The Longshoremen's and Harbor Workers' Compensation Act (Act)
Amendments of 1972, to combat inflation, replaced the Act's $70
maximum limitation on weekly disability benefits with a four-step
limitation scheme tied to specified percentages of the "applicable
national average weekly wage" determined annually by the Secretary
of Labor. § 6(b)(1). At the same time, death benefits to surviving
spouses and children were increased, respectively, from 35% to 50%
and from 15% to 163% of the deceased's average weekly wages. Total
weekly death benefits were still limited to 663% of the deceased's
average weekly wages, but the former specific dollar minimum and
maximum limitations on average weekly wages were replaced by a
provision dealing only with a minimum limitation tied to the
applicable national average weekly wage. Thus, as amended, § 9(e)
provides that.
"[i]n computing death benefits the average weekly wages of the
deceased shall be considered to have been not less than the
applicable national average weekly wage as prescribed in section
6(b) but the total weekly benefits shall not exceed the average
weekly wages of the deceased."
Respondents, the widow and son of a covered employee, claimed
combined death benefits ($532 per week) equal to 663% of the
deceased's average weekly wages. The employer, its insurance
carrier, and the Director of the Department of Labor's Office of
Workers' Compensation Programs (petitioners) contended that §
6(b)(1)'s limitation on disability payments (then $167 per week),
was meant to apply to death benefits as well as disability
benefits, and that Congress' failure to place a maximum on death
benefits when it amended § 9(e) was inadvertent. An administrative
decision in respondents' favor was affirmed by the Court of
Appeals.
Held: Death benefits payable under the Act are not
subject to the maximum limitations placed on disability
payments
Page 440 U. S. 30
by § 6(b)(1). This conclusion is supported by both the language
and legislative history of the 1972 Amendments. Pp.
440 U. S.
35-47.
(a) That the omission of a maximum limitation on death benefits
was inadvertent is disproved by the legislative history of the 1972
Amendments, especially the pertinent Committee Reports, which
clearly reflect the Committees' understanding that the minimum and
maximum limitations on death benefits of former § 9(e) were being
eliminated and that only a minimum benefits provision tied to the
applicable national average weekly wage was being substituted in
their place. Pp.
440 U. S.
37-41.
(b) Section 6(d), which provides that "determinations" under § 6
"with respect to a period" shall apply to employees currently
receiving disability benefits or survivors currently receiving
death benefits during such period, does not render the maximum
limitations contained in § 6(b)(1) applicable to death benefits.
Congress' use of the word "determinations" in § 6(d) and of its
verb form elsewhere in § 6 strongly suggests that it intended the
term to refer only to the Secretary of Labor's annual determination
under § 6(b)(3) of the national average weekly wage, not to the
mathematical computation of disability benefit maximums
contemplated under § 6(b)(1). This view is confirmed by § 6(d)'s
legislative history. Pp.
440 U. S.
41-44.
(c) Since both the language and legislative history of the 1972
Amendments show that Congress' omission of a ceiling on death
benefits was intentional, this Court must reject petitioners'
suggested interpretation of the Act. Pp.
440 U. S.
45-47.
567 F.2d 1385, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which all
other Members joined except POWELL, J., who took no part in the
consideration or decision of the cases.
Page 440 U. S. 31
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In May, 1973 William Rasmussen was employed as a hydrologist by
Geo Control, Inc., which was under contract with the United States
to perform work in South Vietnam. Rasmussen was fatally injured
during the course of his employment when the vehicle in which he
was riding was blown up by a land mine. His employment was within
the coverage of the Defense Base Act, 42 U.S.C. § 1651
et
seq., which incorporates the provisions of the Longshoremen's
and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33
U.S.C. § 901
et seq. (Act). It is undisputed that
Rasmussen's surviving widow and son, [
Footnote 1] respondents here, are entitled to death
benefits under § 9 of the Act, 33 U.S.C. § 909; the issue dividing
the parties and the Courts of Appeals [
Footnote 2] is whether death benefits payable under the
Act are subject to the maximum limits expressly placed on
disability payments by § 6(b)(1). The Act's language and
legislative history persuade us that they are not.
