Newpark Shipbuilding & Repair, Incorporated and Americanhome Assurance Company, Petitioners, v. James P. Roundtree and Director, Office of Workers'compensation Programs, United States Department Oflabor, Respondents, 698 F.2d 743 (5th Cir. 1983)

This appeal arises from a claim for workers' compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The employer urges that we find jurisdiction to lie in this appeal and that we rule on the proper statutory basis for computing compensation benefits under the facts presented. We find that jurisdiction does lie, and that Sec. 10(b) of the Act, 33 U.S.C. § 910(b), is the proper statutory basis by which to compute benefits in this case.

James Roundtree has been a welder in the shipyards since 1941, and he worked as an independent contractor between 1954 and 1975. During the last days he worked as an independent contractor, he charged a rate of $12.50 per hour for his services. For a variety of personal and career-related reasons, Roundtree abandoned his work as an independent contractor and began working as an hourly employee for the firm now known as Newpark Shipbuilding. Roundtree's wage as a welder was $5.50 per hour, with available overtime and a ten cent per hour shift differential. Other welders in the shipyard were paid as much as $5.95 per hour at the time.

Roundtree's first day on the job, April 22, 1975, was an unfortunate one for him. He was working on a barge. While welding a hole that had been fitted and tacked, Roundtree fell off his scaffold and injured his back, resulting in his disability. His claim for workers' compensation under LHWCA came before an Administrative Law Judge (ALJ) with the Office of Workers' Compensation Programs. The ALJ determined that Roundtree was entitled to compensation, and then considered the possible methods for computing Roundtree's average weekly wage pursuant to Sec. 10 of the Act. The ALJ first considered Sec. 10(a), which looks to the employee's wages during the prior year, and found that subsection inapplicable because of the change in Roundtree's employment from independent contractor to hourly employee. He then considered Sec. 10(b), which looks to the prior year's wages of coworkers performing the same or similar work. The ALJ rejected that theory, in part because the shipyard workers had recently received a wage hike that would not be reflected fully in a Sec. 10(b) calculation based on twelve prior months. He therefore concluded that it would not be "fair and equitable" for Sec. 10(b) to apply, and looked to Sec. 10(c) for guidance. Section 10(c) points toward the earnings potential of the employee at the time of injury, rather than actual prior wages. Applying Sec. 10(c), the ALJ looked at Roundtree's earnings capacity as an independent contractor and determined his weekly wage to be $360.41, approximately $10.29 per hour, based on Roundtree's earnings of $18,741.20 in the preceding year. He then ordered compensation accordingly as provided in Sec. 8(b).

Both Roundtree and his employer appealed to the Benefits Review Board (BRB). The employer argued that Sec. 10(b) rather than Sec. 10(c) should control. Roundtree cross-appealed to call for application of Sec. 10(a), but apparently switched his view during the BRB proceedings and agreed with the ALJ's application of Sec. 10(c). The BRB affirmed the use of Sec. 10(c) for determining the weekly wage, but ruled that the ALJ had erred in using the gross earnings of an independent contractor for determining the amount of Roundtree's weekly wage. The BRB suggested that the net earnings of an independent contractor, after business expense deductions, might be an appropriate wage determination. In any event the BRB remanded for a redetermination of Roundtree's weekly wage under Sec. 10(c).

The employer appeals the BRB's ruling to this Court, pursuant to Sec. 21(c) of the Act, 33 U.S.C. § 921(c). It argues that Sec. 10(b) rather than Sec. 10(c) should control this determination of average weekly wage. Further, it argues that the appeal is ripe for review as a "final order" because the record in this case is sufficiently complete. It urges that an appellate determination of this question will effectively terminate the litigation. Since our authority to review an administrative ruling under LHWCA is limited to "final orders", 33 U.S.C. § 921(c), we must begin by examining our jurisdiction over the subject matter of this case.

II. Examination of Subject Matter Jurisdiction

Appellate review of BRB orders is restricted under 33 U.S.C. § 921(c) to "final orders".¹  The "final order" requirement follows the contours of the finality rule expressed in 28 U.S.C. § 1291. Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981); National Steel and Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 626 F.2d 106, 107-08 (9th Cir. 1980). The requirement sometimes, but not always, excludes from appellate review a remand order to an administrative agency. Id. at 108; United Fruit Co. v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224, 1225 (5th Cir. 1977). We believe, however, that the case before us is properly reviewable at this time even though the administrative body directed a remand.

Our determination of whether jurisdiction lies does not depend on a single formula or a simple rule. "The inquiry requires some evaluation of the competing considerations underlying all questions of finality--'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S. Ct. 2140, 2149, 40 L. Ed. 2d 732 (1974), quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S. Ct. 322, 324, 94 L. Ed. 299 (1950).

