Petition for Writ of Certiorari — Bath Iron Works Corp. v. Bouford

86-841

Supreme Court, U.S.

ie i ae ae

No. NOV 99 1996

JOSEPH F SPAMNIOL, JR.

CHep)

IN THE

Supreme Court of the United States

October Term, 1986

BATH IRON WORKS CORPORATION,

and

COMMERCIAL UNION INSURANCE COMPANY,

Petitioners

V.

BRUCE E. BOUFORD

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

MAINE SUPREME JUDICIAL COURT

Counsel for Petitioners:

Stephen Hessert

James D. Poliquin, Counsel of Record

NORMAN, HANSON & DETROY

P.O. Box 4600 DTS

Portland, ME 04112

(207) 774-7000

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————

No.

IN THE

Supreme Court of the United States

October Term, 1986

BATH IRON WORKS CORPORATION,

and

COMMERCIAL UNION INSURANCE COMPANY,

Petitioners

LP

BRUCE E. BOUFORD

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

MAINE SUPREME JUDICIAL COURT

Counsel for Petitioners:

Stephen Hessert

James D. Poliquin, Counsel of Record

NORMAN, HANSON & DETROY

P.O. Box 4600 DTS

Portland, ME 04112

(207) 774-7000

QUESTION PRESENTED

Whether the Maine Supreme Judicial

Court was correct in ruling that the

federal doctrine of concurrent

jurisdiction does not entitle an employer

that has paid workers’ compensation

benefits under the Longshore and Harbor

Workers’ Compensation Act to a credit, in

the full amount of benefits paid, against

benefits owed the same employee for the

same injury under ae state workers’

compensation scheme.

*

LIST OF PARTIES

The parties in this case when it was

presented to the Maine Supreme Judicial

Court, Docket No. WCC 86-27, were Bath

Iron Works Corporation and Commercial

Union Companies, appellants and Bruce E.

Bouford, appellee.

“petitioner, Bath Iron Works Corporation,

reports, pursuant to Rule 28.1 of the

Rules of this Court that it was a wholly

owned subsidiary of Congoleum Corporation

at the time of Mr. Bouford’s injury. It

is now a wholly owned subsidiary of Bath

Acquisition Corporation, which in turn is

owned by Bath Holding Corporation.

Petitioner Commercial Union Insurance

Company, reports, pursuant to Rule 28.1

of the Rules of this Court, that it is a

wholly owned subsidiary of Commercial

Union Insurance Companies. It has the

following affiliates; American

Employer’s Insurance Company, Employer’s

Fire Insurance Company, Northern

Assurance Company of America, Commercial

Union Custom Insurance Comany, American

Central Insurance Company, and Commercial

Union Life Insurance Company of America.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .. 2s «© © «es Ai

LIST OF PARTIES « . © «© «© «© © « «@ « OS

TABLE OF CONTENTS .. «+s 2 «6 « S&S

TABLE OF AUTHORITIES ...+«-e« ee « V

OPINIONS BELOW . . «© © © «© se eee S

JURISDICTION . «© «© «© e© ee es eee 4

RELEVANT STATUTES ....+«+-+e «© « 4

STATEMENT OF THE CASE ....e«-e+e« 4

STAGES AT WHICH FEDERAL QUESTIONS WERE

RAISED AND PRESERVED ...... 12

BASIS FOR FEDERAL JURISDICTION... 13

ps» ee ee oe ee ae a a ee Ce ee ee ee

I. Introduction to Argument . 14

II. Both case law and Public policy

require that an employer be

allowed, as a matter of law, a

full credit for all benefits

paid to an employee under the

Longshore and Harbor Workers’

Compensation Act against a

subsequent State Workers’

Compensation obligation. . 19

Tit. Geese: - 6 soe eos ee

£43

CERTIFICATE OF SERVICE AND FILING BY

MAIL PURSUANT TO RULE 28.2 and RULE

28.5

. . . . . . . >. . . . . . . . . . >. 31

AppenGices . «se«ss 6s 6 «0 «0 «

APPENDIX A - Maine Supreme Judicial

Court Decision... .1A

APPENDIX B - Appellate Division

Decision ..... . 24A

APPENDIX C - Commissioner Tucker’s

Finding of Fact and

Conclusions of Law dated

April 9, 1985 ... 34A

APPENDIX D - Commissioner Tucker’s

Decree dated December 12,

a9G@4 «© © © 0©0 80 6 6 eo ae

APPENDIX E - Decision of Administrative

Law Judge dated January

23, 19812 . « « « « « 439A

APPENDIX F - 39 M.R.S.A. §§ 54, 55 56,

56A >. . >. al >. > . . -81A

APPENDIX G - 33 U.S.C. §903 (e), §908

(c) . >. . . . . . . ~95A

iv

TABLE OF AUTHORITIES

Cases Page

Bouford v. Bath Iron Works Corporation

3, 20

Calbeck v. Travelers Insurance Company,

370 U.S. 114 (1962) 6, 17, 24, 26

Davis v. Department of Labor, 317 U.S.

429 (1942) 24, 26

Landry v. Carlson Moring Services, 643

F.2d 1080 (5th Cir. 1981), cert. denied,

454 U.S. 1123 (1981) 18

Larson, Workmen’s Compensation Law,

§89.74 16

Stockford v. Bath Iron Works Corp., 482

A.2d 843 (Me. 1984) 15, 17, 23, 24

Sun Ship, Inc. v. Pennsylvania, 447 U.S.

718 (1980) 6, 15, 16, 17, 18, 19, 24, 26

Statutes

28 U.S.C. §1257(3) 5S, a4

33 U.S.C. §908(c) (21) 9

33 U.S.C. §901 et seg 7

447 U.S.C. 715 (1980) 16

‘s

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1986

No.

BATH IRON WORKS CORPORATION

and

COMMERCIAL UNION COMPANY,

Petitioners

Vv.

BRUCE E. BOUFORD,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE MAINE SUPREME JUDICIAL COURT

Petitioners Bath Iron Works

Corporation (Bath) and Commercial Union

Company (Commercial Union) pray that a

writ of certiorari issue to review the

judgment of the Maine Supreme Judicial

Court entered on August 27, 1986 in Bruce

E. Bouford v. Bath Iron Works, et al.

That judgment affirmed a decision of the

Appellate Division of the Maine Workers’

Compensation Commission ordering Bath to

pay its employee benefits under the Maine

Workers’ Compensation Act and denying

Bath a credit against the state benefits

in the full amount of benefits paid under

the Federal Longshore and Harbor Workers’

Compensation Act for the same injury.

OPINIONS BELOW

The Maine Supreme Judicial Court has

issued an opinion in this case, a copy of

which appears in Appendix A to this

Petition (App. A, pp. la-23a). The

Opinion has not been reported. A copy of

the judgment of the Maine Supreme

Judicial Court appears in the Appendix at

page 16a. The Decision and Order of the

Appellate Division of the Maine Workers’

Compensation Commission appears as

Appendix B (App. B, pp. 24a-33a). The

Findings of Fatc and Conclusions of Law

of the Workers’ Compensation Commissioner

in the State of Maine who originally

decided this case are set forth in

Appendix C (App. C, pp. 34a-38a), and the

original Decree of the Workers’

Compensation Commissioner who heard this

case is set forth in Appendix D (App. D,

pp.39a-44a).

Prior to the State litigation that

has produced this Petition for a Writ of

Certiorari, this matter was litigated in

the context of a Longshore and Harbor

Workers’ Compensation claim, and the

Decision and Order of the Administrative

Law Judge (Case No. 80-LHCA-1369), issued

on January 23, 1981, appears in Appendix

E (App. E, pp. 45a-80a).

JURISDICTION

The judgment of the Maine Supreme

Judicial Court was entered on August 27,

1986. The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

RELEVANT STATUTES

The relevant statutory provisions

are set forth in Appendices F and G.

This case involves 39 M.R.S.A. §§54, 55,

56, 56-A (Appendix F), and 33 3.8.

§903(e), §908(c) (Appendix G).

STATEMENT OF THE CASE

The United States Supreme Court has

determined that state workers’

compensation acts are not pre-empted by

the Federal Longshore and Harbor Workers’

Compensation Act. Calbeck v. Travelers

Insurance Company, 370 U.S. 114 (1962);

Sun Ship, Inc. v. Pennsylvania, 447 U.S.

715 (1980). Essential to the formulation

of the doctrine of concurrent

jurisdiction was the principal that the

remedies afforded by state and federal

workers’ compensation schemes are

complementary rather than inconsistent

because an employee is prevented from

receiving a double recovery of benefits

by virture of a credit given to an

employer in the amount of payments

received by the employee under. one

compensation scheme against a subsequent

order to pay benefits under the alternate

system of benefits.

In this case, the Maine Supreme

Judicial Court applied the federal

doctrine of concurrent jurisdiction but

refused to grant to Bath a full credit

for federal payments already issued for

the same injury. If allowed to stand,

the decision of the Maine Court will have

far reaching consequences in the form of

thousands of double recoveries and a

proliferation of litigation dealing with

comparative analyses of inconsistent

benefits in various state and federal

compensation schemes.

The essential facts of this case are

undisputed. Bruce E. Bouford injured his

back on August 16, 1978 while working for

Bath Iron Works. He initially pursued a

Claim for workers’ compensation benefits

under the Federal Longshoremen’s’= and

Harbor Workers’ Compensation Act. EE

U.S.C. §90l1 et seq. The Employer

contested the Employee’s federal claim

and the matter was heard by a Federal

Administrative Law Judge in August of

1980.

The Administrative Law Judge issued

a Decision and Order on January 23, 1981.

(Appendix E, pp. 45a-80a). The

Administrative tay Judge found that the

Employee suffered an injury on August 16,

1978 which resulted in herniation of the

L5-Sl lumbar disc. The Judge took into

consideration the Employee’s’ treating

physician’s evaluation of the Employee’s

“permanent impairment at '’25% loss as it

relates to the whole man or 50% loss of

the back’” and found that the Employee

had “a 25% permanent partial disability

as to the ‘’whole man’ and 50% permanent

disability to the back.” (Appendix 54a).

The Decision and Order of the

Administrative Law Judge continued on to

find:

Maximum improvement has

been reached. The patient has

recurring episodes of low back

pain, which seem to be related

to heavy lifting on different

occasions. The doctor said

this vulnerability will

continue in the future. He

will always have some permanent

impairment which relates back

to the August 16, 1978

accident. . a: [Bjased upon

the claimant’s testimony’ and

the reports of the attending

physicians, I find that between

the date he returned to work,

August 19, 1979 and February 4,

1980, the date his disability

was found to be permanent in

nature, the claimant was

temporarily partially disabled

as a result of his August 16,

1978 job related accident. I

conclude that beginning) on

February 4, 1980 and continuing

thereafter the claimant has

been permanently partially

disabled by the sequelae of

that acci@gentsi : . 3

[Tjhe claimant should be

paid compensation benefits at

the rate of $64.32 per week by

reason of the temporary and

permanent disability he

suffered as a result of the

injuries sustained in August

16, 1978. ae U.S.C.

§908 (c) (219..-. 4%

(Appendix pp. 59a, 60a, 63a).

The Administrative Law Judge

ultimately concluded that the Employee

was entitled to temporary total

disability from August 18, 1978 to March

18, 1979. He went on to conclude that

from March 19, 1979 and continuing the

Employee was entitled to benefits for

permanent partial disability at the rate

of $64.32. It is undisputed that the

Employee has received those payments

under the Federal Act and continues to do

so.

In 1984, the Employee filed a

Petition for Award of Compensation with

the Maine Workers’ Compensation

Commission. In addition, the Employee

filed a Petition seeking an award for

benefits as a result of permanent

impairment he sustained from the August,

1978 injury.

