USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 96-2179

BATH IRON WORKS CORPORATION

and LIBERTY MUTUAL INSURANCE CO.,

Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

____________________

PETITION FOR REVIEW OF A FINAL ORDER

OF THE BENEFITS REVIEW BOARD

____________________

Before

Boudin,

Circuit Judge,
_____________

Campbell, Senior Circuit Judge,

____________________

and Bownes, Senior Circuit Judge.

____________________

____________________

Kevin M. Gillis, with whom Troubh, Heisler & Piampiano, P.A.

_______________
_________________________________

on brief for petitioners.

LuAnn B. Kressley, with whom J. Davitt McAteer, Acting Solici

__________________
__________________

of Labor, Carol A. De Deo, Associate Solicitor for Employee Benefi

________________
and

Janet R. Dunlop,
_________________

Counsel

for Longshore,

were

on

brief

respondent.
____________________

February 12, 1998

____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

The Longshore and Harbor

Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C.A.

950 (West Supp. 1997),

901

requires employers to pay compensation

to certain maritime workers for disabling injuries resulting from

their employment.

An exception from total liability is provided

to employers under

8(f) of the LHWCA when the employer

among other things,

that a permanent partial

prior

to the work-related

construing this exception,

injury.

proves,

disability existed

33 U.S.C.A.

this court, along with

908(f).

In

other circuit

courts of appeals, has required the employer to come forward with

proof,

which is

language, that the

employer" before

In 1984

not specifically

elucidated

in the

statutory

pre-existing disability was "manifest

8(f) relief can obtain.

the LHWCA was

to the

See Part II, infra.

___
_____

amended, inter alia,

to permit

claimants to receive compensation when a long-latent occupational

disease does

retired.

not become

This appeal

that amendment:

apparent until after

presents a novel

may an employer

the claimed pre-existing

the employee

question in the wake

obtain

8(f) relief

has

of

when both

disability and compensable occupational

disease do not become manifest until after the worker has retired

from

employment

instances, of

existing

with

course,

disability

the

responsible

the employer

was

"manifest

employer?

cannot show

to

the

In

such

that the

pre-

employer"

because

employment has ceased by the time both disabilities arise.

Because the

facts

underlying

the

question before

worker's

-22

claim

us is

need

purely legal,

only

be

the

sketched

briefly.

Phillip

Works ("BIW")1 in

various

J. Reno

voluntarily retired

1985, after a total of

positions.

It is

from Bath

thirty-eight years2 in

uncontroverted that at various stages

of his employment at BIW, Reno was exposed to asbestos.

or

1990,

several

experience shortness

with

chronic

years after

of breath.

obstructive

interstitial lung disease.

Iron

his

retirement,

Reno

He was diagnosed at

pulmonary

disease

In 1989

began to

that time

(emphysema)

Reno had been a cigarette smoker.

and

In

June of

1991, Reno

was referred to

a pulmonary

diagnosed obstructive pulmonary disease,

cigarette smoking,

from Reno's

percent

and restrictive

asbestos

whole person

impairments.

exposure.

specialist who

primarily the result of

pulmonary disease

Reno

impairment due

was

to

assessed

the overall

resulting

twenty

pulmonary

Reno filed a timely claim for workers' compensation

benefits on the basis of his partial pulmonary disability.

BIW in

turn gave notice

of its intent to

from the compensation liability under

theory

that

Reno's smoking-related

partial disability

asbestosis.

("ALJ")

which

awarded benefits

8(f) of the LHWCA on

emphysema

predated the

On December 3,

to

was

work-related

1993, the Administrative

Reno

seek relief

and denied

BIW

the

a permanent

injury

of

Law Judge

the

8(f)

relief.

Relying on our precedent, the ALJ held that in

order to

____________________

1.

We

refer to

Petitioners BIW

and Liberty

Mutual Insurance

Company collectively as BIW.

2.

We feel compelled to note that, contrary to BIW's description

of

Reno's work

characterized

history,

thirty-eight

as "employ[ment]

for

Petitioner at 2 (emphasis added).

-33

years

several
_______

is

not

years."

properly
Br.

of

obtain such

existing

relief, an employer

disability

was

must demonstrate that

manifest

to

the

employer

the pre-

prior

to

retirement.

BIW appealed the legal basis

the

Department

of

Labor's Benefits

of the

Review

8(f) decision to

Board.

After no

action, the ALJ's decision became the final order of the Board on

September 12,

1996.

See Omnibus Consolidated Rescissions and

___ ______________________________________

Appropriations Act of 1996,

___________________________

1321-219 (April 26,

proper under 33

1996).

U.S.C.A.

Pub. L. No.

104-134, 110

Our jurisdiction over

921(c).

Because the

the appeal is

issue before us

is purely a question of law, we exercise de novo review.

Mut. Ins. Co.

______________

(1st Cir. 1992).

v. Commercial Union Ins. Co., 978

__________________________

Stat. at

Liberty
_______

F.2d 750, 757

BIW

posits

that Reno's

permanent disability which, when

disease

of asbestosis, created

emphysema

is a

pre-existing

combined with his

occupational

a greater disability.

