July - August 1994

A. Circuit courts of appeals

Stevedoring Services of America v. Director, OWCP , 1994 U.S. App. LEXIS 17252, Case No. 92-70627 (9th Cir. May 3, 1994)(pub.).

In this case, the BRB issued a Decision and Order affirming the ALJ's decision. On the same day, the Clerk of the Board certified that the decision had been sent by certified mail to counsel for all three parties, as well as to Claimant and a subsequent employer. Stevedoring Services and an insurance company were omitted from those listed on the service certificate. Stevedoring's counsel asserted that he did not receive a copy of the decision, and first learned of it over two months later. This appeal was filed 41 days after Stevedoring learned of the Board's decision.

The issue before the Ninth Circuit was the meaning of the word "issuance" in Section 21(c) of the LHWCA, which provides that a decision by the Board may be appealed by filing a petition within 60 days "following the issuance of such Board order." The Ninth Circuit followed every other circuit that has faced this issue and held that the word "issuance" in Section 21(c) means filed with the Clerk of the Board, and nothing more. The appeal was dismissed for lack of jurisdiction because the petition was not timely filed.

B. Benefits Review Board

Bass v. Broadway Maintenance , 28 B.R.B.S. 11 (1994).

The Board held that in cases where harm to a part of the body which is not covered under the schedule results from the natural progression of an injury to a scheduled body part, a claimant is not limited to a single award pursuant to Section 8(c)(21). Rather, the claimant may receive a separate award under Section 8(c)(21) for the resultant injury, in addition to an award pursuant to the schedule for the initial injury. Bass , 28 BRBS at 17-18.

To the extent that Frye v. Potomac Elec. Power Co. , 21 B.R.B.S. 194 (1988), is inconsistent with this holding, it was expressly overruled. Bass , 28 B.R.B.S. at 18. In Frye , the Board had previously held that where an injury to a non-scheduled member is the natural sequelae of an injury to a scheduled member, the claimant is limited to a single award pursuant to Section 8(c)(21) for all of his injuries. Frye , 21 B.R.B.S. at 198.

Brown v. Alabama Dry Dock and Shipbuilding Corp. , ___ B.R.B.S. ___, BRB No. 92-1302 (July 25, 1994)(pub.).

The ALJ awarding benefits to Claimant for a work-related hearing loss under the Longshore Harbor Workers' Compensation Act, also awarded medical benefits, interest, and an attorney's fee. Employer paid benefits but refused to pay interest, and appealed that portion of the ALJ's award, contending there is no provision in the Act for awarding interest. Claimant additionally asked the Board to assess interest on the unpaid pre-judgment interest. The Board upheld the ALJ's assessment of interest as a well-established principle. However, whether post- judgment interest assessed on pre-judgment interest serves the purpose of the LHWCA and makes Claimant whole, or whether it merely penalizes Employer for its failure to pay that portion of the administrative law judge's award, was a novel question raised by Claimant. Although no court had addressed this issue in the context of a case arising under the Longshore Act, the United States Courts of Appeals have determined that post-judgment interest assessed on unpaid awards, including any accrued pre- judgment interest, is permissible. Relying on the courts' agreement in allowing interest on interest, the Board concluded that post-judgment interest, assessed on awarded but unpaid pre- judgment interest, serves the purpose of the Act by making claimants whole. Although interest is not considered "compensation" under Section 2(12) of the LHWCA, the Board held that Claimant was entitled to post-judgment interest on the unpaid award of pre-judgment interest, calculated from the date the ALJ's order was issued.