After hearing the State Commission

granted the Petitions brought by the

Employee and ordered payment of

compensation for incapacity from March of

1979 to the present and continuing in an

amount of $40.13 per week, plus inflation

adjustments. That amount was less than

the ongoing benefits the Employee was

receiving under the Federal Longshore

Act. In regard to weekly compensation

benefits, the Commission ordered ” ...

the insurer is entitled to a credit for

federal compensation benefits paid during

these weeks of incapacity.” (Appendix p.

44a ). In addition, the Commissioner

ordered the Employer to pay the Employee

a lump sum of $16,053 for permanent

impairment.

Bath moved for findings on the issue

of the extent of the credit against the

award for permanent’ § impairment. It

asserted that it was entitled to a credit

-10-

against all portions of the State Order

in the amount of all federal payments

made to the Employee for benefits under

the Longshore Act for the same injury.

The Commissioner, however, held that the

Employer was not entitled to any offset

for Longshore payments against the award

for permanent impairment. (Appendix C,

p. 36a). He reached this conclusion

based upon his determination that ”. ..

- Federal Workers’ Compensation laws do

not provide such a benefit.” Id.

Bath Iron. Works appealed to the

Appellate Division of the State Workers’

Compensation Commission arguing that the

decision below violated the federal

doctrine of concurrent jurisdiction and

that the Commission erroneously concluded

that the State obligation to pay

permanent impairment benefits was not

subject to a credit for payments. made

under the federal statutory scheme. The

-l1l1l-

Appellate Division of the Maine Workers’

Compensation Commission, however,

affirmed the ruling of the single

Commissioner. (Appendix B).

The Employer filed a Petition for

Appellate Review which was granted by the

Maine Supreme Judicial Court. With two

Justices dissenting, that Court affirmed

the decision of the Appellate Division

and denied the Employer a full credit

against the state workers’ compensation

obligation for federal payments

previously made for the same injury.

STAGES AT WHICH FEDERAL

QUESTIONS WERE RAISED AND

PRESERVED

As the foregoing statement of the

case indicates, the Petitioners have

contended at every stage of litigation

that they were entitled, as a matter of

federal law, to a full credit in the

amount of all payments made to the

-12-

Employee for federal workers’

compensation benefits against any

subsequent order of payment of state

compensation benefits for the same

injury. Moreover, as the decisions set

forth in the Appendix indicate, the

initial factfinder in the form of a

single State Workers’ Compensation

Commissioner, the State Appellate

Division of the Workers’ Compensation

Commission, and the State of Maine

Supreme Judicial Court have all

specifically considered and ruled upon

the issues presented in this Petition.

(Appendix A, B, C, D).

BASIS FOR FEDERAL

JURISDICTION

This Court has jurisdiction pursuant

to 28 U.S.C. §1257(3) to pass upon the

federal issues that were ruled upon by

the Maine Supreme Judicial Court.

ARGUMENT

-13-

I. INTRODUCTION TO ARGUMENT.

This case presents the Court with an

issue that goes to the heart of the

federal doctrine of concurrent

jurisdiction with regard to the Federal

Longshore and Harbor Workers’

Compensation Act and State Workers’

Compensation schemes. Both the federal

and state statutory provisions’ are

designed to compensate injured workers.

Sun Ship, supra; Stockford v. Bath Iron

Works Corp., 482 A.2d 843 (Me. 1984).

Despite the different terminology used in

each Act to describe the nature of the

benefits awarded, and despite the

adifferent structure of the two benefit

schemes, “payments under the

Longshoremen’s Act are essentially

equivalent to [state workers’

compensation] payments”. Stockford,

Supra at 845.

-14-

In Sun Ship, Inc. v. Pennsylvania,

supra, this Court has determined that

state compensation schemes are not pre-

empted by the Longshore and Harbor

Workers’ Compensation Act when employees

are injured in locations that are within

the jurisdictional reach of both state

and federal law. 447 U.S.C. 715 (1980).

Professor Larsen, in his Treatise on

Workmen’s Compensation Law, has asserted

that the primary reason that the doctrine

of election of remedies is inapplicable

to selection of federal and state

compensation remedies is that the

doctrine involves a choice between

inconsistent remedies, and state and

federal benefits are complementary rather

than inconsistent. Larson, Workmen’s

Compensation Law, §89.74. One of the

expressed purposes of the Sun Ship case

was to give effect to congressional

intent, as reflected in the 1972

-15-

Amendments to the Longshoremen’s’= and

Harbor Workers’ Compensation Act, to

eliminate the disparities in compensation

available to maritime workers, which in

the past were dependent upon whether

injuries occurred on land or on water.

Although the holding in Sun_ Ship

allows an injured maritime worker to

maximize his recovery by entitling him to

the most benefits allowable under either

state or federal system, the Sun _ Ship

Court made it clear that an employee is

to be prevented from receiving a double

recovery of compensation benefits. Sun

Ship, ine. es Pennsylvania, supra,

footnote 8. Payments received by an

employee under one system of benefits

must be credited to the employer who has

subsequently been ordered to pay benefits

under the other. system. Calbeck v.

Travelers Insurance Company, 370 U.S. 114

(1962). See also Stockford v. Bath Iron

-16-

Works cCorp., 482 A.2d 843, 845 (Me.

1984). The amount of credit to which an

employer is entitled is based upon the

level of benefits actually received by

the employee. Landry v. Carlson Moring

Services, 643 F.2d 1080 (5th Cir. 1981),

cert. denied, 454 U.S. 1123 (1981).

The United States Congress codified

the holding of Sun _ Ship, supra, and

Landry, supra, in 1984 when it amended

§903 of the Longshore and Harbor Workers’

Compensation Act to add subsection (e)

which provides that “"[njotwithstanding

any other provision of law, any amounts

paid to an employee for the same injury,

disability or death for which benefits

are claimed under this chapter pursuant

to any other workers’ compensation law

shall be credited against any

liability imposed by this chapter.” a3

U.S.C. §903(e). That amendment leaves no

doubt that Congress intends employers to

-17-

have the benefit of a credit for any

state imposed compensation obligation

against federally imposed liability.

The language of this Court in Sun

Ship makes plain that although Congress

and the Court was unconcerned about

states providing an employee with

Superior benefits, the doctrine of

concurrent jurisdiction should not

operate to allow employees who are

fortuitously injured within the narrow

area of maritime/land based employment to

recover combined benefits without any

setoff. Such a windfall would undermine

the analytical foundation of the doctrine

of concurrent jurisdiction, and would

call into question this Court’s past

rulings on the issue of whether the

Federal Act should be construed to pre-

empt the field. The holding of the Maine

Supreme Judicial Court produces such a

windfall and ought not to be allowed to

-18-

stand aS a guide to future “Courts

considering the proper relationship of

recovery under the Longshore and Harbor

Workers’ Compensation Act and _ State

Compensation Acts. The decision of the

Court below undermines’ the federal

interests in uniformity and transforms

what should be a simple administrative

procedure into a potential flood of

litigation. Virtually all shipyard

workers are within the jurisdictional

reach of state and federal workers’

compensation laws, and it is respectfully

suggested that this Court ought not allow

the holding of the Maine Court below to

stand as a guide for future courts.

There is a need for this Court to state

the proper interpretation of federal law,

thus insuring uniformity and fairness in

future cases.

II. BOTH CASE LAW AND PUBLIC POLICY

REQUIRE THAT AN EMPLOYER BE ALLOWED, AS A

MATTER OF LAW, A FULL CREDIT FOR ALL

BENEFITS PAID TO AN EMPLOYEE UNDER THE

-19-

LONGSHORE AND HARBOR WORKERS ’

COMPENSATION ACT AGAINST A SUBSEQUENT

STATE WORKERS’ COMPENSATION OBLIGATION.

In the context of the well

established doctrine of concurrent

jurisdiction, the public policy interests

of the State Workers’ Compensation

Commission is simply in ensuring that its

workers receive the full level of

benefits to which they are entitled under

the State of Maine Workers’ Compensation

Act. Similarly, the Federal

Administrative Law Judges further the

intent of Congress and their public

policy objectives by simply ordering

payment of all benefits which’ the

employee is due under the federal benefit

scheme. By ordering benefits to the full

level of each respective entitlement,

subject to a credit for payments made for

the same injury under the companion act,

both state and federal entities will be

-20-

achieving their public policy objectives.

Neither jurisdictional entity has any

legitimate interest in construing the

doctrine of concurrent jurisdiction in

such a manner as to produce benefits to

an employee beyond those that are

available under their respective

compensation scheme. Compensation awards

that allow haphazard bonanzas or

windfalls to some employees based upon

the vagaries of comparative statutory

analysis further no legitimate public

policy interest and will result in a

flood of creative litigation.

In its attempt to insure that the

employee in this case received all

benefits to which he was entitled under

Maine law, the Court below went beyond

its own legitimate policy interests and

attempted to interpret the meaning or

intent of the statutory provisions of the

Longshore and Harbor Workers’

-21-

Compensation Act, with which the State

Court is neither involved nor familiar.

Under the § rubic of a comparative

benefit analysis, the State Court ignored

the federal requirement of a setoff of

all benefits paid for the same injury,

which is a necessary prerequisite in

order to avoid the doctrine of federal

pre-emption and the doctrine of election

of remedies. Moreover, the result of the

analysis of the Maine Supreme Court is

that Mr. Bouford will receive benefits

greater than those to which he would be

entitled under either the Federal

Longshore and Harbor Workers’

Compensation Act or the State of Maine

Workers’ Compensation Act.

It is noteworthy that the dissent

from the opinion of the Court below was

authored by the same Justice who authored

the majority opinion in Stockford v. Bath

Iron Works, 482 A.2d 843 (Me. 1984). In

-22-

Stockford, the Maine Supreme Judicial

Court held that Stockford could not

obtain a double recovery. In the dissent

from the opinion of the Court below, this

Justice wrote that that ruling was based

upon a “controlling prinicple of federal

law announced in footnote 8 of Sun Ship”.

(Appendix p. 20(a)). Justice Roberts

observed in his dissent that the

principle of federal law that requires

that all payments under the Longshore Act

be credited against ‘superior state

benefits was an integral part of the

development of the doctrine of concurrent

jurisdiction through Davis v. Department

of Labor, 317 U.S. 429 (1942), Calbeck v.

Travelers Insurance Company, 370 U.S. 114

(1962), and Sun Ship v. Pennsylvania,

supra. It is clear that both the Supreme

Court’s language in footnote 8 of the Sun

Ship case as well as the subsequent

enactment of 33 U.S.C. §903(c) requires

-23-

that any amount paid for permanent

impairment under the Maine Workers’

Compensation Act be credited toward

federal liability for the same injury.

As the dissent points out:

It is inconceivable that the

application of the setoff

principle is dependent upon the

fortuity of whether the state

or federal proceeding occurred

first. (Appendix pp. 2la-22a).

If the decision of the Court below is

allowed to stand, it will foster forum

shopping and will provide employees who

litigate their federal claims first with

greater benefits than those employees who

are similarly injured and_e similarly

disabled but who litigate their state

claims first. Such disparities further

no state or federal interest and threaten

the very foundation of the doctrine of

concurrent jurisdiction. These are the

-24-

bes.

very consequences this Court sought to

avoid in Davis, supra, Calbeck, supra,

and Sun Ship.

Finally, it must be noted that the

comparative analysis utilitized by the

Maine Supreme Judicial Court is flawed.

The permanent partial disability benefit

paid to the employee under the Federal

Longshore and Harbor Workers’

Compensation Act is an integral part of

the so-called “scheduled award”

provisions of that Act. * See 33 U.S.C.

§908(c). (Appendix G, pp. 96a-100a).