Based on

this postulate, BIW points to both the plain language of

8(f),

and the substance and legislative history of the 1984

Amendments

to argue

In Newport
_______

that it is entitled to relief under

News Shipbuilding & Dry Dock Co. v. Harris,

__________________________________
______

8(f).

934 F.2d 548

(4th

Cir. 1991), the

Fourth Circuit examined a similar situation, and

concluded that

"adherence to the [manifestation] requirement [in

instances of a long-latent occupational disease] would defeat the

real purposes of the

such

as

these,

[1984] amendments,"

the

Harris
______

court

id. at 553.
___

determined

In cases

that

"the

manifestation requirement will

not be applied."

Id.
___

BIW urges

-44

adoption of the

Harris holding,3 as a basis

______

for overturning the

decision of the Board below.

We decline to

affirm

the decision

requirement a

follow the Fourth Circuit

of the

Board.

We find

necessary prerequisite to

and therefore

the manifestation

8(f) relief even where

the

compensation claim is based on a post-retirement long-latent

occupational disease.

Our analysis follows.

I.
I.

Under

8(f) of the Act, "the

partial and permanent

liability for permanent

total disability, and death

benefits, [is

shifted] from employer to the Special Fund when the disability or

death is not due solely to the injury which is the subject of the

claim."

Desk Book
_________

A2 Benefits

D8.20,

instances, after

Review Board

at

Service, Longshore Reporter

___________________

248 (Matthew

an initial

Bender, 1996).

period of

In

employer liability,

these

the

employee is "paid the remainder of the compensation that would be

due out of the

special fund established

in section 944 of"

the

LHWCA.

33 U.S.C.A.

8(f)(2)(A).

financed by assessments

The Special Fund is currently

on all covered employers,

part of which

____________________

3.

Harris is the only circuit court of appeals decision to reach

______

this issue as of yet.

In Ehrentraut v. Director, OWCP, 30

__________
______________

146 (1996), the Benefits Review

decided

that

the

Board reached the question,

pre-existing

disability

need only

BRBS

and

manifest

itself to someone -- not necessarily the employer -- prior to the

compensable injury, id.
___

at 150.

The Director

has contested the

Board's jurisdiction to issue the opinion on the basis of Pub. L.

No. 104-134, supra, and the
_____

case is currently pending before the

Third Circuit.

Director, OWCP
______________

Regardless, the

Board's Ehrentraut
__________

special deference

here.

v. Sun Ship, Inc.,

______________
decision is

entitled to

Potomac Elec. Power Co.

________________________

OWCP, 449 U.S. 268, 278 n.18 (1980).

____

-55

No. 96-3648.

no

v. Director,
_________

is

prorated according

employer's compensated

U.S.C.A.

extent to

employees

make

which that

use

of the

particular

Fund.

33

944(c).

We

these are

albeit

to the

turn initially

not clear, "we

intent."

words of

next examine the

skeptically, in search

congressional

to the

the statute.

If

legislative history,

of an unmistakable

expression of

Strickland v. Commissioner, Me. Dep't of

__________
__________________________

Human Servs., 48 F.3d 12, 17 (1st Cir. 1995).

____________

Section 8(f) currently reads, in relevant part:

Injury increasing disability:

(1)

In

any

case

in

which

an employee
____________

having
an
existing
permanent
partial
_____________________________________________
disability suffers injury, the employer shall
__________
provide compensation
is found

to be attributable

based upon
employee

for such

the average
at

the

disability as
to that

injury

weekly wages

of the

time of

the

injury.

If

following [certain statutorily scheduled] . .

. injur[ies] . . . , the

employee is totally

and permanently disabled,

and the disability

is found not to be due solely to that injury,

the employer
the

applicable

provided

for

subsequent

all

compensation for

prescribed period
in

that

injury,

four weeks,
In

shall provide

of

section

or for

one

weeks

for

the

hundred and

whichever is the greater . . . .

other

disability or of

cases

of

total

permanent

death, found not to

be due

solely to that injury, of an employee

having

an existing permanent partial disability, the

employer

shall

provide .

. compensation

payments or
and

four

death benefits
weeks

only.

statutorily scheduled]
employee has
and the

for one
If,

following

injury

a permanent

disability is

hundred

. .

. ,

[a
the

partial disability

found not

to be

due

solely to that injury, and such disability is

materially
that

which

and

would

subsequent injury
provide
period of

substantially
have

resulted

alone, the

compensation
weeks . .

greater

for

from

than
the

employer shall
the

applicable

. , or for

one hundred

-66

and

four

weeks,

whichever is

the

greater

. . . .

In all

other cases in

which the

employee

has a permanent partial disability, found not

to be

due solely

disability

is

to that

materially

greater than that

from

the

employer

injury, and

and substantially

which would have

subsequent
shall

injury

provide

such

in

resulted

alone,

the

addition

to

[statutorily

mandated

compensation],

compensation for

one hundred and

four weeks

only.

33 U.S.C.A.

908(f)(emphasis added).

