# Burns v. Director, Office of Workers' Compensation Programs

> Court of Appeals for the D.C. Circuit · December 20, 1994 · 41 F.3d 1555

URL: https://www.frixlaw.com/law-library/cases/6933070

## Case

- **Full name:** Robert L. BURNS v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent GEORGE HYMAN CONSTRUCTION COMPANY v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 20, 1994
- **Citations:** 41 F.3d 1555; 309 U.S. App. D.C. 400; 1994 WL 704815
- **Precedential status:** Published
- **Opinion:** Concurrence by Silberman
- **Judges:** Randolph, Silberman, Wald
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6933070

## How later opinions describe it (automated extraction)

- holding that, on a petition for review of a decision by the Benefits Review Board under the split enforcement scheme of the Longshore and Harbor Workers’ Compensation Act, rather than defer to the Board the court must "conduct an independent review of the record to determine i…
- observing that the District of Columbia Workman's Compensation Act of 1928, which was repealed in 1982, extended the provisions of the LHWCA to "the injury or death of an employee of an employer carrying on any employment in the District of Columbia”
- finding that preceding non-final agency orders were properly before court upon review of final agency order under APA
- observing the anomaly of a court independently reviewing the record, but noting uncertainty as to whether "any different scope of review[] is even theoretically available to a court of appeals under this statute”

## Opinion text

SILBERMAN, Circuit Judge,
concurring:
The BRB has three times reversed the ALJ’s award of compensation to petitioner under the LHWCA as not supported by substantial evidence on the record as a whole. We hold that the BRB exceeded its scope of review the first two times because the Board must uphold the findings of fact by the ALJ if those findings are “supported by substantial evidence in the record considered as a whole.” 33 U.S.C. § 921 (b)(3) (1988). In so doing, we follow the precedent of this circuit and of the other circuits which have considered the proper scope of judicial review of the BRB under 33 U.S.C. § 921 (c). See Randall v. Comfort Control, Inc., 725 F.2d 791, 796 (D.C.Cir.1984); Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234 , 237 (3d Cir.1979); Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117 , 1119 n. 1 (5th Cir. 1980). Under these cases, reviewing courts have looked independently at the record before the ALJ to determine if the ALJ’s findings were supported by substantial evidence on the record as whole. This scope of review effectively removes the BRB from the hierarchy established to administer the workman’s compensation programs.
Yet the BRB, a body with significant accumulated experience, competence and memory with the run of workman’s compensation cases, found Judge Lesser’s theory of causation of Burns’ stroke not plausible. For us to be obliged to dismiss this judgment— essentially the product of superior institutional competence — out of hand appears anomalous. I am, however, uncertain whether any other course, any different scope of review, is even theoretically available to a court of appeals under this statute; review of the BRB’s finding for substantial evidence is apparently foreclosed by the statutorily-dictated relationship between BRB and ALJ. See, e.g., Sun Shipbuilding, 593 F.2d at 237 & n. 1. If no other scope of review of the BRB than the present one is feasible, though, the statutory structure makes little sense to me.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6933070. Public record. Not legal advice.