Section 908(c) provides for payment of

permanent partial disability as follows:

(c) Permanent Partial

Disability. In cases. of

disabilty, partial in character

but permanent in quality, the

compensation shall be 66 2/3%

of the average weekly wages,

which shall be in addition to

compensation for temporary

total disability or temporary

partial disability paid in

accordance with subdivision (b)

or subdivision (c) of this

section respectfully, and shall

-25-

be paid to the employee as

follows: . . . ™ £4x(emphasis

added)

Subsections 1 through 17 deal with

specific scheduled awards for arms, legs,

hands, feet, eyes, etc. Subdivisions 2l,

under which Mr. Bouford was compensated,

deals with:

(21) Other cases: In all other

cases in this class of

disability, the compensation

shall be 66 2/3 of the

difference between his average

weekly wages and his earning

capacity thereafter in the same

employment or otherwise ... ”

The payment for permanent partial

disability ordered by the Administrative

Law Judge was a payment that was ordered

in addition to whatever temporary total

or temporary partial disability may occur

from time to time for Mr. Bouford. It

was an integral part of the scheduled

provisions of the Longshore and Harbor

Workers’ Compensation Act. The express

language of the Decision and Order of the

-26-

Administrative Law Judge indicated that

he relied upon the medical evidence to

the effect that the employee had reached

a point of “[{mjaximum improvement and

that the employee had sustained

‘permanent impairment at 25% loss as it

relates to the whole man or 50% loss of

the back’” to ultimately conclude that

the employee was entitled under the

provisions of 33 U.S.C. §908(c)(21) to

benefits for continuing permanent partial

disability. The award ‘was made under

that statutory provision because it

involved the back and there was no

specific scheduled remedy provided.

Although this benefit was not divorced

from the concept of actual wage loss, it

definitely included consideration of

permanent loss of use and function of the

back.

-27-

This illustrates two points. First,

the Court below was wrong as a matter of

law when it concluded that there was no

provision in the Longshore and Harbor

Workers’ Compensation Act for payment for

permanent loss of use of the back.

Second, the federal scheme with respect

to payments for loss of use and function

to any bodily members is’ radically

different in kind from the State Workers’

Compensation scheme. It is suggested that

it is impossible to draw analogies

between specific federal benefits paid

and specific state entitlements because

the statutory schemes are so different.

The protection of state and federal

interests respectively can be

accomplished by a rule of law that simply

orders payment of all benefits to which

the employee is entitled under. each

system with an allowance for a credit in

favor of the employer for benefits paid

-28-

to the employee under the other system.

This insures that the employee is

entitled to the best of both worlds, but

protects the employer from the obligation

to pay double benefits oor windfall

benefits based on the fortuities of so-

called comparative benefits analysis or

the timing of the choice of forums.

CONCLUSION

Wherefore, the Petitioners pray that

a Writ of cCertiorari issue from this

Honorable Court to review the judgment of

the Maine Supreme Judicial Court in

Bouford v. Bath Iron Works Corporation,

et al. The decision of that Court

undermines the very foundation of the

federal doctrine of concurrent

jurisdiction. Rather than ensuring

entitlement to maximum state benefits, it

goes far beyond what is’ needed to

accomplish > that goal at the price of

uniformity and fairness.

-29-

Respectfully submitted,

FHANSON & DeTROY

os

phen Hessert, Esq.

By: /\7>\-< 3 Urs \

\Afames D. Poliquin, Esq.*

.* Congress Street

Box 4600 DTS

Portland, Maine 04112

(207) 774-7000

Counsel for Petitioners

*Counsel of Record

-30-

CERTIFICATE OF SERVICE

AND FILING BY MAIL PURSUANT

TO RULE 28.2 and RULE 28.5

I, James D. Poligquin, Esq., certify

that I have personal knowledge that on

November 22, 1986 I caused to be mailed,

postage prepaid, by depositing in a

United States Post Office, forty (40)

copies of the Petitioners Bath Iron Works

Corporation’s and Commercial Union

Insurance Company’s Petition for a Writ

of Certiorari to the Maine Supreme

Judicial Court in the case of:

BATH IRON WORKS CORPORATION

and

COMMERCIAL UNION COMPANY,

Petitioners

Vv.

BRUCE E. BOUFORD,

Respondent

-31-

to the Clerk of the Supreme Court of the

United States, One First Street N.E.,

Washington, D.C. 20543, and mailed by the

same method three (3) copies to Donald

Fontaine, Esq., 7 Dana Street, P.O. Box

7102 DTS, Portland, Maine 04112, Counsel

for Bruce E. Bouford.

he /

mie VO Arg

ames D. Poligquin; Esq.

Member, Bar of United

States Supreme Court

Counsel of Record

NORMAN, HANSON & DeTROY

415 Congress Street

P.O. Box 4600 DTS

Portland, Maine 04112

STATE OF MAINE

CUMBERLAND, SS.

Personally appeared the above-named

James D. Poliquin, who subscribed and

swore to this instrument this 22nd day of

November, 1986.

Before me,

~~

\ \ OA 0 —

Rate (4 3 \ Ay) 06

Notary Public

1993

-32-

TABLE OF CONTENTS OF APPENDIX

Appendix Page

Appendix A - Maine Supreme Judicial

Court DOCiSiOR 4°00 5 ss wae 8

Appendix B - Appellate Division Decision

. . e . . ~ ee . ° . o . . . _ 24

Appendix C - Commissioner Tucker’s

Finding of Fact and Conclusions of Law

dated April 9, 1985 .-< «4s « 34

Appendix D - Commissioner Tucker’s Decree

dated December 12, 1984 ... 39

Appendix E - Decision of Administrative

Law Judge dated January 23, 1981

ik Seca’ ta a eae eel ee oe

Appendix F - 39 M.R.S.A. §§ 54, 55, 56

OR or k.. 4 Sea eS a a eee

Appendix G - 33 U.S.C. § 903(e), §908 (c)

BS aa psgoe tera J paige Sis PRS ga ee RS

APPENDIX A

MAINE SUPREME JUDICIAL COURT

Reporter of Decisions

Decision No. 4222

Law Docket No. WCC-86-27

BRUCE E. BOUFORD

Vv.

BATH IRON WORKS CORP., et al.

COMMERCIAL UNION INSURANCE CoO.

(Insurer)

Argued June 6, 1986

Decided August 27, 1986

Before MCKUSICK, Cod ag and NICHOLS,

ROBERTS, GLASSMAN, and SCOLNIK, JJ., and

VIOLETTE, A.R.J. SCOLNIK, J.

Bath Iron Works Corporation (BIW)

and the Commercial Union Insurance

Company appeal from a decision of the

*VIOLETTE, A.R.J., sat at oral argument

as Associate Justice, but retired prior

to the preparation of this opinion. He

has joined in the opinion as an Active

Retired Justice.

Appellate Division of the Workers’

Compensation Commission affirming’ the

commissioner’s decision ordering, inter

alia, BIW to pay Bruce Bouford benefits

For fifty percent permanent impairment

for loss of use of his' back. BIW

contends that the commissioner erred in

ruling that it was not entitled to credit

against the permanent impairment award

federal compensation benefits paid to

Bouford. We affirm the decision.

The facts are undisputed. Bouford

sustained an injury to his lower back and

legs arising out of and in the course of

his employment by BIW on August 16, 1978.

As a result of that injury, Bouford

received benefits voluntarily under the

federal Longshore and Harbor Workers’

Compensation Act (LHWCA), 33 U.S.C. §§

901-950 (1986). Specifically, he

Mi 4. ie

received benefits for temporary total

disability from August 18, 1978 to

February 4, 1980, and for permanent

partial disability thereafter. Because

BIW hired Bourford after he had suffered

a back-related injury in 1975, its

liability for Bouford’s second job-

related injury was limited to two years.

As a result, after February 4, 1982,

Bouford’s permanent partial disability

benefits have been paid out of a special

fund established pursuant to 33 U.S.C. §§

908(f), 944.

On January 30, 1984, based on the

1978 injury, Bouford filed two petitions

under Maine’s Workers’ Compensation Act

(WCA), 39 M.R.S.A. §§ 1-195 (1980 & Supp.

1985-1986), one for an award of

compensation, the other for a

determination of the extent of permanent

impairment. The commissioner granted

both petitions. He found Bouford to have

been totally incapacitated from August

18, 1978, to March 19, 1979, and twenty-

five percent partially incapacitated for

an open-ended period beginning March 19,

1979. BIW was further ordered to pay

Bouford fifty percent permanent

impairment for the loss of the use of his

back, a lump sum in the amount of

$16,053. Since Bouford had received

benefits under the LHWCA for the 1978

injury, the commissioner allowed BIW to

credit the federal compensation benefits

paid during the specified periods against

the Maine compensation awards. However,

he did not extend this offset to the

permanent impairment award because the

LHWCA did not contain a similar provision

compensating Bouford for the loss of the

-4-a

ee ee eae er

ee eee ee ee ee ee ee ee ves pe oe ee en

ee ae ek

use of his back. After the Appellate

Division affirmed the commissioner’s

decision, we granted BIW’s petition for

review.

The LHWCA is a federal workers’

compensation statute designed in part to

provide compensation for injuries

sustained by persons engaged in maritime

employment. See 33 U.S.C. § 902 (3).

The Act, however, does not prevent a

state from applying its workers’

compensation scheme to land-based

injuries that are also covered by the

LHWCA. In Sun Ship, Inc. Vv.

Pennsylvania, 447 U.S. 715 (1980), the

United States Supreme Court declared that

concurrent jurisdiction for federal and

state compensation acts was consistent

with ensuring that any award a marine

worker receives meets the minimum

-5-a8

benefits under the LHWCA regardless of

whether he was injured on land or over

water. The Court stated:

(I)f state remedial schemes are

more generous than federal law,

concurrent jurisdiction could

result in more favorable awards

for workers’ injuries than

under an exclusively federal

compensation system. But we

find no evidence that Congress

was concerned about a disparity

between adequate federal

benefits and superior. state

wenefits.

Id. at 724 (emphasis in original)

(footnote omitted). To be sure, under

concurrent jurisdiction, an employee is

prevented from receiving a double

recovery of compensation benefits. ID.

at 725 n.8. See also Stockford v. Bath

Iron Works Corp., 482 A.2d 843, 845 (Me.

1984). BIW argues that any award under

the Maine Act necessarily constitutes a

double recovery if it is paid for the

same injury. We disagree. An

examination of the LHWCA and Maine’s Act

makes clear that the permanent impairment

benefits awarded to Bouford in this case

are separate and distinct from the

benefits he received under the LHWCA.

Bouford received benefits for

permanent partial disability as a result

of his 1978 injury under the LHWCA. 33

U.S.C. § 908 (c). BIW contends that this

award is the equivalent of an award for

permanent impairment under WCA_~= and

therefore it should be entitled to a

cvredit. This contention is without

merit. Subsection c of section 908

provides:

In case of disability partial

in character but permanent in

quality the compensation shall

be 66 2/3 per centum of the

average weekly wages, which

shall be in addition to

compensation for temporary

total disabilty or temporary

partial disability paid in

accordance with subsection (b)

or subsection (e) of this

eection . « «

33 U.S.C. § 908 (c).

Subsection (c) includes a schedule for

twenty different specific injuries,

primarily loss of body members. An

employee who suffers an injury listed on

the schedule is entitled to a fixed award

regardless of the injury’s effect on his

lin addition to an award for permanent

partial disability, the LHWCA provides

for awards for permanent total, temporary

total, and temporary partial disability.

The remedies for permanent and temporary

total disability are essentially two-

thirds of the employee’s average weekly

wages. See 33 U.S.C. § 908 (a), (b).

The remedy for temporary partial

disability is two-thirds of the

difference between the employee’s

preinjury average weekly wages and his

post injury wage-earning capacity during

the period of his disability, up to a

maximum of five years. 33 U.S.C.A. § 908

(e). See generally Potomac Elec. Power

Co. v. Director Office of Workers’

Compensation Programs, 449 U.S. 268

(1980).

-8-a

eerning capacity. See 33 U.S.C. § 908

(c) (1) - (20). An additional

subparagraph, 33 U.S.C. § 908 (c)(21),

applies to all injuries not scheduled.