I
Prior to passage of the Longshoremen's and Harbor Workers'
Compensation Act Amendments of 1972, 86 Stat. 1251, both disability
and death benefits payable under the Act were subject to the same
minimum and maximum limitations. Former § 6(b) limited disability
benefits to no more than $70 per week and no less than $18 per
week. Death benefits were limited under § 9(b) to 66 2/3% of the
deceased's "average weekly wages," which were "considered to have
been not more than $105 nor less than $27. . . ." 33 U.S.C. §
909(e)(1970
Page 440 U. S. 32
ed.). Accordingly, weekly death benefits, like disability
benefits, could not exceed $70 nor be less than $18. [
Footnote 3] The $70 maximum on death and
disability benefits, established in 1961, gradually lost real value
as inflation exacted its annual toll, [
Footnote 4] and, in 1972, Congress moved to give covered
workers added protection.
The basic formula for determining compensation for permanent
total disability -- 66 2/3% of the employee's average weekly wages
-- was left unchanged by the 1972 Amendments. The Amendments,
however, replaced the $70 maximum limitation on disability benefits
with an entirely new limitation scheme tied to the "applicable
national average weekly wage." New § 6(b)(1) provides in pertinent
part:
"[C]ompensation for disability shall not exceed the
Page 440 U. S. 33
following percentages of the applicable national average weekly
wage as determined by the Secretary . . ."
"(A) 125 per centum or $167, whichever is greater, during the
period ending September 30, 1973."
"(B) 150 per centum during the period beginning October 1, 1973,
and ending September 30, 1974."
"(C) 175 per centum during the period beginning October 1, 1974,
and ending September 30, 1975."
"(D) 200 per centum beginning October 1, 1975. 33 U.S.C. §
906(b)(1)."
The "applicable national average weekly wage" is determined
annually by the Secretary of Labor. 33 U.S.C. § 906(b)(3). The
Senate Committee on Labor and Public Welfare estimated that
approximately 90% of the disabled workers covered under the amended
Act would receive benefits equal to a full 66 2/3% of their average
weekly wages. S.Rep. No. 92-1125, p. 5 (1972), Legislative History
of the Longshoremen's and Harbor Workers' Act Amendments of 1972
(Committee Print compiled for the Senate Committee on Labor and
Public Welfare by the Subcommittee on Labor), p. 67 (1972)
(hereinafter Leg.Hist.). The four-step phase-in of the section's
maximum limitation from 125% to 200% of the applicable national
average weekly wage was designed to ease the impact on covered
employers of the increase in compensation payments, which Congress
expected to at least double for most covered workers.
Ibid.
Section 9(b) was amended in 1972 to increase death benefits to
surviving spouses from 35% to 50% of the deceased's average weekly
wages. Death benefits to surviving children were increased from 15%
to 16 2/3% of the deceased's average weekly wages. Total weekly
death benefits payable to survivors, however, are still limited to
66 2/3% of the deceased's average weekly wage. 33 U.S.C. § 99(b).
The 1972 Amendments deleted the specific dollar minimum and maximum
limitations on average weekly wages and substituted
Page 440 U. S. 34
in their place a provision dealing only with a minimum
limitation, which was tied to the applicable national average
weekly wage. Section 9(e) now provides:
"In computing death benefits the average weekly wages of the
deceased shall be considered to have been not less than the
applicable national average weekly wage as prescribed in section
6(b) but the total weekly benefits shall not exceed the average
weekly wages of the deceased."
33 U.S.C. § 909(e).
Pursuant to § 9, respondents claimed combined death benefits of
$532 per week, two-thirds of Rasmussen's average weekly wages of
$798. Geo Control, its insurance carrier, and the Director of the
Department of Labor's Office of Workers' Compensation Programs
(OWCP), petitioners here, contended that the limitations on
disability payments contained in § 6(b)(1) of the Act -- initially
$167 per week and now $396.50 per week [
Footnote 5] -- apply to death benefits in the same manner
as to benefits for permanent total disability. [
Footnote 6] The
Page 440 U. S. 35
dispute was submitted to an Administrative Law Judge, who
sustained respondents' position. Petitioners appealed the adverse
ruling to the Benefits Review Board, which affirmed. The
legislative history of the 1972 Amendments convinced the Board that
"elimination of the maximum benefit provision from Section 9(e) of
the Act . . . was done consciously and intentionally," and that
"failure to substitute a new maximum was . . . a deliberate
action." App. to Pet. for Cert. in No. 77-1465, pp. 22A-23A.
Petitioners appealed the Board's order directly to the United
States Court of Appeals for the Ninth Circuit. 33 U.S.C. § 921(c).
The Court of Appeals affirmed, largely adopting the reasoning of
the Review Board. We granted certiorari to resolve a conflict among
the Courts of Appeals on this issue, [
Footnote 7] 436 U.S. 955 (1978), and we now affirm the
judgment of the Court of Appeals for the Ninth Circuit.