Thus two categories of resulting disability are covered

under

result

8(f):

of

the

(1) total

permanent disability

workplace

injury

found to

(statutorily

be the

scheduled

or

otherwise) combined with the existing disability; and (2) partial

permanent

disability found

injury (statutorily

to be the

scheduled or

result of

otherwise)

the workplace

combined with

the

existing

disability,

where

the

resulting

"materially and

substantially greater"

effect.

situation falls under the latter

Reno's

first sentence of

all

because of

the section contains

requests for relief:

8(f)

disability

the combined

category.

the language crucial

cases are

is

those "in

The

to

which an

employee having an existing permanent partial disability

_____________________________________

suffers

injury."

The

statute,

however,

is silent

"existing permanent partial disability."

________

(definitions).

At

first blush then,

sense;

it is,

at least,

Reno's

emphysema was an

an

on

the

meaning of

See 33 U.S.C.A.
___

BIW's argument makes

arguable reading

to suggest

902

some

that

"existing permanent partial disability"

-77

by the

time the asbestosis made itself known.

question

of when

injury

occurs

for

purposes

occupational diseases,4 the issue turns

one interprets the word "existing."

does

it

another

mean

existing during

disability

requirement,

to which

becomes

we now

Leaving aside the

of

long-latent

to a large degree on how

For purposes of this appeal,

employment,

or

existing before

apparent?

The

turn,

large measure

was in

manifestation

the

result of

courts' determinations

on the

meaning of

"existing"

disability.

II.
II.

The font of the manifestation requirement can be traced

to the

Co.,
___

Supreme Court's opinion in Lawson v. Suwanee Fruit & S.S.

______
____________________

336

U.S. 198

(1949).

There,

determine the proper meaning of

8(f)'s

coverage

Because

the

for

the

Court was

portion

of

Id.
___

the

LHWCA

at 200.

defined

"disability" in relation to an injury "arising out of and in

course

of

employment," id.
___

to

"disability" in the context of

"previous disabilit[ies]."

definitional

asked

(quoting

LHWCA

2(2)),

question of statutory interpretation emerged: must

the

a thorny

the "previous

disability"

also

After a review

arise

out

of

an

employment-related injury?

of the Act's legislative history,

id. at 201-04,
___

____________________

4.

Our inquiry

explicitly defined

would be simplified
the time of

if the

statutory language

injury in such cases.

Instead,

the definition of "injury" includes "such occupational disease or

infection

as

arises

naturally

U.S.C.A.

902(2), and as we examine infra, wage calculations for

_____

occupational disease reference

out

of

such

employment,"

the onset of disabling

the time of "injury," 33 U.S.C.A.

room for argument on the point.

-88

910(i).

33

effect as

There is, therefore,

the Court

answered in the negative, id. at

___

definition

[of

disability]

fashion, we create

into

206. "If we read the

8(f)(1)

in

mechanical

obvious incongruities in the language, and we

destroy one of the major purposes of the second injury provision:

the prevention of employer discrimination against handicapped

_________________________________________________________________

workers."
_______

Id.
___

at

generally, and this

courts

of

appeals

201

(emphasis

added).

It

emphasized language in particular

have

seized

upon

in

was Lawson
______

which the

developing

the

manifestation requirement.

In 1970, the D.C. Circuit interpreted

8(f) as it then

existed,5 and formally extracted for the first time what has come

to

be known as the

"manifestation" requirement -- requiring the

employer to show that the pre-existing disability was manifest to

the employer before

8(f) relief can obtain.

Co. of Boston v. Jones, 426 F.2d

_____________
_____

1263 (D.C. Cir. 1970).

8(f) relief to the employer, the

the record

time of his

of

gives any indication

due

to

that [the claimant], up

limited

disability could be fairly classed

The

by

exception: "to remove

to be the

intelligence

of

to the

sufficient degree

as 'manifest.'"

American Mutual court's construction

_______________

what it determined

Denying

court stated that "nothing in

[work-related] injuries, showed a

social maladaption

American Mut. Ins.

__________________

that

his

Id. at 1268.
___

8(f) was informed

primary purpose of

that aspect of discrimination

the

8(f)

against the

____________________

5.

At the time, the language was "combin[ation] with

disability."
__________
8(f)(1), 44

a previous
________

Longshoremen's and Harbor Workers' Compensation Act

Stat. 1424,

1429

(1927) (emphasis

added).

We

examine the lack of import in the language change infra.

_____

-99

disabled which would otherwise be

intended to protect

them."

encouraged by the very statute

Id. at 1267.
___

Thus, it was reasoned,

"discrimination

must

rest

upon

knowledge

of

characteristic upon which the discriminationis to be based."

It was

Id.
___

not long before other circuit courts of appeals

adopted

the

same requirement.

Massey,
______

505 F.2d

Stevedores, Inc.
________________

the

1126, 1128

See e.g., Dillingham Corp. v.

_________ _________________

(9th Cir.

v. Director, OWCP,
______________

1974); Atlantic & Gulf

________________

542 F.2d 602, 606

1976); Duluth, M. and I. R. Ry. Co. v.

