Jacksonville Shipyards, Inc. v. Director, Office of Workers' Compensation Programs, United States Department of Labor
851 F.2d 1314
11th Cir.
1988
Check Treatment

*2 KRAVITCH, and Before TJOFLAT TUTTLE, Judges, and Senior Circuit Judge. Circuit

TJOFLAT, Judge: Circuit panel has decided to vacate its earli- opinion judgment in this er and following and to substitute the F.2d stead. its

I. worked a Jackson- William J. Stokes ville, shipyard from 1958 until 1976. Florida ship- During eighteen-year period, the that entities. by three different yard was owned during and final owner The third employment was Jacksonville of Stokes’ here, Inc., appellant shipyard in 1965. purchased the 1960’s, worked at Throughout the Stokes 1971, he shipyard as a sandblaster. shortness of breath began experience That climbing stairs and ladders. when performed x-ray year, a chest same consistent with a condition indicated from silicosis, that results lung disease Due to deteri- and silica. exposure to dust stopped work- health, finally orating Stokes August ing at the permanent filed Stokes thereafter Longshore disability claim Act, 33 Compensation Harbor Workers’ Mercier, Tay- John C. Day, Rio & Taylor, 901-950, against U.S.C. §§ Jacksonville, Hammond, Jr., lor, Ada A. at employers previous his Shipyards and Fla., petitioner. in the claim named Also shipyard. in- had carriers who Pro- insurance Compensation were the Workers’ Office Smith, during the Sol. Marianne Demetral the various grams, sured Labor, Washington, employ- Labor, Dept, eighteen-year U.S. of Stokes’ course D.C., respondents. hearing was held A shipyard. at the (AU) judge administrative Towers, Miller, Bailey, Rogers, T. Bette AU found 1983. The September on Jacksonville, Fla., R. Janet Gay, Jones & disabled, and as- permanently Stokes was Labor, Washington, Dunlop, Dept, of compensa- liability for sessed full curiae-Cigna. D.C., for amicus affirmed, Shipyards.1 ry.” The Benefits Review Board against appeals. and Jacksonville then 908(f)(1982 sought relief under 33 U.S.C. § That section Supp.1985). II.

pertinent part: appellate first address the issue of We (1) employee any In case in which an 921(c) jurisdiction. Under 33 U.S.C. § existing permanent partial dis- having an (1982), jurisdiction we have to review final ability injury, suffers the shall orders of the Benefits Review Board. In compensation disability provide for such case, this the Benefits Review Board af- as is found to attributable to that be firmed the AU’s determination on the mer- injury_ per- In all cases of total ... its, part but vacated that of the AU’s death, manent or of found not to awarding attorney’s order and re- fees injury, an solely be due to that em- manded the case to the AU for further ployee having existing permanent par- an of that consideration award. disability, provide the shall tial compensation payments ... or death ben- McQurter Atlanta, City In v. efits for one hundred and four weeks (11th Cir.1984), 724 F.2d 882 we held only.... attorney’s fees are similar to “[w]hen (2) payment for After cessation of the action, costs or collateral to an a lack of herein, provided the of weeks as to determination the amount does not employee entitled to or his survivor final, preclude appealable the issuance of a paid benefits shall be the remainder of (Citations judgment on the merits.” omit compensation that would be due out ted; quoting Ray Holmes J. McDermott in special fund established Co., (5th Cir.1982), 682 F.2d 1143 944 of this title. 459 103 74 S.Ct. Thus, partially when a disabled worker be- (1983)). L.Ed.2d 956 The fees this case totally as a result of a comes disabled (1982), were awarded under 33 U.S.C. 928 incident, be work-related will awarding of a rea only liable for the first weeks of dis- sonable fee “in addition to the award of that, compensation; disability ability after compensation.” We find that the fee “special compensation paid from a fund” case collateral to the award this payments by employers. In created from claim, main and that we are therefore evaluating requests for relief under section presented appealable an final order. with 908(f), applied three-part test Director, Telephone developed C & P Turning appeal, to the merits of the OWCP, (D.C.Cir.1977). 564 F.2d 503 Un- recognized affirm. The that the we AU test, (1) der that must have injury” prerequisite “second to section permanent partial preexisting, had a dis- 908(f) may by showing relief be satisfied (2) ability; this condition must have been aggravation preexisting work-related of a (3) employer; manifest to the disability. Telephone, C & P 564 F.2d preexisting partial disability must have correctly emphasized, at 514. The AU to the seriousness of the em- contributed however, that there must be a ployee’s injury. second aggravation: disability actual when a total results from more than the natural Here, the AU found that the first two preexisting partial progression of a disabili prongs Telephone P test of the C & were ty, disability cannot considered be preexisting perma- satisfied: Stokes had a injury.” Based on the evidence early nent as as him, the concluded that Jack AU condition had been manifest to Jacksonville 908(f) show sonville had failed to Shipyards. AU denied section .The relief, however, preexisting aggravation actual dis because he concluded that findings inju- ability. Because the AU’s are the evidence failed to show a “second Shipyards stipulated that it was for the total pur- rule constitutes a “second evidence by substantial supported whole, poses agree. We cannot Geddes v. considered as a see record Bd., Review Benefits pertains as it to this Cardillo (D.C.Cir.1984),we must affirm. allocating responsibility is a rule for among particular injury.2 insurers for a seeks such, simply As it is not relevant to the argument by way of an avoid this result injury” inquiry required “second when an injurious expo the so-called “last based on employer seeks section relief. employ allocating rule for sure” play this rule came into explain disability cases. In order to only insofar as it was used to determine must reject argument, this we why we of the three insurers re- would be peculiar posture of the further examine the *4 single sponsible injury at issue— us. case before This de- Stokes” purchased From the time it wholly ques- termination is unrelated to the 31, 1975, until December Jackson- as the whether by two succes- Shipyards was insured ville employer against liability has been January insurance carriers. On sive assessed, has carried its burden of stopped seven months before Stokes purposes Ship- shipyard, working at the Because did an em- self-insured. When yards became burden, ruling carry not liability for a work relat- ployer is assessed Board Benefits Review Shipyards was disability, as Jacksonville ed insured in this insurers over

by number of successive employment, claimant’s naturally as to which question arises Here, responsibility. should bear

insurer potentially

there be three insurers would dispute: the two former in such a

involved Shipyards itself

carriers and Jacksonville as a self-insurer. America, UNITED STATES resolving disputes among the such Plaintiff-Appellee, against which lia insurers of an assessed, ap bility has been MORSE, Defendant-Appellant. Joseph injurious exposure” plied the so-called “last Cardillo, rule. Travelers Ins. Co. (2d Cir.), 196, 100 L.Ed. 800 350 U.S. 76 S.Ct. (1955). liability At the time was assessed capaci Shipyards in its against Jacksonville 1988. stipulated that it

ty employer, it as Stokes’ responsible also the insurer stipu accepted rule. The AU argues lation. Jacksonville responsible it is the insurer

that because injurious exposure” it

under the “last relief. Jackson

is entitled to exposure Shipyards’ argument is that

ville trigger allocation

sufficient to the Cardillo manner, operates in a similar the rule Apart the rule is In such from its use in this of sever- to determine which manner: it is used to determine also used will be employers have al successive when successive first instance exposed particular at issue. to noxious substances.