Lead Opinion
Petitioners Service Employees International, Inc. and its insurer, Insurance Company of the State of Pennsylvania (together, the “Employer”), seek review of a Final Order of the Benefits Review Board (the “Board”), an entity established within the office of respondent Director, Office of Workers’ Compensation Programs, United States Department of Labor. In the petition for review, the Employer challenges the award of compensation to claimant-respondent Jesse Barrios under the Defense Base Act for temporary total disability and temporary partial disability as a consequence of an eye condition sustained or aggravated during his employment in Iraq. Agreeing with the Administrative Law Judge, the Board concluded that the eye condition was related to Barrios’ employment; that the condition was disabling; and that Barrios was entitled to the maximum compensation rate in effect for 2006 for his temporary and total disability.
We confront for the first time the question of our jurisdiction to entertain petitions for review under the Defense Base Act. For the reasons that follow, we conclude that we have such jurisdiction and deny review on the merits.
BACKGROUND
Barrios began working for Service Employees International, Inc. in Iraq on October 24, 2004. His employer was under a contract with the United States Army to provide support services for troops stationed in Iraq. Barrios was employed to drive a fuel tank truck and to deliver jet and diesel fuel and gasoline throughout Iraq. In connection with his employment, Barrios underwent a physical examination and completed a medical questionnaire in which he noted a history of burning, tearing, and redness of the eyes. In Iraq, Barrios worked an average of thirteen hours a day and seven days a week in hot, dry, dusty, and windy conditions. Not long after his arrival in Iraq, Barrios found himself using significantly more eye drops than he had used prior to taking up his employment there. On November 28, 2005, his eye symptoms became so severe that he sought attention at a medical facility and complained of dry and itchy eyes that became more irritated while he was driving and tired. The facility referred Barrios to the International Clinic in Kuwait, where he was examined on December 7, 2005, by Dr. Abdussammad K. Abdullah, consultant in ophthalmology.
According to his report, dated December 19, 2005, Dr. Abdullah diagnosed Barrios with “[m]ild dry eye both eyes[;] Pterygium in both eyes.” Pterygium is defined as
Although Barrios returned to his employment, he continued to complain of eye irritation and strain and expressed his desire to undergo the excision prescribed by Dr. Abdullah. Ultimately, his employer removed him from driving duties and returned him to the United States on medical leave for treatment of his pterygium, which the employer characterized as a non-work-related illness. Barrios departed Iraq on December 19, 2005. On January 5, 2006, Barrios consulted with Dr. Charles D. McMahon, an ophthalmologist in Colorado Springs, Colorado. In his report of January 19, 2006, Dr. McMahon essentially confirmed the diagnosis of Dr. Abdullah, specifically noting that “[t]he right pterygi[um] is larger than the left pterygi[um] and both are starting to threaten vision.” He further noted that Barrios had 20/20 vision in each eye and that tear production appeared normal. He recommended “having the pterygia removed with a conjunctival graft to prevent a recurrence of this same condition,” proceeding with the right eye first and the left eye two to three months later.
With respect to the origins of Barrios’ eye condition, Dr. McMahon opined as follows:
Dry eye syndrome is commonly associated with the development of pterygia. Pterygia are caused by exposure to dry and dusty conditions and intense sunlight such as [Barrios] experienced in Iraq. In addition to environmental conditions an underlying genetic predilection seems to be necessary to develop these growths. If this were not the case pterygia would be much more common in people who live in desert climates. I suspect that Jess[e] had the genetic trait for pterygia and it was brought out by his exposure to the environment in Iraq.
At the Employer’s request, Barrios’ medical records were reviewed by Dr. Charles A. Garcia, an ophthalmologist in Houston, Texas. Although Dr. Garcia did not examine Barrios, he accepted the diagnosis of the physicians who did examine him and gave an opinion as to the nature and source of the eye condition in a report dated August 25, 2006:
A pterygium is a fibrovascular growth and extends from the conjunctiva onto the cornea. The pterygium may cause change in visual acuity by distorting the cornea. While it is true that there is a higher incidence of pterygia in patients who are exposed to extreme sunlight over extended periods of time, as well as dry or irritating conditions, this normally is a situation caused by exposure for many years. Mr. Barrios appears to have been employed in the Middle East for approximately one year and I do not feel that the pterygia were caused by living in the Middle East, though there is some possibility that they could have*451 been made worse by chronic dryness and irritation.