______________________________

(3d Cir.

United States Dep't of

_______________________

Labor, 553 F.2d 1144, 1148-51 (8th Cir. 1977).

_____

This

manifestation

Sacchetti, 681
_________

court has

required

requirement

since

F.2d 37, 39-40

the

meet

the

General Dynamics Corp.

________________________

v.

(1st Cir.

employer

1982).

to

We

required a

showing of "manifest[ation] to the employer," because we observed

that

8(f)

continue

to

"was designed

employ

to

handicapped workers

employer would not have to

incurred

permanent

encourage employers

when

that

General
Dynamics
Corp.,
__________________________

F.2d 56,

that the

disability

previously existing handicap." Id.

___

have steadfastly adhered to this requirement.

1992)(Lockhart);6
________

ensuring

or

compensate in full for a subsequently

disability

attributable in part to a

by

to hire

980

F.2d

74,

was

We

Director, OWCP v.
_______________

76

(1st

Cir.

Bath Iron Works Corp. v. Director, OWCP, 950

______________________
_______________

58 (1st Cir.

1991); CNA Ins. Co. v. Legrow,

_____________
______

935 F.2d

____________________

6.

Because

of the

fact that

the parties

litigating disputes

under the LHWCA are frequently the same, courts generally use the
last

name of the individual

claimant for purposes of short-form

citation, regardless of
appeal.

whether that claimant is a

party to the

We do so here.

-1010

430,

435 (1st

F.2d 33, 35

Cir. 1991); White

_____

v. Bath Iron Works Corp., 812

______________________

(1st Cir. 1987); Director, OWCP

______________

Corp., 787 F.2d

_____

Director, OWCP v.
______________

v. General Dynamics
________________

723, 725 (1st Cir. 1986)(Fantucchio).

__________

Bath Iron Works Corp. (Johnson),

_____________________ _______

See also
________

129 F.3d 45,

50 (1st Cir. 1997)(reiterating non-discrimination purpose

8(f)).

Our

current jurisprudence therefore dictates

order "[t]o prove that

behind

that, in

it is entitled to Section 8(f) relief, an

employer must show that, (1) the employee had a permanent partial

disability

that

existed prior

second injury contributed

disability

to

the second

injury;

to that disability; and

was 'manifest' to the employer."

(2) the

(3) the prior

Lockhart, 980 F.2d

________

at 76.

As

consistently

we

have

noted,

elucidated

as

prevention of discrimination

manifestation requirement.

our most extensive

we

the

-- to

turned

core

to

purpose

inform our

what

of

been

8(f)

adoption of

Sacchetti, 681 F.2d at 40.

_________

analysis of the manifestation

has

--

the

Indeed,

requirement to

date reiterated that the "crucial issue [in

is

the

potential

Lockhart,
________

for

discrimination

980 F.2d at 81.

this issue

is

[LHWCA]."

Id.
___

Lockhart's

emphasized

We stated

in all

against

the

case,

which

involved

disabled."

that "[t]he centrality of

cases

interpreting

The challenged standard employed by

permanency of the pre-existing

was

our

8(f) relief], . . .

question

the

the Board in

concerning

the

disability, queried whether there

"sufficient information regarding the existence of a serious

lasting

problem

which

would motivate

-1111

cautious

employer to

consider

terminating the

employee." Id.
___

standard

proper because

"[i]t effectuates

manifest

requirement and Section

at

80.

the

8(f) by making

We held

the

purpose of

the

only potential

discriminators eligible for Section 8(f) relief." Id. at 82.

___

To date, eight

requirement:

Eleventh

the Second,

and District of

Gasparic, 7 F.3d
________

other circuits besides ours

Third, Fourth, Fifth,

Columbia.

321, 323 (2d Cir.

apply this

Eighth, Ninth,

Sealand Terminals, Inc. v.

________________________

1993)(per curiam); Director,

_________

OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 455

____

______________________________________

(3d Cir. 1978); Director, OWCP v. Newport News Shipbuilding & Dry
______________
_______________________________

Dock Co. (Langley),

_________ _______

Marine Terminal
_______________

1997);

OWCP v.
____

676 F.2d

110, 114

v. Director, OWCP,
______________

Duluth, 553 F.2d

______

banc); C.G. Willis, Inc. v.

__________________

1982); Ceres
_____

118 F.3d 387, 392

at 1149-51

Cargill, Inc., 709

_____________

(4th Cir.

(8th Cir.

(5th Cir.

1977); Director,
_________

F.2d 616, 618-19 (9th

Cir. 1983)(en

Director, OWCP, 31 F.3d

______________

1112, 1115

(11th Cir. 1994); C & P Tel. Co. v. Director, OWCP, 564 F.2d 503,
______________
______________

512-15 (D.C. Cir. 1977).

manifestation

that the

Only the Sixth Circuit has rejected the

requirement,

substituting instead

pre-existing disability be

necessarily the

employer --

prior to

the

directive

manifest to someone

-- not

the work-related

injury.