II
Petitioners' case for incorporating the maximum limitations on
disability benefits of § 6(b)(1) into the death benefit provisions
of § 9 rests entirely on § 6(d), which, in pertinent part, provides
that "determinations" made under the section "shall apply to
employees or survivors . . . receiving compensation for permanent
total disability or death benefits. . . ." 33 U.S.C. § 906(d). This
subsection's references to "survivors" and "death benefits"
demonstrate, according to petitioners, that Congress intended death
benefits to be limited by the compensation maximums contained in §
6(b)(1). Anticipating the obvious question -- why did not Congress,
either expressly or by reference to § 6(b)(1), put the ceiling on
death benefits back into the section of the Act dealing with
Page 440 U. S. 36
death benefits -- the Director of OWCP concedes that § 9(e) was
"[u]ndeniably, the most obvious place to stipulate a maximum on
death benefits," but suggests that Congress merely "overlooked"
this fact when amending the death benefits provisions. Brief for
Petitioner in No. 77-1465, pp. 28-29.
One need only state petitioners' argument to recognize its
flaws. They suggest, on the one hand, that Congress forgot to
stipulate a maximum on death benefits when it amended § 9(e),
although that section had contained a fixed ceiling on death
benefits since the Act's initial passage in 1927. [
Footnote 8] On the other hand, petitioners
urge that Congress remembered the question of death benefit
maximums while considering § 6, and, rather than incorporate a
death benefits ceiling in the section of the Act dealing with death
benefits, Congress consciously decided to limit death benefits in
the section dealing with disability compensation.
The logic of petitioners' position is further weakened by the
structure of § 6 itself, for if Congress had chosen that section as
the vehicle for limiting death benefits, it would have been a
simple matter to add the words "and death" after the word
"disability" in the opening sentence of § 6(b)(1). Nor does
petitioners' contention deal with the fact that Congress had the
collective presence of mind to include a minimum limitation on
death benefits in § 9(e). The Director maintains that the path
petitioners urge us to follow, while admittedly "tortuous,"
ultimately leads to "what
Page 440 U. S. 37
may be assumed to have been the congressional intent to avoid
disparate treatment" of disability and death beneficiaries. Brief
for Petitioner in No 77-1465, pp. 1, 32. We agree that petitioners'
suggested interpretation of the Act is tortuous, and believe that
it is refuted by the plain language and legislative history of the
pertinent provisions of the 1972 Amendments.
A
The language of § g(e) is unambiguous: the average weekly wages
on which death benefits are calculated can be no less than the
applicable national average weekly wage. In amending § 9(e),
Congress replaced specific minimum and maximum limitations on
average weekly wages, and hence on death benefits, with a minimum
limitation governed by the applicable national average weekly wage.
That the omission of a maximum limitation on death benefits was
inadvertent is disproved by the legislative history of the 1972
Amendments.
In 1971, two pairs of identical bills were introduced in the 92d
Congress and considered by the Senate Committee on Labor and Public
Welfare and the House Committee on Education and Labor. S. 525 and
H.R. 3505 would have retained fixed dollar maximums for both
disability and death benefits. [
Footnote 9] In contrast, S. 218 and H R. 12006, which
ultimately formed the nucleus of the 1972 Amendments, proposed
Page 440 U. S. 38
the elimination of fixed dollar ceilings on both disability and
death benefits. [
Footnote
10]
The difference in treatment of benefit maximums between the
competing bills could hardly have gone unnoticed. Senator Eagleton
opened hearings on S. 2318 and S. 525 before the Subcommittee on
Labor of the Committee on Labor and Public Welfare, summarizing the
intent of the competing bills as follows:
"S. 2318, which I cosponsored with Senator Williams, would
eliminate the maximum payment limitations. . . ."
"The second bill, S. 525, introduced by the late Senator Prouty
at the request of the administration, would also increase the
benefits although retaining a maximum limitation."
Hearings on S. 2318
et al. before the Subcommittee on
Labor of the Senate Committee on Labor and Public Welfare, 92d
Cong., 2d Sess., 2 (172) (hereinafter Hearings). Supporters of both
measures vigorously debated the virtues and vices of fixed ceilings
on disability and death benefit payments. [
Footnote 11] The provisions of S. 2318 and H.R.
