September - October 1994

Benefits Review Board

Morin v. Bath Iron Works Corp. and Chemical Union Insurance Co., ___ B.R.B.S. ___, BRB No. 92-0947 (Aug. 22, 1994)(published).

The Board upheld the Administrative Law Judge's denial of disability benefits subsequent to claimant's retirement based on a finding that claimant was a voluntary retiree, as there was no substantial evidence in the record indicating that claimant was, or is, medically impaired because of his lung condition. The Board, citing Johnson v. Ingalls Shipbuilding Division, Litton Systems, Inc., 22 BRBS 160, 162 (1989), held that the determination of whether a claimant's retirement is "voluntary" or "involuntary" should be based on whether a work-related condition caused him to leave the work force, or whether his departure was due to other considerations.

The Board also rejected the Director's argument that Claimant established a prima facie case of permanent total disability when Claimant was first diagnosed as suffering from an asbestos-related lung disorder. The Board further held, citing Liberty Mutual Insurance Co. v. Commercial Union Insurance Co. , 978 F.2d 750, 26 BRBS 85 (CRT)(1st Cir. 1992), that the proper test for the availability of permanent partial disability benefits is reduction in earning capacity and not out-of-pocket loss. Therefore, since Claimant voluntarily retired he is not entitled to benefits.

The Board further determined that, as claimant has no work- related disability at present, he does not yet have the requisite awareness needed to commence the time period for filing a claim and, thus, his right to refile a claim for disability benefits is protected.

In sum, Board concluded that a diagnosis of a medical condition alone is not sufficient to warrant benefits. A claimant must show that the condition caused him or her to leave work or caused a loss of wage earning capacity.

Hoda v. Ingalls Shipbuilding, Inc. , ___ B.R.B.S. ___, BRB Nos. 88-3187 and 88-3187A LHC (Aug. 12, 1994)(published).

Citing Hensley v. Eckerhart , 461 U.S. 424 (1983) and George Hyman Construction Co. v. Brooks , 963 F.2d (D.C. Cir. 1992), Employer argued that where a claimant achieves only "'partial or limited' success", the representative's fee should be reduced accordingly. The Board rejected this argument to state that, pursuant to 20 C.F.R. § 702.132(a), while the amount of benefits awarded is a factor to be considered in determining a representative's fee, "the amount of the fee award is not limited to the amount of compensation gained since to do so would drive competent counsel from the field." Moreover, the Board held that the fee award in this case was proper where the "employer voluntarily paid disability benefits to claimant prior to the case's being referred to the Office of Administrative Law Judges (but) claimant was required to pursue his claim in order to obtain interest, care from a physician of his own choosing, . . . and a Section 14(e) penalty."

The Board also rejected Employer's argument that
§ 702.132(a) of the regulations, which sets forth the criteria under which a fee is awarded, is in conflict with § 28(b) of the Act, which Employer argues provides for a fee based solely on the difference between the amount of benefits voluntarily paid and the actual compensation ultimately awarded. To the contrary, the Board determined that § 28(a) of the Act does not limit fees to the difference between compensation voluntarily paid and that which is awarded; rather, it establishes an employer's liability for fees where the benefits awarded exceed those which were voluntarily paid by the employer. On the other hand, the Board noted that § 702.132(a) of the regulations sets forth the criteria for determining the amount of the fee award.

Chavez v. Todd Shipyards Corp. , B.R.B.S. , BRB Nos. 86-2456 and 86-2456A (Sept. 23, 1994)(en banc) (published).

The Board, in a published en banc decision, affirmed on motion for reconsideration its decision reported under the same name at 27 B.R.B.S. 80 (1993). In summary, the Board found that under Section 33(f), Employer is entitled to an offset for amounts received in a third party suit only if the disability which is the subject of the longshore claim is due solely to the work related injury that is the subject of the third party suit.