Todd Shipyards Corp. v. Allan

666 F.2d 399
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 22, 1982
DocketNo. 80-7511
StatusPublished
Cited by29 cases

This text of 666 F.2d 399 (Todd Shipyards Corp. v. Allan) 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
Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir. 1982).

Opinion

GOODWIN, Circuit Judge.

Todd Shipyards appeals from a Benefits Review Board order affirming an award of 25 per cent permanent partial disability pursuant to §§ 8(c)(21) and 8(h) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908(c)(21) and 908(h).

The dispositive issues are: (1) whether the Board erred in reversing the administrative law judge’s initial finding that Norman Allan’s claim was time-barred, and (2) whether substantial evidence supports the administrative law judge’s determination that Allan suffered a 25 per cent permanent partial disability.

On December 9, 1971, during the course of his employment, Allan, a shipwright, was injured when a piece of metal fell on his neck and shoulder. Allan experienced pain and dizziness, but continued to work the rest of the day.

The next day, his employer, Todd Shipyards, referred him to Dr. Irving Tobin, an orthopedist. Dr. Tobin diagnosed Allan’s condition as a “post occipital headache” and “cervical myosis”. Dr. Tobin told Allan the X-rays were normal and that Allan had a bad bruise “which would go away in time.” Dr. Tobin gave Allan a prescription for pain and released him for work. Allan went back to work but the headaches and neck pain persisted. In April or May 1973, the neck pain got worse and Allan developed pain in his right arm. In July 1973, he went back to see Dr. Tobin who told him again that he had nothing more than a bad bruise.

[401]*401In November 1973, X-rays taken by Dr. Tobin revealed a change between the fifth and sixth vertebrae. Dr. Tobin referred Allan to a neurosurgeon, Dr. John Gibson, who diagnosed his condition as progressive cervical spondylosis initiated by the earlier accident. In January 1974, Allan had an anterior disc removal and fusion. On May 17, 1974, Allan returned to work. Allan filed his claim April 5, 1974.

After a hearing, an administrative law judge denied Allan’s claim as time-barred under § 13(a) of the Act, 33 U.S.C. § 913(a). The Benefits Review Board reversed this ruling. On remand, the administrative law judge determined that Allan had suffered a 25 per cent permanent partial disability. The Benefits Review Board affirmed. This petition followed.

A. Statute of Limitations.

Two versions of § 13(a), 33 U.S.C. § 913(a), have been at issue in this case. At the time of Allan’s injury, § 13(a) read in material part as follows:

“The right to compensation for disability under this Act shall be barred unless a claim therefor is filed within one year after the injury . . .. ”
In 1972, § 13(a) was amended as follows: “Except as otherwise provided in this section. the right to compensation for disability or death under this Chapter shall be barred unless a claim therefor is filed within one year after the injury or death ... The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment. (Amendatory language is underlined.)

The administrative law judge applied the version of § 13(a) that had been in effect at the time of Allan’s accident. The Board applied the amended version of § 13(a) to Allan’s claim. The Board adopted the reasoning of Cooper Stevedoring of LA., Inc. v. Washington, 556 F.2d 268, 274 (5th Cir.), reh. denied, 560 F.2d 1023 (1977). In Cooper Stevedoring, the claimant’s accident occurred a few months prior to the effective date of the amendment to § 13(a). Nonetheless, the Fifth Circuit found that the claim was covered by the amended version of § 13(a). The amendment was procedural and therefore said to apply to pending claims. The remedial statute was read liberally to “best effectuate” the Congressional purpose. 556 F.2d at 272. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 13, 100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980). We agree that the amended version of § 13(a) applies to Allan’s claim. The Board was correct in reversing the administrative law judge. Todd argues that the amendment was directed toward latent injuries and occupational diseases, and thus should have no effect on Allan’s “traumatic injury.” The plain wording of the statute belies any Congressional intention that the amendment be read so narrowly.

Todd also argues that even if the amended version of § 13(a) applies to Allan, the claim is still untimely. The amended portion of § 13(a) states that the statute runs when the employee knows or should know “of the relationship between the injury or death and the employment.” 33 U.S.C. § 913(a). Todd argues that there is substantial evidence in the record to support the administrative law judge’s finding that because Allan continued to suffer headaches and pain during the period between the accident and the surgery, Allan knew, or should have known, that the pain was caused by the accident.

The Board correctly overturned that decision. Allan was told several times by Dr. Tobin that his injury was only a bad bruise. Even though he had recurrent pain and dizziness, he tried to keep working. He was not aware that he suffered a compensable injury until a second set of X-rays revealed degenerated cervical discs in November 1973. Following Stancil v. Massey, 436 F.2d 274, 277 (D.C.Cir.1970), the Board found that Allan was not “injured” for purposes of the statute of limitations until “he became aware of the full character, extent, and impact of the harm done to him.” Allan worked until his surgery in January 1974. Only in November 1973 did Allan know that there was an injury in the sense contemplated by § 13(a) — an impairment of [402]*402earning power. Under this standard, the statute of limitations did not begin to run until November 1973. Allan filed in April 1974. The claim was not time-barred.

B. Partial Permanent Disability.

Under §§ 8(c)(21) and 8(h), 33 U.S.C. §§ 908(c)(21) and 908(h), the administrative law judge on remand found that Allan had suffered a 25 per cent partial permanent disability.

Allan’s claim falls under § 8(c)(21), 33 U.S.C. § 908(c)(21) because such injuries are unscheduled injuries. Section 8(c)(21) provides:

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

Related

Ssa Terminals and Homeport Ins v. Robert Carrion
821 F.3d 1168 (Ninth Circuit, 2016)
C & C Marine Maintenance Co. v. Bellows
538 F.3d 293 (Third Circuit, 2008)
C&C Marine v. Director OWCP
Third Circuit, 2008
Barnett & Casbarian, Inc. v. Ortiz
838 P.2d 476 (New Mexico Court of Appeals, 1992)
Newport News Shipbuilding & Dry Dock Co. v. Parker
935 F.2d 20 (Fourth Circuit, 1991)
Penrod Drilling Co. v. Johnson
905 F.2d 84 (Fifth Circuit, 1990)
Penrod Drilling Company v. Johnson
905 F.2d 84 (Fifth Circuit, 1990)
Argonaut Insurance v. Patterson
846 F.2d 715 (Eleventh Circuit, 1988)
Argonaut Insurance Company v. Patterson
846 F.2d 715 (Eleventh Circuit, 1988)
Marathon Oil Company v. Lunsford
733 F.2d 1139 (Fifth Circuit, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
666 F.2d 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-shipyards-corp-v-allan-ca9-1982.