12006 as
Page 440 U. S. 39
reported by their respective Committees were identical and were
ultimately enacted as the Longshoremen's and Harbor
Page 440 U. S. 40
Workers' Act Amendments of 1972. [
Footnote 12] The Committee Reports accompanying the House
and Senate bills clearly reflect the Committees' understanding that
the minimum and maximum limitations on death benefits of former §
9(e) were being eliminated, and that only a minimum benefit
provision tied to the applicable national average weekly wage was
being substituted in their place. [
Footnote 13] In light of this evidence of
Page 440 U. S. 41
congressional intent, we find it impossible to conclude that the
absence of a fixed maximum limitation on death benefits in § 9(e)
was the result of inadvertence.
B
The benefit maximums contained in § 6(b)(1) are plainly
restricted to "compensation for disability." Petitioners argue,
however, that Congress made § 6(b)(1)'s disability benefit maximums
applicable to death benefits through § 6(d). Close examination of
the wording used by Congress in the latter provision persuades us
otherwise.
Section 6(d) provides:
"Determinations under this subsection with respect to a period
shall apply to employees or survivors currently receiving
compensation for permanent total disability or death benefits
during such period, as well as those newly awarded compensation
during such period."
Since there are no "determinations" made under § 6(d), its
reference to "this subsection" is plainly in error. The parties
agree, and we conclude, that the words "this subsection" should
read "this section." [
Footnote
14] The question thus becomes what "determinations . . with
respect to a period" did Congress have in mind when it enacted §
6(d).
Page 440 U. S. 42
The operative words of the subsection, "determinations" and
"period," appear together in § 6 in only one other place.
Paragraph(3) of § 6(b) provides:
"As soon as practicable after June 30 of each year, and in any
event prior to October 1 of such year, the Secretary shall
determine the national average weekly wage for the three
consecutive calendar quarters ending June 30. Such
determination shall be the applicable national average
wage for the
period beginning with October 1 of that year
and ending with September 30 of the next year. The initial
determination under this paragraph shall be made as soon
as practicable after [October 27, 1972]."
33 U.S.C. § 906(b)(3). (Emphasis added.) Elsewhere in § 6, both
minimum and maximum limits on total disability benefits are tied to
the "applicable national average weekly wage as
determined
by the Secretary under paragraph(3). . . ." 33 U.S.C. § 906(b)(1);
see § 906(b)(2). Congress' careful use of the word
"determination" and its verb form strongly suggests that it
intended the term to refer only to the Secretary of Labor's annual
determination under § 6(b)(3) of the national average
weekly wage, not to the mathematical
computation of
disability benefit maximums contemplated under § 6(b)(1). This view
of § 6(d) is confirmed by the provision's legislative history. The
Senate Committee on Labor and Public Welfare, in its
section-by-section analysis of S. 2318, stated:
"Subsection(d) states that
determinations of
national average weekly wage made with respect to a period
apply to employees or survivors currently receiving compensation
for permanent total disability or death benefits, as well as those
who begin receiving compensation
Page 440 U. S. 43
for the first time during the period."
S.Rep. No. 9 1125, p. 18 (1972), Leg.Hist. 80. [
Footnote 15]
Because determinations of the national average weekly wage
govern minimum death benefits as well as both minimum and maximum
total disability benefits, § 6(d)'s reference to "survivors . . .
receiving . . . death benefits" is not surprising. Congress
intended increases in the national average weekly wage to be
reflected by corresponding increases in minimum death benefits and
both minimum and maximum total disability benefits. [
Footnote 16]
See S.Rep. No.
92-1125,
Page 440 U. S. 44
supra at 5-6, Leg.Hist. 67-68. We conclude that § 6(d)
does not render the maximum limitations contained in § 6(b)(1)
applicable to death benefits.
Page 440 U. S. 45
C
Finally, petitioners urge that, the Act's language and
legislative history notwithstanding, Congress could no have
intended to place a "premium on death." They cannot and do not
dispute, however, that Congress did precisely that in situations in
which the employee's average weekly wages are less than the
applicable national average weekly wage and he is survived by a
spouse and one or more children. [
Footnote 17] Congress
Page 440 U. S. 46
may well have retained maximum benefit limitations in § 6(b)(1)
to discourage feigned disability, a consideration wholly
inapplicable to death benefits. Nor is it inconceivable that the
financial needs of the disabled worker's family could increase upon
his death. The typical disabled worker, though no longer physically
able to ply his trade, might be able to contribute to the family's
livelihood by assuming a variety of domestic responsibilities, thus
releasing his spouse into the workforce. The disabled worker's
death would, under such circumstances, rob the family of an
economic asset.
