir.), reh'g denied, 8 F.3d 24
(5th Cir.1993), cert. denied sub nom. Munguia v. Director, Office
of Workers' Compensation Programs, 511 U.S. 1086, 114 S. Ct. 1839,
128 L. Ed. 2d 466 (1994). Under this standard, we hold that the ALJ
correctly considered LeBlanc's disability to be the result of a
traumatic injury rather than an occupational disease, and correctly
considered LeBlanc's statutory time of injury to be the time of his
accident rather than the date his disability became manifest.
Factual and Procedural Background
On November 2, 1987, while working for appellee Cooper/T.
Smith Stevedoring, Inc. ("Cooper/T. Smith"), LeBlanc fell from a
ship ladder and injured his lower back. At the time, LeBlanc's
average weekly wage was $92.87. On doctor's orders, LeBlanc missed
a few months of work but returned to work in March, 1988. LeBlanc
continued working for Cooper/T. Smith until April, 1992, with
intermittent absences due to back pain. In April, 1992, LeBlanc's
doctor, Dr. Clifford, diagnosed LeBlanc's condition as degenerative
facet disease in the lumbar region of the spine. Dr. Clifford
attributed this condition to the 1987 accident and LeBlanc's
continued work as a longshoreman. When he stopped working in 1992,
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LeBlanc's average weekly wage was $439.65.
LeBlanc brought a claim for disability compensation under the
LHWCA. 33 U.S.C. §§ 901-950 (1997). After a hearing, an ALJ found
that LeBlanc's disability was causally related to his 1987 work
injury and that his claim was timely, as LeBlanc was not aware of
the potential impairment of his earning capacity until Dr.
Clifford's April 1992 diagnosis. The ALJ further found that
LeBlanc's residual wage earning capacity was $170 per week, based
on the existence of suitable alternative employment as of August
25, 1993. The ALJ also concluded that LeBlanc had not tried with
reasonable diligence to secure suitable alternative employment. As
such, the ALJ held that LeBlanc could not establish total
disability after August 25, 1993 and awarded LeBlanc permanent and
total disability compensation from April 30, 1992, when LeBlanc
reached maximum medical improvement, through August 30, 1993.
The ALJ then adjusted LeBlanc's residual earning capacity
downward to $141.11, its equivalent as of the 1987 accident.1
LeBlanc's adjusted residual earning capacity of $141.11 was greater
than his average weekly wage of $92.87 at the time of the accident.
Based on this disparity, the ALJ found that LeBlanc had suffered no
loss of wage earning capacity and was, therefore, not entitled to
disability compensation after August 25, 1993, the date Cooper/T.
Smith established suitable alternative employment.
The BRB affirmed, adopting the ALJ's order as the BRB's final
1
The ALJ used the percentage increase in the National Average
Weekly Wage of the U.S. Department of Labor to adjust LeBlanc's
residual earning capacity downward by seventeen percent.
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order.2 LeBlanc appeals to this Court, arguing that the ALJ erred
by considering his disability to be the result of a traumatic
injury rather than an occupational disease, for which compensation
benefits would have been based on LeBlanc's average weekly wage of
$439.65 at the time his disability caused him to permanently stop
working as a stevedore. Alternatively, LeBlanc argues that, even
if his disability did result from a traumatic injury, the ALJ erred
by computing LeBlanc's compensation based on his average weekly
wage at the time of his accident, rather than his higher average
weekly wage at the time his disability became manifest.
Discussion
I. Occupational Disease vs. Traumatic Injury
The LHWCA uses an injured employee's average weekly wage "at
the time of the injury" as the basis for computing that employee's
compensation. 33 U.S.C.A. § 910. If a longshoreman suffers from
an "occupational disease," however, the LHWCA treats the time of
injury as "the date on which the employee or claimant becomes
aware, or in the exercise of reasonable diligence or by reason of
medical advice should have been aware, of the relationship between
the employment, the disease, and the death or disability." 33
U.S.C.A. § 910(i). This distinction is crucial: if LeBlanc's
disability is the product of an occupational disease, his benefits
2
Pursuant to the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321
(1996), because LeBlanc's appeal had been pending before the BRB
for more than one year, the ALJ's order is "considered affirmed by
the Benefits Review Board ... and shall be considered the final
order of the Board for purposes of obtaining a review in the United
States courts of appeals." Id.
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will be based on his 1992 average weekly wage of $439.65 rather
than his 1987 average weekly wage of $92.87, which is lower than
his residual earning capacity, thereby precluding any recovery
after suitable alternative employment became available.