Because a back injury is not scheduled,

Bouford’s permanent partial disability

benefits were paid pursuant to

subparagraph (21), which provides:

Other cases: In all other

cases in the class of

disability, the compensation

shall be 66 2/3 per centum of

the difference between the

average weekly wages of the

employee and the _ employee’s

wage-earning capacity

thereafter in the same

employment or otherwise,

payable during the continuance

of partial disability.

Unlike the scheduled provisions,

permanent partial disability payments

under subparagraph 21 are designed to

compensate an employee for his economic

loss owing to his injury. Benefits are

based on actual loss of earning capacity,

and are measured by the actual impairment

of the employee’s wage-earning capacity

caused by his injury. As the Court

explained in Potomac Electric Power Co.

Vv. Director, Office of Workers’

Compensation Programs, 449 U.S. 268,

282-83 (1980):

Unless an injury results in a

scheduled disability, the

employee’s compensation is

dependent upon proving a loss

of wage-earning capacity; in

contrast, even though a

scheduled injury may have no

actual effect on an employee’s

capacity to perform a

particular job or to maintain a

prior level of income,

compensation in the schedule

amount must be paid.

Maine’s Act is similar to the LHWCA

in that it identifies several categories

of disability and separately prescribes a

method of compensation for each. It

provides compensation for total

incapacity, 39 M.R.S.A. § 54; partial

-10-a

incapacity, 39 M.R.S.A. § 55; and

permanent impairment, 39 M.R.S.A. §§ 56,

56-A. Section 56, like 33 U.S.C. § 908

(c) (1-20), contains a _ schedule of

specific injuries, primarily loss of body

members or other incurable conditions,

for which a specific amount of

compensation is paid to an employee.

These payments ane also made regardless

of loss of earning capacity. For

injuries not scheduled, such as Bouford’s

1978 back injury, section 56-A provides:

In addition to the benefits

provided for in sections 54 and

55, when an employee sustains

an injury which is included in

the following schedule, the

incapacity in each case shall

be deemed to be total for the

period specified and the

injured employee shall receive

a lump sum payment for. said

injury, which shall be

determined by multiplying the

amount to which he would be

entitled weekly for total

incapacity as determined under

section 54 by the period of

presumed total incapacity set

-lli-a

forth in this’ section. The

specific periods of presumed

total incapacity because of

injuries specified in this

section shall be as follows:

Total loss of function of

Back: 200 weeks

3 a M.R.S.A. § 56-A (emphasis added) .*

Unlike the permanent partial

disability benefits Boufford received

under the LHWCA intended to compensate

him for his loss of earning capacity,

permanent impairment benefits awarded

pursuant to section 56-A are _ based

exclusively on loss of function of a

bodily part. See, e.g., Campbell v.

Bates Fabrics, Inc., 422 A.2dad 1014, 1015

(Me. 1980) (permanent impairment benefits

“This version of section 56-A_ was

repealed and replaced by P.L. 1985, ch.

372, § A, 21 (effective June 30, 1985).

-l2-a

siting

erent

“are not dependent upon wage loss but are

paid even though the employee may have

sustained no actual diminution in

wages”). The state remedy has_ no

relationship to loss of earning capacity.

“Impairment benefits are justified

because of losses an impaired worker

experiences that are unrelated to lost

remuneration. The impairment may, for

example, have lifetime effects on the

personality and normal activities of the

worker.” Id. at 1016 (quoting Report of

the National Commission on State

Workien’s Compensation Laws 69 (1972)).

Since the permanent impairment award in

this case provides compensation for the

physical consequences of a work-related

injury, it is not duplicative of a

permanent impairment partial disability

awarded to Bouford under LHWCA. Instead,

“137m

it is a superior benefit that is distinct

from those available under the LHWCA.

Accordingly, we find no basis to conclude

that Bouford received a double recovery

in this case. Absent an award under the

LHWCA compensating Bouford for the

permanent loss of function of his back,

BIW is not entitled to an offset against

the permanent impairment award.

We reject BIW’s contention that

public policy nevertheless requires that

there be an offset in this case. We are

mindful of the fact that Congress has

amended the LHWCA to require that

“amounts paid to an employee for the same

injury, disability, or death for which

benefits are claimed under this chapter

pursuant to any other workers’

compensation law...shall be credited

against any liability imposed by this

-14-a

Lee BF

BRE Ih BA GRAIN Bite A

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ales Kees Liplhc ait Noh Se Peg

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PRE fe Vas a er ee Apa? Ue et eo ter SES Bink

chapter.” 33 U.S.C. § 903(e) (applicable

to claims pending and filed after Sept.

28, 1984). That Congress requires that

an employer be given credit for any

payments made under a state act does not

require that any payments made under the

LHWCA be necessarily offset when benefits

are paid under Maine’s Act. Under

concurrent jurisdiction, states are free

to provide fer more favorable benefits.

When those superior benefits provide

compensation that is separate and

distinct from the compensation awarded

under the federal act, we find no public

policy supporting an offset. Since the

permanent impairment award in this case

is intended solely to compensate = an

injured employee for a physical loss of

bodily function, it would defeat the

purpose of that award if it were offset

-15-a

against benefits paid for loss of earning

capacity.

In short, public policy does

not support BIW’s contention that

Bouford’s permanent impairment award be

offset against his award for permanent

partial

disability under the LHWCA.

Accordingly, we affirm the commissioner’s

decision denying BIW the offset.

The entry is:

Decision of the Appellate

Division of the Workers’

Copmensation Commission

affirmed.

It is further ordered that the

employer pay to the employee an

allowance for counsel fees in

the amount of $550, together

with his reasonable out-of-

pocket expenses for this

appeal.

Nichols,

Violette, and Glassman, JJ.,

concurring.

Attorney for Plaintiff:

Donald F. Fontaine, Esq. (orally)

7 Dana Street

P.O. Box 7102 DTS

Portland, ME 04112

-16-a

Attorneys for Defendant:

NORMAN & HANSON

John H. King, Jr., Esq.

Stephen Hessert, Esq. (orally)

Theodore H. Kirchner, Esq.

415 Congress Street

P.O. Box 4600 DTS

Portland, ME 04112

-17-a

ROBERTS, J., with whom McKUSICK, C.J.,

joins, dissenting.

I must respectfully disagree with

the Court because I believe the Court

addresses incorrectly the issue before

it. If the issue were limited to a

question of state law as the Court’s

opinion implies, I would join that

opinion. I agree that permanent

impairment benefits awarded Bouford “are

separate and distinct from the benefits

he received under LHWCA.” Slip Op. at 3.

Notwithstanding any converse implication

of section 62, there is no explicit

statutory requirement in the Maine

Workers’ Compensation act’ that BIW

receive zredit for the LHWCA payments.

Moreover, I do not suggest adding an

equitable gloss to the Maine act by

requiring such a credit as a matter of

-18-a

public policy. Hird v. Bath Iron Works

Corp., A.2da (Me. 1986) (Decision

No. 4195); Wentzell v. Timberlands, Inc.,

412 A.2d 1213 (Me. 1980). I conclude,

therefore, that there is no basis in our

state law to require a setoff.

In my view, however, the question is

one of federal law and requires that we

discern what the Supreme Court would

decide on the issue before us.

As our Court observes, Slip Op. at

3, the Supreme Court has determined that

state compensation schemes are not

preempted by the LHWCA in areas of

apparent concurrent jurisdiction. Sun

Ship, Inc. v. Pennsylvania, 447 U.S. 715

(1980). Critical to that determination

was the observation that the employer

will receive credit on either scheme for

any amounts paid under the other. Id. at

-19-a

725 n.8. Our observation in Stockford v.

Bath Iron Works Corp., 482 A.2d 843, 845

(Me. 1984), that Stockford could not

obtain a double recovery was not intended

as a statement of Maine law. Rather, we

noted the controlling principle of

federal law announced in footnote 8 of

Sun Ship.

Although it is true that the Supreme

Court observed in Sun Ship that Congress

was unconcerned about states providing

superior benefits, the federal scheme

plainly requires all payments under LHWCA

to be credited toward those superior

state benefits. The opinion in Sun Ship

traced the development of concurrent

jurisdiction through Davis v. Department

of Labor, 317 U.S. 249 (1942), and

Calbeck v. Travelers Insurance Co., 370

U.S. 114 (1962). Although not part of

-20-a

peti: “Sa a aa i ct A a lal en

the dispute in Calbeck, the Supreme Court

there noted that full credit was allowed

in the federal proceedings for all

payments made under the Louisiana

Compensation Act regardless of their

purpose. Footnote 8 in Sun Ship cites

Calbeck as demonstrating that there is no

danger of double recovery because

“employer’s awards under one compensation

scheme would be credited against any

recovery under the second scheme.” The

Supreme Court’s language in footnote 8,

as well as the subsequent enactment of 33

U.S.C. § 903 (c), would require any

amount paid for permanent'§ impairment

under the Maine Workers’ Comepnsation Act

to be credited toward federal liability

for the same injury. It is inconceivable

that the application of the setoff

principle is dependent upon the fortuity

-23°8

of whether the state or federal

proceeding occurred first. I am

convinced that the Supreme Court would

require LHWCA payments to be credited

against an award for permanent impairment

as well as any other compensation awarded

for the same injury.

Finally, I reject our cCourt’s

suggestion that the offset at issue would

defeat the purpose of the award for

permanent impairment. Slip Op. at 8. On

the contrary, regardless where the

employee first seeks an award of benefits

he is entitled to the maximum amount

allowed to an individual under either

scheme. Today’s decision, however, would

permit the person whose injury

fortuitously is within the area of

concurrent jurisdiction to obtain greater

benefits than either the person suffering

-22-a

a strictly land-based injury or the

person suffering a strictly maritime

injury. I would hold that as a matter of

federal law BIW must be credited with all

payments under LHWCA toward any benefits

awarded under the Maine Workers’

Compensation Act.

-23-a

J

APPENDIX B

STATE OF MAINE APPELLATE DIVISION

WORKERS ’ DECISION No. 86-01

COMPENSATION COMMISSION

BRUCE E. BOUFORD

(Appellee - Employee)

Vv.

BATH IRON WORKS CORP.

(Appellant - Employer)

and

COMMERCIAL UNION INSURANCE CO.

(Insurer)

Argued: October 10, 1985

Decided: January 6, 1986

BEFORE: Commissioners Clapp and Michaud

BY: The Commissioners

The employer appeals from a

Commission decision ordering it to pay

the employee compensation for total

incapacity from August 18, 1978 to March

18, 1979 and 25% partial incapacity for

an open-ended period beginning March i19,

-“24-a

1979. The employer was further ordered

to pay the’ employee 50% permanent

impairment for loss of use to his back.

We deny the employer’s appeal.

Bruce Bouford sustained an injury to

his lower back and legs on August 16,

1978 while employed as a machinist by

Bath Iron Works Corp. As a result of

this injury the employee received

compensation benefits pursuant to the

federal Longshoremen’s and Harbor

Worker’s Act.? On January 30, 1984 the

employee filed a petition for award of

comensation and a petition to determine

the extent of permanent impairment with

the Maine Workers’ Compensation

Commission. In granting these petitions,

as noted above, the Commission stated

that the employer was entitled to a

1See, 33 U.S.C §901 et. seg

-25-a

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4

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.

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credit for the federal compensation

benefits paid to the employee during the

specified time periods. This offset,

however, did not extend to the 50%

permanent impairment award ordered under

the State Act. The Commission refused to

order such an offset because the

Longshoremen’s Act did _ not have a

parallel provision to the Maine permanent

impairment benefits.

The employer now seeks appellate

review of ths single aspect of the

Commission’s decision.

It is well established that an

employee is prevented from receiving a

double recovery of compensation benefits.

Sun Ship, Inc. v. Pennsylvania, 447 U.S.

715, 725 (1980). The courts, however,

have noted that "if state remedial

schemes are more generous than federal

-26-a

laws, concurrent jursidiction could

result in more favorable awards’ for

workers’ injuries than under and

exclusively federal compensation system.”

