Director, Office of Workers' Compensation Programs v. Todd Shipyards Corp.

625 F.2d 317
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 13, 1980
DocketNo. 78-1891
StatusPublished
Cited by3 cases

This text of 625 F.2d 317 (Director, Office of Workers' Compensation Programs v. Todd Shipyards Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Director, Office of Workers' Compensation Programs v. Todd Shipyards Corp., 625 F.2d 317 (9th Cir. 1980).

Opinion

CURTIS, District Judge:

The Director of the Office of Workers’ Compensation Programs under the Longshoremen’s and Harbor Workers’ Compensation Act,1 33 U.S.C. § 901,2 et seq., as amended 1972, acting pursuant to section 921, petitions this court for a review of a decision of the Benefits Review Board affirming a ruling of the Administrative Law Judge awarding compensation to the claimant, William Ashley. This ruling also limited the liability of the employer, Todd Shipyards Corporation, and its insurer, Travelers Insurance Company, respondents herein, to compensation for a period of 104 weeks in accordance with section 908(f) (§ 8(f) of the Act).3

The facts are not in dispute and the sole issue is the applicability of section 908(f) to the instant factual situation. Holding that the respondents come within the provisions of section 908(f), we affirm.

FACTS

Claimant had been employed as a welder since 1941, having worked for numerous employers over the years. Although he had been suffering difficulties with his breathing while performing his welding duties, claimant’s symptoms intensified severely in late 1971 while employed by Pacific Car and Foundry when he was exposed to isocya-nate, an irritating respiratory sensitizer. This exposure exacerbated claimant’s respiratory condition to such an extent that he was forced to terminate his employment with Pacific Car and Foundry.

Claimant was thereafter unemployed and unemployable, due to his pulmonary condition, for the next two and one-half years. He had been undergoing treatment during this period for his condition when in 1974 his physician advised him that he could return to work if he worked in clean air and avoided smoke and fumes which might “re-trigger” his pulmonary illness.

On March 19,1974, claimant was hired by Todd Shipyards and stated in his work application that he had experienced “shortness of breath, 10-71 to 1-74.” He had also discussed with the welding supervisor his recent illness and consequent restriction to work in open, well-ventilated environments. Todd attempted to accommodate him and he was given preference for assignments in open areas whenever such work was available. In the fall of 1975, however, he was assigned to do welding below deck on a barge. Exposure to fumes and smoke in this enclosed environment had such an adverse effect on claimant’s respiratory condition that he was forced to discontinue working on February 23, 1976.

THE LAW

Section 908(f) provides generally that when an employee with an existing permanent partial disability receives a subsequent injury, his employer is only liable for that proportion of the total disability caused by the last injury. The employer’s liability for compensation payments may be limited to a period of 104 weeks at which time compen[319]*319sation payments are paid out of a special fund established under section 944.

The congressional purpose underlying section 908(f) was stated by the court in Maryland Shipbuilding and Drydock Co. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, 618 F.2d 1082 (4th Cir. 1980):

Section [908(f)] is intended to encourage the employment of handicapped workers, by protecting an employer who hires a handicapped worker from paying total disability compensation for an injury that would have been a partial disability but for pre-existing conditions. [Citation omitted.] The ultimate purpose, of course, is to protect a handicapped applicant or employee from loss of employment. [Citations omitted.] A liberal application of this section is, therefore, in keeping with Congressional design.4

In C & P Tel. Co. v. Dir., Office of Wkrs.’ Comp. Prog., 564 F.2d 503, 514 (D.C. Cir. 1977), the court developed a three-part test for the application of this section: (1) the employee must have had a preexisting, permanent partial disability; (2) this condition must have been manifest to the employer; and (3) the preexisting partial disability must have contributed to the seriousness of the employee’s second injury. Accord, Director, Office of Workers’ Comp. v. Potomac Elec., 607 F.2d 1378, 1382 (D.C. Cir. 1979).

DIRECTOR’S CONTENTION

Although the Director concedes that Ashley had a “preexisting permanent partial disability” and that it was “manifest” at the time of his employment by Todd, the Director contends that claimant’s last exposure to fumes and smoke fails to satisfy the requirements of section 908(f) since the last exposure constituted an aggravation of the preexisting disability rather than an injury. The Director further argues that although claimant’s lung disease was not the sole result of his last employment, the claimant’s present disability is due solely to the aggravation of his condition and since section 908(f) excludes coverage of a disability “due solely to [subsequent] injury,” section 908(f) is inapplicable.

DISCUSSION

Although this appears to be a case of first impression in this circuit, the Director’s contention has been rejected in both the Third and the District of Columbia Circuits.

In Director, Office of Wkrs.’ Comp. v. Sun Shipbuilding, 600 F.2d 440 (3d Cir. 1979), the Director challenged the application of section 908(f) in an “aggravation case.” The claimant injured his back while working for Sun Shipbuilding. After surgery he retained a degree of permanent partial disability which was manifest to his employer. He was thereafter assigned to lighter work, but did not receive compensation for permanent partial disability. He was, however, later assigned to heavier work and sustained an aggravation of his back condition and became permanently disabled. The Administrative Law Judge found that Sun Shipbuilding’s liability was limited under section 908(f). Said the court:

It has been, and continues to be, the Director’s basic position that [section 908(f)] was never intended to apply when the second injury is an aggravation of the first. We have rejected that interpretation of [section 908(f)]. (Citations omitted.)

Id. at 442. By way of further explanation of its ruling, the court said:

No doubt maximum safety in the workplace would be achieved by screening out from employment those workers with a potential for the aggravation of preexisting disabilities. But Congress, when it enacted [section 908(f)], struck a different balance. It encouraged employers to expose themselves to some liability for such aggravations by limiting this liability to [320]*320one hundred four weeks of permanent disability, while providing the previously disabled with coverage under the special fund. (Footnote omitted.)

Id.

In C & P Tel. Co. the Director again made the same “aggravation” argument which the court answered by saying:

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