LeBlanc's disability did not result from a disease peculiar
to his line of work and, therefore, does not result from an
occupational disease for LHWCA purposes. A disability is not the
result of an occupational disease for purposes of the LHWCA unless
the disease is peculiar to the nature of the claimant's particular
line of work. McNeelly v. Sheppeard, 89 F.2d 956, 957 (5th
Cir.1937). The Fifth Circuit established this precedent early in
McNeelly, noting that an occupational disease is "one usually or
frequently contracted by workers in [a particular] occupation."
Id. at 957; see also Grain Handling Co. v. Sweeney, 102 F.2d 464,
465 (2d Cir.) ("[C]overage must be limited to diseases resulting
from working conditions particular to the calling."), cert. denied,
308 U.S. 570, 60 S. Ct. 83, 84 L. Ed. 478 (1939). This distinction
serves the important purpose of ensuring that "[c]ompensation under
the [LHWCA] is not the equivalent of health or life insurance."
McNeelly, 89 F.2d at 958; accord Sweeney, 102 F.2d at 465.
Although Congress has not explicitly defined occupational disease
for LHWCA purposes, "[t]he generally accepted definition of an
occupational disease is "any disease arising out of exposure to
harmful conditions of the employment, when those conditions are
present in a peculiar or increased degree by comparison with
employment generally.' " Gencarelle v. General Dynamics Corp., 892
5
F.2d 173, 176 (2d Cir.1989) (quoting 1B A. Larson, THE LAW OF
WORKMEN'S COMPENSATION § 41.00, at 7-353). LeBlanc's injury does not
fit within this definition because his activities of lifting,
bending, and climbing ladders are typical of the manual labor
required by many blue collar occupations, as opposed to being
peculiar to LeBlanc's particular line of work.
Additionally, LeBlanc's condition, degenerative facet disease,
is qualitatively different from diseases within the recognized
class of occupational diseases. Courts have limited the class of
occupational diseases to include only those diseases contracted
through exposure to dangerous substances. See Gencarelle, 892 F.2d
at 176; see also Bath Iron Works Corp. v. Director, Office of
Workers' Compensation Programs, 506 U.S. 153, 160-61, 113 S. Ct.
692, 697-98, 121 L. Ed. 2d 619 (1993) (distinguishing occupational
hearing loss from traditional occupational diseases such as
asbestosis). In noting that hazardous conditions of employment
must be the cause of an occupational disease for LHWCA purposes,
the Second Circuit opined that "[t]raditionally, these hazardous
conditions have been of an external, environmental nature such as
asbestos, coal dust, or radiation." Gencarelle, 892 F.2d at 176.
In contrast, the ALJ found that LeBlanc's condition was causally
related to his 1987 work injury. This injury resulted from a
traumatic physical impact, not from exposure to any external,
environmentally hazardous conditions of employment, which takes
LeBlanc's condition beyond the scope of the traditional class of
occupational diseases.
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Although some courts have recognized repetitive motion or
cumulative trauma injuries as occupational diseases, see
Gencarelle, 892 F.2d at 177 (collecting cases), extending the
traditional class of occupational diseases to include LeBlanc's
condition would be contrary to the legislative intent underlying
the 1984 LHWCA Amendments. The legislative history accompanying
the 1984 LHWCA Amendments makes it clear that Congress intended
that the "awareness" requirement for statute of limitations and
time of injury purposes in occupational disease cases "should in
all but the most unusual of circumstances, be founded on specific
medical advice relating to the hazards of exposure to a given toxic
substance in the employer's workplace, and the relationship between
the disease suffered by the employee, that toxic substance, and the
workplace." HOUSE REP. NO. 98-570, pt. I, at 11 (1983), reprinted
in 1984 U.S.C.C.A.N. 2734, 2744 (emphasis added). This legislative
history is replete with references to occupational diseases
resulting from exposure to toxic substance or harmful physical
agents, but nowhere refers to diseases causally related to
traumatic physical impact or recurring activities. The point of
this amendment was to remove procedural limitations and timing
barriers where a disability is the result of hazardous conditions
not known to be harmful or to exist at the time of exposure. See
Bath Iron Works, 506 U.S. at 157, 113 S.Ct. at 695-96 ("With the
1984 amendments, Congress authorized the payment of benefits to
retirees suffering from occupational diseases that become manifest
only after retirement."). We reject LeBlanc's argument that
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falling six feet off of a ladder qualifies as the type of exposure
to hazardous conditions that Congress intended to include within
the scope of "occupational diseases," therefore, we are left with
the task of analyzing LeBlanc's claim as a disability resulting
from traumatic injury.