Petitioners entreat us to interpret the 1972 Amendments "to
avoid an absurd and discriminatory consequence." Even if we agreed
with petitioners' characterization of Congress' failure to put a
ceiling on death benefits, we would be required to decline
petitioners' invitation, for our examination of the language and
legislative history of the 1972 Amendments
Page 440 U. S. 47
convinces us that the omission was intentional. Congress has put
down its pen, and we can neither rewrite Congress' words nor call
it back "to cancel half a Line." Our task is to interpret what
Congress has said; so doing, we conclude that death benefits
payable under the Act are not subject to the maximum limitations
contained in § 6(b)(1). The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE POWELL took no part in the consideration or decision
of these cases.
* Together with No. 77-1491,
Geo Control, Inc., et al., v.
Rasmussen et al., also on certiorari to the same court.
[
Footnote 1]
Rasmussen's surviving son is entitled to benefits until his 18th
birthday, or, if he qualifies under the Act as a student, until his
23d birthday.
See 33 U.S.C. §§ 902(14), (18), and
909(b).
[
Footnote 2]
Compare 567 F.2d 1385 (case below),
with Director,
Office of Workers' Comp. v. O'Keefe, 545 F.2d 337 (CA3 1976),
and Director, Office of Workers' Comp. v. Boughman, 178
U.S.App.D.C. 132, 545 F.2d 210 (1976) .
[
Footnote 3]
Under former § 9(b), a surviving widow was entitled to 35% of
her deceased husband's average wages and an additional 15% of the
deceased's wages for each surviving child, subject to a limit of
662,% of the deceased's wages. Thus, a widow without children,
although nominally entitled by former § 9(b) to 35% of her deceased
husband's average weekly wages, was actually entitled only to 35%
of $105. A widow with three or more children, however, was entitled
to the maximum aggregate percentage of weekly wages (66 2/3%),
which would result in an award of $70 in weekly death benefits. The
1972 Amendments increased the percentage shares of surviving widows
and children to 50 and 16 2/3, respectively, although the maximum
aggregate percentage limitation of 66 2/3 was retained.
[
Footnote 4]
According to 1972 congressional reports, the average weekly wage
for private, nonagricultural employees was $135 a week, while
longshoremen averaged over $200 per week in some ports. H.R.Rep.
No. 92-1441, p. 1 (1972), Legislative History of the Longshoremen's
and Harbor Workers' Compensation Act Amendments of 1972 (Committee
Print compiled for the Senate Committee on Labor and Public Welfare
by the Subcommittee on Labor), p. 207 (1972) (hereinafter
Leg.Hist.); S.Rep. No. 92-1125, p. 4 (1972), Leg.Hist. 66. The $70
limitation on death and disability benefits precluded most
employees and their survivors from receiving 66% of the employee's
average weekly wages, and, in some cases, the $70 maximum
constituted as little as 30% of the employee's average weekly
wages. S.Rep. No. 92-1125, p. 5, Leg.Hist. 67.
[
Footnote 5]
The national average weekly wages determined by the Secretary of
Labor since 1972, along with corresponding maximum benefit levels
under § 6(b)(1), are as follows:
National Section
Average 6(b)(1)
Effective Date Weekly Wage Maximum
11/26/72 $131.80 $167.00
10/1/73 140.36 210.54
10/1/74 149.14 261.00
10/1/75 159.19 318.38
10/1/76 171.27 342.54
10/1/77 183.61 367.22
10/1/78* 198.25 396.50
*Based on preliminary figures.
[
Footnote 6]
The dispute was initially litigated before the Deputy
Commissioner for the Fifteenth Compensation District of the
Department of Labor's Office of Workers' Compensation Programs
(OWCP), who ruled that § 6(b)(1)'s limitations on compensation
apply to death benefits as well a to benefit for permanent total
disability. On appeal the Benefits Review Board vacated the
decision on the ground that the Deputy Commissioner lacked
authority to resolve the issue.
[
Footnote 7]
See n 2,
supra.
[
Footnote 8]
The original Act provided that compensation benefits for
disability were not to exceed $25 per week. Act of Mar. 4, 1927, §
6(b), 44 Stat. 1426. The maximum compensation benefit for death was
66 2/3% of the employee's average weekly wages, considered to be
not more than $37.50 per week. § 9(c), 44 Stat. 1430. Thus, the
maximum weekly benefit for both disability and death was $25.
Subsequent amendments raised benefit levels, but did not disturb
the relationship between disability and death compensation
maximums.