This Circuit recently faced the question of what constitutes a final administrative order in a LHWCA case. In Ingalls Shipbuilding Division, Litton Systems, Inc. v. White, 681 F.2d 275 (5th Cir. 1982), White and his employer entered into a compromise settlement of his LHWCA workers' compensation claim resulting from White's employment-based injury. An ALJ approved the settlement agreement after a cursory examination. The Director of the Office of Workers' Compensation Programs appealed the order of the ALJ to the Benefits Review Board, which held that the Director had standing to challenge the settlement, and that the ALJ's approval of the settlement must be set aside. The BRB remanded the claim to the ALJ, and the employer appealed to this Circuit.

We noted first that considering the appeal would not raise the specter of piecemeal review before the court, id. at 279, because the record was complete, the legal conclusions had been made, and the issue on appeal was only whether the power of the ALJ had been exercised properly. Reaching the merits effectively eliminated the need for later review, while dismissal would only have caused the same legal issue to come before us after the agency held additional hearings based on its tentative interpretation of its role. We therefore recognized jurisdiction.

Similarly in the case before us today, the issue presented challenges the proper legal standard, rather than constitutes a factual dispute. The record itself is factually complete, and application of Sec. 10(b) can be accomplished on the record. The only question presented is that of ruling on the proper formula.

If we were to dismiss for lack of jurisdiction, the next proceeding would be the ALJ's application of Sec. 10(c) to the record and a pronouncement of a definite monetary award. If applying Sec. 10(c) is not supported in the law, that proceeding would be a wasted one. If, however, we were to defer our review and determine at a later date that there is no error, we would have little effect on the risk of piecemeal review but merely would delay the resolution of the dispositive issue in the case. No party has raised any other issues on appeal, and there is little risk of a new appellate issue developing in the proceedings to come.

With our decision today, the remaining issues will not be questions of law but merely the largely ministerial job of applying the law to the preexisting record. This task is properly left to the sound discretion of the administrative body. Obviously our decision would be definitive guidance to the agency. Hence, we believe that the order of the BRB is ripe for review.

We recognize that cases in this and other Circuits have denied appellate review of pending actions from the BRB. But these cases involved incomplete determinations or administrative records, thus placing them in a less "final" posture than Ingalls or the immediate case. In United Fruit Co. v. Director, Office of Workers' Compensation Programs, supra, we dismissed the appeal as untimely. The unresolved issues were more than a simple calculation of disability benefits; the ALJ had not properly ruled on the nature and extent of the employee's disability, or the "possible liability of the special second injury fund." In Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, United States Dep't of Labor, 535 F.2d 758 (3d Cir. 1976), (per curiam) the court dismissed the appeal, because, even though liability had been decided, the extent of disability due to the worker's loss of hearing remained undetermined. In Newport News Shipbuilding and Dry Dock Co. v. Director, Office of Workers' Compensation Programs, 590 F.2d 1267 (4th Cir. 1978) (per curiam), the ALJ had not made complete findings as to "the nature of the injury, the degree of physical impairment ... and any other factor ... including the effect of disability as it may naturally extend into the future." Id. at 1269, quoting 33 U.S.C. § 908(h). All these cases, unlike the case before us, had unresolved factual determinations that appellate review could not settle.

The Director of the Office of Workers' Compensation Programs (Director), respondent in this case, offers a different argument in urging a narrow construction of the term "final order". He presses an analogy to attorneys' fees cases, where courts have held that an order is not final, hence not appealable, until the amount of awarded attorneys' fees is determined. Since, in the case before us, the determination of disability is known but the dollar amount of the award must still be set, the Director urges that the same principles of lack of finality apply in this case as in the attorneys' fees cases.

In Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159 (3d Cir. 1981), the Third Circuit held that a LHWCA case is not yet final when the substantive claim and the availability of attorneys' fees are both settled but the amount of the attorneys' fees award is undetermined. Similarly, in Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981) (en banc), the court determined that a district court order is not final for purposes of 28 U.S.C.A. Sec. 1291 until the amount of attorneys' fees has been settled. This Court has held similarly. E.g., Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir. 1976).

