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                                 BRB No.  00-0977

RUDOLPH WILLIAMS                         )
         )
Claimant                                 )
         )
v.       )
         )
METRO MACHINE CORPORATION               )
         )                              DATE ISSUED:   02/28/2001 
Self-Insured                             ) 
Employer-Petitioner                     )
         )
DIRECTOR, OFFICE OF WORKERS'          )
COMPENSATION PROGRAMS,      )    
UNITED STATES DEPARTMENT OF      )    
LABOR                            )
                                      )     
             Respondent                    )     ORDER


        Employer appeals the administrative law judge's denial of relief from
continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C.
§908(f).  The Director has filed a Motion to Dismiss employer's appeal as
interlocutory, and to remand the case to the administrative law judge to determine
the compensability of the underlying claim for benefits.  Employer responds, urging
rejection of the Director's motion.  Claimant has not responded to this motion. 
We grant the Director's motion, and we remand this case to the administrative law
judge for further proceedings consistent with this opinion.

        Only counsel for employer appeared at the formal hearing before the
administrative law judge.  Counsel  stated that employer did not contest the
compensability of claimant's claim for a 1991 work injury, and employer seemingly
has been paying claimant permanent total disability benefits.  Tr. at 4.   It was
unclear to the administrative law judge whether claimant had ever filed a claim for
this injury, but it was clear that no compensation order had ever been issued
regarding the injury.  Nevertheless, employer sought relief from continuing
compensation liability pursuant to Section 8(f), which the Director opposed.

        The administrative law judge initially addressed the justiciability of the
claim for Section 8(f) relief.  He noted that he had requested that employer's
counsel submit a draft compensation order to him regarding the underlying claim,
but that counsel had not done so. The administrative law judge found that:

        The purposes of the act would be furthered by a rule that would allow me
        to issue an order granting relief pursuant to section 8(f) where there
        is no claim or compensation order in place.  This is because public
        policy does or at least should encourage voluntary payment of
        compensation.  To deny section 8(f) relief to an employer which is
        voluntarily paying compensation simply because there is no claim would
        defeat this purpose and serve no other legislative purpose.

Decision and Order at 4.  Upon considering Section 8(f) on the merits, the
administrative law judge found that claimant had a pre-existing permanent partial
disability, but that the manifest requirement was not satisfied.  He therefore did
not address the contribution element.  Section 8(f) relief was denied, and employer
appeals this denial.

        In his motion to dismiss, the Director contends the appeal is of an
interlocutory order, and therefore should be dismissed.  The Director contends that
until there is a finding regarding the compensability of the underlying claim,
there can be no determination regarding the applicability of Section 8(f) relief. 
The Director states that review of the administrative law judge's findings pursuant
to Section 8(f) can be obtained following the completion of all proceedings
necessary to resolve the underlying claim.  

        In response to the Director's motion, employer contends that the Director
should have filed a cross-appeal of the administrative law judge's finding that
he has the authority to determine an employer's entitlement to Section 8(f)
relief in the absence of a formal claim.  Employer thus contends that the
Board should decline to address the Director's contention as it was not
properly raised.   While the Director certainly could have filed a cross-appeal of the administrative law judge's decision, the regulations do not
limit what type of issues may be raised in a motion to the Board. See
20 C.F.R. §802.219.  As the Director has raised a proper basis for his
motion to dismiss, namely the interlocutory nature of the administrative law
judge's decision, we reject employer's contention.   

        The Board generally does not accept interlocutory appeals so as to avoid
piecemeal review. Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994);
Niazy v. The Capital Hilton Hotel, 19 BRBS 266 (1987); Hudnall v.
Jacksonville Shipyards, 17 BRBS 174 (1985); Holmes & Narver, Inc. v.
Christian, 1 BRBS 85 (1974).   The Board will undertake interlocutory review
nonetheless if the appeal meets all the criteria of the collateral order doctrine,
see Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271
(1988); Butler, 28 BRBS at 117-118, or if, in its discretion, it is
necessary to properly direct the course of the adjudicatory process, see
Baroumes v. Eagle Marine Services, 23 BRBS 80 (1988); Murphy v. Honeywell,
Inc., 8 BRBS 178 (1978); Holmes & Narver, 1 BRBS at 87.

