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                                  BRB No. 99-326

ZELNA McLAIN                            )
(widow of CECIL McLAIN)                 )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )
WATERMAN STEAMSHIP                      )    DATE ISSUED:   12/15/1999
1999
CORPORATION                             )
                                        )
          Self-insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order of Richard D. Mills, Administrative Law
     Judge, United States Department of Labor.

     Gregory C. Buffalow and Thomas J. Woodford (Miller, Hamilton, Snider &
     Odom, L.L.C.), Mobile, Alabama, for self-insured employer.

     Before:  SMITH, BROWN and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order (1995-LHC-1073) of Administrative Law
Judge Richard D. Mills rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act).  We must affirm the administrative law judge's
findings of fact and conclusions of law if they are supported by substantial
evidence, are rational, and are in accordance with law.  33 U.S.C. §921(b)(3);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     In this case, decedent worked for employer between 1943 and 1945 as an
electrician's helper.  After 1945, decedent spent 20 years in the military and then
approximately 23 years working on air conditioning and piping systems for Searcy
mental hospital until he voluntarily retired in 1990.  He was diagnosed with
asbestosis in 1981.  Decision and Order at 2-3; Emp. Brief at 3-4.  In 1996,
Administrative Law Judge Daniel A. Sarno awarded permanent partial disability
benefits to decedent for his work-related asbestosis.  On February 26, 1997,
decedent died due to asbestosis and chronic obstructive pulmonary disease, and his
widow, claimant herein, filed a claim for benefits pursuant to Section 9 of the
Act, 33 U.S.C. §909.  Claimant and employer stipulated to all issues of the
claim except average weekly wage, and employer's liability for a penalty, interest
and an attorney's fee.  The administrative law judge found that claimant is
entitled to death benefits based on the national average weekly wage in effect at
the time of decedent's death in 1997 and that employer is liable for funeral
expenses, interest and a fee.  He also granted employer's application for Section
8(f), 33 U.S.C. §908(f), relief.  Decision and Order at 5-7.  Employer appeals
the decision, challenging the administrative law judge's determination regarding
average weekly wage.[1]   Claimant has not
responded to the appeal.

     Employer contends the administrative law judge erred in using the national
average weekly wage in effect at the time of decedent's death to calculate
claimant's death benefits.   Specifically, employer argues that death benefits in
this case should be based on decedent's average weekly wages as of the time of his
last exposure to asbestos in approximately 1945, as that is the "time of injury,"
thereby treating asbestosis and hearing loss injuries consistently.  According to
employer, neither the date of death nor the date of awareness of disability  are
appropriate benchmarks.  It contends there is no basis in the Act for using the
date of death as the "time of injury" and that deeming the date of awareness of the
disability as the "time of injury" constitutes an ultra vires extension of
Congress' power under admiralty law which frustrates the purpose of Act by
attempting to extend Section 3(a), 33 U.S.C. §903(a), coverage to a time and
place when decedent was not at a covered situs.  Moreover, it avers, such an
interpretation of "time of injury" compensates claimant for the loss of decedent's
future earnings at a time when decedent, a voluntary retiree, had no expectation
of future earnings.  The administrative law judge rejected each of these arguments,
as do we.

     Section 10(i) defines the "time of injury" for purposes of calculating average
weekly wages in claims involving occupational diseases.  It provides:

     For purposes of this section with respect to a claim for compensation
     for death or disability due to an occupational disease which does
     not immediately result in death or disability, the time of injury
     shall be deemed to be the date on which the employee or claimant becomes
     aware, or in the exercise of reasonable diligence or by reason of
     medical advice should have been aware, of the relationship between
     the employment, the disease, and the death or disability.

33 U.S.C. §910(i) (emphasis added).  As is readily apparent, the Act states
that the "time of injury" is deemed to be the date on which the claimant became
aware of the relationship between the employment, the disease and the death. Since
a person who is terminally ill with disease may die from causes unrelated to the
disease, e.g., accident, other illness, suicide, murder, one cannot be aware
of the relationship between death, disease and employment before death has
occurred.  Hence, in a claim for death benefits, the date of injury cannot precede
the date of death. Bailey v. Bath Iron Works Corp., 24 BRBS 229 (1991),
aff'd sub nom. Bath Iron Works Corp. v. Director, OWCP [Bailey], 950 F.2d
56, 25 BRBS 55(CRT) (1st Cir. 1991); Ponder v. Peter Kiewit Sons Co., 24
BRBS 46 (1990); Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS
78 (1989); Arganbright v. Marinship Corp., 18 BRBS 281 (1986).  Section
10(d)(2)(B), 33 U.S.C. §910(d)(2)(B), provides that if the time of injury
occurs more than one year after the retirement, as here, then the average weekly
wage is deemed to be the national average weekly wage in effect at the time of
injury   in this case, the death.  Thus, as decedent left employer's employ in
1945, voluntarily retired from his employment with Searcy in May 1990,  and
claimant became aware of the relationship between decedent's employment, his
disease and his death on February 26, 1997, the "time of injury" for calculating
benefits for the death caused by the post-retirement occupational disease is
properly determined by Section 10(d)(2), (i) of the Act. Consequently, the
administrative law judge correctly found that claimant's death benefits are to be
based on the national average weekly wage in effect at the time of decedent's death
in 1997, and we affirm the award of benefits. Bailey, 24 BRBS at 229.

     As the law on this matter is well-established, we need not fully discuss
employer's remaining arguments; however, we shall briefly state our reasons for
rejecting them.  First, employer's argument that in a claim for death benefits the
date of injury must precede the date of death rests on the false assumption that
one who contracts a terminal disease inevitably dies from that disease. 
Furthermore, we disagree with employer's assertion that asbestosis should be
treated in the same manner as hearing loss.  The administrative law judge rejected 
Dr. Brody's opinion that asbestosis results in an instant injury as contrary to
accepted medical and legal thinking, and there is no basis to overturn his
decision. Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 26 BRBS
151(CRT) (1993) (comparing instantaneous injury of hearing loss with long-latent
injury of asbestosis).  In any event, the statute applies to a disease "which does
not immediately result in disability or death," and it is beyond question here that
decedent's exposure to asbestos did not immediately result in death.  Also
unpersuasive is employer's contention that the award frustrates the Act and results
in an ultra vires extension of Congressional power.  See generally INA
v. United States Department of Labor (Peterson), 969 F.2d 1400, 26 BRBS 14(CRT)
(2d Cir. 1992), cert. denied, 507 U.S. 909 (1993) (applicable status and
situs law is that which is in effect at the time of death or disability); Shaw
v. Bath Iron Works Corp., 22 BRBS 73 (1989) (voluntary retiree provisions in
1984 Amendments do not violate the Due Process Clause of the Fifth Amendment of the
Constitution).  Finally, by virtue of the 1984 Amendments to the Act, Congress
specifically overruled case law denying disability and death benefits because a
retired employee did not have a wage-earning capacity. See 130 Cong. Rec.
25902, 26296 (1984).  Therefore, employer's argument is invalid, and the
administrative law judge's award stands.

     Accordingly, the administrative law judge's Decision and Order is affirmed.

     SO ORDERED.


                         _______________________________
                         ROY P. SMITH
                         Administrative Appeals Judge



                         _______________________________
                         JAMES F. BROWN
                         Administrative Appeals Judge



                         _______________________________
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



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Footnotes.


1)We deny employer's motion for Oral Argument, incorporated within its brief, for failure to comply with 20 C.F.R. §802.219(b), which requires motions to be in separate documents. See also 20 C.F.R. §802.305. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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