No. 90-1436.United States Court of Appeals, District of Columbia Circuit.Argued March 18, 1991.
Decided April 9, 1991. As Amended April 16, 1991.
John C. Lynch, with whom Alexander W. Whitaker was on the brief, for petitioners.
Peter J. Vangsnes, with whom James A. Mannino was on the brief, for respondent Betty M. Holden.
Samuel J. Oshinsky, Atty., Dept. of Labor, with whom Carol A. De Deo, Associate Sol., and Janet R. Dunlop were on the brief, for respondent Director, Office of Workers’ Compensation Programs.
On Petition for Review of an Order of the Benefits Review Board.
Before WALD, RUTH BADER GINSBURG and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
[1] The District of Columbia Workmen’s Compensation Act of 1928 (“1928 Act”), D.C. Code § 36-501, et seq., (1973), was repealed by the District of Columbia Workers’ Compensation Act of 1979 (“1979 Act”), D.C. Code § 36-301 et seq. (1988 Repl.), but continues to govern claims arising from injuries that occurred prior to its repeal. The issue in this case is whether the 1928 Act gives the Department of Labor (“DOL”) jurisdiction to award death benefits to the widow of an employee who was injured while the 1928 Act was in effect, but who died of causes unrelated to his employment injuries after the 1979 ActPage 737
went into effect. The Benefits Review Board (“Board”) held that it had jurisdiction and awarded the death benefits. Holden v. Shea, S M Ball Co., BRB No. 87-1391, slip op. (Jan. 29, 1990). For the reasons discussed below, we deny the petition for review filed by the employer and its insurer, and we affirm the decision of the Board.
I.
[2] In 1928 Congress, acting as legislative authority for the District of Columbia, enacted the District of Columbia Workmen’s Compensation Act of 1928, which made the provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., applicable to private sector employees in the District. Congress also provided that the 1928 Act would be administered by the Department of Labor, with review of administrative decisions in this court. See Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167, 1170
(D.C. 1989). However, after Congress granted home rule to the District, the D.C. Council repealed the 1928 Act and enacted the District of Columbia Workers’ Compensation Act of 1979, which “narrowed the scope of coverage and lowered the level of benefits available to injured workers.” Id. at 1171. The 1979 Act is administered by the District of Columbia Department of Employment Services (“DOES”), with judicial review of administrative decisions in the D.C. Court of Appeals. Id.
(D.C. Cir. 1990) (quoting Keener v. Washington Metropolitan Area Transit Authority, 800 F.2d 1173, 1175 (D.C. Cir. 1986), cert. denied 480 U.S. 918, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987)). [4] In contrast to that complex legal background, the facts of this case are simple and uncontested. Betty Holden, the claimant, is the widow of Joseph Holden. Mr. Holden, who was injured in the course of his employment in the District of Columbia in 1974 and became permanently disabled in 1975, received disability benefits under the 1928 Act until he died on November 18, 1986, of causes unrelated to his employment injury. After her husband’s death, Mrs. Holden filed a claim for death benefits under the 1928 Act with the DOL. In May, 1987, the deputy commissioner awarded the death benefits to Mrs. Holden. [5] On appeal to the Board, the employer claimed that the DOL lacked subject matter jurisdiction over the case because the 1928 Act had been repealed prior to Mr. Holden’s death. The Board began its analysis by stating that it had previously rejected this argument in Lynch v. Washington Metropolitan Area Transit Authority, 22 Ben.Rev.Bd.Serv. (MB) 351 (1980), a case with similar facts. Holden at slip op.2.[2] Nevertheless, the Board did
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not rely on Lynch in this case because it believed that the rationale of Lynch had been undercut by our decision in Railco Multi-Construction Co. v. Gardner, 902 F.2d 71 (D.C. Cir. 1990). Holden, slip op. at 3. The question in Gardner was whether the 1928 Act or 1979 Act covers the claim for disability benefits of an employee who was exposed to injurious stimuli prior to July 26, 1982 (the effective date of the 1979 Act) but whose injury did not become manifest until after that date. Uncertain about how to answer this question of local law, we certified the question to the D.C. Court of Appeals. In response, the D.C. Court of Appeals adopted the “manifestation rule” and held that an injury occurs when the employee’s injury becomes manifest. Gardner, 564 A.2d at 1172-73. Because the 1979 Act applies to injuries that occur on or after July 26, 1982, the court held that the 1979 Act applies if the injury becomes manifest after that date. Id. at 1173-74 n. 21. The court recognized, however, that its holding might create a coverage “gap” that would deprive some injured employees of coverage unde any workers’ compensation act.[3] In order to avoid depriving an injured employee of any workers’ compensation coverage, the court also held that the 1928 Act should be extended to cover an injured employee who falls within the coverage gap. Id. at 1175-76.
