# Director, Office of Workers' Compensation Programs v. Detroit Harbor Terminals, Inc.

> Court of Appeals for the Sixth Circuit · June 24, 1988 · 850 F.2d 283

URL: https://www.frixlaw.com/law-library/cases/8961602

## Case

- **Full name:** DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR v. DETROIT HARBOR TERMINALS, INC. Utica Mutual Insurance Company and General Reinsurance Company
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 24, 1988
- **Citations:** 850 F.2d 283; 1988 WL 63267
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Engel, Krupansky, Nelson
- **Cited by:** 2 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/8961602

## Opinion text

DAVID A. NELSON, Circuit Judge,
dissenting.
The court has discerned in the statutory scheme complexities and ambiguities that are not apparent to me. The pertinent provisions of the statute may not be wise, but I think they are clear — and the application of the clear language of the statute to the undisputed facts of this case compels the conclusion, I believe, that the burden of *293 paying the portion of the death benefits that Charles Dennis’ widow is receiving under § 9 of the Longshore and Harbor Workers’ Compensation Act ( 33 U.S.C. § 909 ) must be born entirely by the insurance companies that provided bonding coverage for Mr. Dennis’ employer. (The employer, we are informed, was a self-insurer that is now defunct.)
If there is any ambiguity in the statutory scheme, it stems from the first sentence of § 10(h)(1) of the Act. That sentence, as codified in 33 U.S.C. § 910 (h)(1), reads as follows:
“Not later than ninety days after October 27, 1972, the compensation to which an employee or his survivor is entitled due to total permanent disability or death which commenced or occurred prior to October 27, 1972, shall be adjusted.”
There has been no suggestion that there is anything ambiguous about the application of this sentence to the disability benefits that Mr. Dennis himself received as a totally and permanently disabled employee. Mr. Dennis’ disability having commenced prior to October 27, 1972, the quoted sentence made it mandatory that “[n]ot later than ninety days after [that date], the compensation to which [the] employee ... [was] entitled ... be adjusted.” Mr. Dennis’ disability compensation was in fact adjusted, in accordance with the statutory formula. The additional compensation received by Mr. Dennis as a result of the adjustment was ultimately paid out of “special fund” monies and congressional appropriations, as required by § 10(h)(2) of the Act. (“Fifty per centum of any additional compensation ... paid as a result of the adjustment required by [§ 10(h)(1) ] ... shall be paid out of the special fund ..., and 50 per centum shall be paid from appropriations.”)
When Mr. Dennis died in September of 1980, his disability compensation stopped. In its place, the Deputy Commissioner of the Tenth Compensation District made an award of compensation to Mr. Dennis’ widow at an initial rate of $106.57 per week, beginning as of September 2, 1980. The compensation thus awarded to Mrs. Dennis, as the employee’s surviving spouse, was termed a “death benefit” under § 9 of the Act. (“[T]he compensation [for an employee’s death] ... shall be known as a death benefit....”) The initial amount of the death benefit was calculated not under § 10, but under § 9.
If Mr. Dennis had died before the 1972 amendments to § 9 of the Act became effective, the death benefits payable to his widow would have been substantially less than the $106.57 per week actually awarded. As I read the majority opinion in this case, the court is under the impression that arguably, at least, the award of death benefits greater than those that would have been payable under the pre-1972 version of § 9 constituted an “adjustment” under § 10 of the Act. And if the death benefits were “adjusted” under § 10, there can be no question that the additional amount payable by reason of the adjustment would have to come out of the special fund and congressional appropriations, and not out of the coffers of the insurance companies.
The problem, as I see it, is that there is no basis whatever for supposing that the difference between the death benefits that would have been payable under the pre-1972 version of § 9 and the death benefits payable under the post-1972 version of § 9 constituted an “adjustment” required by § 10.