We acknowledge that an order is not "final" under 28 U.S.C. § 1291 until the amount of awarded attorneys' fees has been determined. However, we find those cases distinguishable. In the attorneys' fees cases, the applicable legal standard is already established when the district court rules on the award. There need be no appeal at that time regarding what the law ought to be for the determination. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (Title VII case, 42 U.S.C. § 2000e et seq., establishing a twelve-pronged test in awarding attorneys' fees). But at that point, the record would not yet contain the factual material needed to rule on the amount of the award. The case before us, by contrast, already contains uncontested full factual findings.² 

Furthermore, these cases usually come before an appellate court with challenges to both the merits and the award of attorneys' fees. To hold an order to be final before the final award of attorneys' fees would only lead to two appeals, one on the merits and one on the attorneys' fees, with no corresponding increase in the fundamental fairness to the parties. Such is not the case here.³ 

The Supreme Court has stated that the question of finality deserves a "practical rather than a technical construction" because it would be "impossible to devise a formula to resolve all marginal cases coming within what might well be called the 'twilight zone' of finality." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S. Ct. 308, 311, 13 L. Ed. 2d 199 (1964) (exceptions to finality rule under 28 U.S.C. § 1291). In the case before us, the question on appeal is to determine the proper legal standard to be applied. Our decision will settle this question and minimize the risk of a wasted agency hearing and a later appeal. We find that an appeal at this stage in this case will be more efficient and will not prejudice the parties, especially since the employee's workers' compensation checks will not reflect the proper award until the conclusion of this litigation. Accordingly, we recognize appellate jurisdiction in this case where the substantive legal issue is clearly posed and all that will remain after it is decided is use of the record already completed to calculate the wage base for the recovery.

III. Determination of the Proper Legal Standard

The substantive dispute before us is not a complex one. We must decide which of three statutory formulas is to be used in computing Roundtree's weekly wage base for purposes of workers' compensation benefits under LHWCA. Roundtree's somewhat unusual situation, having changed on the very day of his injury from independent contractor at $12.50 per hour to hourly employee at $5.50 per hour makes the method of computation an issue of intense concern to the parties.

Our standard of review is necessarily limited, Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976), to whether the administrative findings are supported by substantial evidence, Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S. Ct. 1140, 1145, 20 L. Ed. 2d 30 (1968), in accord with the law, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S. Ct. 801, 91 L. Ed. 1028 (1947), and not arbitrary, O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S. Ct. 1012, 13 L. Ed. 2d 895 (1965) (per curiam).

The nature of our review is also restricted by the statutory scheme of Sec. 10. The statute assumes that most workers will fall into subsection (a), which looks to the actual wages of the injured worker in the year prior to the injury as the monetary base for determination of the amount of compensation. Subsection (b) operates only where subsection (a) cannot be applied due to a fundamental change in the nature of the injured worker's employment. Method (b) looks to the actual wages of other workers in the same employment situation. The statute presumes that either (a) or (b) will fit the circumstances of the injured employee in most cases, but adds the "earnings capacity" formula of subsection (c) as a general, "catch-all" provision in case the other methods cannot be used as, for example, where the employee has worked for substantially less than a year and there are no other employees in the particular business whose jobs are comparable. Our task, then, is not to choose the most attractive method, but to determine which of the formulas is called for by the step-by-step statutory scheme.

Roundtree urges on appeal, as he had in the proceedings below, that Sec. 10(a) of the Act controls. Basically, Sec. 10(a) relies on the actual wages of the injured employee during the previous year.⁴  Roundtree was earning between $10.50 and $12.50 per hour during the previous year as an independent contractor.

However, we agree with both the ALJ and the BRB that Sec. 10(a) is not a proper formula to be applied in this case. Roundtree had a complete change in the nature of his employment when he voluntarily relinquished his self-employment as independent contractor and accepted an hourly job in the shipyard. This change was not a simple change in employer or place of business. Jobhoppers performing substantially the same work for different employers are covered by the 10(a) formula just as are their less peripatetic coworkers. But Roundtree's situation is much further removed from 10(a) applicability.

First of all, his prior work as an independent contractor was not "covered employment" under workers' compensation, since he was self-employed. Under Sec. 10(a) he had no employer. Further, Roundtree's new position required only the skills of a welder, while his work as a contractor, as the ALJ found, entailed "a considerable amount of expenses involved in operating his own business such as purchasing oxygen, welding rods, hand tools, acetylene, a welding rig mounted to his truck, insurance coverage, as well as various utility expenses." Self-employment also requires a knowledge of bookkeeping, contracts, and government regulations that an hourly job does not demand. Finally, an independent contractor works on a job basis and may well not be working a full 40 hour week every week. These critical distinctions explain, at least in part, why workers like Roundtree would trade a $12.50 an hour contractor's life for a $5.50 guaranteed wage. Since Roundtree was not "employed" for the year prior to the accident, he was not working in the same employment on the day of the accident, and Sec. 10(a) is not applicable.

