BRB No. 97-1533
DORIS W. SHAW (Widow of )
RICHARD M. SHAW) )
)
Claimant-Respondent ) DATE ISSUED: 07/27/1998
)
v. )
)
WACO SCAFFOLD & SHORING )
COMPANY )
)
and )
)
CONTINENTAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Compensation Order Award of Death Benefits of Charles L.
Green, District Director, United States Department of Labor.
Bradford C. Jacob (Taylor & Walker, P.C.), Norfolk, Virginia, for
employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Compensation Order Award of Death Benefits (Case No. 40-0098357) of District Director Charles L. Green 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. (1982)(the Longshore Act), as extended
by the District of Columbia Workmen's Compensation Act, 36 D.C. Code
§§501, 502 (1973)(the 1928 or the D.C. Act).[1]
On September 18, 1978, the employee, Richard M. Shaw (hereinafter decedent)
was awarded permanent total disability benefits under the D.C. Act by Deputy
Commissioner Janice V. Bryant, commencing January 10, 1973, for an injury that
occurred in 1970. Mr. Shaw died on April 21, 1997, from unrelated causes, and on
May 1, 1997, claimant filed a claim for death benefits as decedent's spouse.
See 33 U.S.C. §909 (1982).[2] On May
16, 1997, District Director Charles L. Green issued a Compensation Order awarding
death benefits to claimant, as well as funeral expenses. The district director
denied employer's Motion for Reconsideration and Motion to Vacate the Compensation
Order filed on May 16, 1997, as he stated that his Order was issued in accordance
with law. This appeal followed.
On appeal, employer contests the award, asserting that the district director
erred in not applying the law in effect at the time of the injury, 1970, under
which death benefits were not payable for a non work-related death. Alternatively,
employer contends that the district director erred in not applying the Longshore
Act as amended in 1984, as the death occurred in 1997, under which death benefits
are payable only for work-related deaths. Lastly, employer contends that the
district director failed to consider whether claimant is the decedent's "widow"
under 33 U.S.C. §902(16) . Claimant has not responded to this appeal.
Initially, employer raises questions regarding the applicable law. We reject
employer's contention that the administrative law judge erred in not applying the
law in effect in 1970, which is the time the work-related injury occurred. This
argument has been uniformly rejected, and the courts have specifically found widows
entitled to death benefits for an unrelated death where an employee who was
permanently totally disabled by a pre-1972 injury died after enactment of the 1972
Amendments. Nacirema Operating Co. v. Lynn, 577 F.2d 852, 8 BRBS 464 (3d
Cir. 1978), cert. denied, 439 U.S. 1069 (1979); Travelers Ins. Co. v.
Marshall, 634 F.2d 843, 12 BRBS 922 (5th Cir. 1981); Puig v. Standard
Dredging Corp., 599 F.2d 467, 10 BRBS 531 (1st Cir. 1979); Todd Shipyards
Corp. v. Witthuhn, 596 F.2d 899, 10 BRBS 517 (9th Cir. 1979); Norfolk,
Baltimore & Carolina Lines, Inc. v. Director, OWCP, 539 F.2d 378 (4th Cir.
1976), cert. denied, 429 U.S. 1078 (1977); cf. Shea, S & M Ball Co. v.
Director, OWCP, 929 F.2d 736, 24 BRBS 170 (CRT)(D.C. Cir. 1991)(for purposes
of determining applicability of 1928 D.C. Act or 1979 D.C. Act, time of injury
rather than time of unrelated death governs choice of law). Accordingly, we reject
employer's contention that the administrative law judge erred in failing to apply
the Act as it existed at the time of decedent's 1970 injury.
In the instant case, therefore, the Act in effect at the time of death
controls and, as this case arises in the District of Columbia, the law in effect
at the time of death is the Longshore Act as amended in 1972. In this regard, we
reject employer's contention that the 1984 Amendments to the Longshore Act, Pub.
L. No. 98-426, 98 Stat. 1639, apply to cases that arise under the 1928 District of
Columbia's Workmen's Compensation Act. The United States Court of Appeals for the
District of Columbia Circuit has held that because "the repeal of the 1928 Act [by
a new D.C. workers' compensation statute] had the effect of severing the
application of the [Longshore Act] to the District of Columbia in 1982, the
subsequent 1984 amendments were without effect on the law of the District."
Shea, S & M Ball Co. v. Director, OWCP, 929 F.2d at 740, n.5, 24 BRBS at 174
, n.5 (CRT), quoting Keener v. Washington Metropolitan Area Transit Authority, 800
F.2d 1173 (D.C. Cir. 1986), cert. denied, 480 U.S. 918 (1987). Contrary to employer's
contention, the holding in Keener has been applied to compensation claims,
see Shea, S & M Ball Co., id., and to cases affecting the
administration of the 1928 Act. Washington Metropolitan Area Transit Authority
v. Beynum, F.3d , No. 97-1008, 1998 WL
278299 (D.C. Cir. June 5, 1998)(court held that the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, is
without effect on the operation of the 1928 Act or the adjudication of claims
arising under it). At the time of its repeal, the 1928 Act provided a death
benefit for the spouse of a permanently disabled employee who died from causes
unrelated to the employment injury. Therefore, claimant is entitled to death
benefits under the 1928 Act if she is decedent's "widow."
Employer lastly asserts that the district director failed to address whether
claimant is decedent's widow under 33 U.S.C. §902(16).[3] Section 19(d) of the Act, 33 U.S.C. §919(d), provides that fact-finding authority rests with the administrative law judge. See Maine v.
Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986). As with any contested issue,
if there is a dispute concerning claimant's status as decedent's widow, the
district director may not issue a compensation order, since his authority is
limited to cases where the parties agree. See Roulst v. Marco Construction
Co., 15 BRBS 443 (1983); 20 C.F.R. §§702.315, 702.316. Where there
is no agreement, the district director must refer the case to an administrative law
judge upon the request of a party.[4] Id.;
see generally Maine, 18 BRBS at 129; Brown v. Bethlehem Steel Corp.,
16 BRBS 138 (1984). Therefore, we must vacate the Compensation Order issued by the
district director and remand this case to the district director for further
proceedings as appropriate. See 20 C.F.R. §§702.315, 702.316.
Accordingly, the Compensation Order awarding death benefits is vacated and
this case is remanded to the district director for proceedings consistent with this
opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The title "district director" has been substituted for the title "deputy commissioner" used in
the statute. 20 C.F.R. §702.105.
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2)Section 9 of the 1972 Longshore Act states:
If the injury causes death, or if the employee who sustains permanent
total disability due to the injury thereafter dies from causes other
than the injury, the compensation shall be known as a death benefit....
33 U.S.C. §909 (1982). This section was amended in 1984 to eliminate the
award of death benefits to survivors of disabled employees whose deaths were not
related to an employment injury. 33 U.S.C. §909 (1994).
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3)Section 2(16) states:
The term "widow or widower" includes only the decedent's wife
or husband living with or dependent for support upon him or
her at the time of his or death; or living apart for
justifiable cause or by reason of his or her desertion at such
time.
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4)We note that employer does not state the basis on which he contests claimant's status as
decedent's widow. The file contains a marriage certificate for claimant and decedent dated January 2, 1941, the date of
marriage noted by the district director. See Compensation Order at 1.
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NOTE: This is an UNPUBLISHED LHCA Document.
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