Barrios never underwent the excision procedure for pterygia and, in May 2006, began employment as a gasoline truck driver for Groendyke Transport, Inc. in Colorado. His claims for benefits for the period he was totally disabled from employment and for the losses suffered as the result of reduced earnings thereafter were controverted by the Employer on the ground that his eye condition was not related to his employment in Iraq. Barrios therefore filed a claim for disability benefits under the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. § 901 et. seq., and as extended by the Defense Base Act, 42 U.S.C. § 1651 et. seq.
By decision and order dated March 13, 2007, following a-formal hearing, Administrative Law Judge (“ALJ”) Russell D. Pulver of the United States Department of Labor issued a compensation order as follows: that the Employer pay to Barrios compensation for temporary total disability from December 20, 2005, through May 21, 2006, based on an average weekly wage of $1,717.61, using a compensation rate of $1,143.92; compensation for temporary partial disability commencing May 22, 2006, at the rate of $740.59 per week; all outstanding medical bills related to Barrios’ disability plus reasonable and necessary medical care and treatment; and interest on unpaid compensation payments from the date such payment became due until the actual date of payment. In a subsequent amending order, the ALJ determined that Barrios’ compensation rate for temporary total disability was subject to a weekly maximum of $1,073.64, the rate in effect for fiscal year 2006.
The Employer appealed the decision and order awarding benefits, as amended, to the Benefits Review Board, which affirmed the determination of the ALJ in all respects in an unpublished per curiam decision and order issued on December 19, 2007. Specifically, the Board “affirm[ed] [the ALJ’s] conclusion [that] claimant established that his pterygia is related to his employment in Iraq as it is supported by substantial evidence.” The Board noted that the ALJ credited the opinion of Drs. Abdullah and McMahon over that of Dr. Garcia but observed that even Dr. Garcia expressed “ ‘some possibility’ that [Barrios’] pterygia was ‘made worse’ by the chronic dryness and irritation encountered in Iraq.”
With respect to the Employer’s challenge to the ALJ’s finding that Barrios’ eye condition was not disabling because of a lack of medical evidence that he was disabled from working and because he actually obtained employment as a gas tank driver in Colorado, the Board referred to Barrios’ “uncontradicted testimony ... that employer refused to allow claimant to continue working in Iraq after December 19, 2005, due to his eye condition on the basis that it jeopardized the safety of his co-workers.” Accordingly, the Board found it established that claimant was totally disabled from December 20, 2005, to May 21, 2006, when he found lower paying employment in Colorado, rendering the employer liable for the diminution in wage-earning capacity “[a]s claimant’s usual work was unavailable to him due to his work injury.” Finally, the Board found that the ALJ “properly found claimant’s compensation subject to the maximum compensation rate in effect for the fiscal year 2006 of $1,073.64.”
ANALYSIS
I. Of Jurisdiction
We first address the question of our jurisdiction over the petition filed in
The Defense Base Act (“DBA”) was enacted in 1941 to establish a scheme of workers’ compensation for injuries sustained by employees in their employment by private employers on military bases or national defense projects outside the continental United States. See 42 U.S.C. § 1651. To accomplish this purpose, Congress extended the already existing provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), enacted in 1927, to provide workers’ compensation coverage for those engaged in maritime employment. See Stillwell,
Except as herein modified, the provisions of the Longshore ... Act, approved March 4, 1927 (44 Stat. 1424), as amended, shall apply in respect to the injury or death of any employee [covered by the Defense Base Act].
42 U.S.C. § 1651(a).
Prior to its amendment in 1972, § 21(b) of the LHWCA provided for initial review of administrative compensation orders “in the federal district court for the judicial district in which the injury occurred.” 33 U.S.C. § 921(b) (1970). Because injuries compensable under the DBA occurred only in overseas locations and not within any judicial district in the United States, § 3(b) of the DBA included the following specific provision:
Judicial proceedings provided under section 18 and 21 of the Longshore and Harbor Workers’ Compensation Act [33 U.S.C. §§ 918, 921] in respect to a compensation order made pursuant to [the DBA] shall be instituted in the United States [District [C]ourt of the judicial district wherein is located the office of the deputy commissioner whose compensation order is involved if his office is located in a judicial district, and if not so located, such judicial proceedings shall be instituted in the judicial district nearest the base at which the injury or death occurs.
42 U.S.C. § 1653(b).
In 1972, Congress enacted § 21(c) of the LHWCA in its current form, providing for initial review of compensation claims in a newly created administrative board (the Benefits Review Board) and for judicial review in the courts of appeals: “Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred.” 33 U.S.C. § 921(c). The 1972 legislation made no change in DBA § 3(b), which continued to provide that judicial proceedings be conducted in accordance with the LHWCA and in the district court.
