OFFICE OF ADMINISTRATIVE LAW JUDGES
UNITED STATES DEPARTMENT OF LABOR
MONTHLY DIGEST # 117
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.