American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727, 732 (6th
_______________________
______________

Cir. 1989).

To

within the

must

say that the

rubric of the LHWCA

note, however,

description

requirement is by

now well-ensconced

would be an understatement.

that despite

of the manifestation

-1212

the

Benefits Review

We

Board's

requirement as a "well-settled

concept,"

Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92, 99

_______
___________________________

(1991), the Supreme Court has not yet decided its validity.

III.
III.

The

manifestation

requirement

characterized as

"a

acted to erase."

American Shipbuilding, 865

_____________________

could we

erase it

"[i]n a

'judicial gloss'

has

if we wanted

to.

which

been

properly

Congress has

F.2d at 730.

It is well

not

Nor

settled that,

multi-panel circuit, newly constituted panels, generally

speaking, are bound by prior panel decisions on point." Metcalf &

_________

Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935,
__________
____________________________________

939 n.

3 (1st Cir.

situation

made

1993).

novel

by

We

are, however, confronted

congressional

amendment,

and

with a

must

therefore determine whether those amendments should effectuate

change in our traditional analysis of requests for

As

application

an

initial

of the manifestation

8(f) relief is the

proper way to

meaning.

We

8(f) was

designed to serve

with regards

whole.

matter,

we

remain

8(f) relief.

convinced

requirement to requests

give the Section its

think the LHWCA's legislative history

to the

Because

a very specific and

operation of the

that

for

intended

shows that

limited purpose

compensation scheme

the manifestation requirement

as a

effectuates this

limited purpose, we affirm our adherence to it.

A.
A.

The original LHWCA was passed

in 1927 in response to a

series of Supreme Court decisions that invalidated prior attempts

to

cover

maritime

workers

under

existing state

compensation

-1313

structures.

See G. Bober & M. Wible, Compensable Injury or Death

___
___________________________

Arising Under the Longshore and Harbor Workers' Compensation Act,

________________________________________________________________

35 Loyola

L. Rev.

matter [of maritime

1129, 1131

(1990).

compensation] was

"It was

held that

outside state

the

cognizance

and

exclusively within

Calbeck
_______

v.

Travelers
Ins.
Co.,
______________________

(1962)(discussing

(1917)).7

Larson,

time the LHWCA

compensation schemes had

1920, all

jurisdiction . .

370

Southern Pac. Co. v.

___________________

Around the

workers'

federal maritime

but eight states

U.S.

Jensen,
______

. ."

114,

244

was debated

117

U.S. 205

and crafted,

become so popular

that "[b]y

had adopted Compensation Acts."

A.

The Nature and Origins of Workmen's Compensation,

___________________________________________________

37

Cornell L. Q. 206, 233 (1952).

One

compensation

of

the

schemes,

major

problems

however,

was

apportionment" of the

cost of

disabled worker.

holding the last

results of

By

accumulated injury,

with

the

effect

compensation had

it was

state

workers'

that

"non-

on the

already

employer liable

for the

argued, employers

had a

significant

incentive

to

discriminate

against

those

workers

already physically disabled.8

Johnson, 129 F.3d at 50.

_______

The most

commonly

of this

from the

reiterated

Oklahoma experience.

example

effect

derives

As stated in Lawson,
______

____________________

7.

Justice Brennan's opinion in Calbeck provides a comprehensive

_______

discussion of the judicial

decisions and legislative maneuvering

which led to passage of the Act.

8.

"Non-apportionment" is

370 U.S. 117-124.

also described

as the

"aggravation

rule," because it holds one employer liable for the results of an

aggravating injury.

-1414

Nease v. Hughes Stone Co., 114 Okla. 170, 244

_____
________________
P. 778 [(1925)], held the employer liable for
total

compensation for

eye.

After

Oklahoma]

the

loss

of the

decision,

reports,

Mr.

"thousands

get

of Oklahoma were
employment

compensation
. . .

court

law of Oklahoma.

shape. . . . The
seven

men in the

let out and

coming under

decisions

Huber [of

of one-eyed,

one-legged, one-armed, one-handed

State

put

second

the

can not
workmen's

. . .
us

decision displaced

Those
in

bad

between

and eight thousand men in less than 30

days in Oklahoma."

336

U.S.

Statistics,

at

203-04

Bull.

No.

(quoting United

536

at

268,

States

272

Bureau

of

(1931))(first

Labor

two

alterations added).

As one example

it was

compensation systems

stated that

of the flavor of the debate,

without second

injury

provisions, "would become

an instrument of persecution .

. . of

men

handicapped."

who

testimony

are

physically

of Joseph

Parks of Massachusetts

Commission, United States

Id. at
___

203

(quoting

Industrial Accident

Bureau of Labor Statistics,

Bull. No.

564 at 278 (1932)).

As

8(f)

relief

originally enacted, an

"[i]f an

itself would only

employee

employer was entitled

receive[d] an

injury

cause permanent partial disability

to

which of

but which,

combined with a previous disability, does in fact cause permanent

total disability."

the

44 Stat. at 1429.

Act demonstrates that

The legislative history of

Congress responded to

the unintended

effect of non-apportionment

in

the statute.

by including a "second

See Johnson,
___ _______

129 F.3d

at

50 (stating

conclusion); Ceres Marine, 118 F.3d at 389 (same).

