05-6420

Barscz v. Director, OWCP

UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

_______________ August Term, 2006 (Argued: February

21, 2007 Decided: May 18, 2007) Docket No. 05-6420-ag

_______________ ANNA B ARSCZ (W IDOW OF C HARLES B ARSCZ ),

Petitioner , —v.— D IRE CTOR , O FFICE OF W ORKERS ’ C OMPENSATI ON P ROGRAMS A ND E LECTRIC B OAT C ORPORATI ON , Responde nts.

_______________ B e f o r e : K EARSE , C ABRANES , and K ATZMANN , Circuit Judges

.

_______________ Petition for review of a decision and order of the B enefits Review Board allowing a c redit for the entire a mount of a

settleme nt resolving var

ious state law clai ms to be tak

en aga inst a dea th benefits award pursuant to Section 3(e) of the L ongshore and Harbor Workers’ Compensation Act (“L ongshor eman’s A ct”). We

conclude that only the portion of the se

ttlement r elated to state law death benefit claims may be credited against the death bene fit award under the Longshoreman’ s Act and that on remand the party seeking to take the credit bears the bur den of proof in establishing the allocation of the settlement. REVERSED AND REMANDED.

_______________2

A PPEARING FOR P ETITIONER : C AROLYN P. K ELLY , O ’B ri en , S ha fn er , S tu ar t, Ke ll y & Morris, P. C., Groton , CT

A PPEARING FOR R ESP ONDENT S : P ETER D. Q UAY , Murphy and B eane, New London, CT for Respondent Electric Boat Corporation

M ATTHEW W. B OYLE , (Howard M. Radzely, Solicitor of Labor, Allen H. Fe ldman, Associate Solicitor, Mark A. Reinhalter, Counsel for Longshor e on the brief

), United States De partmen t of L abor, Washington, D.C. for Respondent Director, Office of Workers’ Compensation Progra ms

_______________ K ATZMANN , Circuit Judge : This case calls on u s in princ ipal par t to deter mine whet

her the e ntire amo unt of a st

ate law settlement covering both disability and death benefits may

be credited against an awa rd of death benefits under the L ongshore and Harbor Workers’ Compensation Act (“Longshore man’s Act” or “Act”), 33 U.S.C. § 901 et seq . For the reasons that follow, we hold that it may not and that only the portion of the settlement funds dire cted toward state law death benefit claims may be credited. Accordingly we remand to the Benefits Review Boa rd (“Board”) for fa

ct-finding regar ding the allocati on of peti

tioner’s prior sta te settle ment betw een dea

th benef its and disa

bility benefit s. Furthe

r, we hol d that on r

emand the

burden o f proof on the allo cation of the state settleme nt betwee n death a nd disabil ity b enefits l ies with th e party assertin g the cr edit.

I. Charles Barscz (“Mr. Barsc z”) worked at Electric Boat Corporation (a division of Ge neral3

Dynamics Corpora

tion) (“Electric Boat”) in New L ondon, Connecticut from 1950 through 1978. During his employme

nt he was regularly

exposed to asbestos and in November 1978 he was diagno sed with a sbestosis. Mr. Barscz sough t compens ation for

his injurie s sustaine d while working for Electric Boa

t under bo th the L ongshor eman’s A ct and und

er Conne cticut workers’ compensa tion laws. On June 21, 1984, Mr. Barscz and his wife Anna Barscz (“Mrs. Barscz”) entered into a settlement agreement (“Settlement”) with Elec tric Boat and three insurance compa nies resolving all “past, present and future” state law cla ims relating to injuries suffered by Mr. Barscz during his employment with Electric B oat. The Settlement covered a variety of injuries to Mr. Barscz including: illness associated with exposure to asbestos; shoulder, back and neck injuries; and hearing loss. It also cove red possible claims that Mrs. Barscz had or may have had “by

virtue of any exposure which [Mr. Ba rscz] had to harmful irritants including but not limited to asbestos . . . .” The insurers agreed to pay “to the claimant” $35,000, of which $5,000 covered the Barsczs’ “attorney ’s fees.” Pursuant to the terms of the Settlement, such pay ment would be accepted as a full a nd final s ettlemen

t for all c ompensat

ion for sa id injury , and for all results upon the claimant past, present and future, and for a ll claims past, present and futur e medica l, surgi cal, hosp ital and in cidenta l expenses

and all compensa tion which

may be due to a

nyone in cas e of the d

eath of t he claima nt, to the end th at the pa

yme nt of such sum shall c onstitute a

complete satisfac tion of all claims due or to become due at any time in favor of any

