Fleetwood v. Newport News Shipbuilding & Dry Dock Co.

WARRINER, District Judge,

dissenting.

Beginning with the first opinion 1 dealing with the question, handed down in 1933, and continuing without wavering thereafter, the courts have uniformly interpreted the term “change in conditions” 2 in Section 22 of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 922 (1982), to refer exclusively to a change in the physical condition of the employee receiving compensation. This also was “the meaning generally attributed to similar phraseology in state workman’s compensation acts” in existence before or shortly after the enactment of the LHWCA in 1927. See Atlantic Coast Shipping Co. v. Golubiewski, 9 F.Supp. 315, 317 (D.Md.1934).

The majority’s nice effort to distinguish this prior case law serves only to highlight the numerous and varied factual situations in which the federal courts have withstood temptation and have strictly adhered to this interpretation. In McCormick Steamship Co. v. United States Employees’ Compensation Commission, 64 F.2d 84 (9th Cir.1933), for example, the Court refused to allow the modification of a compensation order under Section 22 where the employee’s earnings were diminished as a result of deteriorating economic conditions. Id. at 85 . Conversely, the fact that an employee received higher wages because of better economic conditions in the 1940’s was held not to constitute a “change in conditions” so as to allow á reduction in the employee’s compensation award. Burley Welding Works v. Lawson, 141 F.2d 964, 966 (5th Cir.1944). The courts have refused to find a “change in conditions” where the employee was imprisoned in a penitentiary for life, Atlantic Coast Shipping Co. v. Golubiewski, 9 F.Supp. at 316-19 , or where the employee was committed to an insane asylum. Bay Ridge Operating Co. v. Lowe, 14 F.Supp. 280, 280-82 (S.D.N.Y.1936).

In every one of these case, decided soon after the effective date of the Act, the respective courts explicitly stated and held that the term “change in conditions” in Section 22 refers to the physical condition of the employee receiving compensation. In a more recent case, General Dynamics, Inc. v. Director, Office of Workers’ Compensation Programs, 673 F.2d 23 (1st Cir.1982), the court reiterated this interpreta *1236 tion: “[cjourts uniformly have held that a ‘change in conditions’ means a change in the employee’s physical condition, not other conditions.” Id. at 25 (citing Burley Welding Works, Inc. v. Lawson, 141 F.2d at 966 ).

Despite fifty years, and more, of precedent, the majority has overturned this established construction of the term “change in conditions” and has revised it to have it apply to changes in economic conditions occurring during the term of compensation. Such a departure from settled prior case law is not warranted absent any indication from the Congress that such a change in the statute is what is desired by the lawmakers. Congress, it should not be necessary to add, indicates its desires by adopting legislation.

The majority substantially relies on a revised view of the statute enunciated by the Benefit Review Board. The majority correctly observed in this connection that as a general proposition, “the interpretation of an agency charged with the administration of a statute is entitled to substantial deference.” Blum v. Bacon, 457 U.S. 132, 141 , 102 S.Ct. 2355, 2361 , 72 L.Ed.2d 728 (1982). Directly on point with respect to this specific case, however, is the Supreme Court’s comment, noted but ignored by the majority, in Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 , 101 S.Ct. 509 , 66 L.Ed.2d 446 (1980): “It should ... be noted that the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts.” Id. at 278, n. 18 (citations omitted). This Court should not give the Board any deference in the Board’s bald attempt to rewrite the statute.

Fifty years is a long time. And perhaps it can be argued that the Board’s, and the courts’, and the Congress’ erstwhile interpretation of the phrase was inhumane, or unenlightened, or an anachronism, or something else even more disparaging. But it cannot be argued, I submit, that the prior interpretation was not and is not the law. Accordingly, I dissent.

. McCormick Steamship Co. v. United States Employees’ Compensation Commission, 64 F.2d 84 (9th Cir.1933).

. The pertinent part of the section reads:

Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.