The employer contends that Sec. 10(b) is the proper formula. Subsection (b) determines a weekly wage by counting the last year's wages of coworkers performing substantially the same work at the same place of employment as the injured worker.⁵  This subsection applies

to claims in which the injured worker has had too little time on the job to permit an accurate and fair computation of average daily wage: for example, the subsection would apply if a worker had been recently hired after having been unemployed, or out of the work force, or in a lower paying position. See O'Hearne v. Maryland Casualty, 177 F.2d at 982; California Ship Service Co. v. Pillsbury, 175 F.2d at 876.

Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 686 F.2d 1336, 1341-42 (9th Cir. 1982).

The record shows that the employer presented pay records of three welders who performed comparable work at the same site. This is an adequate statistical base for Sec. 10(b) purposes, even though there were over 100 welders in the shipyard at the time. There was no attempt to introduce any evidence that these three were not doing comparable work and instead were picked as the lowest-earning welders. Absent such an intent to distort the comparable wages, even one worker's pay record could fulfill the statutory requirement.⁶ 

The Director counters the claim of Sec. 10(b) applicability by pointing out that Sec. 10(b) should not be used when the result would fail "reasonably and fairly" to represent the worker's earnings. The Director urges us to uphold the application of Sec. 10(c).⁷ 

The Director points out that the welders in this shipyard received a 50 cent per hour wage increase just two months before Roundtree's accident. Examining ten months of older, lower wages with only two months of the then-current wages would diminish Roundtree's compensation base. Since the purpose of the overall statute is to compensate the injured worker, the Director argues, the government should take all possible steps to provide the employee with the maximum recovery allowable under the statute. Hence, he urges us to affirm the BRB's use of Sec. 10(c).

We are sympathetic to the Director's view that claimants should receive the maximum compensation allowable under the statute. However, we find that an award under Sec. 10(c) is not allowable under the statute in the case before us, and we hold that Sec. 10(b) is the applicable formula.

First, we point out that the statutory hierarchy of compensation formulas will allow the use of Sec. 10(c) only when neither Sec. 10(a) or Sec. 10(b) can be applied "fairly and reasonably". The Director argues that any substantial wage increase within the year preceding injury would make Sec. 10(a) or Sec. 10(b) unfair, and that the larger the raise and the closer to the date of injury, the more unfair the other methods become. He believes that any worker whose employer gave a substantial raise before the date of injury should be able to claim a Sec. 10(c) "catch-all" computation, whether or not that worker has been employed there for the entire previous year.

Yet such an interpretation is not in keeping with the intent of the statute, for it would effectively eradicate virtually all applications of methods (a) or (b). Most employers now offer some sort of annual wage boost. Congress, in creating this statutory scheme, did not intend for Sec. 10(a) and Sec. 10(b) to be wiped off the books. The "catch-all" provision of Sec. 10(c) is properly to be applied only in cases where it would be unrealistic to apply the normal formulas. As legislative history describes Sec. 10(c):

This subsection in the present law is used where the employment itself, in which the injured employee was engaged when injured, does not afford a full year of work.... Thus, subsection (c) applies to seasonal, intermittent, discontinuous, and like employment which affords less than a full workyear or workweek.

Senate Rep. No. 1315, 80th Cong., 2d Sess., reprinted in [1948] U.S.Code Cong.Serv.1979, 1982, quoted in Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 575 (7th Cir. 1980).

Case law clarifies the limited nature of Sec. 10(c). In Todd Shipyards Corp. v. Director, Office of Workers' Compensation Programs, 545 F.2d 1176 (9th Cir. 1976), the court upheld the use of Sec. 10(c) when "no evidence was introduced which could clearly determine the claimant's average daily wage" under Sec. 10(a) or Sec. 10(b). Id. at 1179 (emphasis added). The Ninth Circuit also stated in Palacios v. Campbell Industries, 633 F.2d 840, 842 (9th Cir. 1980) that " [s]ection 10(c) applies to intermittent and irregular employment, when application of the mathematical formulas provided in sections 10(a) or 10(b) would be unreasonable or unfair, or when insufficient evidence is presented at the hearing to permit proper application of section 10(a) or (b)."

