Saturday, February 6, 2010


NYLJ 5/23/07


4. Another lesson of “Our Lexicon In Action” is, more specifically, two words in the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. Section 901 language which is, ultimately, the issue between a federal administrative law judge and the U.S. Court of Appeals for the 2nd Circuit. This would seem altogether academic and austere, twee even, were it not the end of a man in another of those sad series of events, choices, acceptances, of our daily burden as wage slaves without much recourse other than a shrug and a sigh of “That’s our lot in life”.

Mr. Shipfitter, shall we say, contracted asbestos lung over the years at Electric Boat, putting in a claim for the pittance figure of $30,000 for his debilitation over the years. Small price to pay for your health, it would seem, but the company must have thought any other amount would have been less deserved as they invoked Section 8(f) of the act which states that an employer only has to compensate an employee for two years where said employee has an “existing permanent partial disability,” and then sustains a work-related injury that results in total disability. And after these two years are up the only recourse remaining is a special fund administered by the Secretary of Labor. So the Boat people were perfect citizens under the letter of the Law. But that doesn’t mean words.

So, leaving aside the probability that it was only his job which killed him, when Mrs. Shipfitter went to apply for death benefits to Washington, it was still their right to persuade the power-that-do-such-things to credit the whole 30k for the disability award to this application. After all, they shouldn’t be taxed twice for the same payoff, don’t you agree? The judge sure did, stating, “in the absence of specific evidence of the apportionment of a state settlement, the employer is entitled to credit the amount of the state benefit paid.”

But wouldn’t you know it?—it was the minority reort who had the last word, and, ultimately, the best.

USCA 2nd found the reading of Section 3(e) as credit should be given for “amounts paid for the same injury, disability or death for which the benefits are claimed.” Judge Kittykat said, “the use of the present tense unambiguously indicates that only those injuries currently being claimed can be considered in applying the 3(e) credit.”

That he goes on to further cite the Black Letter law of Grammar makes it all the better. “When disability and death are listed in the disjunctive in the Longshoreman’s Act, they should be treated independently, even when both were cause by the same event.” And further, in accord with how other circuits have addressed the problem of double recovery, the key point is what is being claimed currently, and also that the burden of proof for the allocation lies of the party that seeks to apply the credit.

Kinda makes you glad that, beyond all the Westlaw references, headers, keynotes and such, somebody still uses good old Strunk & White when they really want justice…

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