body on acc ount of the claimed i njury , or on ac count of a

ny c ondition in

any way resulting out of the

said injury , or on ac count of t

he death of the cl aimant. The Settlement was approved by the Compensation Commissioner for the Second Compensation1 The Special Fund is funded, in part, through annual a ssessments on covered employ ers by the Secre

tary. 33 U.S.C. § 944(c). The amount of that assessment is determined by several factors including the amount of pay ments under 8(f) that are attributable to the employ er. Id. § 944(c)(2)(B). 4 District on June 27, 1984. Mr. Barscz also sought compensation for his asbestosis under the L ongshoreman’s Act. In a decision dated De cember 3, 1984, administrative law judge Chester Shatz (“AL J Shatz”) determined that Mr . Barsc z was permanently disabled as of Nov ember 24 , 1978 and awarde d him compensation for permanent total disability from that date forward. AL J Shatz also determined that Mr. B arscz ha

d suffer ed from a partial d isability since at least 197 4, which w as when a chest x-ray first re vealed t o Electr ic Boat t hat Mr. B arscz ha

d lung a bnormalit ies includ ing emph yse ma and pulmonary fibrosis. AL J Shatz concluded that Electric Boat continued to employ Mr. Barscz de sp it e t ha t p ar ti al di sa bi li ty. Because AL

J Shatz determined that Mr. Barscz had a partial disability whe n he contracted asbestosis, Electric Boat was a ble to obtain the benefit of section 8(f) of the Longshoreman’ s Act. Section 8(f) provides that an employ er need only

compensate an employ

ee for two yea

rs when an employee with an “existing permanent partial disability” sustains a workrelated injury tha

t results in a permanent, total disability. 33 U.S.C. § 908(f) ; see also Sealand Terminals, Inc. v. G

asparic , 7 F.3d 321, 323 (2d Cir. 1993) (per curiam). After the employer has compensated the employee for two y ears, the obligation to compensate the employ ee shifts to a special fund (“Special Fund”) that is administered by the Secretary

of Labor (“Sec

retary ”). 33 U.S.C. § 908 (f); see also id. § 944 (est ablishing the Speci al Fund) ; Sealand Te rminals , 7 F.3d at 323. 1 Thus, ALJ Shatz ordered Electric Boat to compensa te Mr. Barscz for 104 weeks; after 1045

weeks any

“continuing benefits” would be paid by the Special Fund. The order did not mention the state settlement, which had already been approved, but it did provide that “[t]he Employer shall rec eive a credit for

all amoun

ts of comp ensation

previous ly p aid to the

Claimant a s a resul

t of his pulmonary injury .” Despite this statement, Electric Boat paid the entire 104 we eks of compensation without taking a credit for the Settlement. After that time the Spec ial Fund made disability pay

ments to Mr. Barscz until his death in September 1992. The Special Fund did not take any credit f or the Set tlement. Following Mr. Barscz’s death, Mrs. Ba rscz sought death benefits under the Longshor eman’s Act. In an order d ated J une 9, 2004 ( “Jun e 9 Orde r”), ad mini strat ive la w judge Colleen A. Geraghty

(“ALJ Gerag

hty”) conc luded that because Mr. Barscz’s “work-related lung disease hastene d [his] death ,” Mrs. B arscz wa s entitled to death b enefits. Further , ALJ Ge raghty determined that because the elements of 8(f) had been satisfied and Electric Boat ha d covered the first 104 weeks of Mr. Baracsz’s disability claim, the Special Fund was responsible for pay ing Mrs. Ba rscz’s de ath bene fits. Electric Boat moved for reconsider ation of the June 9 Order, and for the first time, raised the existence of the Settlement. It arg ued that under section 3(e) of the Act (“Sec tion 3(e)”) $30,000 should be credited against the Special Fund’s liability to Mrs. Barscz for death benefits. Section 3(e) provides that “[n]otwithstanding any other provision of law, any amounts paid to an employ ee for t he same i njury , disabilit

y, or death f

or which benefit s are cl aimed und er this chapter pursuant to any

other workers’ compensation law or [the Jones Act] shall be credited against any

liability imposed by

this chapter.” 33 U.S.C. § 903(e).2 Responsib ility for the a dministra tion of the

