Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Petitioner-appellant, v. Genevieve O. Rasmussen and William C. Rasmussen, Jr.,respondents-appellees.geo Control, Inc., and New Hampshire Insurance Company, Petitioners, v. Genevieve O. Rasmussen and William C. Rasmussen, Jr.(william C. Rasmussen, Deceased), Respondents, 567 F.2d 1385 (9th Cir. 1978)

Petitioners seek review of a decision and order of the Benefits Review Board awarding compensation to respondents as survivors of a deceased employee covered by the Longshoremen's and Harbor Workers' Compensation Act.¹ 

William C. Rasmussen, in 1973, was employed by petitioner Geo Control, Inc., as hydrologist under a public work contract between Geo Control and the United States. His average weekly wage was $798. His employment was covered by the Defense Base Act, 42 U.S.C. §§ 1651, et seq., which incorporates the Longshoremen's and Harbor Workers' Compensation Act (the Act), and Geo Control's liability for compensation under the Act was covered by insurance provided by petitioner New Hampshire Insurance Co.

On May 11, 1973, Rasmussen, while in the course of his employment by Geo Control in Vietnam, received fatal injuries while traveling as a passenger in a motor vehicle which triggered a land mine explosion. Respondent Genevieve O. Rasmussen is his surviving widow and is entitled to death benefits under the Act. Respondent William C. Rasmussen, Jr., is his surviving son and is entitled to benefits until his 18th birthday, or, if he qualifies under the Act as a student, until his 23d birthday.

A dispute arose as to the amounts of compensation to which respondents were entitled. In due course a hearing was had before an administrative law judge, and on October 24, 1974, the judge ordered petitioners Geo Control and New Hampshire Insurance Co. to pay to Mrs. Rasmussen from May 11, 1973, and continuing during her widowhood the sum of $399 a week, being 50 percent of her husband's average weekly wage at the time of his death. The judge further ordered those petitioners to pay the son, from May 11, 1973, until his 23d birthday, unless his status as student terminated earlier, the sum of $137 a week, being 162/3 percent of the average weekly wage of the deceased. Appeals from that order were taken to the Benefits Review Board. The board sustained the decision of the administrative law judge and these petitions for review followed. Joining Geo Control and New Hampshire Insurance Co. in petitioning for review is the Director, Office of Workmen's Compensation Programs, United States Department of Labor.

Under the Act, compensation for death is provided by 33 U.S.C. § 909. Compensation for disability is covered by §§ 906 and 908. All three of these sections were substantially amended in 1972 to give disabled persons and survivors increased benefits and protection against continuing inflation. A problem in statutory construction is presented by the contention that the provisions for disability and those for death, as amended in 1972, are inconsistent with each other.

Prior to the amendments, § 908(a) and (b) provided for total disability payments of 662/3 percent of the worker's average weekly wage during the course of disability.²  Section 906(b) provided limitations on the disability payments: a maximum of $70 and a minimum of $18. With respect to death benefits § 909(b) of the Act provided surviving spouses with benefits during widowhood or dependency amounting to 35 percent of the average weekly wage, plus 15 percent for each surviving minor child, with the total not to exceed 662/3 percent of such wages. Section 909(e) provided maximum and minimum compensation by setting limits on the weekly wage used to calculate the benefits:

"In computing death benefits the average weekly wages of the deceased shall be considered to have been not more than $105 nor less than $27 but the total weekly compensation shall not exceed the weekly wages of the deceased."

33 U.S.C. § 909(e).

The 1972 amendments made no change in the disability payments provided by § 908(a) and (b). The whole basis for the limitations imposed by § 906(b) on compensation for disability was changed, however. Instead of fixing a dollar maximum and minimum, limitations were fixed by reference to the national average weekly wage. Section 906(b) (2) fixed the minimum for total disability at not less than 50 percent of the national average (or, if it be a lesser amount, the employee's average weekly wage). Section 906(b) (1) provided a maximum for disability ultimately reaching 200 percent of the national average by October 1, 1975, but gradually attaining that figure by annual increases commencing at 125 percent during the period ending September 30, 1973. The manner in which the applicable national average weekly wage was to be determined was set forth in § 906(b) (3), and the duty of making that determination was assigned to the Secretary of Labor.³ 

The section covering death benefits, § 909(b), was amended to increase the compensation to the surviving spouses to 50 percent of the deceased's average weekly wage and that of the minor children to 162/3 percent, but retained the 662/3 percent limit on the total amount payable. The section setting the minimum and maximum limitations, § 909(e), was amended to read:

"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 906(b) of this title but the total weekly benefits shall not exceed the average weekly wages of the deceased."

33 U.S.C. § 909(e). It is the construction of that subsection with which we are concerned.

Taken literally, the amendment of the subsection does two things. First, consistently with the provisions for limitations on disability compensation in § 906(b) (1) and (2), the minimum compensation for death benefits was fixed by reference to the national average weekly wage instead of by specific dollar amounts as in the original Act. Second, unlike § 906(b), however, and unlike the original Act, while a minimum limitation on the average weekly wage was provided, no maximum was provided.⁴ 

The result is that for death compensation can be more liberal than for disability that should a disabled person die his widow could realize an increase in compensation over that received prior to death. As one court has commented, it puts "a premium on death" to provide "that a totally disabled employee, in need of continuing care, should be compensated less generously than the family of an employee who dies." Director, Office of Workers' Compensation Programs v. Boughman, 178 U.S.App.D.C.132, 135, 545 F.2d 210, 213 (1976).

The Director, Office of Workers' Compensation Programs, has taken the position since 1972 that to avoid this anomaly § 909(e) must be construed to incorporate the maximum limitations provided by § 906(b) (1). This is the position he took in this matter before the administrative law judge and the Benefits Review Board, and which both judge and board rejected.