        Employer's appeal is clearly not of a final order, as the administrative law
judge's decision neither awards nor denies benefits to claimant, and there is no
underlying district director order based on stipulations of the parties.   See 20
C.F.R. §§702.315, 702.348. Moreover, there are no extenuating
circumstances necessitating that the Board review employer's appeal at this time.
See, e.g., Caldwell v. Universal Maritime Service Corp., 22 BRBS 398 (1989);
Niazy, 19 BRBS 266.  Employer may appeal the denial of Section 8(f) relief should the
administrative law judge or district director enter a compensation order granting benefits to the
claimant. See Burns v. Director, OWCP, 41 F.3d 1555, 29 BRBS 28(CRT) (D.C. Cir. 1994) (interlocutory
orders appealable upon the issuance of final compensation order).

        Contrary to the administrative law judge's statement that this is a case of
first impression, the Board addressed the issue presented herein in Gupton v. 
Newport News Shipbuilding & Dry Dock Co., 33 BRBS 94 (1999).  In Gupton,
as in this case, only employer's counsel appeared at the hearing on the employer's
request for Section 8(f) relief.  He stated that all issues between claimant and
employer were resolved, but that the parties' stipulations had not been approved
by a reviewing official, and he did not have a copy to present to the
administrative law judge.  After addressing employer's claim for Section 8(f)
relief, and finding that employer failed to satisfy both the pre-existing permanent
partial disability and contribution elements, the administrative law judge remanded
the case for the district director to issue a compensation order on the
underlying claim.  Employer appealed the administrative law judge's denial of
Section 8(f) relief, and the Director filed a motion to dismiss, which the Board
granted.  

        In Gupton, the Board stated, "It was incumbent upon the administrative
law judge to inquire fully into the underlying compensation claim prior to
addressing employer's entitlement to Section 8(f) relief." Gupton, 33 BRBS
at 95-96, citing Ledet v. Phillips Petroleum Co., 163 F.3d 901, 32 BRBS 212(CRT) (5th Cir.
1998).[1]    The fact that in this case the administrative law judge
did not remand the case to the district director is of no significance in view of the absence of an underlying
compensation award.  Moreover, in Gupton, 33 BRBS at 96, the Board stated that the administrative law
judge was procedurally prevented from addressing Section 8(f) without an underlying award, as Section 8(f) relief
cannot be awarded if there is no award for permanent disability or death in excess of 104 weeks. See 33
U.S.C. §908(f)(1); Hansen v.  Container Stevedoring Co.,  31 BRBS 155 (1997).  

        Employer contends that Gupton incorrectly states that an award of benefits is necessary before
entitlement to Section 8(f) relief can be adjudicated.  Employer states that the language of Section 8(f) itself does
not refer to an award for permanent total or permanent partial disability benefits, and that, moreover, the
holding in Gupton is inconsistent with the Board's decision in Langley v. Keller's Peoria Harbor
Fleeting, 27 BRBS 140 (1993).   Employer is correct in stating that the language of Section 8(f) does not refer
to an award of permanent total or permanent partial disability benefits.[2] 
  If, however, as here, the Director is not willing to grant Section 8(f) relief absent an adjudication of the claim,
the practical implication of a request for Section 8(f) relief requires an award of benefits. See generally
Dickinson v. Alabama Dry Dock & Shipbuilding Corp., 28 BRBS 84 (1993); Byrd v. Alabama Dry Dock
& Shipbuilding Corp., 27 BRBS 253 (1993).

        Langley also does not support employer's position.   In Langley, the Board first affirmed
the administrative law judge's decision to grant the claimant's request to withdraw his claim for compensation
under the Act, pursuant to 20 C.F.R. §702.225.  Nevertheless, a majority of the panel agreed with the
employer, and, significantly, the Director, that the employer was still entitled to have its claim for Section 8(f)
relief adjudicated.  It was the Director's position that a finding of Section 8(f) entitlement would aid the employer
as to its assessment under Section 44 of the Act, 33 U.S.C. §944, based on its payments to claimant
under the state act.  The majority opinion deferred to the Director's concession that employer was entitled to a
hearing on the Section 8(f) issue.[3]   27 BRBS at 144-145.     