On occasion, some courts have recognized a general unfairness in using Sec. 10(a) or Sec. 10(b) when those formulas would not reflect a claimant's earning capacity at the time of injury. These cases usually involve a worker who had been off the job for much of the preceding year, so that a Sec. 10(a) determination of wages while working would lead to a significantly larger computed wage base than the worker's actual earnings during the prior year. In Strand v. Hansen Seaway Service, Ltd., supra, the Seventh Circuit found that where a cold water port is normally closed for fixed times of year, the use of Sec. 10(a) or Sec. 10(b) to determine an average weekly wage would be unreasonable and unfair. In Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 686 F.2d 1336 (9th Cir. 1982), the Ninth Circuit upheld the use of Sec. 10(c). The court admitted that use of Sec. 10(c) might be error, but refused to reverse because the use of Sec. 10(a) would have inflated the worker's wage base unfairly. See also Johnson v. Britton, 290 F.2d 355 (D.C. Cir.), cert. denied, 368 U.S. 859, 82 S. Ct. 99, 7 L. Ed. 2d 56 (1961) (Sec. 10(a) would result in a "highly distorted earnings figure" when the worker worked only 180 days of the prior 52 weeks).

In Andrew F. Mahony Co. v. Marshall, 56 F.2d 74 (9th Cir. 1932), the court sanctioned the use of Sec. 10(c) to an intermittent employee. Winkler, the employee, had earned $1,266.20 in the year prior to his injury, and was awarded the maximum $25.00 weekly compensation, based on the higher wages of a coworker. Recognizing that Sec. 10(b) would provide greater compensation to Winkler than he had earned through his prior, intermittent employment, the court allowed the use of Sec. 10(c). The court stated that Sec. 10 "does not provide that every case must be measured by subdivisions (a) or (b) if it is possible to force the transaction into the formula which those subdivisions prescribe and that subdivision (c) is to be applied only to cases which cannot be measured by (a) or (b)." Id. at 78. However, the use of subsection (b) in the case before us does not require forcing or even a gentle push. It is method (c) that calls for the push--a push that would give Roundtree the benefit of the recent raise in the shipyard.

It is the clear intent of the statute that if one of Roundtree's co-workers was injured and he had worked for the whole of the preceding year, Sec. 10(a) would apply. When this was pointed out to government counsel during oral argument, counsel was forced to take the position that any welder in the shipyard who was injured should be able to claim a wage base calculated under Sec. 10(c). We cannot accept such a departure from the manifest statutory scheme. We hold that Sec. 10(b) is the applicable formula by which to compute Roundtree's wage base.

We find that this Court has jurisdiction over the subject matter of this appeal. Further, we hold that Sec. 10(b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 910(b), sets out the proper formula by which to determine Roundtree's workers compensation benefits. We therefore reverse the Benefits Review Board and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

TATE, Circuit Judge, dissenting:

With respect for my brethren of the majority, I nevertheless dissent from their holding that the present order of remand by the Benefits Board of Review is a "final order" and, thus, subject to judicial review at this time. 33 U.S.C. § 921(c). In a commendable effort to expedite judicial review in the present case, the majority has adopted a principle of case-by-case determination of "finality" that will, however, unsettle the relative certainty that was previously attached to that concept. While the benefits of expeditious review in the present case may be apparent, the general rule enunciated will require, as its consequence, many premature appeals in the future and much additional resultant delay before the final award or rejection of compensation claims.

In the present case, the principal (but not the only) issue before the Administrative Law Judge and the Board was whether the injured employees should be awarded compensation based upon Sec. 10(a) (the employee's wages during the prior year), or upon Sec. 10(b) (prior years' wages of coworkers), or upon Sec. 10(c) (an alternative, when either of the former methods "cannot reasonably be applied" to arrive at the annual earnings of the injured employee) of the Act, 33 U.S.C. § 910(a), (b), or (c). Affirming the ALJ, the Board held that Sec. 10(c) applied to the facts of this case, but it remanded for additional findings of fact, with leave to reopen the record to take additional evidence, for a redetermination of the claimant's weekly wage, as well as for consideration of other issues, such as attorney's fees. Independent of whether we ultimately decide whether the Board was correct in finding Sec. 10(c) to provide the proper method for computing the award of compensation,¹  we must first decide whether this order was "final" so as to permit us to exercise appellate jurisdiction to review it.

The majority notes, correctly, the settled jurisprudence to the effect that the "final order" appealability-requirement of 33 U.S.C. § 921(c), with regard to Board decisions, is essentially determined by the same criteria that apply to the "final judgments" appealability-requirement of 28 U.S.C. § 1291 with regard to district court decisions.²  As to the latter, the Supreme Court recently reiterated the test of finality as being " 'a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." ' " Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 373, 101 S. Ct. 669, 673, 66 L. Ed. 2d 571 (1981). The Court emphasized several of the important purposes served by the requirement of finality: the avoidance of piecemeal appeals and of the obstruction to just claims by permitting a succession of separate appeals from the various rulings to which litigation may give rise, as well as the promotion of efficient judicial administration. Id. As this court itself has reiterated,

[The finality] requirement has the support of considerations generally applicable to good judicial administration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a departure from this requirement of finality for federal appellate jurisdiction.

