Container Stevedoring Company v. Director, Office of Workers Compensation Programs Albert Gross

Container Stevedoring Company appeals the Department of Labor Benefits Review Board’s (“Board”) affirmance of an Administrative Law Judge’s decision against it. Container Stevedoring argues that it is entitled to relief from the Special Fund in its obligation to compensate Albert Gross for permanent partial disability. 33 U.S.C. § 908 (f). Also, Container Stevedoring contests the determination that Mr. Gross has lost any wage-earning capacity, and that it must compensate him for the loss at a rate of $163.28 per week. This court has juris *1546 diction of the timely appeal. 33 U.S.C. § 921 (c). We affirm.

BACKGROUND

On April 10, 1984, Albert Gross suffered injuries when the truck load he was transporting for his employer, Container Steve-doring Company, shifted, throwing him about in the truck’s cab. After being treated for about a year and a half, Mr. Gross returned to light work at Container Steve-doring. He was released for full-time work in November, 1985 and has continued from that time to work essentially full-time. However, Mr. Gross also has continued to complain of pain and to receive some treatment for his injuries to the present time.

He filed a claim for disability…

concurring:

Under the applicable regulations, a request for special fund relief should be made “as soon as the permanency of the claimant’s condition becomes known or is an issue in dispute.” 20 C.F.R. § 702.321 (b). The court today concludes that permanency is either “known” or “in dispute” whenever it is mentioned in a compensation-related document, however tangential to the actual course of proceedings such reference may be. This harsh rule does not comport with the relevant statutory or regulatory language, nor is it supported by the policies underlying the LHWCA or by common sense. Accordingly, I disagree with the court’s conclusion that Container Stevedoring’s request for special fund relief was untimely. Rather, I — like the Benefits Review Board — would affirm the denial of special fund relief on the merits.

I

“The LHWCA ... favors the dispositions of claims — the allocation of statutory benefits and burdens — on the merits of particular cases.” Cornell University v. Velez, 856 F.2d 402, 405 (1st Cir.1988) (upholding ALJ’s sua sponte consideration of an untimely special fund application). There is, of course, a “systemic interest in demanding timely pleadings which…

935 F.2d 1544 CONTAINER STEVEDORING COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Albert Gross, Respondents. No. 90-70311. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 7, 1991. Decided June 12, 1991. Robert H. Madden and Steven T. Russell, Madden & Crockett, Seattle, Wash., for petitioner. Carol B. Feinberg, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., Kevin Coluccio, Schroeter, Goldmark & Bender, Seattle, Wash., for respondents. Petition for Review of an Order of the Benefits Review Board. Before WIGGINS, O'SCANNLAIN and NELSON, Circuit Judges. WIGGINS, Circuit Judge: 1 Container Stevedoring Company appeals the Department of Labor Benefits Review Board's ("Board") affirmance of an Administrative Law Judge's decision against it. Container Stevedoring argues that it is entitled to relief from the Special Fund in its obligation to compensate Albert Gross for permanent partial disability. 33 U.S.C. Sec. 908 (f). Also, Container Stevedoring contests the determination that Mr. Gross has lost any wage-earning capacity, and that it must compensate him for the loss at a rate of $163.28 per week. This court…