See Act of June 24, 1948, ch. 623, §§ 1, 3, 62
Stat. 602; Act of July 26, 1956, ch. 735, §§ 1, 4, 70 Stat. 654,
655; Act of July 14, 1961, Pub.L. 87-87, §§ 1, 2, 75 Stat. 203.
[
Footnote 9]
S. 525, 92d Cong., 1st Sess., §§ 4(a), 8(c) (1971), Leg.Hist.
395, 399; H.R. 3505, 92d Cong., 1st Sess., §§ 4(a), 8(c) (1971),
Leg.Hist. 417, 421.
Section 4(a) of both the House and Senate bills provided in
pertinent part:
"Section 6(b) of such Act is amended to read as follows:"
"'Compensation for disability shall not exceed $119 a week and
compensation for total disability shall not be less than $35 per
week. . . .'"
Section 8(c) of both bills would have amended § 9(e) of the Act
to read:
"In computing death benefits the average weekly wages of the
deceased shall be considered to have been not more than $178.50,
nor less than $52.50, but the total weekly compensation shall not
exceed the weekly wages of the deceased."
[
Footnote 10]
S. 2318, 92d Cong., 2d Sess., §§ 4(a), 10(b) (1971), Leg.Hist.
6, 10; H.R. 12006, 92d Cong., 1st Sess., §§ 4(a), 10(b) (1971),
Leg.Hist. 146, 149-150.
As originally introduced, § 10(b) of both the House and Senate
bills would have amended § 9(e) of the Act to read:
"In computing death benefits the average weekly wages of the
deceased shall be considered to have been not less than $80 but the
total weekly compensation shall not exceed the weekly wages of the
deceased."
Original § 4(a) of both bills contained a similar provision for
disability benefits:
"Section 6(b) of such Act is amended to read as follows:"
" (b) Compensation for total disability shall not be less than
$64 per week:
Provided, however, That, if the employee's
average weekly wages as computed under section 10 are less than $64
per week, he shall receive as compensation for total disability his
average weekly wages."
[
Footnote 11]
Witnesses representing workers covered by the Act generally
supported removal of fixed ceilings on compensation payments.
Witness Thomas W. Gleason, President of the International
Longshoremen's Association, AFL-CIO, testified:
"We strongly support the enactment of S. 2318 as the most
effective proposal to accomplish the long overdue increase in the
benefit levels of injured longshoremen. First and foremost, that
bill would eliminate the artificial and totally unrealistic
restrictions on benefit amounts. This would enable compensation
awards, for the first time, to reflect realistically the loss of
earnings suffered by injured employees. . . ."
"The administration bill, S. 525, would also raise benefit
levels. The proposed increase in maximum weekly compensation from
$70.00 to $119.00 represents a substantial improvement, but one
that is already obsolete. . . ."
"We urge that the Congress not adopt a benefit level grounded on
built-in obsolescence. Far more equitable is the approach
manifested in S. 2318."
Hearings 156-158.
See id. at 63 (testimony of Howard
McGuigan, Legislative Representative, AFL-CIO), 133 (testimony of
Patrick Tobin, Washington Representative, International
Longshoremen's and Warehousemen's Union), 700 (testimony of Frank
E. Fitzsimmons, General President, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America) .
Not surprisingly, representatives of employers subject to the
Act's provisions were generally opposed to elimination of benefit
maximums. Edward D. Vickery, representing the National Maritime
Compensation Committee, opposed S. 2318, stating:
"[W]e respectfully submit that it is not advisable to remove the
monetary maximum benefits payable per week under the Longshoremen's
Act, and therefore recommend that the provisions of Section 8 of S.
525 be retained in this regard."
Hearings 334.
Witness Ralph Hartman, an assistant manager in the Safety and
Workmen's Compensation Division of Bethlehem Steel Corporation,
proposed a compromise position:
"[W]e endorse the basic concepts of S. 2318, and propose
innovations or variations which we consider urgent and demanding,
yet equitable to all concerned."
"
* * * *"
"Of major impact and importance to the industry are the
proposals to increase weekly benefits. One such proposal would
amend section 6(b) of the act by increasing the minimum weekly rate
from $18 to $54 and eliminating the present maximum weekly benefit
rate of $70."
"We agreed that the minimum rate should be increased. However,
this proposal leaves us with a weekly benefit rate of two-thirds of
the employee's average weekly earnings without limitation."
