Director, Office of Workers' Compensation Programs, United States Department of Labor v. Cargill, Inc.

PROCEDURAL BACKGROUND

The Director of the Office of Workers’ Compensation Program (Director) petitioned for review of a Benefits Review Board (Board) decision, 33 U.S.C. § 921 (c), which affirmed the findings of the administrative law judge (ALJ) that claimant was totally disabled and eligible for benefits but reversed findings that the employer, Car-gill, was not entitled to relief under § 8(f) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., 908(f) (1978). The panel of this court reversed the Board’s decision, holding that Cargill was not entitled to relief unless claimant’s pre-existing disability was manifest at the time of initial employment.

Subsequently, an in banc panel rehearing was ordered. That panel held that § 8(f) of the Act entitles an employer to relief if the pre-existing contributing disability was manifest prior to the time of the final injury for which the compensation claim is being made. Director, Office of Workers’ Comp. Prog. v. Cargill, Inc., 709 F.2d 616 (CA9 1983) (in banc). The panel’s decision accords with the holdings in other circuits that have addressed the question. See, e.g., General Dynamics Corp. v.…