Pearce v. Director, Office of Workers' Compensation Programs

603 F.2d 763
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 31, 1979
DocketNo. 77-2074
StatusPublished
Cited by18 cases

This text of 603 F.2d 763 (Pearce v. Director, Office of Workers' Compensation Programs) 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
Pearce v. Director, Office of Workers' Compensation Programs, 603 F.2d 763 (9th Cir. 1979).

Opinion

DUNIWAY, Circuit Judge:

Petitioner Gerry E. Pearce received biweekly workers’ compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§ 901 et seq. (“the Longshoremen’s Act”), as extended by the Defense Base Act, as amended, 42 U.S.C. §§ 1651 et seq. He seeks review of a final order of the Benefits Review Board affirming a deputy commissioner’s refusal to commute his biweekly benefits into a lump sum compensation award as permitted under § 14(j) of the Longshoremen’s Act, 33 U.S.C. § 914(j).

[765]*765Because the deputy commissioner who initially denied the commutation has his office in Chicago, we do not have jurisdiction to reach the merits. Because the deputy commissioner acted after the 1972 Amendments to the Longshoremen’s Act had taken effect, we conclude that review of the Board’s order lies in the Court of Appeals for the Seventh Circuit, not in this court. In the interest of justice, we transfer this case to the Seventh Circuit for further proceedings.

I. The Facts.

On November 14, 1970, Pearce sustained permanently and totally disabling injuries in an accident which occurred near a United States Air Force base in northeastern Thailand. As an employee covered by the Defense Base Act, see 42 U.S.C. § 1651, Pearce filed a claim for compensation with the United States Department of Labor Compensation District headquartered in Hawaii. Before the Hawaiian office had acted upon his claim, Pearce moved to Illinois. For the convenience of all concerned, the Office of Workers’ Compensation Programs of the United States Department of Labor then transferred Pearce’s claim to its Chicago office for investigation and resolution. Pearce does not dispute the propriety of the transfer.

A deputy commissioner whose office is located in Chicago eventually found Pearce to be permanently and totally disabled. In subsequent proceedings, the same deputy commissioner increased the amount of Pearce’s benefits but rejected his application for a lump sum award in lieu of biweekly benefits. The Benefits Review Board affirmed the deputy commissioner’s decision that a lump sum award would not be “in the interest of justice,” the statutory standard under 33 U.S.C. § 914(j). The Board’s decision is reported at 5 B.R.B.S. 573 (1977). Pearce then petitioned this court for review of the Board’s decision.

II. What is the Proper Court to Hear this Case?

The Director of the Office of Workers’ Compensation Programs urges us to dismiss Pearce’s petition, arguing that only the Court of Appeals for the Seventh Circuit is the proper court to hear Pearce’s petition. Pearce argues that § 21(c) of the Longshoremen’s Act, 33 U.S.C. § 921(c) places direct review of the Board’s decision in this court. The Sixth Circuit’s recent decision in Home Indemnity Company v. Stillwell, 6 Cir., 1979, 597 F.2d 87, would require Pearce to petition for review in the United States District Court for the Northern District of Illinois. To resolve these questions, we must determine the extent to which certain 1972 Amendments to the Longshoremen’s Act are affected by the provisions of the Defense Base Act, a statute which incorporates the Longshoremen’s Act by reference.

Congress passed the Defense Base Act in order to provide workers’ compensation coverage for specified classes of employees working “outside the continental United States.” See § 1, 55 Stat. 622, 42 U.S.C. § 1651(a)(4). Instead of drafting a new workers’ compensation scheme, Congress extended the already established Longshoremen’s Act, as amended, to apply to the newly covered workers. Section 1 of the Defense Base Act, 42 U.S.C. § 1651(a), now provides:

Except as herein modified, the provisions of the Longshoremen’s . . . Act, approved March 4, 1927 (44 Stat. 1424), as amended, shall apply in respect to the injury or death of any employee [covered under the Defense Base Act] ....

Over the years, Congress has also extended the protections and procedures of the Longshoremen’s Act to various other groups of workers. See, e. g., the District of Columbia Workmen’s Compensation Act, as amended, 35 D.C.Code 501 et seq.; the War Hazards Compensation Act, as amended, 42 U.S.C. § 1701 et seq.; the Outer Continental Shelf Lands Act, as amended, 43 U.S.C. § 1331 et seq.; the Nonappropriated Funds Instrumentalities Act, as amended 5 U.S.C. § 8171 et seq.; and the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. § 801 et seq.

To assess the effects of the 1972 Amendments to the Longshoremen’s Act upon the adjudication of Defense Base Act claims, [766]*766we begin with the law as it stood before those amendments. Under that law, § 19 of the Longshoremen’s Act, 33 U.S.C. § 919 (1970 ed.), Longshoremen’s Act claims were initially investigated and decided by deputy commissioners. Because the Defense Base Act contained no special modifying provision, § 19 applied to Defense Base Act claims through that Act’s general incorporation provision, § 1, 42 U.S.C. § 1651(a).

Under the Longshoremen’s Act, appeals from a deputy commissioner were to be “instituted in the Federal district court for the judicial district in which the injury occurred . . . .” § 21(b), 33 U.S.C. § 921(b) (1970 ed.) (emphasis added). Because, in most, if not all, Defense Base Act cases, the injury or death would not occur within any federal judicial district, Congress provided a different method of determining what court a Defense Base Act claimant or other interested party should resort to to pursue the appeal rights set forth in the old § 21(b):

Judicial proceedings provided under section [] . . . 21 of the Longshoremen’s . . . Act (33 U.S.C. § 921) in respect to a compensation order made pursuant to this chapter shall be instituted in the United States

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
603 F.2d 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearce-v-director-office-of-workers-compensation-programs-ca9-1979.