"
* * * *"
"We recognize the intent of the proposal, and we suggest for
your consideration that the maximum weekly benefit be predicated
upon the average weekly wage in the shipbuilding and ship repair
industry, that it be 66 and two-thirds percent of the injured
employee's average weekly wage computed under section 10, subject
to a maximum of 150 percent of the average weekly wage of the
shipbuilding and ship repair industry."
Id. at 171-172.
It is inconceivable that Congress, with this debate on benefit
maximums raging all about it, unwittingly omitted a death benefit
ceiling in amended § 9(b).
[
Footnote 12]
S. 2318 was passed by the Senate on September 14, 1972. 118
Cong.Rec. 30670, 30674. H.R. 12006 was passed by the House on
October 14, 1972, 118 Cong.Rec. 36376, 36389, and returned to the
Senate, which concurred in the identical House version. 118
Cong.Rec. 36265, 36274 (1972).
[
Footnote 13]
Precisely this understanding is expressed in the House Report
which accompanied H.R. 12006:
"Subsection(d) of this section amends section 9(e) of the Act,
eliminating the dollar minimum and maximum set out under persent
[
sic] law for the average weekly wages of the deceased to
be used in computing death benefits. The minimum substituted by
this amendment is the applicable national average weekly wage as
prescribed in section 6(b) of the Act, except that the total weekly
benefits may not exceed the actual average weekly wages of the
deceased."
H.R.Rep. No. 92-1441, p. 19 (1972), Leg.Hist. 225.
Both the House and Senate Reports, in discussing the major
provisions of the respective bills, deal expressly with the subject
of minimum and maximum death benefits, noting that such benefits
are "subject to a maximum of 66 2/3 percent of the [deceased's]
average weekly wages" and to "[a] minimum . . . tied to the
applicable national average weekly wage. . . ." S.Rep. No. 92-1125,
p. 6 (1972), Leg.Hist. 68; H.R.Rep. No. 92-1441, p. 4 (1972),
Leg.Hist. 210.
[
Footnote 14]
Section 6(d)'s reference to "this subsection" apparently refers
to subsection(a) of § 5 of the Longshoremen's and Harbor Workers'
Compensation Act Amendments of 1972, 86 Stat. 1252, and hence to §§
6(b)(d) of the Act.
See Director, Office of Workers' Comp.
Programs v. O'Keefe, 545 F.2d at 344;
Director, Office of
Workers' Comp. Programs v. Boughman, 178 App.D.C. at 137, 545
F.2d at 215.
[
Footnote 15]
Petitioners place heavy reliance on the following passage from
the Senate Report accompanying S. 2318:
"To the extent that employees receiving compensation for total
permanment [
sic] disability or survivors receiving death
benefits receive less than the compensation they would receive if
there were no phase-in, their compensation is to be increased as
the ceiling moves to 200 percent."
S.Rep. No. 92-1125, p. 5 (1972), Leg.Hist. 67. This language
does indeed suggest that the gradual annual increase in maximum
benefits from 125% to 200% of the national average provided in §
6(b)(1) applies to survivors as well as to disabled employees. The
quoted statement, however, is followed immediately in the Senate
Report by a conflicting statement. In apparent reference to the
combined effect of § 6(b)(3) and § 6(d), the Senate Report
states:
"The bill also requires an annual redetermination by the
Secretary which will allow any increase in the national average
weekly wage to be reflected by an appropriate increase in
compensation payable under the Act."
S.Rep. No. 1125,
supra, at 5-6, Leg.Hist. 67-68;
see n. 17,
infra. This latter statement is
consistent with our reading of § 6, and, to the extent the earlier
statement is an indication of legislative intent, we agree with the
Court of Appeals that "it is overwhelmingly outweighed by the
contrary purport of the legislative history as a whole." 567 F.2d
at 1388 n. 5.
[
Footnote 16]
Petitioners maintain that interpreting § 6(d) to refer to
determinations of national average weekly wage would render the
provision duplicative of § 10(f). Added by the 1972 Amendments, §
10(f) provides:
"Effective October 1 of each year, the compensation or death
benefits payable for permanent total disability or death arising
out of injuries sustained after [October 27, 1972], shall be
increased by a percentage equal to the percentage (if any) by which
the applicable national weekly wage for the period beginning on
such October 1, as determined under section 6(b), exceeds the
applicable national average weekly wage, as so determined, for the
period beginning with the preceding October 1."