Long shorema

n’s Act ha s been de legate d to the Office of Workers’ Compensation Programs. See 20 C.F.R. § 1.2. Under Department of Labor reg ulations the Director may be represented in front of the Boar d “[o]n any issues requiring representation” by attorneys desig

nated by the Solicitor of Labor. Id. § 801.401. 6 ALJ Geraghty

granted the motion and modified her original orde r to reflect a credit for the entire amount of the Settlement. She acknowledged that disability and death benefits are separate claims under the Act but noted that Mrs. Ba rscz had signed the Settlement, which specific ally

mentione d death be

nefits an d conclud ed that “ [u]nder the se circ umstance s, it is appropriate to permit a credit aga inst the death and survivor benefits due under the Act for the amounts received in settlement of the State claim for death or survivor be nefits.” Turning to the question o f what po rtion of the Settleme nt to cre dit aga

inst the de ath bene fits, AL J Gerag hty concluded that under prior Board dec isions, because the Settlement resolved multiple claims and the record did not establish how the settlement funds were to be apportioned the “employers a

nd the Speci al Fund a

re entitl ed to off

set the e ntire amo unt paid to

the part ies under the State settlement.” While conceding that this was a “harsh” re sult, she noted that claimants were in the best positi on “to ens

ure that the settle ment ag reemen t specifi cally

apportions the amo

unts paid i

n settlement among the various claims.” The Director of the Office of Workers’ Compensation Programs (“Director”) a ppealed the ALJ’s decision to the Board. 2 Because any death benefits would be paid by the Special Fund, the Dire ctor was

an inter ested pa rty in both Mrs . Barsc z’s orig inal clai m for dea th benef its and in Electric Boat’s m otion for reconsi deratio n, but had

not appea

red in ei ther pro ceeding . On appe al, the Director argued that the burde n of proving the apportionment of the Settlement should have been placed on Electric Boat, not Mrs. B arscz, and that placing the burden on Mrs. Ba rscz was7

inconsistent with the Supreme Court’s holding in Director, OWCP v. Greenwich Collieries , 512 U.S. 267 (1994), that under the Administrative Procedure Act (“APA” ) a proponent of a rule or order bears the burden of proof. In a decision and order

dated September 29, 2005, a two-member majority of the Board affirmed ALJ Gerag

hty’s decision. The B oard focused its analy sis on the language of Section 3(e), w hich the B oard re ad to prov ide that a n amount pa

id to an em

ployee for a

state cla im “offsets any liabili ty

the employer ha s under the [Longshoreman’ s] Act that is related to that same injur

y, d isability or death .” (emph asis in ori ginal) . Based on that la nguag e, which

it viewed as “quite expansive,” the Board held that “in the a bsence of specific evidence of the apportionment of a state settlement . . . [the] employer is entitled to a c redit for the amount of the state benefits paid.” The Board’s dec ision did not address the question of the burden of proof. One membe

r of the B oard diss ented. T he dissen t emphasize d that Sec tion 3(e)credit is given for “amounts paid for the same injury, disability or death for which benefits are claimed .” (emphas is in orig inal). I

n the disse

nt’s view the use of

the pres ent tense

of claim was highl

y signific ant and si gnaled

that the c redit co uld only be taken for state funds paid for the same injury or death curren tly b eing cl aimed und

er the Ac t. Base d on that r

eading of the sta tute, bec ause only death bene fits were being claimed in the procee ding, only the portion of the Settlement that was inten ded to re solve sta

te law de ath claim s could be credite d again st the awa

rd to Mrs. Barscz. Turning to the allocation of the Settlement, the dissent ag reed with the Director that the party asser

ting the credit bore the burden of proof. Mrs. Barscz appealed the Boar d’s decision on November 23, 2005. The Director moved to dismiss the appeal as untimely, but that motion was denied on July 19, 2006. Barscz v. Dir.,8

OWCP , No. 05-6420 (2d Cir. July 19, 2006) (order de nying motion to dismiss).

II. In reviewing

a decision of the Board, our review is limited to whether the Board made any err ors of law and whether the findings of fa ct of the ALJ are supported by substantial evidence. Uzdavines v. Week s Marine, Inc. , 418 F.3d 138, 143 (2d Cir. 2005). Our review of questions of law is de novo , while mixed questions of law and fact are reviewed either de novo or under the clearly

erroneous standard “‘depending on whether the question is predominately legal or factual.’” Id. (quoting

from United States v. Selioutsky , 409 F.3d 114, 119 (2d Cir. 2005)).