Id., at 724. Such a favorable award

occurred in the case before us. Mr.

Bouford is entitled to an award for

permanent impairment under the Maine Act.

All other things being equal, an employee

who was injured and either’ sought

compensation only under the

Longshoremen’s Act, or alternatively,

lived in a state which did not provide

for permanent impairment benefits, would

receive less favorable treatment than Mr.

Bouford did in this’ case. This was

anticipated by the respective

legislatures, however, and does not

offend the beneficient purposes of the

Act.

-27-a

In this case the employee received

benefits for “permanent partial

disability” under the Longshoremen’s Act.

The employer contends that this is the

equivalent of an award for permanent

impairment under the Maine Act. We

disagree. As pointed out by the

appellant itself, the two compensation

schemes are "radically different.” The

employee’s permanent partial disability

benefits were admittedly paid pursuant to

33 U.S.C.A. §908 (c) (21). Benefits paid

under this particular section are

“payable during the continuance of such

partial disability, but subject to

reconsideration of the degree of such

impairment by the deputy commissioner on

his own motion or upon application of any

party in interest.” Id. (emphasis added)

-28-a

The permanent partial disability

payments under section 908 (c) (21) of

the federal act are dependent upon loss

of earning capacity. Bath Iron Works

Corp. v. White, 584 F.2d 569, 575 (list

Cis... : 2978). This is not true of

permanent impairment awards under the

Maine Act. The Maine permanent

impairment benefits are exclusively based

upon loss of function of a bodily part.

Campbell v. Bates Fabrics, Inc., 442 A.2d

1014, 1015 (Me. 1980). Furthermore,

unlike the federal benefits at issue

here, Maine permanent impairment benefits

are not subject to reconsideration of the

degree of impairment. The loss of

function of the bodily part is assessed

only upon reaching a stage of maximum

medical improvement and are absolute once

they are assessed. 39 M.R.S.A. §56.

-29-a

eee setiiteys BI0 tant tar ad

The distinction between the benefits

paid pursuant to section 908 (c) (21) of

the Longshoremen’s Act and all other

sections was recognized by the United

States Supreme Court in Potomac Electric

Power Co., v. Director, OWCP, 449 U.S.

268 (1980). The Court remarked as

follows:

Under the Longshoremen’s' and

Harbor Workers’ Compensation

Act (LHWCA), 44 Stat. (part 2)

41424, as amended, 33 U.S.C.

§§901-950 (1976 ed. and Supp.

III), compensation for a

permanent partial disability

must be determined in one of

two ways. First, if the injury

is of a kind = specifically

identified in the schedule set

forth in §§8 (c) (1)-(20) of

the Act, 33 U.S.C. §§908 (c)

(1)-(20), the injured employee

is entitled to receive two-

thirds of his average weekly

wages for a specific number of

weeks, regardless of whether

his earning capacity has

actually been impaired.

Second, in all other cases, §§

(c) (21), 33. U.S.C. §908 (c)

(21), authorizes compensation

equal to two-thirds of the

difference between the

employee’s preinjury average

weekly wages and his postinjury

wage-earning capacity, during

the period of his disability.

The question in this case is

whether a permanently partially

disabled employee, entitled to

compensation under the

statutory schedule, may elect

to receive a larger recovery

under §8 (c) (21) measured by

the actual impairment of wage-

earning capacity caused by his

injury. 449 U.S. at 269-270

(emphasis added)

The Court throughout the decision refers

to §908 (c) (21) as “compensation for

loss of wage-earning capacity”. 449 U.S.

at 277. This is reiterated in the

Court’s statement that ”(b)ecause this

case was decided under §908 (c) (21),

rather than the schedule, it was not

necessary for the administrative law

judge to determine the precise extent of

respondent Cross’ (the injured

employee’s) disability.” 449 U.S. at 272

n.4.

-31-a

The employee has not yet _ been

compensated for the permanent loss of

function to his back. This was done upon

the award (of 50% permanent impairment

pursuant to section 56 of the Maine Act.

Absent a former award of compensation for

the same reason (i.e., loss of function)

the Commissioner properly refused to

order an offset against the permanent

impairment award.

The entry is:

Appeal denied.

Decision affirmed.

It is further ordered

that the employer pay

to the employee

$550.00 for hs

counsel fees plus his

-32-a

reasonable out of

pocket expenses for

this appeal.

~33~a

APPENDIX C ,

State of Maine

Workers’ Compensation Commission

377 Main Street

Lewiston, Maine 04240

Donald Fontaine, Esq.

Sunenblick, Fontaine & Reben

97A Exchange Street

Portland, ME 04112

John Wallach, Esq.

Norman & Hanson

415 Congress Street

Portland, ME 04112

Re: WCC#: L48244

This decision may be appealed to the

Appellate Division of the Workers’

Compensation Commission, State House

Station 27, Augusta, Maine 04333 within

20 days after receipt of notice of

filing. See 39 M.R.S.A. § 103-B.

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BRUCE E. BOUFORD

(Employee)

Vv.

BATH IRON WORKS CORP.

(Employer)

and

-34-a

COMMERCIAL UNION INSURANCE CO.

(Insurer)

Findings of Fact and Conclusions of Law

Commercial Union Insurance Co. has

filed a Motion for Findings of Fact and

Conclusions of Law in connection with the

Commission decision of December 12, 1984.

The Commission decision granted the

employee’s Petition for Award and

Petition to Determine the Extent of

Permanent Impairmen. The focus of the

employer’s request for findings of fact

and conclusions of law is basically to

clarify the order.

The decision found the employee 25%

partially incapacitated from March 19,

1979 to the present and continuing. This

specific finding of partial incapacity

was awarded with hnowletiee that the

employee has been’ receiving Federal

workers’ comensation at a roughly

#-35-a

equivalent rate and time period. In

regard to this award for partial

incapacity, the Commission concludes

there is an offset permissible by

Commercial Union for prior Federal

workers’ compensation benefits paid for

weekly incapacity.

In fect, for a significant period of

time, Mr. Bouford’s benefits under the

Longshoreman’s and Harborworkers’ Act

have been paid by a Federal fund of some

type, and not by Commercial Union.

In regard to the award of 50%

permanent impairment to the employee’s

back due to the injury of August 16,

1978, there is no offset because Federal

workers’ compensation laws do not provide

for such a benefit. The order will be

revised to reflect these conclusions.

-36-a

THEREFORE, Commercial Union is

ordered to pay the employee total weekly

incapacity from August 18, 1978 to March

18, 1979, at a rate of $160.53; and 25%

partial incapacity from March 19, 1979 to

the present and continuing, at a rate of

$40.13, plus adjustments for inflation.

Commercial Union is entitled to a credit

for weekly Federal compensation benefits

paid for weekly incapacity since March

19, 1979.

Commercial Union is also ordered to

pay the employee 50% permanent impairment

for the loss of use to his back in the

amount of $16,053.00. Since there is no

such benefit paid under the Federal

Longshoremen and Harborworkers’ Act,

Commercial Union is not entitled to any

credit against the employee’s permanent

impairment award.

-37-a

-38-a

APPENDIX D

State of Maine

Workers’ Compensation Commission

377 Main Street

Lewiston, Maine 04240

Donald Fontaine, Esq.

Sunenblick, Fontaine & Reben

97A Exchange Street

Portland, ME 04112

John Wallach, Esq.

Norman & Hanson

415 Congress Street

Portland, ME 04112

Re: WCC#: L48244

This decision may be appealed to the

Appellate Division of the Workers’

Compensation Commission, State House

Station 27, Augusta, Maine 04333 within

20 days after receipt of notice of

filing. See 39 M.R.S.A. § 103-B.

KEKKEKKKKKEKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKEK

BRUCE E. BOUFORD

(Employee)

Vv.

BATH IRON WORKS CORP.

(Employer)

and

-39-a

COMMERCIAL UNION INSURANCE CO.

(Insurer)

On January 30, 1984, Bruce E.

Bouford filed a Petition for Award and a

Petition to Determine the Extent of

Permanent Impairment; both petitions were

filed in connection with the injury of

August 16, 1978, while employed by Bath

Iron Works.

The employee has received workers’

compensation pursuant to the Longshoremen

and Harbor Workers’ Act which provides

overlapping compensation coverage for

those engaged in ship building. Mr.

Bouford now brings a claim under the

Maine Workers’ Compensation Act, seeking

two items. First, he seeks an award

under the State system of 50% partial

incapacity rather than 25% £4partial

incapacity as determined by the

Department of Labor. Secondly, the

-40-a

employee seeks permanent impairment due

to loss of use to his back, a type of

benefit which is not available under the

Longshoremen and Harbor Workers’ Act.

Findings of Fact

1. Bruce E. Bouford is a 49 year

old machinist who has been employed at

Bath Iron Works for a number of years.

2. On August 16, 1978, the employee

injured his low back. His average weekly

wage at the time was $240.80.

3 The employee was7~ totally

incapacitated from August 18, 1978 to

March 18, 1979. The employee returned to

work, but with physical limitations, on

March 19, 1979.

4. The employee has been 25%

partially incapacitated from March 19,

1979 to the present and continuing.

Before proceedings in this claim could be

-4l-a

completed, the employee apparently has

not worked since September 13, 1984. No

factual finding is made on the issue of

whether the employee may or may not be

entitled to total weekly compensation

commencing September 13, 1984. This

issue is reserved for a later proceeding

if the parties are not able to come to a

voluntary agreement based on the medical

evidence availiable. To avoid further

delay, however, this decision is issued

at this time awarding 25% from March 19,

1979 to the present and continuing. Any

specific claim for a new period of total

incapacity is specifically reserved.

Be The employee has 50% permanent

impairment to this back due to the injury

of August 16, 1978. This finding is

based on the medical opinion of Dr.

Victor Parisien.

-42-a

Conclusion of Law

The Commission concludes the

employee is entitled to coverage pursuant

to the Maine Workers’ Compensation Act.

He has filed his claim within two years

of last payments made by Bath Iron Works,

and his medical bills have continued to

be paid by Bath Iron Works on an ongoing

basis.

The employee is entitled to have his

workers’ compensation claim considered

under the Maine laws, as well as under

Federal workers’ compensation laws. The

employer is entitled to a credit or

offset for benefits paid.

THEREFORE, the insurer is ordered to

pay the employee total weekly incapacity

from August 18, 1978 to March 18, 1979,

at a rate of $160.53; and 25% partial

incapacity from March 19, 1979 to the

-43-a

present and continuing at a rate of

$40.13, plus adjustments for inflation.

The insurer is entitled to a credit for

Federal compensation benefits paid during

these weeks of incapacity. The insurer

is also ordered to pay the employee 50%

permanent impairment for loss of use to

his back in the amount of $16,053.00.

So Ordered.

Lewiston, Maine WORKERS’ COMP. COMM.

DATED: 12/12/84 /S/

Ralph L. Tucker

Commissioner

-44-a

APPENDIX E

U.S. DEPARTMENT OF LABOR

Office of Administrative Law Judges

Suite 700-1111 20th Street, N.W.

Washington, D.C. 20036

In the Matter of

BRUCE E. BOUFORD,

Claimant

Vv.

BATH IRON WORKS,

Employer

and

COMMERCIAL UNION INSURANCE CO.,

Carrier

Case No. 80-LHCA-1369

OWCP No. 1-43962

Richard D. Hewes, Esq.

For the Claimant

Stephen Hessert, Esq.

For the Employer

-45-a

Before: FREDERICK D. NEUSNER

Administrative Law Judge

DECISION AND ORDER

This is a claim for benefits under

the Longshoremen’s and Harbor Workers’

Compensation Act (33 U.S.C. 901, et seg.,

herein-after mentioned as "the Act”) and

the regulations governing its

administration. (20 CFR 701, et seg.)

