LeBlanc v. Cooper/T. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 23, 1997
• Docket: 96-60767
• Status: Published

Opinion

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

1 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,

2 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.

3 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.

4 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.

6 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

7 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

8 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,

9 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

10 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.