A. Does Sec tion 3(e

) Allow th e Entire S

tate Settl ement To B e Credite

d Against th e Death Benefits Award? The principal question presented is one of statutory interpretation: Whether Section 3(e) of the Longshore

man’s Act allows the entire amount of the Settlement, which both parties conced e cover ed both dis ability

and dea th claims, to be cre dited ag ainst Mrs. Barsc z’s death benefit s. We beg in our inqu iry with the te

xt of the sta

tute; if it i s plain on i

ts face , that is, if

it is unambiguous, our inquiry usua lly ends. Whether statutory language is ambiguous is deter mined by “the lang

uage itself, the specific context in which that langua ge is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (1997). Section 3( e) limits th e credi t that can be taken to “any amounts pa

id . . . for the same3 Though on its face Section 3(e) is limited in application to “employ ees” it has been applied in cases involving their survivors as well. See Bouchard v. Gen. Dynamics Corp. , 963 F.2d 541, 543 (2d Cir. 1992). 9 injury, disability , or death for which benefits are cla imed under this chapter.” 33 U.S.C. § 903(e). 3 We view the words “are claimed” as cr itical in answering the question before us. When read tog ether wi

th the phr ase “the same injur

y, d isability , or deat h,” the us e of the present te nse unambig uously indicate s that only

those inju

ries cur rently being c laimed ca

n be cons idered i

n apply ing the Se ction 3(e ) credi t. The Boa rd reads Section 3 (e) diff

erently , rejec ting any

distinctio n betwee

n the dea th benefits being claimed by Mrs. Barscz and the disability be nefits that had previously be en claimed by Mr. B arscz: “In isolation, it is true that claimant herein soug ht only death benef

its. However, when decedent was a live, he claimed , and was awarded, disability benefits under the Act. The two cases are integr al in that they are

both related to the same injury . . . .” As the Board’s own opinion makes evident, to sustain its interpretation of Section 3(e) the B oard was compelled to read the words “are cla imed” as including both the present tense and the past te nse of the verb “claim” despite the fact that whe n given their plain meaning, the words re fer only to the present tense. The Board’s appr oach runs afoul of the rule that “Congre ss’ use of a verb tense is significant in construing statutes,” United States v. Wilson , 503 U.S. 329, 333 (1992). Its reading of

Section 3(e) is therefore not supported by the language of the statute. While our analysis could rest on the text of the statute alone, ther e are three other reasons we adopt our reading of Section 3(e) and not the one adopted by the Board. First, Section 3(e) lists “injury, disability , or death” in the disjunctive, signify ing a distinction among the three. 334 The Act also provides separately for medical treatment for injuries. 33 U.S.C. § 907. 10 U.S.C. § 903(e). We have previously held that when disability and dea th are listed in the disjunctive in the Longshoreman’s Act, they should be trea ted independently, e

ven when the death and disability wer

e caused by

the same event. See Int’l Mercantile Marine Co. v. Lowe , 93 F.2d 663, 664-65 (2d Cir. 1938). In Lowe , we rea d section 14(m) of the L ongshor

eman’s A ct, which limited the “total compensation paya ble under this chapter for injury or death” to $7,500, 33 U.S.C. § 914(m) (repealed 1972), to separately limit to $7,500 compensation for injuries sustained in an accident and compensation in the form of death be nefits for the same accident. Id. at 665. In rejecting

the argument that the combined value of disability and death benefits for the same accident should be limited to $7,500, we noted that death and disability benefits are “separately

provided for by se

parate sections of the act and acc rue on different bases,” and that the right of widows and next of kin to death benefits “is entirely separate and distinct from the compensation for disability allowed the employee.” Id. at 664-65. 4 By lumping t

ogethe r Mrs. Barscz’s death claim and Mr. Barsc z’s disability claim despite the use of the disjunctive, the Board’s reading of Section 3(e) is in tension with the understanding of the L ongshoreman’s Act that guided our analy sis in Lowe

. Second, our reading is supported by Section 3(e)’s legislative history . Congress passed Section 3(e) to overrule United Brands Co. v. Melson , 594 F.2d 1068 (5th C ir. 1979) , a Fifth Circuit de cision tha

t read th e Lon

gshore man’s Ac t to allow a

n employ ee to re cover f

or the sa me heart attack for which he had alre ady rec eived compensation in a state proceeding. I n Melson , the employee soug

ht compensation from different employ ers in the state and federal actions; the issue was not that one employer had been made to pay

twice but that a single claimant had5 While the le gislativ e history also state s that the “ scope of the offs et is to be broadly construed,” that statement refers to the fact that it applies “not only to instances where the employee re ceived State workers’ compensation” but also to benefits re ceived under other federal statutes. 130 Cong. Rec. 8326. 11 recovered twice for the same injury