Any adjustment made under § 10(h)(1) of the Act must, according to the opening words of the opening sentence of that section, be made “[n]ot later than ninety days after October 27, 1972....” The award of death benefits to Mr. Dennis’ widow in the case at bar was made on November 4,1980, and the death benefits were only awarded as from September 2, 1980. I do not understand how this award can be deemed to have been made “[n]ot later than ninety days after October 27, 1972”; and if the award was not made within the time frame required by § 10 of the Act, I do not understand how the award can be thought to qualify as an “adjustment” under § 10.
Nothing in the wording of the award itself lends any support to the conclusion that the death benefits being awarded to *294 Mrs. Dennis were somehow being “adjusted” under § 10(h)(1). Insofar as the portion of the award that is at issue here is concerned, the award refers only to § 9:
“Mrs. Ethel Scott Dennis, widow of the deceased employee[,] is entitled to death benefits pursuant to Section 9 ... the employer and carrier shall also pay $1,000.00 funeral expenses in accordance with Section 9(a) of the Act.” (Emphasis supplied.)
Under the terms of the award, none of these death benefits and funeral expenses can be attributed to an “adjustment” required by § 10(h)(1) of the Act.
If the Deputy Commissioner was not purporting to make a § 10(h)(1) adjustment when he awarded death benefits to the widow on November 4, 1980, it remains only to be considered whether any part of the widow’s weekly benefit of $106.57 could somehow have represented an “adjustment” under § 10(h)(1) notwithstanding the fact that it was not so designated. The answer, in my opinion, is no.
In the first place, there were not any death benefits to be adjusted before Mr. Dennis actually died. The award made by the Deputy Commissioner on November 4, 1980, was the initial award of death benefits; its amount could only have been calculated, in the first instance, under § 9.
In the second place, even if Mrs. Dennis had somehow been entitled to receive death benefits in anticipation of her husband’s eventual demise, the supposed “adjustment” of such benefits was not made until November 4, 1980. As mentioned above, there is no way an adjustment of death benefits made on November 4, 1980, can fairly be said to have been made “[n]ot later than ninety days after October 27, 1972_” And even if there could somehow have been a § 10(h)(1) death benefit adjustment that came eight years late, the decision rendered by the Benefits Review Board in this case reveals that the amount the widow would have received under the adjustment formula of § 10 was less than the amount to which she was entitled under § 9 of the Act. What she actually received, of course, was a § 9 award, not an adjustment under § 10.
In the third place, no adjustment of death benefits was authorized, under the plain language of § 10(h)(1), unless the employee’s death itself had “occurred prior to October 27, 1972_” Mr. Dennis’ death did not occur prior to that date — it occurred more than eight years afterward.
In the context of the Act as a whole, it seems to me, the first sentence of § 10(h)(1) must be read as mandating two things: it mandates an adjustment in the employee’s disability benefits, if any, where the employee's disability commenced prior to October 27, 1972, and it mandates an adjustment in his survivor’s death benefits, if any, where the employee’s death occurred prior to October 27, 1972. The interests of brevity were served by commingling the descriptions of the events (“disability or death which commenced or occurred prior to October 27, 1972”) that would trigger an adjustment, and I should be very surprised indeed if it ever crossed the draftsman’s mind that anyone might think the quoted words could cover a lingering death that “commenced” prior to October 27, 1972, and finally came to a merciful end more than eight years later.
I suppose it is true that, as some mordant soul once observed, “we are all slowly dying.” In common understanding, however, the fact that someone was born before a particular date can hardly be said to mean that his death “commenced” prior to that date. Legislative purpose, after all, “is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U.S. 1, 9 , 82 S.Ct. 585, 591 , 7 L.Ed.2d 492 (1962). To me, as I have said, the first sentence of § 10(h)(1) speaks only of disabilities that commenced before the October 27 date and of deaths that occurred before that date. The majority having read this sentence otherwise, I respectfully dissent. I would reverse the decision of the Benefits Review Board and reinstate the decision of the Administrative Law Judge, thus denying the insurance carriers’ claim for further reimbursement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8961602. Public record. Not legal advice.