____________

legislative history of

the original Act is

injury fund"

that

Although the

not voluminous, what

-1515

does exist

LHWCA

drives our conclusion that

specifically

to

ameliorate

8(f) was included in the

the

effects

of

non-

apportionment.

considered.

Discriminatory

effect

was

certainly

seriously

For instance, Representative Bowling stated during a

colloquy on a potential apportionment scheme that even under such

a system, the disabled employee was likely to remain jobless.

To
__

Provide Compensation for Employees Injured and Dependents of

_________________________________________________________________

Employees Killed in Certain Maritime Employments: Hearings on

_________________________________________________________________

H.R. 9498 Before the House Committee on the Judiciary, 69th

___________________________________________________________

Cong., 1st Sess. at 74

(1926) ("Well, that sounds like 'good-by'

[sic] for the [disabled employee]").

Perhaps the

most

telling exchange

during hearings over the Senate

later

be enacted.

Mr.

E.

on point

occurred

version of the bill, which would

M. Braxton

of

the

Newport

News

Shipbuilding & Dry Dock

Company reiterated his concern

that the

Act would require employers to "examine every man who applies for

work; and the

poor dog that is suffering

be turned away from our

from some disease will

plant because . . . as a

and death financially we will

matter of life

have to turn him down."

Hearings
________

on S.3170 Before the House Committee on the Judiciary,

__________________________________________________________

Cong., 1st Sess. at 196 (1926).

In rebuttal, a witness in favor

of the legislation testified as follows:

The second
the

injury proposition is as

advantage

interests as
employee.

it is

employer

for the

one-eyed worker

his other

disability.
of thing

the

much to
and

his

benefit of

the

It protects that employer who has

hired, say, a
loses

of

eye

and

who goes

becomes

The employer without

would have

69th

to pay

-16-

and
total

this sort

total permanent

16

disability compensation.

Then, on the other

hand, this also protects the worker

eye from
of

being denied employment

his being an

taking this up
protect

extra risk.

on account

Now by simply

in this way it is possible to

both the employer and to protect the

one-eyed employee
best

with one

social

also.

inventions

It is
in

one of

legislation

the
of

which I have knowledge.

Id. at 208 (testimony of Mr. Andrews).

___

at 202 (quoting same).

See also Lawson, 336 U.S.

________ ______

We

development

ground.

think

of

the

the

Because

foregoing

manifestation requirement

the legislative

demonstrates that

demonstrates

history of

rests

on

the original

8(f) was specifically designed to

incentive for discrimination,

that

it makes logical sense

the

solid

Act

reduce the

that "only

potential discriminators [are] eligible for Section 8(f) relief."

Lockhart, 980 F.2d at 82.

________

B.
B.

In 1972, the LHWCA was amended,9 see Longshoreman's and

___
____________________

9.
1972.

There were, of course, other amendments

According to

one Report

generated as

to the Act prior to

part of the

Amendments,
[O]ther
covered

employee

under the Act.

groups

were

The District

[eventually]
of Columbia

1984

Workmen's Compensation Act (1928) extended coverage

to

employees of

D.C.
to

private employers

in Washington,

The Defense Base Act (1941) extended coverage

employees of

federal

contractors at

military

bases or on public works contracts performed in any

place

outside the continental

Nonappropriated Fund
applied

the

LHWCA

United States.

Instrumentalities Act
to

civilian

The

(1952)

employees

of

nonappropriated fund instrumentalities of the Armed

Forces

(such as

post exchanges).

In 1953,

the

Outer Continental Shelf Lands Act extended coverage

to employees
involved in

on the

U.S. Outer Continental

exploring for

resources.

-1717

and developing

Shelf
natural

Harbor Workers' Compensation Act Amendments

576, 86

Stat. 1251

[which was] to

(1972), "[t]he

. . .

damages against third

administrative reforms,"

part of the 1972

substituting

current

extend coverage

provide a specified cause

parties, and to

S. Rep. No. 92-1125, at

language

of

"previous

. .

to

of action

promulgate necessary

Amendments, the language of

the

of .

1 (1972).

As

8(f) was changed,

disability"

for

language of "existing permanent partial disability."

Stat. at 1257.

to

principle purpose

upgrade the benefits,

protect additional workers,

for

of 1972, Pub. L. 92-

the

86

The Amendments also opened the door for employers

8(f) relief where

total, but partial.

Id.
___

the resulting combined disability was not

There is nothing in the legislative history of the 1972

Amendments to

suggest that the core purpose

altered along with

(making that

(same).

its language.

See
___

of

8(f) was being

Duluth, 553 F.2d

______

determination); C & P Telephone,

________________

564 F.2d

at 1149

at 512

To the contrary, both the Senate and House Report stated

that the chosen "method of spreading the risk among all employers

is

intended by

the

handicapped workers."

committee to

S.

encourage

the employment

Rep. No. 92-1125, at 7;

H.R. Rep. No.