[6] After the District of Columbia Court of Appeals answered the question on certification, we reaffirmed that the 1979 Act applies to claims derived from injuries occurring after July 26, 1982, and that an injury is deemed to occur when it becomes manifest. Gardner, 902 F.2d at 72-74. We therefore held that the DOL regulation. which adopted the “exposure rule” by providing that the 1928 Act applies to all injuries arising out of “employment events” that occurred before July 28, 1982, must “fall in light of its rejection by the District of Columbia Court of Appeals.” Id. at 75. [7] Apparently believing that our explicit rejection of the DOL exposure rule precluded it from relying on Lynch to find subject matter jurisdiction under the 1928 Act, the Board in this case based its claim of jurisdiction on Gardner instead Holden, slip op. at 4. As required by Gardner, the Board considered whether Mr. Holden’s death was covered by any workers’ compensation act. The 1982 Act did not cover Mr. Holden’s death, the Board found, because Mr. Holden was not employed in the District after July 26, 1982. Holden, slip op. at 5. Because Mr. Holden’s injury occurred in Washington, D.C., the Board also found that his death was not covered under any other workers’ compensation act. Therefore, the Board concluded, “the 1928 Act applies to fill the gap [in coverage] in this case,” just as it had in Gardner, Id. This petition for review followed.II.
[8] Petitioners raise two objections to the Board’s decision. First, they contend that the Board did not have jurisdiction over Mrs. Holden’s claim because it arises under the 1979 Act. Second, they allege that Gardner is inapposite and does not “extend” the 1928 Act to cover Mrs. Holden’s claim. Although respondents Mrs. Holden and the Director of the Office of Workers’ Compensation Programs (“Director”) argue
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that Gardner does apply by analogy and thus the Board can be affirmed for the reasons explained in its opinion, they also argue that the Board did not need to reach this issue because Mrs. Holden’s claim is clearly rooted in the 1928 Act itself. In their view, no “extension” of the 1928 Act was needed to cover her claim. For the reasons discussed below, we agree with respondents that Mrs. Holden’s claim arises under the 1928 Act itself, and therefore deny the petition for review.[4]
[9] The question of whether the 1928 Act or the 1979 Act applies in this case is one of local law; accordingly, we look to the District of Columbia precedent and regulations for guidance. See Gardner, 902 F.2d at 72. The District of Columbia Court of Appeals has held that “a worker injured before [July 26, 1982] ha[s] no rights under the [1979] act, as such an injury was then still covered by the 1928 Act, and compensability depends on its provisions.” O’Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1141 (D.C. 1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986); see also Keener, 800 F.2d at 1175 (the 1928 Act remains in effect, under the general savings statute, “for the benefit of employees whose claims are derived from injuries occurring before the [1979] Act became law”). In addition, the District of Columbia regulations provide that the 1979 Act applies to “injuries which occur on or after July 26, 1982. . . .” D.C.Reg. § 3602.1, 29 D.C.Reg. 5540 (Dec. 17, 1982). Taken together, the precedent and regulations indicate that the 1928 Act covers claims arising from injuries that occurred before July 26, 1982, while the 1979 Act covers claims arising from injuries occurring on or after that date. [10] Recognizing that the precedent establishes that the 1928 Act covers claims arising from “injuries” that occurred before July 26, 1982, petitioners contend that Mrs. Holden’s “injury” occurred when her husband died on November 19, 1986. But we can find no support for petitioners’ assertion that “in a claim for death benefits, the injury occurs when the spouse dies and not when the spouse was injured.” Instead, the cases cited in petitioners’ brief establish only that a death benefits claim is a separate cause of action from the worker’s