        The holding in Langley does not stand for the proposition that an employer may be entitled to
Section 8(f) relief without a determination of the claim on the merits by an administrative law judge.   In a
footnote, the Board stated that the administrative law judge had not made a determination as to whether claimant
was in fact entitled to benefits under the Act despite the withdrawal of the case, and noted that employer had
controverted the issues of causation and the nature and extent of claimant's disability.  27 BRBS at 145 n. 6.
Gupton and Langley therefore stand for the proposition that the underlying claim must be
adjudicated before an employer's entitlement to Section 8(f) relief may be adjudicated, unless the Director
otherwise agrees that an award of Section 8(f) is appropriate. See generally Dickinson, 28 BRBS 84.

        Employer also avers that in Gupton, the employer attempted to establish its entitlement to Section
8(f) relief by way of stipulations, whereas, in this case, employer submitted evidence in support of its case for
Section 8(f) relief.  This distinction is not readily apparent from the face of the Gupton decision, but is,
in any event,  irrelevant, as it is the lack of an underlying order that is significant, not the manner in which
employer attempted to prove 8(f) entitlement.  

        Finally, we note that, in Gupton, the administrative law judge found that the employer had
not satisfied the contribution element for Section 8(f) relief, whereas in the instant case, the administrative
law judge found that employer did not satisfy the manifest element, a finding which arguably can be reviewed
without an underlying award of benefits.  Nonetheless, were the Board to hold that  the administrative law
judge erred in this regard,[4]  the case would have
to be remanded for consideration of the contribution element. Satisfaction of the
contribution element is heavily dependent on whether the ultimate award is for permanent partial disability or
permanent total disability, see generally Director, OWCP v. Newport News Shipbuilding & Dry Dock Co.
[Carmines], 138 F.3d 134, 32 BRBS 48(CRT) (4th Cir. 1998), and thus, resolution of the underlying claim
is required.

        According, the Director's motion to dismiss employer's appeal is granted.  The case is remanded to the
administrative law judge for a decision of the merits of claimant's claim  following a hearing, or for the
issuance of an order based on the parties' stipulations. See 33 U.S.C. §919(d); 20 C.F.R.
§§702.331-702.351.  Employer may file a new appeal seeking review of the administrative law
judge's findings regarding Section 8(f) once the administrative law judge issues a final order.

        SO ORDERED.    


                                                                   
                            ROY P. SMITH
                            Administrative Appeals Judge



                                                                   
                            REGINA C. McGRANERY
                            Administrative Appeals Judge



                                                                   
                            MALCOLM D. NELSON, Acting
                            Administrative Appeals Judge

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Footnotes.


1)In Ledet, the Fifth Circuit stated that: [t]o constitute a final decision and order' of the ALJ, the order must at a minimum specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts which are potentially subject to genuine dispute between the parties. Ledet, 163 F.3d at 905, 32 BRBS at 215(CRT), quoting Severin v. Exxon Corp., 910 F.2d 286, 289, 24 BRBS 21, 23(CRT) (5th Cir. 1990). The court stated that matters such as obtaining evidence of claimant's post-injury earnings and calculating the award was properly the role of the administrative law judge. Id. Back to Text
2)Section 8(f)(1) states, in relevant part: If . . . the employee is totally and permanently disabled, and the disability is found not to be due solely to that injury . . . In all other cases of total permanent disability or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability . . . If following an injury falling within the provisions of subsection (c)(1)-(20) of this section, the employee has a permanent partial disability and the disability is found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone . . . In all other cases in which the employee has a permanent partial disability, found not to be due solely to that injury, and such disability is materially and substantially greater than that which would have resulted from the subsequent injury alone . . . . Back to Text
3) 3Judge Brown dissented, stating that after the claim for compensation was properly withdrawn, the administrative law judge had no authority to proceed with a hearing on the Section 8(f) claim. He disagreed with the Director's interpretation of the Section 44 assessment issue. 27 BRBS at 146-147. Back to Text
4) 4We do not intend by this statement to express an opinion on the merits of employer's appeal. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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