Opinion

Hawthorne v. Director, Office of Workers' Compensation Programs

  • 844 F.2d 318
  • 1988 WL 30928
Court
Court of Appeals for the Sixth Circuit
Filed
Apr 11, 1988
Status
Published
Author
Ryan
On the bench
Keith, Martin, Ryan
Cited by
1 cases
Authority
More cited than 19.7%

The opinion

RYAN, Circuit Judge

(dissenting).

I must respectfully dissent from the decision reached in this case because it appears to me the court decides a matter it is without authority to address.

It is the settled law of this circuit that a petitioner, claiming to be aggrieved by the decision of an administrative agency, may not appeal to this court issues that were not raised in the agency adjudicative process. Blevins v. Director, Office of Workers’ Compensation, 683 F.2d 139 (6th Cir.1982); Cox v. Benefits Review Board, 791 F.2d 445 (6th Cir.1986). Those familiar authorities preclude judicial review of the decision of an administrative agency when the claimant’s administrative remedies have not been exhausted. That is precisely the case in the matter before us.

Because the petitioner here did not raise, either before the Administrative Law Judge or the Benefits Review Board, any claim relating to the computation of his average weekly wage for purposes of computing his entitlement to benefits for temporary total disability, he has not exhausted his administrative remedies and this court may not, under our decisions, decide the question for the first time on appeal.

After the petitioner was injured on the job, he filed a claim for temporary total disability benefits and he was paid $112.66 a week from the date of the accident until he returned to his job as a laborer on August 11, 1980. All of his medical expenses were paid as well. He then filed a claim for permanent partial disability benefits. That claim was denied in a decision and order by an Administrative Law Judge who held that the petitioner failed to prove that he had suffered a permanent partial disability. The petitioner then appealed to the Benefits Review Board the administrative law judge’s refusal to award benefits for permanent partial disability and argued, in section II of his Brief in Support of Petition for Review, that “when computing his permanent partial disability payments, the Benefits Review Board should properly follow the method prescribed by section 10, subsection (c) of the [Longshoreman’s and Harbor Workers’ Compensation Act].” (Emphasis added.) The petitioner made no claim before the Review Board, as he had not before the Administrative Law Judge, that the temporary total disability benefits he had received had been improperly calculated.

The Benefits Review Board affirmed the decision of the ALJ, holding:

We therefore affirm the administrative law judge’s finding that claimant is not disabled due to his work-related injury.

In a footnote, the Board observed:

Because we affirm the administrative law judge’s finding that claimant is not disabled, we need not address claimant’s contention regarding the calculation of his average weekly wage.

Obviously the Board had reference to the petitioner’s claim in section II of his brief relating to the correct computation of his “permanent partial disability payment....”

Now, before this court, the petitioner has raised, for the first time, the claim that the Department of Labor erred in its calculation of the temporary total disability benefits petitioner received from May 6, 1980, through July 15, 1980. Obviously he is not appealing any decision of the Administrative Law Judge or of the Benefits Review Board because he did not raise, before those adjudicators, any issue relating to the correct calculation of the temporary disability benefits he received, and they made no decision on that matter. That issue not only has not been exhausted below, it has not even been raised below.

While the majority has the power to decide the issue it decides today, I think it does not have the authority to do so in light of the binding precedent of Blevins and Cox .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.