II. Time of Injury
According to § 910, "the average weekly wage of the injured
employee at the time of the injury shall be taken as the basis upon
which to compute compensation...." 33 U.S.C. § 910. Having
decided that the ALJ correctly considered LeBlanc's disability to
be the result of a traumatic injury rather than an occupational
disease, we still must decide whether the ALJ correctly based
LeBlanc's compensation on his average weekly wage at the time of
his 1987 accident rather than his higher average weekly wage in
1992, when Dr. Clifford diagnosed him with degenerative facet
disease. We hold that the ALJ correctly considered LeBlanc's
statutory "time of injury" to be the time of his 1987 accident and,
accordingly, we affirm the ALJ's order in all respects.
The statutory time of injury for traumatic injuries under the
LHWCA is the time of the accident causing the injury. The plain
meaning of the statute accords with common sense: the time of
injury means the time of the event causing the injury. We will not
read a "time of manifestation" exception into the LHWCA absent some
affirmative guidance from Congress on the matter.
What Congress has said on the matter, at least by implication,
supports interpreting the time of injury requirement as referring
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to the time of the accident causing the injury. In 1983, in the
context of a disability caused by asbestosis, the Ninth Circuit
held that "for purposes of determining the proper rate of
compensation, the time of injury under ... the LHWCA is defined as
the date when the occupational disease manifests itself through a
loss of wage-earning capacity." Todd Shipyards Corp. v. Black, 717
F.2d 1280, 1291 (9th Cir.1983), cert. denied, 466 U.S. 937, 104
S. Ct. 1910, 80 L. Ed. 2d 459 (1984). With the 1984 LHWCA Amendments,
Congress codified this holding by adding § 910(i). By the plain
language of § 910(i), Congress chose to expressly limit the
applicability of this "manifestation" theory to occupational
diseases, thereby simultaneously precluding its applicability to
traumatic injury cases. 33 U.S.C. § 910(i).
Given the history of the 1984 LHWCA Amendments, extending the
manifestation theory beyond the scope of occupational diseases is
a matter for the legislative branch rather than the judiciary.
Accordingly, to the extent that the Ninth Circuit applied the
manifestation theory to a traumatic injury in Johnson v. Director,
Office of Workers Compensation Programs, 911 F.2d 247 (9th
Cir.1990), cert. denied sub nom., Todd Pacific Shipyards Corp. v.
Director, Office of Workers' Compensation Programs, 499 U.S. 959,
111 S. Ct. 1582, 113 L. Ed. 2d 646 (1991), we respectfully disagree.
As noted, the 1984 LHWCA Amendments extended the Ninth Circuit's
manifestation theory, see Todd Shipyards, 717 F.2d at 1291, solely
to occupational diseases. Congress chose not to qualify traumatic
injuries, even those that get worse over time, for this treatment,
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therefore, the Ninth Circuit approach is contrary to the
legislative intent regarding the extent of benefits available under
the LHWCA.
This Court's recent decision in Bourgeois v. Avondale
Shipyards, Inc., 121 F.3d 219 (5th Cir.1997) is not inconsistent
with our holding in this case. In Bourgeois, the claimant's
disability was the ultimate result of a broken wrist. Id. at 220.
The ALJ applied the manifestation theory and calculated the
claimant's compensation "as of the time of disability." Id. We
noted that "[t]he lower court's method of calculating compensation
"at the time of disability' under § 910 of the LHWCA is a fair and
reasonable method of determining compensation which we will not
disturb on appeal." Id. at 221. We also noted, however, that the
employer in Bourgeois had "already conceded this point." Id. As
such, the issues presented in Bourgeois did not require us to rule
on the propriety of applying the manifestation theory to traumatic
injuries, and we merely declined to do so.
In contrast, the present case squarely presents this issue and
we hold that the manifestation theory is not applicable to
traumatic injury claims under the LHWCA. Accordingly, the
statutory time of injury in such cases is the time of the accident
that causes the injury.
In so deciding, we agree with the Second Circuit, which, in a
similar case, held that the BRB must "fix the rate as of the date
of [claimant's] injury," rather than as of the date of the
manifestation of later problems. Director, Office of Workers
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Compensation Programs v. General Dynamics Corp., 769 F.2d 66, 68
(2d Cir.1985). This court, in dictum, has said the same thing. In
Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th Cir.),
cert. denied, 474 U.S. 846, 106 S. Ct. 137, 88 L. Ed. 2d 113 (1985),
we reasoned that "[i]n cases involving traumatic injury, the
effects of which are most often felt within a short period of time,
the date of injury for determining the applicable law under the
LHWCA is the date the trauma actually occurred."
Conclusion
The ALJ correctly considered LeBlanc's disability to be the
result of a traumatic injury rather than an occupational disease.
As such, the ALJ correctly based LeBlanc's compensation on his
average weekly wage at the time of the 1987 accident rather than
the time of his 1992 diagnosis. Accordingly, we AFFIRM the ALJ's
order, which the BRB affirmed and adopted as its final order.
AFFIRMED.
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