After referral for a formal hearing

on May 2, 1980, this claim was scheduled

for hearing at Portland, Maine, on August

6, 1980. (33 U.S.C. 919 (da) and 20 CFR

703.331) The issues initially claimed by

the parties in their respective forms

LS-18 were narrowed prior to the

commencement of the hearing.

Issues

The issues listed by Claimant were

whether or not he sustained a work

related compensable injury on August 16,

-46-a

1978, whether or not he gave notice of

that injury to Employer, whether

disability benefits paid Claimant between

August 18, 1978 and March 18, 1979 should

be based on the November 20, 1975 wage

level or on the August 16, 1978 wage

level, whether Claimant has suffered a

loss of earning capacity as a result of

his industrial accidents, and whether

Claimant has failed to receive promotions

as a result of the injuries he sustained

in these accidents.

The issues raised by Employer were

given as the nature and extent of the

August 16, 1978 injury, whether or not

the 1978 injury and notice occurred in

fact, the applicability of Section 8 (f)

of the Act, and the modification of a

prior award of compensation due to a

change in Claimant’s condition.

-47-a

The party in interest was-~ not

represented at the hearing, even though

notice was duly transmitted.

Also, at the time of the hearing the

Employer conceded that the August 16,

1978, injury and notice had occurred, as

asserted by Claimant. So this was not

decided as an issue in this case.

Stipulations

The parties stipulated that they are

subject to the Act; that claimant and

Employer were in an employee and employer

relationship; and that the injury of

August 16, 1978, arose out of and within

the scope of that employment. They

further agreed that Employer had timely

notice of the injury and that Claimant’s

request for compensation was timely.

Employer conceded that it had not filed

either a notice of controversion or a

~48-a

first report of accident in this case.

The parties agreed that on August 16,

1978, Claimant’s weekly wage rate was

$240.80, with a compensation rate of

$160.53 at that time. They further

agreed that as of November and December

1975, the dates when certain earlier

injuries had occurred, the Claimant’s

wage rate was $166.80, with a

compensation rate of $111.20. Following

the August 16, 1978 accident, the

Employer paid Claimant temporary total

disability from August 18, 1978 through

March 18, 1979, a period of 30.37 weeks,

at the rate of $111.20 per week, for a

total sum of $3,383.66. This payment was

based on the 1975 weekly wage level.

Although the last payment was made on

March 18, 1979, the notice that

oink

compensation payments were being stopped

-49-a

(Form 208) was dated and/or filed on July

2, i979. The parties agreed that

Employer has paid for such’- medical

services as are compensable under 33

U.S.C. 907, and that claimant suffered a

temporary total disability between August

18, 1978 and March 18, 1979, returning to

work in his’ regular employment with

Employer on March 19, 1979.

Claimant and His Employment History

Claimant was born August 11, 1934,

and was forty-six at the time of the

formal hearing. He is married and claims

his wife as a dependent. He ended his

academic education on graduating high

school. He has had further vocational

training as a machine operator and in

maintenance and repair oof machines.

During his career he has been a mover of

heavy duty equipment, and of furniture

-50-a

for home and office. He has been a truck

driver, and he has repaired and set up

machinery.

Claimant started work with Employer

as a pipefitter, beginning its school for

pipefitting on March 17, 1975. He worked

as a pipefitter for one year, when he was

assigned to work as an outside machinist,

the job for which he had first applied.

This has been his assignment since that

date. feeey, Oe. 220-112, 117-118).

The Injury

Claimant had formerly suffered job-

related injuries in 1975 while working

for Employer. On August 16, 1978, the

Claimant was in the process of

maneuvering a heavy piece of pumping

equipment when it unexpectedly shifted

position at his workbench. As a result

of his effort to avoid being struck, the

-5l-a

Claimant pushed himself backward. He

fell against and over a pallet box behind

him. (Tr., pp. 28-30). Claimant’s back

was injured when he suffered the impact

of this fall against various articles at

and about this workplace. This

exacerbated the effects of the earlier

injuries to that part of his body. He

later returned to work after medical

treatment; but he still suffers from the

sequellae of this mishap. (Te., pe. 30-

33).

His capacity to perform his normal

Guties varies. He can still perform

between three and eight hours of work per

shift, depending on how he feels on a

given day. He takes medication for pain;

he feels hampered in his work by the

limitation imposed by the injury; and he

says he does less work and is slower at

-32~a

his job than the other employees in the

same position who work alongside him.

(Id.) By reason of this disability the

Claimant has contended that he failed to

achieve an appropriate rate of progress

from third class to second class mechanic

on this job. (Tr., pp. 33-37). This was

disputed by the Employer. (Tx. pe. BS2-

89, 96-98, 105-107, 120-122).

The injury resulting from _ this

episode was the herniation of 5-1 lumbar

disc. AS a consequence, Claimant

underwent excision of the 5-1 lumbar

‘disc, laminectomy of L5 on the left, and

foraminotomy of the L5 nerve root left.

The surgeon observed that the cause of

the compression was a posteriorly bulging

disc and compression of the nerve root

between the disc and the facet.

He has been found to have a 25%

permanent partial disability as to the

“whole man” and 50% permanent partial

disability to the back. (Emp. Ex. 29)

This result has been duly connected up

with the August 16, 1978 job-related

accident.

Claimant’s Entitlement to Compensation

Benefits

By way of a response and to lend

perspective and support to its claim for

relief under 33 U.S.C. 908 (f), the

Employer offered substantial evidence as

to Claimant’s pre-existing condition. By

X-ray examination the Claimant was found

in 1976 to have congential scoliosis

(thoracic) and a spina bifida occulta at

vertebra L-5. (Emp. Ex. 22) In 1972 the

Claimant had suffered a whiplash injury

to some portion of his spine,of which

-54-a

rere cceecemcammmammias

Employer did not learn until January 5,

1976. (Emp. Ex. 15) On November 20,

1975, and on December 4, 1975, the

Claimant suffered back injuries while

employed by Employer. These were claimed

aS permanent by the Claimant. (Emp. Ex.

03, 04, O05, O06, O09, 25, 29 and 31. For

detailed discussion of the 1975 injuries

see Emp. Ex. 32, transcript of hearing on

OWCP No. 1-21689, 77-LHCA 1230 on

December 6, 1977).

At the time of the August 16, 1978

job-related injury the Claimant was

receiving compensation benefits under the

Act. Employer was ordered to _ pay

Claimant temporary partial disability

from May 30, 1976 and continuing until

further order, but in no event to exceed

a period of five years. The benefits

Claimant was receiving on the date of the

-55-a

1978 accident had been computed to

reflect a reduction of his’ earning

capacity as it existed on May 30, 1976,

from $166.80 to $125.10 under the 1975

accident compensation award. (Emp. Ex.

33, 34) This was reflected as a partial

disability equal to 25% at that time.

(Emp. Ex. 34).

Based on the entire record and

taking into account the description of

his condition given by the Claimant and

by the attending physicians, I conclude

that the job-related injury of August 16,

1978, resulted in the aggravation and

worsening of Claimant’s pre-existing

physical condition to the extent that the

Claimant thereafter was permanently

disabled as to his back and as to the

whole person. The onset of such partial

permanent disability was preceded by

-56-a

various dates on which the Claimant was

totally and partially disabled on a

temporary basis, only.

The period of temporary total

disability began on August 18, 1978, and

ended at the close of March 18, 1979. He

was compensated at a rate based on the

1975 average weekly wage for 30.37 weeks

of temporary total disability at $111.20

per week, for a total of $3,383.66 (Tr.,

pp. 11-13) I find that Claimant’s

compensation for temporary total

disability should have been computed on

the basis of his average weekly earnings

as of August 16, 1978, for this period.

Since his weekly rate was’ then

$241.20 for a five day week, the correct

compensation rate was $160.80. The

difference should be paid, together with

interest from the date when each such

= 778

payment was due and payable during the

subject period. (Emp. Ex. 11) Strachan

Shipping Co. v. Wedemeyer, 452 F2 1225

(C.A. 5-1971); Ryan v. McKie Co., 1 BRBS

221 (1974).

Following Claimant’s return to work

on August 19,1979, he could no longer be

regarded as totally disabled. The extent

and permanence of his disability was at

that point still undetermined. (Emp. Ex.

25, 26 and 28) On February 4, 1980,

however, the attending physician reported

that physical examinations of Claimant

continued to show limitation of back

motion, that Claimant was then working at

light duty in his regular employment, and

that the employment required the lifting

of 30 to 100 pound weights together with

another worker. After having followed

Claimant on a regular basis after the

-58-a

operation, the physician then evaluated

his permanent impairment at ”25% loss as

relates to the whole man or 50% loss of

the back.” (Emp. Ex. 29)

Maximum improvement has been

reached. The patient has_ recurring

episodes of low back pain, which seem to

be related to heavy lifting on different

occasions. The doctor said _ this

vulnerability will continue in the

future. He will always have some

permanent impairment which relates back

to the August 16, 1978, accident. (cl.

Ex. A, pp. 6-10) This was based in part

on the medical history leading up to this

episode. The reasoning was that even

though claimant had back problems in the

past, he had not suffered from radiating

pain prior to August 16, 1978. (Id., pp.

13-14, 19-20) Based on the Claimant’s

-59-a

testimony and on the reports of the

attending physicans, I find that between

the date he returned to work, August 19,

1979, and February 4, 1980, and

continuing thereafter the Claimant has

been permanently partially disabled by

the sequellae of that accident.

After reviewing the testimony of

Employer’s witnesses, LaBelle and

Caouette, together with the testimony of

the Claimant and the medical reports of

Dr. Parisien, I find that the extent of

the temporary partial disability that

existed after August 19, 1979, was

neither greater nor less than the

permanent partial disability appraised as

of February 4, 1980, when considered in

terms of the claimant, his employement

-60-a

duties, his capacity to perform those

duties, and the conditions under which he

worked at Employer’s shipyard.

In determining the economic loss of

Claimant’s capacity to earn wages on the

basis of this medical foundation, it has

been considered that Employer has shown

its awareness that Claimant must remain

in light work; that it has made

reasonable efforts to rehabilitate the

Claimant; and that it has followed a

broad pattern of assigning him to light

duty work in an effort to keep him in the

workforce. I find persuasive Employer’s

testimony that the Claimant’s failure to

progress to higher class ratings as a

mechanic is more closely related to hs

need to increase his knowledge and

facility in the technical aspects of the

-61-a

job than to the effects of the disability

arising from his job-related injury.

(Tr., pp. 82-89, 96-98, 105-107, 120-122)

On the other hand, it has also been

considered that the well-established

vulnerability of Claimant’s back to the

disabling effects of over-exertion has an

explicit impact on his availability from

work that is common to the trade that he

has learned at great effort. For

example, this Employer did not. hire him

during February of 1976 when a pre-

employment physical noted that he could

not engage in heavy lifting because of

his back. (Emp. Ex. 15) Claimant’s wage

earning capacity is now conditional on

Employer’s finding the appropriate “light

duty” work for him to perforn. In the

event of a layoff, he can expect to have

a restricted market for his services in

-62-a

seeking re-employment within his trade

and limited physical capacity. No

evidence as to alternative employment

appears in this record.

For these reasons the - doctor’s

findings of "50% loss of the back” is

more significant in the case of this

worker in this trade than is the "25%

loss as relates to the whole man”. In

economic terms this supports a finding

that the Claimant should be paid

compensation benefits at the rate of

$64.32 per week by reason of the

temporary and permanent disability he

suffered as result of the injury

sustained on August 16, 1978. 33 U.LS.C.

908 (c) (21)? Perini Corp. v. Heyde, 306

F2qg i321, (D. R.I. - 1969) and see

Deviller Vv. National Steel and

Shipbuilding Co., 10 BRBS 649 (1979)

-~63-a

Applicability of 33 U.S.C. 908 (f)

Employer’s obligation to pay

permanent partial compensation benefits

to the Claimant should be limited to a

period that does not exceed 104 weeks for

the reasons contemplated by Congress in

adopting 33 U.S.C. 908 (f).

