OPINION
The Director, Office of Workers’ Compensation Programs, (“Director”) has filed a petition for rehearing and suggestion for rehearing
en banc,
seeking reconsideration of our recent opinion in this аppeal. The relevant facts are fully discussed in our primary opinion,
One of the critical issues before us on the initial appeal was whether I.T.O. properly ceased benefit payments because Sell-man and his family failed to obtain I.T.O.’s written approval of their settlement agreement with a third party. We found that I.T.O. was not entitled to terminate payments, and thus addressed whether I.T.O. was entitled to an offset, pursuant to 33 U.S.C. § 933(f). Claimant and the Director argued that I.T.O. could not recover its offset because at least some portion of the Sеllman settlement proceeds must have been intended for William’s wife and children, since they werе parties to the agreement. In rejecting this argument, we noted that the settlement contract was silent regarding apportionment. We relied on the Board’s decision in Force v. Kaiser Aluminum & Chemical Corp., 23 B.R.B. 1 (1989), which held that unless the sеttlement contract specifically apportions liability between the claimant and his fаmily members, the employer is entitled to a total offset.
The Director’s petition for reheаring points out that the Board’s decision in
Force
was recently reversed by the Ninth Circuit in
Force v. Director, Office of Workers’ Compensatiоn Programs,
Upon reconsideration, we adopt the view of the Ninth Circuit and find that employers are not automatically entitled to a full offset whenevеr the settlement agreement at issue fails to address the subject of apportionment. Rather, the AU should, under such circumstances, determine the portion intended for the claimant and the portion intended for family members. Employer’s offset rights are limited *973 to the portion intended for the сlaimant, since the claimant is the "person entitled to compensation." See 33 U.S.C. § 933(f).
We also agree with the Ninth Circuit view that employers should bear the burden of proof on the apportionment issue. While the Longshore Act does not address this issue, we note that employer's liability continues under the Act unless claimant receives compensation from a third party. Force,
We note that the record already contains some evidence, both documеntary and testamentary in character, relevant to the apportionment issue. Nonethеless, because I.T.O. did not have the benefit of our holding that it should bear the burden of proof on thе apportionment issue at the hearing before the ALT, the ALT may wish to reopen the record and admit further evidence relating to this issue. See Force,
Finally, we note that our earlier opinion contains some discussion regarding the inferences which could fairly be drawn from some оf the evidence of record. We reject the Director's contention that we intruded upon the province of the ALT in concluding that he committed errors in weighing such evidence. Contrary to the Director's arguments, our findings did not require us to make any credibility determinations or to reweigh the еvidence of record. Rather, within the scope of our review, we determined that some of the ALT's conclusions were not supported by substantial evidence.
Accordingly, we vacatе that portion of our earlier opinion which found I.T.O. entitled to offset its liability against the proceeds of the Seliman settlement agreement, and remand for further proceedings consistent with this opinion. In all other respects, we adhere to our original opinion. The Director's suggestion for rehearing en bane is denied.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.