disability claim that does not arise until the death of the worker. See, e.g., Nacirema Operating Co. v. Lynn, 577 F.2d 852 (3d Cir. 1978) cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34(1979); Norfolk, Baltimore and Carolina Lines, Inc. v. Director, Office of Workers’ Compensation Programs, 539 F.2d 378 (4th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). But the District of Columbia precedent discussed above indicates that, for purposes of determining coverage under the two Acts, the relevant question is not when the cause of action arose, but when the injury giving rise to that cause of action occurred. [11] In our view, the statutory language of both Acts and the precedent establish
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that a death benefits claim derives from the worker’s employment-related injury. Section 9 of the 1928 Act, for example, provides a death benefit “[i]f the injury causes death, or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury.”33 U.S.C. § 909 (1982). Similarly, § 36-309 of the 1979 Act provides a death benefit “[i]f the injury causes death. . . .” D.C. Code § 36-309 (1988 Repl.). This language indicates that the death benefits claim is an offspring of the employment injury: in the absence of an employment-related injury, a worker’s death is not covered under either Act.
[12] In addition, as the Board recognized in Lynch, there is precedent under the LHWCA supporting respondents’ claim that a claim for death benefits, like a claim for disability benefits, is rooted in the employment injury. Lynch, 22 Ben.Rev.Bd. Serv. at 354. In Pennsylvania National Mutual Casualty Insurance Co. v. Spence, 591 F.2d 985, 987 (4th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979), the Fourth Circuit explained that although the LHWCA provides[13] See also Travelers Insurance Co. v. Marshall, 634 F.2d 843 (5th Cir. 1981). Consequently, the Board in Lynch correctly recognized that the employment injury “forms the basis for the claim for death benefits.” Lynch, 22 Ben.Rev.Bd.Serv. at 354. [14] Thus, we end up agreeing with respondents that a claim for death benefits, like a claim for disability benefits, is derivative of the employment injury itself. Precedent establishes that the 1928 Act remains in effect for claims derived from injuries that occurred before July 26, 1982. Because Mr. Holden was injured during his employment in the District in 1974, we hold that Mrs. Holden’s claim for death benefits is covered by the 1928 Act. We therefore deny the petition for review and affirm the Board’s award of death benefits to Mrs. Holden.[5]for two separate rights and types of recovery, the beneficiaries of which are different[,] . . . both types of recovery derive their basis from the same event, i.e., the employee’s injury. It is that event which gives both a right to compensation payments under § 908 and a right to death benefits under § 909. Neither right of action, whether for compensation payments or for death benefits, exists apart from the critical fact of injury; each is dependent for its basis on the injury. It is inaccurate, therefore, to state that the right to the death benefits has its origin solely in the event of death; the real source of the liability for such benefits under the Act traces directly back to the injury itself.
III.
[15] In sum, because Mr. Holden was injured before July 26, 1982, his injury was covered by the 1928 Act, and he had no rights under the 1979 Act. In addition, Mr. Holden’s employment injury established the basis for Mrs. Holden’s death benefits claim. Thus her claim for death benefits, like his claim for disability benefits, arises from the employment injury and is covered by the 1928 Act. Accordingly, we hold that the Board had jurisdiction and properly awarded death benefits to Mrs. Holden, and we deny the petition for review.
We are mindful, moreover, that the Board displaced its Lynch
precedent in the belief that Gardner so required. Having clarified that Gardner and Lynch are harmonious decisions, we think it evident that our view and the Board’s now coincide.
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