Ambiguity is apparent on the face of the statute. Read literally, § 3(b) of the DBA states: “Judicial proceedings provided under section[ ] ... 21 of the Longshore and Harbor Workers’ Compensation Act [which now provides for initial review in the courts of appeals] shall be instituted in the United States [District [C]ourt.” Initial review obviously cannot lie in both courts. Just as obviously, judicial review in a DBA case cannot lie in a “court of appeals for the circuit in which the injury occurred,” in accordance with the 1972 amendments to the LHWCA, 33 U.S.C. § 921(c), because the DBA covers injuries sustained during employment in overseas bases.
As demonstrated by the foregoing, the test for ambiguity easily is met here “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson,
Having identified ambiguity in the disputed language, it now falls to us to interpret the meaning of the jurisdictional provision at issue.
We can best reach the meaning here, as always, by recourse to the underlying purpose, and with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time. To say that that is a hazardous process is indeed a truism, but we cannot escape it, once we abandon literal interpretation — a method far more unreliable.
Borella v. Borden Co.,
The primary and underlying purpose for the enactment of the Defense Base Act in 1941 was to extend the benefits of the
It is significant to our analysis of purpose and context that § 3(b) of the DBA authorizes “[jjudicial proceedings under ... sections 18 and 21 of the Longshore and Harbor Workers’ Compensation Act in respect to a compensation order made pursuant to the [DBA].” 42 U.S.C. § 1653(b). At the time of the enactment of the DBA, the language designating district courts as the loci of initial judicial proceedings was superfluous, since § 21 of the LHWCA, which § 3(b) incorporated, already provided for district court jurisdiction. The only possible reason for the designation, therefore, was to identify the proper judicial district where a worker injured overseas could bring the proceeding — “the judicial district nearest the base at which the death or injury occurred.” 42 U.S.C. § 1653(b).
The 1972 amendments to the LHWCA changed the procedure for the adjudication of compensation claims by providing for initial review of administrative determinations in a newly created Benefits Review Board, and review of Board orders were to be had “in the United States court of appeals for the circuit in which the injury occurred.” See 33 U.S.C. § 921. The legislation accomplished the purpose of expediting the processing of compensation claims and permitting appeals of agency decisions directly to the courts of appeals without the extra step of district court proceedings. That this change in the review process was intended to apply to DBA claims is manifest in the DBA provision that the LHWCA “as amended shall apply in respect to the injury or death of any employee [covered under the Defense Base Act]” except as modified by the DBA. 42 U.S.C. § 1651(a).
No modification of the DBA has been made since its inception as a statute of general reference, designed to adopt the LHWCA and subsequent amendments to it. See Krolick Contracting Corp. v. Benefits Review Board,
Finally, we note our agreement with the dissenting opinion of Judge Hall in Lee,
I do not believe that Congress intended that workers unfortunate enough to*455 have been injured in a foreign land have the final resolution of their claims take months and years longer than those filed by workers in this country who suffered identical injuries.... [Congress] expected, and rightly so, that an amendment of the LHWCA would be, in essence, an amendment of all the compensation statutes; it likely did not anticipate that the DBA’s provisions “modifying” certain aspects of the LHWCA as it existed in 1941 would be construed to frustrate the continuing efforts, some thirty years later, to insure that the review process is fairly and consistently administered with respect to all claimants.
As does Judge Hall, we think that a literal reading of the statute at issue is inconsistent with the intent of those who framed it. See United States v. Ron Pair Enters., Inc.,
II. Of the Merits
Our inquiry on review of the decision of the Benefits Review Board is limited to whether the Board “made any errors of law and whether substantial evidence supports the ALJ’s findings of fact.” Rainey v. Director, Office of Workers’ Comp.,
The Employer asserts that Barrios’ pterygia were not caused by his employment in Iraq. Relying on Dr. Garcia’s report, the Employer argues that it takes an exposure period of years for pterygia to develop as a result of environmental conditions and notes that Barrios was in Iraq only for thirteen months. The Employer claims that there is no medical basis for a finding that the pterygia caused any of Barrios’ symptoms and, thus, that the pterygia have never impaired Barrios’ ability to work. Furthermore, it asserts that Barrios’ symptoms are attributable to the dry eye syndrome he had before he worked in Iraq. Finally, the Employer alleges that Barrios’ eye conditions were not disabling, because no doctor has conclusively established that pterygia or dry eyes impaired his ability to work.