In re Corrugated Container Antitrust Litigation, 611 F.2d 86, 89 (5th Cir. 1980).

The present Board order, although determining a central issue of the claim--the method of calculating weekly compensation due--, remanded the proceedings to the Administrative Law Judge for further findings as to the actual weekly rate to be awarded and as to attorney's fees. It did not end the litigation on the merits, and no final administrative order awarding weekly compensation and attorney's fees would be entered until after the remand.

Under such circumstances, where in effect a central issue of liability has been determined to administrative finality by the Board but remand is ordered to calculate and make a specific monetary award, the decisions until the present have uniformly refused to consider the Board order of liability as "final" for purposes of judicial reviewability at that time, both in this circuit, United Fruit Company v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224 (5th Cir. 1977), and in other circuits, Director, Office of Worker's Compensation Programs v. Brodka, 643 F.2d 159 (3d Cir. 1981); National Steel and Shipbuilding Company v. Director, Office of Workers' Compensation Programs, 626 F.2d 106 (9th Cir. 1980); Newport News Shipbuilding Corporation v. Director, Office of Workers' Compensation Programs, 590 F.2d 1267 (4th Cir. 1978). As stated in one of the lead decisions applying this rule, " [i]t is a well-established rule of appellate jurisdiction ... that where liability has been decided but the extent of damages remains undetermined, there is no final order." Sun Shipbuilding & Dry Dock Company v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir. 1976).

The virtues of this rule are apparent. It avoids dual appeals on both liability and award, with the consequent doubled judicial appellate delays, in favor of a single review of the final administrative award. An injured worker, whose award is vacated by the Board for recalculation as to the properly exact amount of weekly compensation due, does not suffer the prolonged denial of compensation that will occur as his employer seeks judicial review of the singled issue of liability (which, moreover, in the preponderant number of cases will be affirmed) decided by a Board opinion that affirms liability but vacates and remands for exact calculation. The certainty of the rule of nonfinality in such instances permits all parties to rely on judicial review only after administrative remand and final calculation of the actual award, without being forced to take a precautionary appeal to the courts lest a failure to do so result in the loss of judicial review of the liability issue as determined by the Board's remand order, if it is subsequently characterized as "final" as to the liability decision.

In failing to follow this (until now) well-settled jurisprudential rule, the majority analyzes the facts and issues of this particular case, and decides that because in this particular case the appellate court decision now will determine the proper legal standard to be applied on the remand, and minimize the risk of a wasted agency hearing and later appeal, an appeal at this stage of the proceedings in this case will be more efficient and will not prejudice the parties (because the proper award of compensation cannot be made until the conclusion of the litigation). The majority concludes that we will "recognize appellate jurisdiction in this case where the substantive legal issue is clearly posed and all that will remain after it is decided is use of the record already completed to calculate the wage base for recovery."

Before noting some of the practical consequences to this newly created exception from the "finality" requirement for reviewability of administrative orders, I point out the tenuous authority upon which creation of this exception is based. Unlike all of the previously cited decisions, the majority does not advert to the traditional and quite limited exceptions to the finality rule rarely permitted. See, e.g., Brodka, supra, 643 F.2d at 163 & n. 9 (collateral order final in nature and severable from merits; irreparable injury; unresolved issues purely ministerial in nature); 16 Wright, Miller, Cooper and Gressman, Federal Practice and Procedure, Sec. 3942, see esp. at p. 314 (1977); 15 Wright, Miller and Cooper, Federal Practice and Procedure, Sec. 1910-13 (1976). Rather, the majority purports to find in Ingalls Shipbuilding Division v. White, 681 F.2d 275 (1982), a rather free-wheeling authority to dispense with the finality requirement in any individual case where the spectre of piecemeal review is not raised because in a given case the record is complete, the issue presented is a legal standard rather than a factual dispute, and the same legal issue (perhaps incorrectly decided initially by the Board) would recur on the subsequent resort to judicial review after the remand.

Ingalls, however, is a case presenting exceptional and distinguishable facts. The sole issue there concerned whether an administrative law judge had the power to approve a settlement, with an important collateral question as to the reviewability or not of a settlement so approved, as against contentions (ultimately upheld by us) that the judge was without authority to do so and that the Director, Office of Workers' Compensation Programs, did have standing to appeal the ALJ's order approving the compromise. The Board had upheld such power in the ALJ, but had remanded for his reconsideration of certain factors. Balancing competing considerations of piecemeal review and the danger of denying justice by delay in the decision of this crucial issue in the administration of the compensation act, Ingalls concluded that "the facts here fall within the unique situation that is established as an exception to technical finality in Gillespie [v. United States Steel Corp., 379 U.S. 148, 85 S. Ct. 308, 13 L. Ed. 2d 199 (1964).]" 681 F.2d at 279 (emphasis added).