On February 4, 1980, it became

evident that because of the 1978 accident

the Claimant’s earning power had been

diminished permanently Bath Iron Works v.

Director, OWCP, 605 F2d 583 (1979). The

Claimant was suffering from a pre-

existing permanent partial disability

that was manifest to employer no later

than early 1976, when Dr. Marcotte

discovered the congenital thoracic

scoliosis and spina bifida occulta. This

had resulted in Employer’s initial

refusal to hire him because it had no

-64-a

light duty in which to employ his

services. (Emp. Ex. 22; also see 15)

Equitable Equipment Corp. v. Hardy, 558

P2G 12392, 6 BRES 666 (3d Cir. 1977).

The evidence is that Employer then

did hire Claimant to work on light duty

in which he became more seriously injured

than before. The degree of disability

following the accident of August 16, 1978

resulted from a combination of that

injury and the existing condition of

partial disability. McDuffie v. Eller

and Co., 10 BRBS 685 (1979); and see Mapp

v. U.S. Air Force Central Welfare Fund,

12 BRBS 418, 425-426 (1980) While some

uncertainty is introduced by the pendency

of a five-year order for temporary

partial disability at the time of the

last injury, it is not necessary to rely

on that award to demonstrate that

-65-a

Claimant had a= pre-existing partial

permanent impairment of his back because

the 1976 x-rays are sufficient’ to

establish the nature of his condition at

the time they were made. Employer’s

reliance on 8(f) was patent and

appropriate in this case.

Modification of Prior Award

As mentioned above, by an order

dated April 21, 1978, and by the

supplemental order dated May 19, 1978, an

Administrative Law Judge considered the

job-related injuries that Claimant

suffered on two dates in 1975, and

awarded him benefits reflecting a

temporary reduction in wage-earning

Capacity to the extent of $41.70 per

week. Claimant was found entitled to

-66-a

such compensation for a five year period

beginning May 30, 1976, and continuing

until May 29, 1981.

When he was again injured on August

16, 1978, the Employer conceded Claimant

was totally disabled and made payments

based on that degree of disability at the

1975 rate, as discussed above. In

Employer’s brief it contends that the

August 16, 1978, mishap resulted in a

mere change of condition and not a

different injury that required a new

level of compensation.

This contention is’ rejected for

reasons already discussed in detail. In

addition, it has been explained that the

physical condition arising from the 1978

injury caused Claimant to suffer a loss

of earning capacity that was’ thence

forward permanent. This conclusion does

-67-a

not ignore the fact that he is still paid

at the same rate of hourly wages as he

would be paid without the injury. The

finding turns on the reduction in his

avilability to accept employment in his

trade, which loss has now become more

serious and is permanent.

For these reasons and because the

parties have in fact recognized the

worsening of Claimant’s condition by the

change in the level of payments when he

was totally disabled and not partially

disabled for a limited period, I find

that the previous decisioin and order

should be and it hereby is’ vacated,

effective March 18, 1978. At this time

the Claimant is only entitled to

compensation benefits for the August 16,

1978, job-related accident, whose effects

encompassed and made worse all of the

-68-a

symptoms and disabilities Claimant

suffered in the job-related injuries of

1975.

Application of 33 U.S.C. 914

The Act provides at §14(d) that, if

employer controverts its liability for

compensation, it must file a notice of

controversion with the deputy

commissioner within 14 days after it has

knowledge of the alleged injury. The

filing of a notice of suspension of

compensation payments does not

necessarily constitute a filing of a

notice of compensation. Garner v. Olin

Corp., 11 BRBS 502 (1979).

In this case the Employer expressly

stipulated that it never filed either a

notice of controversion or a first report

of accident. The apparent reason, as is

clear in the presentation of Employer’s

-69-a

brief, is that the Employer did not

regard the episode of August 16, 1978, as

an injury within the meaning of the Act.

The inconsistency of Employer’s

position is found in its decision to pay

compensation at the rate of 100% for

total disability, beginning on August 18,

1978. This event was not a spontaneous

worsening of the pre-existing disability,

as it arose out of a new trauma.

Consequently, Employer’s position has

been rejected.

The Claimant has been found to have

been re-injured when he fell in the job-

related accident of August 16, 1978,

resulting in the exacerbation of the

symptoms, conditions and sequellae of the

two 1975 mishaps, for which he was then

and there receiving compensation benefits

for a temporary partial disability of the

-70-a

same portions of the body as_ were

described in Employer’s Exh. 25 and 30

during September of 1978. For this

reason the 1978 was a new injury within

the meaning of the Act.

It follows that the Employer had a

duty to comply with §14(d) of the Act.

The fact that it had paid 100% of the

compensation rate on and after August 18,

1978, aid not- relieve $t ef this

responsibility, as the level of payments

was based on the average rate of wages

for 1975 and not for 1978, indicating

that Employer was contesting the fact

that a new injury had occurred. From

this it follows that §14 (e) of the Act

applies by reason of Employer’s failure

to comply with §14(d).

“7.76

At §14(e) the Act provides that, if

the employer fails to pay compensation

voluntarily within 14 days after it

becomes due, employer will be liable for

additional compensation unless it files a

timely notice of controversion or unless

the deputy. commissioner excuses’ the

failure to pay compensaiton voluntarily

within the statutory criteria. Employer

failed to pay to Claimant the amount of

compensation to which Claimant was

entitled as benefits that represented the

difference between his average rate of

pay in 1975 and his average rate of pay

in 1978. This differential extends from

August 18, 1978 through all of the

benefits that accrued after that date,

including payments that have been amde at

the 1975 wage level, heretofore tendered

and accepted by the Claimant within that

period.

Claimant may not waive his right to

additional compensation under §14(e).

McNeil v. Prolerized New England Co., 11

BRBS 576 (1979). Employer’s liability

under §14(e) for failure to pay

compensation or to file a notice of

controversion is not excused because it

is difficult to determine the true nature

of Claimant’s disability and to pay the

appropriate compensation in the initial

stages. Employer should have paid the

compensation it considered due and

controverted the remainder. Alston v.

United Brands Co., 5 BRBS 600 (1977).

Claimant’s failure to raise this issue at

the time of the hearing does not alter

-13-a

Employer’s obligation to make the added

payments required by Congress’ under

§14(e).

Employer’s liability under §14(e) is

based solely on the difference between

the compensation Employer paid

voluntarily and the remainder, which it

failed to controvert in this case, where

Claimant has been awarded compensation at

a rate greater than Employer voluntarily

paid. National Steel & Shipbuilding Co.

v. Bonner, 600 F2d 1288 (9th Cir. 1979);

Chandler v. Newport News Shipbuilding &

Dry Dock Co., 8 BRBS 293 (1978) Such

liability ceased to accrue on the date of

the informal conference before the deputy

commissioner. National Steel &

Shipbuilding Co., v. U.S. Department of

Labor, OWCP, 606 F2d 875, 880 (9th Cir.

1979) Evidence of the date of such a

-74-a

conference does not appear in this

record. For this reason it will be

necessary to remand this part of the

claim to the deputy commissioner for the

purpose of computing the amount’ the

Employer is obligated to pay under § 14

(e).

To the extent that interest is

ordered paid on sums due under this

decision and order, such interest shall

also be paid on the added compensation

that the Employer must pay.

ORDER

1. The decision and order granting

Claimant compensation benefits, which was

issued April 21, 1978, and supplemented

May 19, 1978, in Case No. 77-LHCA-1230

(OWCP No. 1-21689) is ratified as to all

payments made for the period terminating

at the close of business on August 17,

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1978, and vacated for the period

beginning on August 18, 1978 and

continuing through May 19, 1981.

. Beginning on August 18, 1978,

and ending on the date of the informal

conference with the deputy commissioner,

the Employer shall pay to Claimant as

additional comensation an amount equal to

10% of each unpaid installment of

compensation that became due within that

period of time. This decision and order

has specified the criteria for the

computation of the findings as to the

compensation benefits that were, in fact,

paid at a lower rate at those times. The

record does not contain the date of the

informal conference before the deputy

commissioenr. This claim is remanded to

the deputy commissioner to make an

appropriate finding as to the date of the

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informal conference and to compute the

amount of the payments to be made in

compliance with 33 U.S.C. 914 (e).

3. Subject to offset and deduction

for any payments voluntarily made, the

Employer/Carrier shall pay to the

Claimant benefits for temporary total

disability at the rate of $160.80 per

five day week beginning August 18, 1978

and ending at the close of Employer’s

business on March 18, 1979 at the rate of

6% per annum from the date each such

payment was due until paid.

4. Subject to offset and deduction

for any payments voluntarily made, the

Employer/Carrier shall pay to the

Claimant benefits for temporary partial

disability at the rate of $64.32 per

five-day week, beginning on March 19,

1979, and ending at the close of

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Employer’s business on February 4, 1980,

together with interest on all sums due

thereon at the rate of 6% per annum from

the date each such payment was due until

paid.

5. Subject to offset and deduction

for any payments voluntarily made, the

Employer/Carrier shall pay to the

Claimant benefits for permanent partial

disability at the rate of $64.32 per five

day week, beginning on February 5, 1980,

together with interest on all sums due

thereon at the rate of 6% per annum from

the date each such payment was due until

paid. Such payments shall cease to be

paid by the Employer/Carrier when it has

completed not less than 104 weekly

payments.

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6. After 104 weeks, Claimant’s

compensation for such partial permanent

disability at the rate of $64.32 per five

day week shall be paid out of the Special

Fund, pursuant to 33 U.S.C. 908 (f) and

such other provision of the Act as shall

be applicable under the circumstances of

this case.

Te The Employer/Carrier shall make

payments as required by 33 U.S.C. 907 to

compensate for the cost of reasonably

necessary medical services and supplies

furnished and to be furnished to the

Claimant in connection with this job-

related injury.

8. The Employer/Carrier shall pay

to Claimant’s counsel such fee as: shall

hereafer be ordered pursuant to the

application for approval of attorney fee

to be sumbitted by counsel for the

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Claimant under 20 CFR 702.132. Counsel

is ordered to make service of such

application on counsel for the

Employer/Carrier and on the Deputy

Commissioenr, as required under 20 CFR

702.233 (a) and (b). Employer/Carrier

will have 10 days from the date of such

service to oppose, reply or comment upon

that application.

Frederick D. Neusner

Aministrative Law

Judge

Dated: January 23, 1981

Washington, D.C.

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APPENDIX F

.

39 M.R.S.A. §54

Compensation for total incapacity.

While the incapacity for work

resulting from the injury is total, the

employer shall pay the injured employee a

weekly compensation equal to 2/3 his

average gross weekly wages, earnings or

salary, but not more than the average

weekly wage in the State of Maine as

computed by the Employment’ Security

Commission; 133 1/3% of such average

weekly wage as of July 1, 1977; 166 2/3%

of such average weekly wage as of July 1,

1979; and 200% of such average weekly

wage as of July 1, 1981; nor less than

$25 weekly; and such weekly compensation

*Some statutory provisions in Maine were

amended subsequent to Mr. Bouford’s

injury. The parties agree that the

amendments have no impact on this case.

See App. supra. p. 33.