In support of that position petitioners rely on certain instances in the Act and in legislative history in which employees and survivors are linked together in such a way as to suggest that certain provisions of the Act apply to both disability and death compensation.⁵  These instances, having reference to language far from clear or precise, do not in our judgment cast light on the legislative intent.

The difficulty with petitioners' position is that on its face the language of § 909(e) is not ambiguous. Their position rests on an assumption that the choice of this unambiguous language by Congress, and its failure expressly to incorporate the maximum limitations of § 906(b) (1), was inadvertent that Congress had not meant to say what it had clearly said. The presumption to the contrary is not lightly to be overturned, and in our judgment petitioners have failed to meet their burden in this respect. Indeed, legislative history as recited at length in the 39-page Decision and Order of the administrative law judge in our view convincingly demonstrates that Congress was fully aware of what it was doing and that the absence of maximums in § 909 was not inadvertent.

From the outset, one of the controversial questions presented in connection with the amendment of the Act had to do with the elimination of the maximum limitations. Two bills were presented in the Senate: S. 2318 eliminated the maximum limits as to both disability and death benefits;⁶  S. 525 increased the benefits but retained maximum limitations. Hearings, supra n. 6, at 15, 19. The two bills were vigorously debated, both on the floor of the Senate and by witnesses in Senate hearings. Representatives of labor testified at length in support of S. 2318 to the effect that it would "eliminate the artificial and totally unrealistic restrictions on benefit amounts." Hearings, supra n. 6, at 156-57. Time after time, senators and representatives speaking on the bills and witnesses testifying thereto pointed out that § 10(d) of S. 2318, amending § 909(e) of the Act, would eliminate the maximums on compensation (save the 662/3 percent of the deceased's actual average weekly wage). See Legislative History of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (S. 2318, Public Law 92-576) prepared by the Subcomm. on Labor of the Comm. on Labor and Public Welfare, U.S. Senate, Dec. 1972. Time after time, the Senate Report and the House Report, in summarizing major provisions of the bill and in section-by-section analyses, pointed out this effect of § 10(d) of S. 2318.⁷ 

The Senate Report, in compliance with subsection 4 of Rule XXIX of the Standing Rules of the Senate, showed the changes in existing law made by the bill as follows, with existing law proposed to be omitted enclosed in brackets and new matter printed in italics:

"(e) In computing death benefits the average weekly wages of the deceased shall be considered to have been not (more than $105 nor) less than ($27) the applicable national average weekly wage as prescribed in section 6(b) but the total weekly (compensation) benefits shall not exceed the average weekly wages of the deceased."

S.Rep. No. 1125, supra n. 7, at 40. The House Report, in compliance with Rule XIII of the Rules of the House of Representatives, showed the change in § 9(e) as follows:

"(e) In computing death benefits the average weekly wages of the deceased shall be considered to have been not (more than $105 nor less than $27 but the total weekly compensation shall not exceed the weekly wages of the deceased) 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."

H.R.Rep. No. 1441, supra n. 7, at 37.

It is difficult to see how, in light of this history and the manner in which the extent of the amendment was graphically illustrated, it can be maintained that Congress was unaware of the fact that while maximum limitations were imposed as to disability benefits they were eliminated as to death benefits.

It is argued, however, that no matter what the record may show the result is so irrational that it simply cannot have been intended. We cannot agree. One may well believe that dispensing with maximum limitations in the case of death benefits while retaining them in the case of disability is not the wisest legislative choice. As a choice, however, it clearly has received recognition and it does appear to have its advocates, and thus would seem to be entitled to the respect regularly accorded to a course legislatively chosen. As quoted by the administrative law judge, a report of the National Commission on Workmen's Compensation Laws, while favoring equality of benefits, recognizes that arguments have been advanced in favor of dispensing with maximum limitations in the case of death while retaining them for disability. The argument is to the effect that any limitation is undesirable, that reasons for imposing such limits in the case of disability (other than economy) do not exist in the case of death, and that the cost of fully compensating for death would be relatively small.⁸  See The Report of the National Commission on State Workmen's Compensation Laws, at 71 (1972). The legislative choice thus can be read as a compromise with the course sought by representatives of labor: the elimination of maximum limits across the board.

Finally we note that had Congress intended death benefits to have the same limitations as disability benefits it would have been extremely simple to make the limitations provisions applicable to both. Instead Congress deliberately chose to compute limitations in the two cases by entirely different methods. For disability the limitations of § 906(b) (1) and (3) are imposed directly upon the compensation awarded. For death the limitation of § 909(e) is imposed upon the figure from which compensation is to be computed.

This choice of Congress to fix limitations in the two cases by different language and different methods actually serves to extend the advantage of death over disability beyond that realized from the elimination of maximum limitations. By the manner in which minimum limitations respectively are fixed, death benefits (in a case where the deceased is survived by a spouse and one or more children) have been rendered superior to disability benefits as to some employees (those whose average weekly wages are less than the national average but greater than one half the national average).⁹ 

If we are to bring disability and death benefits into a state of consistency we must, then, do more rewriting of § 909(e) than simply incorporating into it a form of the phase-in of § 906(b) (1). We must also rewrite the minimum limitations.

This course we reject. Where Congress has chosen to articulate limitations in the two cases by wholly different language, establishing different methods for computation, we find little rational persuasion in an argument that it must nevertheless have intended the results to be the same.

We conclude that petitioners have failed to meet their burden of establishing that Congress did not knowingly and intentionally eliminate the maximum limitations on death benefits in § 909(e). We must respectfully disagree with two decisions rejecting the decision of the Benefits Review Board in this matter and holding in accordance with the views of the Director.¹⁰ 

The judgment of the Benefits Review Board is affirmed.