Judge's Benchbook:

Longshore & Harbor Workers' Compensation Act
Supplement - January 2005
Topic 9 - Compensation for Death

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Compensation for Death


  • Compensation for Death - Application of Section 9


  • Death Benefits - Survivors - Spouse and Child




Topic  9.1       Compensation for Death�Application of Section 9


Cooper/T. Smith Stevedoring Co. v. Liuzza , 293 F.3d 741 ( 5th Cir. 2002).


            The Fifth Circuit held that in view of the language of Section 14 and Congressional intent, the court's precedent addressing similar issues, and the deference owed the Director's interpretation, Section 14(j) does not provide a basis for an employer to be reimbursed for its overpayment of a deceased employee's disability payments by collecting out of unpaid installments of the widow's death benefits. In reaching this holding, the court referenced Oceanic Butler, Inc. v. Nordahl , 842 F.2d 773 ( 5th Cir. 1988) (An employer and insurer were not entitled to offset the disability settlement amount against liability to the employee's widow for death benefits.)

Topic  9.3       Compensation for Death--Death Benefits--SurvivorsSpouse and Child


Duck v. Fluid Crane & Construction , 36 BRBS 120 (2002).


            Here the Board upheld the ALJ's finding that Sections 2(14) and 9 of the LHWCA provide that a legitimate or adopted child is eligible for benefits without requiring proof of dependency but that an illegitimate child is eligible for death benefits only if she is acknowledged and dependent on the decedent.


            The Board first noted that it has held that it possesses sufficient statutory authority to decide substantive questions of law including the constitutional validity of statutes and regulations within its jurisdiction. Herrington v. Savannah Machine & Shipyard Co. , 17 BRBS 194 (1985); see also Gibas v. Saginaw Mining Co ., 748 F.2d 1112 ( 6th Cir. 1984).


            The Board found that the instant case was akin to Mathews v. Lucas , 427 U.S. 495 (1976). In Lucas , the Supreme Court sustained provisions of the Social Security Act governing the eligibility for surviving children's insurance benefits, observing that one of the statutory conditions of eligibility was dependency upon the deceased wage earner. Although the Social Security Act presumed dependency for a number of categories of children, including some categories of illegitimate children, it required that the remaining illegitimate children prove actual dependency. The Court held that the "statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations." Lucas , 427 U.S. at 513. The presumption of dependency, observed the Court , is withheld only in the absence of any significant indication of the likelihood of actual dependency and where the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. In identifying these factors, the Court relied predominantly on the Congressional purpose in adopting the statutory presumptions of dependency, i.e., to serve administrative convenience.


            Applying the court's holding in Lucas , Section 2(14) does not "broadly discriminate between legitimates and illegitimates, without more," but rather is "carefully tuned to alternative considerations" by withholding a presumption of dependency to illegitimate children "only in the absence of any significant indication of the likelihood of actual dependency." Lucas , 427 U.S. at 513. The Board found that the LHWCA's distinction between legitimate and illegitimate children is reasonable, for as the Court stated in Lucas , "[i]t is clearly rational to presume [that] the overwhelming number of legitimate children are actually dependent upon their parents for support, " Lucas , 427 U.S. at 513, while, in contrast, illegitimate children are not generally expected to be actually dependent on their fathers for support.