92-1441, at 8 (1972).

____________________

Since

original enactment,

the

Act has

been

amended ten times.

Amendments in 1934, 1938, 1948,

1956,

and 1969

1960, 1961,

revised or

increased

benefits.

In 1958, the Act was amended

to require

employers

to

safe

maintain

reasonably

of

work

environment.

S. Rep. No. 97-498, at 20 (1982).

-1818

IV.
IV.

BIW's primary argument

the

Act, Pub.

abolishing

L. No.

98-426,

is that the 1984

98 Stat.

Amendments to

1639 (1984),

required

the application of the manifestation requirement to

8(f) requests

in cases where

does not appear until

principles

of

construction

after employment has

statutory

of an

an occupational disease

interpretation

important

federal

disturbed unless and until Congress

& Young,
_______

recognize

the area

change

494 U.S.

ceased.

is

so decides."

56, 74 (1990)(Stevens,

One of

that

statute

or injury

the

"settled

should

not

be

Reves v. Ernst
_____
_____

J., concurring).

We

that "considerations of stare decisis weigh heavily in

_____ _______

of statutory

[the

courts']

construction, where

interpretation

Congress is free

of

its

to

legislation."

Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977).

__________________
________

Although the

such

claims "if

Amendments added

filed within

claimant becomes aware, or . .

two years

a provision

permitting

after the

employee or

. should have been aware, of

the

relationship between the employment" and the disease, 98 Stat. at

1649 (codified at

in the

33 U.S.C.A.

text of the

913(b)(2)), we

Amendments, nor its legislative

suggest that Congress

intended to alter

language in a

8(f)

court seized upon,

House Report as

applies to a

and BIW directs

us to,

its argument that

pre-existing disability not

-1919

the

8(f) relief.

a basis for

after the employee has stopped working.

history, to

the application of

manifestation requirement to requests for

The Harris
______

can find nothing

manifested until

Harris, 934 F.2d at 552.

______

As

part of

the introductory

stated that the

Longshore

summary

of the

bill, the

Amendments were "intended to reduce

coverage for employers in

the cost of

the covered industries in a

manner which will disturb, to

the most limited extent

the rights and benefits which

the Longshore Act provides."

Rep.

No.

2734, 2736.

an

98-570, at

Thus,

reprinted in
____________

possible,

H.R.

1984 U.S.C.C.A.N.

the Harris court deduced that an expansion of

______

individual's right

corresponding relief

3 (1983),

Report

to file

a claim

for the employer.

should be

934 F.2d

coupled with

at 552.

But

review

of

the

entirety

legislative documents,

of

that

demonstrates

House

that

Report,

the

and

quoted

other

language

cannot support the weight ascribed to it.

First, there

well

aware

of,

manifestation

states

and

is compelling evidence

in

requirement

fact

endorsed,

to

8(f)

permanent disability which

often able

to shift to

paying a very

worker."

also
____

application

cases.

of

the

Senate Report

that "[a]n employer able to demonstraate [sic] actual or,

______

in some cases, constructive knowledge

______________________

that Congress was

S.

S. Rep.

that an injured worker had

pre-dated a compensable

the Special Fund the

responsibility for

substantial portion of the amounts

Rep. No. 97-498, at 35

No.

98-81, at

34

injury is

payable to the

(1982)(emphases added); see

___

(1983)(same).

We think

this

language is

most reasonably read

as referring to the

manner in

which courts of appeals had analyzed disputes concerning

8(f) -

- by requiring a showing of actual or constructive knowledge with

evidence of

"manifestation."

Similarly, the

House and

Senate

-2020

Reports on

the 1984

bill expressly

recognized that

"[s]ection

8(f) of the

retain

Act was designed to encourage employers

disabled workers by

distributing much of

to hire and

the additional

cost of industrial injury attributable

to pre-existing permanent

disabilities

carriers

among all

Act."

S. Rep.

(same

language).

employers and

No. 97-498, at

Thus

34-35; S. Rep.

"[t]he goals of

subject to

the

No. 98-81, at

34

Section 8(f) remain[ed]

valid," S.Rep.97-498, at35, aspartand parcelofthe 1984Amendments.

Ultimately

concerning

claims

fatal

how Congress

for

long-latent

to

BIW's

position

conceptualized

occupational

is

its amendment

diseases.

change to the

body which

results

from exposure to a

harmful physical agent or

often

toxic substance

Since

it

is

the

is not

disability

disabling.

which

allowing

Consider

following language from the House Report:

The first

evidence

should

trigger the compensation claim, the Committee

the

notes that unlike

traumatic occurrences, the

___

period of time between the 'injury' and the

_____________________________________________
arising of a compensation claim in
__________________________________

such a

long-latency occupational disease case may be

so long as
employee

to make the requirement

file

thirty days

Notice

of

that the

Injury

within

of the 'injury' nonsensical. . .