Ingalls did not explicitly specify the unique and exceptional facts. However, its reference to Gillespie--where, as in Ingalls, there was a close or at least unresolved issue as to the appealability itself of the basic order (in Ingalls, on whether any order of an ALJ approving a settlement was reviewable at the instance of the Director)--would indicate to me that no blanket exception to finality was intended whenever, in a panel's view, the spectre of piecemeal review was not raised by deciding the initial appeal. That the "pragmatic finality" exception to finality recognized by Gillespie applies only in extremely limited and extraordinary circumstances may be recognized by the Supreme Court's recent characterization of that decision's holding:

In Gillespie, the Court upheld an exercise of appellate jurisdiction of what it considered a marginally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably 'implemented the same policy Congress sought to promote in Sec. 1292(b),' id., at 154, 85 S. Ct. at 312, and the arguable finality issue had not been presented to this Court until argument on the merits, thereby ensuring that none of the policies of judicial economy served by the finality requirement would be achieved were the case sent back with the important issue undecided.

Cooper & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S. Ct. 2454, 2462 n. 30, 57 L. Ed. 2d 351 (1978).

The present petition for judicial review of a Board order presents no unusual or unique circumstances such as are implicated in Gillespie or in the quite limited exceptions to finality previously recognized. Absent the present decision by the majority, there was no issue of marginal appealability that justified this court's immediate determination of the appealability issue and of the correctness of the underlying order. The issue decided, although important, is not of such national significance to the administration of the Act as to require its decision on this (premature) appeal rather than by the appeal from the final order that awards compensation and resolves all unsettled issues. Nor, for reasons to be set forth, does the new general exception to finality created by the majority avoid thwarting the purposes of the finality rule.

Rather, by importing into the finality concept a case-by-case measure of exception, in general application the newly created judicial exception substantially impedes these purposes of the finality concept and must inevitably result in multiple appeals, additional delays before final decision, and new issues of appellate jurisdiction that will impede the decision by judicial review of the merits of administrative orders. This may be illustrated by reference to the present proceedings.

The majority's exception permits immediate reviewability, despite technical non-finality, where the record is complete as to factual matters and where only a legal standard is at issue, immediate decision of which will facilitate the ultimate decision after remand. With regard to the present case, I note:

1. The majority assumes the record is complete, probably subconsciously influenced by its ultimate determination that Sec. 10(c) does not apply and that the record now contains all facts needed to decide under Sec. 10(b). Absent that determination, the record is not complete, as the Board recognized in vacating and remanding for additional findings of fact, including the taking of evidence if necessary, to make a proper weekly award under Sec. 10(c). If we had affirmed (instead of reversed) the Board's determination that Sec. 10(c) furnishes the proper measure of weekly disability compensation, the effect of our decision retaining appellate jurisdiction would be to remand (as the Board ordered on June 10, 1981, some eighteen months ago) to the Administrative Law Judge to calculate the weekly award, following which the employer (or the claimant) would be entitled once again to appeal this now-final order. Whether the majority had affirmed or reversed the Board's non-final order, however, in either event the majority's new exception rule builds into the administrative compensation-awarding processes an additional delay, in this case extending more than a year and a half (so far), by allowing an initial appeal as to the liability-standard, to be followed (quite possibly) by yet a second resort to the review process after, on remand, the ALJ fixes the rate of compensation and decides the subsidiary undecided issues, such as attorney's fees.

2. The employer sought judicial review of the Board's remand order, until now considered a non-reviewable non-final order. Assume that instead the parties had followed the previously accepted methodology, applying for judicial review only after a final order, and thus had complied with the remand and secured an expeditious administrative determination of unresolved issues, including the compensation, to be incorporated in a technically as well as actually final order. Upon judicial review from the true final order, the parties are faced with the possibility that, under the majority's new "pragmatic finality" exception, their failure to appeal the initial "final" order (determining only the standard of liability) forecloses subsequent review of the initial liability decision.³  What must the parties do to avoid this possibility? Obviously, to avoid this possibility, a party must seek initial review of the initial Board remand-order, although it involves considerable additional appellate delays (here, eighteen months so far), and although the court may decide that, after all, the appeal is premature because the order is not "final" under the flexible finality rule envisioned by the majority's new exception.