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shall be adjusted annually on July ist so

that it continues to bear the same

percentage relationship to the average

weekly wage in the State of Maine as

computed by the Employment’ Security

Commission, as it did at the time of the

injury. In the following cases it shall,

for the purposes of this Act, be

conclusively presumed that the injury

resulted in permanent total incapacity;

the total and irrevocable loss of sight

of both eyes, the loss of both hands at

or above the wrist, the loss of both feet

at or above the ankle, the loss of one

hand and one foot, an injury to the spine

resulting in permanent and = complete

paralysis of the arms or legs or an

injury to the skull resulting in

incurable imbecility or insanity. In the

event of such permanent total incapacity,

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the employer shall pay the employee a

weekly compensation equal to 2/3 his

average gross weekly wage, earnings or

Salary but not more than the average

weekly wage in the State of Maine as

computed by the Empioyment' Security

Commission; 133 1/3% of such average

weekly wage as of July 1, 1977; 166 2/3%

of such average weekly wage as of July 1,

1979; and 200% of such average weekly

wage as of July 1, 1981; nor less that

$25 weekly; and such weekly comensation

shall be adjusted annually on‘ July lst so

that it continues to bear the_ same

percentage relationship to the average

weekly wage in the state of Maine as

computed by the Employment’ Security

Commission, as it did at the time of the

injury. If the said totally

incapacitated emplcyee dies, as a result

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of this injury, leaving dependents who

were dependent upon his earnings at the

time of his injury, then payment shall be

made to said dependents in accordance

with the procedures established by

section 58.

Whenever a program of vocational or

educational rehabilitation has been

inaugurated, either by approved agreement

or commission decree, the employer shall

pay the injured employee, in addition to

compensation, if he is totally or

partially incapacitated, a sum not to

exceed $35 per week fer sustenance and

travel as may be determined by the

commission during the period of such

rehabilitation within the limitations as

prescribed in this section and section

32.

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39 M.R.S.A. §55

Compensation for partial incapacity.

While the incapacity for work

resulting from the injury is partial, the

employer shall pay the injured employee a

weekly compensation equal to 2/3 the

difference, due to said injury, between

his average gross weekly wages, earnings

or salary before the injury and the

weekly wages, earnings or salary which he

is able to earn thereafter, but not more

than the average weekly wage in the State

of Maine as computed by the Employment

Security commission; 133 1/3% of such

average weekly wage as of July 1, 1977;

166 2/3% of such average weekly wage as

of July 1, 1979; and 200% of such average

weekly wage as of July 1, 1981; and such

weekly compensation shali be adjusted

annually on July 1st so that it continues

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to bear the same percentage relationship

to the average weekly wage in the State

of Maine as computed by the Employment

Security commission, as it did at the

time of the injury.

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39 M.R.S.A. §56

Compensation for particular injuries;

permanent impairment.

In addition to the benefits provided

for in sections 54 and 55, when an

employee sustains an injury which is

included in the following schedule, the

incapacity in each case shall be deemed

to be total for the period specified and

the injured employee shall receive a lump

sum payment for said injury which shall

be determined by multiplying the amount

to which he would be entitled weekly for

total incapacity as determined under

section 54, by the period of presumed

total incapacity set fforth in this

section. The specific periods of

presumed total incapacity because of

injuries in this section shall be as

follows:

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For the loss of a thumb, 50

weeks.

For the loss of the _ first

finger, commonly called _ the

index finger, 32 weeks.

For the loss of the 2nd finger,

commonly called the middle

finger, 28 weeks.

For the loss of the 3rd finger,

commonly called the ring

finger, 20 weeks.

For the loss of the 4th finger,

commonly called the little

finger, 17 weeks.

The loss of the distal (second)

phalanx thumb or the distal (third)

phalanx of any finger shall be considered

to be equal to the loss of 1/2 of said

thumb or finger, and the compensation

therefor shall be 1/2 the amount above

specififed. The loss of more than one

phalanx shall be considered as the loss

of the entire thumb or finger. In no

case shall the amount received for the

loss of a thumb and more than one finger

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of the same hand exceed the amount

specified in this schedule for the loss

of a hand.

For the loss of the great toe,

25 weeks.

For the loss of one of the toes

other than the great toe, 10

weeks.

For the loss of the distal (second)

phalanx of the great toe or of the distal

(third) phalanx of any other toe shall be

considered to be equal to the loss of 1/2

of said great toe or any other toe, and

the compensation therefore shall be 1/2

the amount specified. The loss of more

than one phalanx shall be considered as

the loss of the entire toe.

For the loss of a hand, 165

weeks.

For the loss of an arm, or any

part thereof above the wrist,

200 weeks.

For the loss of a foot, 165

weeks.

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For the loss of a leg, or any

part thereof above the ankle,

200 weeks.

For the loss of an eye, or the

reduction of the sight of an

eye, with glasses, to 1/10 of

the normal vision, or for

diplopia, 100 weeks.

For the loss of both eyes, or

the reduction of the sight of

both eyes, with glasses, to

1/10 of the normal vision or

for diplopia, 300 weeks.

For the total and permanent

loss of hearing in one ear, 50

weeks.

For the total and permanent

loss of hearing in both ears,

200 weeks.

In all other cases of injury to the

above-mentioned members, eyes or hearing

where the usefulness of any physical

function thereof is permanently impaired,

the specific compensable periods’ for

presumed total incapacity on account

thereof shall bear such relation to the

periods above specified as the percentage

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of permanent impairment due to the injury

to such members, eyes or hearing shall

bear to the total loss thereof. The

commission upon petition therefor by

either party shall determine such

percentage. A petition for determination

of the percentage of permanent hearing

impairment due to an injury shail be

filed with the commission within 2 years

from the date of the injury.

The commission may award proper and

equitable compensation for serious facial

or head disfugurement not to exceed

$7,500, including a disfigurement

continuous in length which is partially

in the facial area and also extends into

the neck region. The commission, if in

its opinion the earning capacity of an

employee has been or may in the future be

impaired, may award compensation for any

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serious disfigurement in the region above

the sterno clavicular articulations

anterior to and including the region of

the sterno cleido mastoid muscles on

either side, but no award for the total

disfigurement as set forth shall, in the

aggregate, exceed $7,500.

Notwithstanding any other provision

hereof, 2 or more serious disfigurements,

not continuous in length, resulting from

the same injury, if partially in the

facial area and partially in the neck

region as described in the preceding

sentence, shall be deemed to be a facial

disfigurement.

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39 M.R.S.A. §56-A.

Injuries.

In addition to the benefit provided

for in sections 54 and 55, when an

employee sustains an injury which is

included in the following schedule, the

incapacity in each case shall be deemed

to be total for the period specified and

the injured employee shall receive a lump

sum payment for said injury which shall

be determined by multiplying the amount

to which he would be entitled weekly for

total incapacity as determined under

section 54, by the period of presumed

total incapacity because of injuries

specified in this section shall be as

follows:

Total loss of function of

Neck: 100 weeks

a

Back: 200 weeks

Jaw: 40 weeks

Genito-urinary organs: 100

weeks.

In all other cases of injury to the

above-mentioned parts of the body where

the usefulness of any physical functioin

thereof is permanently impaired, the

specific compensable pericds for presumed

total incapacity on account thereof shall

bear such relation to the periods above

specified as the percentage of permanent

impairment due to the injury to _ such

parts of the body shall bear to the total

loss thereof. The commission upon

petition therefor by either party shall

determine such percentage.

Such determination by the commission

shall be based upon reasonably

demonstratable medical or clinical

findings.

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APPENDIX G

33 U.S.C. §903 (e)

Notwithstanding any other provision

of law, any amounts paid to an employee

for the same injury, disability, or death

for which benefits are claimed under this

Act pursuant to any other’ workers’

comensation law or section 20 of the Act

of March 4, 1915 (38 Stat. 1185, chapter

153; 46 U.S.C. 688) (relating to recovery

for injury or death of seamen) shail be

credited against any liability imposed by

this Act.

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33 U.S.C. §908 (c)

Permanent partial disability: In

case of disability partial in character

but permanent in quality the compensation

shall be 66 2/3 per centum of the average

weekly wages, which shall be in addition

to compensation for temporary total

disability or temporary partial

disability paid in accordance with

subdivision (b) or subdivision (e) of

this sectin respectively and shall be

paid to the employee as follows:

(1) Arm lost, three hundred and

twelve weeks’ compensation.

(2) Leg lost, two hundred and

eighty-eight weeks’

compensation.

(3) Hand lost, two hundred and

forty-four weeks’ compensation.

(4) Foot lost, two hundred and

five weeks’ compensation.

(5) Eye lost, one hundred and

sixty weeks’ compensation.

(6) Thumb lost, seventy-five

weeks’ compensation.

(7) First finger lost, forty-

Six weeks’ compensation.

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(8) Great toe lost, thirty-

eight weeks’ compensation.

(9) Second finger lost, thirty

weeks’ compensation.

(10) Third finger lost,

twenty-five weeks’

compensation.

(11) Toe other than great toe

lost, sixteen weeks’

compensation.

(12) Fourth finger lost,

fifteeen weeks’ compensation.

(13) Loss of hearing:

(A) Compensation for loss of

hearing of one ear,

fifty-two weeks.

(B) Compensation for loss of

hearing of both ears, two

hundred weeks.

(C) An audiogram shall be

presumptive evidence of

the amount of hearing loss

sustained as of the date

thereof; only if (i) such

audiogram was administered

by a licensed or certified

audiologist or a physician

who is certified in

otlaryngology, (ii) such

audiogram, with the report

thereon, was provided to

the employee at the time

it was administered, and

(iii) no contrary

audiogram made at that

time is produced.

(D) The time for filing a

notice of injury, under

section i2 of this Act, or

a claim for compensation,

under section 13 of this

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Act, shall not begin to

run in connection with any

claim for loss of hearing

under this section, until

the employee has received

an audiogram, with the

accompanying report

thereon, which indicates

that the employee has

suffered a loss of

hearing.

(E) Determinations of loss of

hearing shall be made in

accordance with the guides

for the evaluation of

permanent impairment’ as

promulgated and modified

from time to time by the

American Medical

Association.

Phalanges: compensation

loss of more than one

phalange of a digit shall be

the same as for loss of the

entire digit. Compensation for

loss of the first phalange

shall be one-half of the

compensation for loss of the

entire digit.

(15) Amputated arm or 1leg:

Compensation for an arm or a

leg, if amputated at or above

the elbow or the knee, shall be

the same as for a loss of the

arm or leg; but, if amputated

between the elbow and the wrist

or the knee and the ankle,

shall be the same as for loss

of a hand or foot.

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eae

(16) Binocular vision or per

centum of vision: Compensation

for loss of binocular vision or

for 80 per centum or more of

the vision of an eye shall be

the same as for loss of the

eye.

(17) Two or more - digits:

Compensation for loss of two or

more digits or one or more

phalanges of two or more

digits, of a hand or foot may

be proportioned to the loss of

use of the hand or foot

occasioned thereby, but shall

not exceed the compensation for

loss of a hand or foot.

(18) Total loss of use:

Compensation for permanent

total loss of use of a member

shall be the same as for loss

of the member.

(19) Partial loss or partial

loss of use: Compensation for

permanent partial loss or loss

of use of a member may be

proportionate loss of use of

the member.

(20) Disfigurement: proper and

equitable compensation not to

exceed $7,500 shall be awarded

for serious disfugurement of

the face, head or neck or of

other normally exposed areas

likely to handicap the employee

in securing or - maintaining

employment.

(21) Other cases: In all other

cases in this class of

disability, the compensation

Shall be 66 2/3 per centum of

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the difference between the

average weekly wages of the

employee and the empioyee’s

wage-earning capacity

thereafter in the same

employment or otherwise,

payable during the continuance

of such partial disability.

(22) In any case in which there

shall be a loss of, or loss of

use of more than one member or

parts of more than one member

set forth in paragraphs (1) to

(19) of this subdivision, not

amounting tc permanent total

disability, the award of

compensation shall be for the

loss of, or loss of use of,

each such member of part

thereof, which awards shall run

consecutively, except that

where the injury affects only

two or more digits of the same

hand or foot, paragraph (17) of

this subdivision shall apply.

(23) Notwithstanding paragraphs

(1) through (22), with respect

to a claim for permanent

partial disability for which

the average weekly wages are

determined under section

10(da) (2), the compensation

shall be 66 2/3 per centum of

such average weekly wages

multiplied by the percentage of

permanent impairment, as

determined under the guides

referred to in section 2(10),

payable during the continuance

of such impairment.

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