To the same effect, triggering the

statute

of limitations for the filing of compensation

claims on the
sense

in

date of 'injury'

makes little

the context of an occupational

__________________________________

disease in which the disabling condition or

_____________________________________________
the death does not follow immediately on the
_____________________________________________
"injury."
________

H.R. Rep. No. 98-570, at 10-11 (emphases added).

What

particular

is

important

here

amendment concerning

is

that

in

crafting

occupational disease,

this

Congress

-2121

conceptualized the "injury" as occurring

to the

causative agent, which

during

employment.

precludes

the

manifestation

occupational

At

argument

requirement

the

would necessarily

very least,

that

in

disease claims.

at the time of exposure

Congress

instances

this

have to

occur

Report language

was

removing

the

involving

these

new

Because the "injury" was conceived

as occurring

during

meaning

applying

--

permanent

partial

employment,

when

"an

disability

8(f)

retained

employee

having

suffers injury."

33

its

regular

an

existing

U.S.C.A.

8(f)(1).

This

Report

language

statutory language itself; and we

rather than focus

U.S.

511, 515

is

affirmed

As part

the

amended

must read statutes as a whole,

on isolated phrases.

(1993).

by

of

Conroy
______

v. Aniskoff, 507
________

the occupational

disease

amendment, there also had to be a determination made as to how to

calculate the amount of compensation paid in such cases.

the

existing

reference

injury," 33

latent

formula

generally

to "the average weekly

U.S.C.A.

diseases would

calculated

wage . . .

910, there was

leave

disabled

Because

compensation

in

at the time of the

concern that

very long-

retirees

an

in

unfair

economic situation because

No. 98-570,

at 11-12.

wages increased over time,

It was

therefore decided

H.R. Rep.

that in

such

instances, "the time

of injury shall be deemed to be the date on

______

which

becomes aware,

the

employee

aware, of the

or

. . . should

relationship between the employment,

and the death or disability."

have been

the disease,

98 Stat. at 1647-48 (codified

-2222

at

33 U.S.C.A.

time of

injury at a

symptoms for

recognized

during

time closer to

purposes of

the onset of

wage calculation,

the occupational exposure,

Although the 1984

in part

employers in

to "reduce

the

the disabling

Congress implicitly

but did not

Providing

become disabling

Amendments were most

cost of

the covered industries,"

quoted in Harris, 934 F.2d at 552,

_________ ______

ways.10

Thus, by establishing the

that the injury-in-fact to the physical body occurred

until later.

designed

910(i))(emphasis added).

. .

certainly

coverage for

H.R. Rep. 98-570,

at 3,

they did so in a multitude of

8(f) relief to employers under facts such as

these was simply not one of them.

We point out additional authority for our ruling.

Just

after

the 1984 Amendments,

regulations

the Department of

interpreting the

LHWCA to

time, the manifestation

requirement.

amended, 51

4285

Fed.

Reg.

702.321(a) (1)(1997)).

trouble

deferring

50

to the

for the

Fed. Reg. 401

we found that

history provided guidance less clear

little

include,

(1986)(codified

Thus, if

Labor amended the

at

20

first

(1985),

C.F.R.

the legislative

than it does, we would have

Department's

interpretation,

given our finding -- in Part III, supra -- that the manifestation

_____

requirement

"is based

on

permissible

statute."

Chevron U.S.A. Inc.

____________________

v.

construction

of

the

Natural Resources Defense

__________________________

Council, Inc., 467 U.S. 837, 843 (1984).

_____________

____________________

10.

For example, the

definition of "employee" was

modified to

exclude

clerical workers and others

whose "work does not expose

them to traditional maritime hazards."

H.R. Rep. No. 98-570, at

3; see 98 Stat. at 1639.

___

-2323

The argument has also been made that, in instances such

as

these, the manifestation requirement serves no useful purpose

because

employee

there is

has

no

already

potential

retired.

for

discrimination

It

is

not,

where

however,

the

the

manifestation

requirement

purpose, but

only

judicially created

holding

to

the

aggravating

the Section.

rather an

last

anti-discrimination

employer

The

8(f) is

liable

for

in

order to

being served.

for a very

incentive

the

As our

specific

created by

results

remain within the intended

of

is not an additional

8(f).

We are

of

an

especially in the absence

scope of

hurdle, but

therefore not

apply or discard the requirement

facts are presented,

help

manifestation requirement ensures that

The requirement

integral part

The requirement is

developed

discriminatory

8(f) relief

liberty to either

directive.

an

8(f) was designed

remove the

injury.

requests for

tool,

the purpose of

analysis demonstrates,

--

has

8(f) which has such a purpose.

determine when

reason

that

at

as different

of congressional

We do not think it

preclude access

facts of this

by the

case.

is either unreasonable or unfair to

employer to the

There can

Special Fund

be little doubt

under the

that Reno

was

exposed to asbestos during his working career at BIW, and BIW has

not

contested

employment

properly

at

that

Reno's

BIW caused

liable for

exposure

to

his asbestosis.

the results

-2424

of

asbestos

They

during

his

are therefore

this work-related

injury.

Because they have not met their burden of establishing a right to

8(f) relief, the decision of the Board is affirmed.

affirmed.
_________

-2525