3. If the previously accepted concept of "finality" for purposes of judicial review had been followed in this case, then on the single judicial review the courts would be concerned only with the merits of the litigation. (If a party appealed despite the accepted rule, the usual practice in this court would probably result in a dismissal by summary order of an administrative panel, since the rule of finality previously followed was certain and was easily administerable.) Under the new rule of appealability sanctioned by the majority, a new adjective issue of appealability is injected into every appeal from a Board remand-order or from an order by the Board following an unappealed Board remand-order.⁴  Is or was the initial order "pragmatically" final? This will involve individual analysis in each case to determine whether where what the Board decided was a "legal standard" (instead of the factual application of a legal standard, a mixed law-fact question, for example) and whether the initial record was "complete" such that immediate judicial review of the initial order would add to the efficiency of disposition and would theoretically avoid the spectre of piecemeal judicial review. To replace the former certain definition of administrative finality, the majority substitutes a rule that requires case-by-case analysis in each individual appeal, that in many instances will result in the prolongation of judicial review by the frequent necessity of oral argument and collegiate interchange as to the variables now injected into this adjective issue of appealability per se--and one as to the application of which, I predict, reasonable appellate minds will differ. For the previously certain rule of "technical" as well as actual finality, the majority substitutes a flexible "pragmatic" finality rule of uncertain case-by-case application that must inevitably encourage precautionary interlocutory appeals, and their consequent delay, and that may in an appreciable number of cases delay the decision of the merits by injecting a complicated threshold adjective issue of appealability.

4. And what about the claimant (such as poor Roundtree, here), as the reviewing court entertains the initial appeal as to the legal standard of liability, despite a remand by the Board to calculate the weekly compensation. Here, back in June 1981, the Board vacated the provision of the order of the Administrative Law Judge awarding Roundtree a weekly compensation award, see Record Excerpts, p. 43, and remanded to that judge for him to make further findings and to take further evidence, if necessary, in order to calculate the proper weekly amount. We are informed that here the employer has continued to pay the claimant weekly compensation.

However, when the Board vacates the only order that requires an employer to pay weekly compensation, then--in the absence of a subsequent order by the administrative judge on the remand renewing the employer's obligation to pay weekly compensation--I would suppose that, as the Director in brief suggests, it is at least arguable whether the employer was obliged to continue to make compensation payments to its disabled employee before there was an administrative order fixing their actual amount. Should in such circumstances an employer terminate weekly compensation until an order as to its weekly amount is finally issued, the availability of interlocutory review of the Board's remand order (deciding the measure of liability, but remanding for calculation of the amount due) will add a considerable period of delay during which the disabled employee will receive no weekly compensation (here, more than eighteen months, so far), solely for the purpose of judicial review of the Board's interlocutory order. Only following conclusion of that interim lengthy judicial review of the measure-of-liability portion of the Board's remand-order, will the proceedings finally be remanded to the Administrative Law Judge to issue an order awarding weekly compensation in calculated amount--as would have occurred, absent interim judicial review, many months earlier. I cannot believe that either the purposes or intent of the compensation act are served by an interpretation of the judicially-reviewable "finality" provision of 33 U.S.C. § 921(c), that will insert such additional interlocutory-review delays that may disrupt for an appreciable time the continued payment of weekly compensation to an admittedly disabled employee solely for the purpose of affording interlocutory judicial review.

I sympathize with my brothers of the majority in their commendable desire to decide now a central issue of this proceeding, since the appeal is already here, because in this case they view it to be more efficient to do so, under the particular issue and record presented to us. I share their general view that formal procedural rules should be applied in the light of their function, and that a practical rather than a technical construction is often suitable to advance the end purpose of a procedural rule. Here, however, the very purpose of the finality rule is thwarted by the practical construction accorded it; although it may advance the efficient decision of this particular case, the flexible rule of pragmatic finality adopted by the majority will impede the efficient and expeditious decisions of many, many appeals from administrative remand-orders in the future. At the same time, the newly created exception to finality replaces with large elements of uncertain administration the previously certain and efficient rule of finality as accorded to Board orders. The need for clear and easily administered rules as to the threshold adjective issue of reviewability overrides any values of flexible case-by-case administration. As has been stated in a related context:

Although well-established rules of appealability might at times cause an action to be determined unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling the delay, harassment, expense, and duplication that could result from multiple or ill-timed appeals. The great value of the final judgment rule may well be that it combines generally effective review with guides sufficiently clear to prevent most of the great waste that could result from protective appeals and litigation over appellate jurisdiction. Earnest pursuit of a "practical approach" could quickly destroy this accomplishment.

15 Wright, Miller, and Cooper, supra, Sec. 3913 at p. 523.

I therefore must respectfully dissent from the majority's opinion.