This provision makes clear that, in cases of permanent total
disability and death, benefits are adjusted upward each year that
the national average wage rises. Although § 10(f) gives the
incremental increase in compensation payments to all beneficiaries
in death and permanent total disability cases, including those
unaffected by a statutory minimum or maximum, the incidental effect
is partially to lift any ceiling and, to the same extent, any floor
applicable to such benefits.
Although § 6(d) and § 10(f) overlap substantially, they are not
entirely duplicative. The latter section applies only when benefits
of a particular type are received in two consecutive years. If an
employee receiving benefits for total and permanent disability in
year 1 died in year 2, his survivors must look to § 6(d) to
determine whether the "applicable" national average weekly wage for
purposes of computing minimum death benefits under § 9(e) is the
national average wage determined by the Secretary for year 1, when
the employee's injury occurred, or that determined for year 2, when
the employee died. For example, suppose that a covered worker was
permanently and totally disabled in year 1. Suppose further that,
at the time of the injury, his average weekly wages were $90, and
that the national average weekly wage was $100. The worker would be
entitled under § 8(a) to disability benefits of $60 per week (66
2/3% of $90), significantly more than the minimum payment of $50
per week (50% of $100) provided under § 6(b)(2). If the worker died
during the following year, leaving a widow and one or more
children, his survivors would be entitled to death benefits
amounting to 66 2/3% of the national average weekly wage. Assuming
the national average weekly wage had increased 5% in year 2, the
question would arise whether the worker's survivors were entitled
to death benefits calculated on the higher national average weekly
wage. Reference to § 6(d) reveals that the worker's widow and
children, having been "newly awarded" death benefits during year 2,
would be entitled to calculate their benefits on the higher
national average weekly wage.
Further, the legislative history of the 1972 Amendments
indicates that Congress was fully aware of the similarities between
§§ 6(d) and 10(f). In its discussion of "maximum and minimum
benefit amounts," the Senate Report accompanying S. 2318
states:
"The bill also requires an annual redetermination by the
Secretary which will allow any increase in the national average
weekly wage to be reflected by an appropriate increase in
compensation payable under the Act. A
similar provision
for upgrading benefits in future years for cases of permanent total
disability or death benefits is contained in section 10 of the Act
(Section 11 of the bill)."
S.Rep. No. 92-1125, pp. 5-6 (1972), Leg.Hist. 67-68 (emphasis
added).
[
Footnote 17]
A totally disabled employee is entitled to 66 2/3% of his
average weekly wages, 33 U.S.C. § 908(a), or 50% of the national
average weekly wage, 33 U.S.C. § 906(b)(2), whichever is greater.
If the disabled employee dies, however, his surviving spouse and
children are entitled to no less than 66 2/3% of the national
average weekly wage or 100% of the deceased employee's average
weekly wages, whichever is lesser. 33 U.S.C. § 909(e). Thus, the
death of a totally disabled employee whose average weekly wages
were greater than half the national average weekly wage but less
than the national average weekly wage would result in an increase
in benefits payable under the Act. The Court of Appeals
demonstrated this fact with the following examples:
"If we assume the Secretary has determined that the applicable
national average weekly wage is $100, the compensation for an
employee whose actual average weekly wage was $60 would be
determined as follows:"
"1.
Total Disability Benefits"
"Under [33 U.S.C.] § 908(a), the employee would normally receive
66 2/3 percent of his average weekly wage, or $40. However, §
906(b)(2) states that the minimum compensation shall be 50 percent
of the national average weekly wage, or $50. An employee in this
situation would receive $50 compensation for total disability."
"2.
Death Benefits"
"Under [33 U.S.C.] § 909(b), if, for example, the employee is
survived by a widow or widower and one or more children, the total
amount payable is 66 2/3 percent of the average weekly wage of the
deceased, or $40. However, § 909(e) states that, where the average
weekly wage is less than the national average weekly wage, the
national average should be used in place of the employee's actual
average, and here we should take 66 2/3 percent of $100, or $66.66.
§ 909(e) then limits this minimum compensation to the actual
average weekly wage, so the survivors would receive $60
compensation."
"Making these same assumptions, the minimum compensation
calculations for employees with average weekly wages greater than
half the national average weekly wage and less than the national
average weekly wage result in greater compensation for death than
disability, as the following chart indicates:"
Employee's Death Total
Nat'l Avg. Avg. Benefits Disability
$100 $100 $66.66 $66.66
100 99 66.66 66.00
100 75 66.66 50.00
100 60 60.00 50.00
100 51 51.00 50.00
100 50 50.00 50.00
567 F.2d at 1390, n.9.