However, substantial evidence supports the ALJ’s finding that Barrios’ pterygia were caused or aggravated by his working conditions in Iraq. There is no evidence that Barrios was diagnosed with pterygia prior to commencing work in Iraq. The ALJ rationally inferred that working thirteen hours a day and seven days a week is equivalent to an environmental exposure accumulating over several years of normal work. Furthermore, the reports of Drs. Abdullah and McMahon present substantial evidence linking Barrios’ pterygia to his working conditions in Iraq. Even Dr. Garcia, the Employer’s expert, opined that there was “some possibility” that the pterygia could have been worsened by the chronic dryness and irritation consequent to employment in Iraq.
Under the DBA, “disability is an economic concept; the extent of disability cannot be measured by medical condition alone.” Pietrunti v. Director, Office of Workers’ Comp. Programs,
Lastly, the Employer argues that the proper compensation rate should be computed based on the maximum compensation rate for fiscal year 2005, rather than 2006, because, according to the Employer, Barrios was injured in fiscal year 2005. The ALJ and the Board calculated the compensation rate based on the time of the onset of Barrios’ disability, on December 22, 2005, which was in fiscal year 2006.
The date of disability onset, not of injury, determines the applicable compensation rate in occupational cases. Bd. Order at 5-6; see Todd Shipyards Corp. v. Black,
III. Conclusion
We can identify no error of law in the Board’s decision and find that substantial evidence supports its determination. Having found that we have jurisdiction over this proceeding, we therefore deny review on the merits.
Dissenting Opinion
dissenting:
I agree with the majority that the compensation award at issue was supported by substantial evidence, and thus I have no quarrel with its resolution of the merits of this petition. I disagree, however, with its conclusion that initial judicial review of petitions under the Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq., lies with the courts of appeals. Because that disagreement goes to the question of our jurisdiction over this petition, I write separately.
As the majority recognizes, the question of whether initial judicial review of compensation decisions under the DBA lies with the courts of appeals or the district courts has divided our sister circuits. The Ninth Circuit has held that jurisdiction in the courts of appeals is appropriate, Pearce v. Dir., Office of Workers’ Comp.
The Supreme Court has “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon [of statutory construction] is also the last: judicial inquiry is complete.” Conn. Nat’l Bank v. Germain,
The majority concludes that the DBA’s judicial review provision is ambiguous because the DBA, which was enacted in 1941, incorporates the provisions of the Long-shore and Harbor Workers’ Compensation Act (“Longshore Act”), and the Longshore Act was amended in 1972 to provide for initial judicial review in the courts of ap
I agree, of course, that “[i]nitial review ... cannot lie in both courts.” Id. My disagreement with the majority is that, as I read it, the DBA does not, in fact, provide for review in both courts; it unambiguously provides for review only in the district courts. Although the DBA incorporates the provisions of the Longshore Act, it does so only insofar as those provisions are consistent with the DBA. The DBA states explicitly that “[ejxcept as herein modified, the provisions of the Longshore and Harbor Workers’ Compensation Act ..., as amended, shall apply.” 42 U.S.C. § 1651(a) (emphasis added). In other words, to the extent that the language of the DBA and the Longshore Act are in conflict, the language of the DBA controls. See Felkner,
I recognize that the divergence in the judicial review procedures of the DBA and the Longshore Act may be the product of Congressional mistake or oversight. See Lee,
For the foregoing reasons, I respectfully dissent.
Notes
. As the majority notes, the Seventh Circuit, upon accepting transfer of the Pearce case, appears to have agreed with the Ninth Circuit's holding. It did so, however, without any analysis and by stating simply: "We approve the holding of the Ninth Circuit that jurisdiction lies in the Seventh. In any event, both that holding and the decision that transfer was appropriate in lieu of dismissal and filing anew are now res judicata." Pearce v. Dir., Office of Workers’ Comp. Programs,
. The full provision reads as follows:
Judicial proceedings provided under sections 18 and 21 of the Longshore and Harbor Workers' Compensation Act in respect to a compensation order made pursuant to this Act shall be instituted in the United States district court of the judicial district wherein is located the office of the deputy commissioner whose compensation order is involved if his office is located in a judicial district, and if not so located, such judicial proceedings shall be instituted in the judicial district nearest the base at which the injury or death occurs.
42 U.S.C. § 1653(b) (emphasis added).