. Id. at 1075. The Fifth Circuit began its discussion by noting that ther e was not hing in th e Lon

gshore man’s Ac t that allo wed an e mploy er to hav e its liabi lity offset by compe

nsation received for the same event under state law. Id . It then asked whether “any ove rriding policy

” required that the federal awa rd be reduced. Id . The Fif th Circuit

reasone d that bec ause the claimant was see king co mpensation from two differe nt employ

ers, either the employe

r who was liable under the L ongshoreman’s Act or the claimant would rec eive “a windfall” and that “[u]ntil Congress is moved by this unusual situation, we think that the solution to this difficult problem is to allow the windfall of double recovery to reside with the injured worker.” Id. It was this windfall to claimants that Congress soug ht to overrule in adding Section 3(e) to the Longshoreman’ s Act. See 130 Cong. Rec. 8326 (“[T]he offset is intended to apply where the employee’ s non-Longshore c laim is against an employer other than the one against whom he has filed a Longshor

e claim. Accordingly , the court’s decision on this point in Melson . . . is overrul ed.”); 1 30 Cong. Rec. 2590 5 (same) ; see also E .P. Paup Co . v. Dir., OWCP , 999 F.2d 1341, 1350 (9th Cir. 1993) (noting that Congress was attempting to overr ule Melson and addr

ess the issue of double-recovery when it passed Section 3(e)). 5 The reading of Section 3(e) we adopt is consistent with Congress’s purpose of limiting double recoveries for the same injury by

the same claimant; the reading adopted by the Board would go bey

ond Congress’s limited purpose of preventing double recovery by the same claimant

and would

decrease awar

ds based o

n amounts6 This reading of Section 3(e) is consistent with how other courts have applied section 14(j), which allows employe rs to be reimbursed from unpaid installments or pay ments for “advance pay

ments of c ompensat

ion.” 33 U .S.C. § 914(

j). I n determ ining wh ether un

paid installme nts can be a source for reim burseme nt, other circuits have en sured tha

t the cre dit is given against the funds going to the same claimant that received the advance payment. See, e.g. , Cooper/T. S

mith Stev edoring Co . v. Liuzza , 293 F.3d 741, 748 (5th Cir. 2002) (distinguishing betwee n disabilit y pa yme nts made to

widow as r

eprese ntative o f deced

ent’s es tate and

death benefits, which were paid directly to the widow).

12 pr ev io us ly r ec ei ve d b y other claimant s ( i.e. , the dec eased sp ouses of c laimants s eeking death benefits). In the instant case , the Board’s interpretation would credit disability benefits recovered

un de r s ta te la w b y Mr. Barscz agains t Mrs. Barsc

z’s federal death benefits. The Boa rd’s inter pretat ion t herefo re exc eeds C ongres s’s pu rpose in ov errul ing Melson , which was to preclude individual claimants from collecting the same benefits more than once

. Third, our reading is consistent with how other circuits have a pplied an analogous section of the Act which also addresses the problem of double-r ecovery . Section 33(f) provides that if a “person entitled to compensation” under the L ongshoreman’s Act recovers for the same “injury or death” against a third party , the employer may

offset the net amount recovered from the third party ag ainst the amount it is required to pay. 33 U.S.C. § 933(f) . In apply ing section 33(f), the circuits have he ld that whe

re a thir d-party pay ment cove

rs multiple

parties, an employ

er can only apply a cr edit for that portion of the pay ment that goes to the claimant under the L ongshoreman’s Act. See Forc e v. Dir. , OWC P , 938 F.2d

981, 985 ( 9th Cir. 199 1); see also Bundens v. J.E. Brenneman Co. , 46 F.3d 2 92, 304-0 5 & n.27 ( 3rd Cir. 19 95); I.T.O. Corp. of Balt. v. Sellman , 967 F.2d 971, 972-73 (4th Cir. 1992). 6 In its decision below, the Board disting uished cases apply ing section 33(f

) becau se while s ection 33 (f) limits its credi t to the “p erson en

titled to compensation,” 33 U.S.C. § 933(f), such limiting language “is absent from Section 3(e).” But7 We note that our reading of Section 3(e) is consistent with the position taken by the Director in his brief. We grant defer ence to the Director’s interpretation of the L ongshoreman’s Act, Fleischm ann v. Dir

., OW CP , 137 F.3d 131, 136 (2d Cir. 1998), so long as the Director’s interpretation is “reasonable and consistent with the statute,” Lockheed Martin Corp. v. Morganti , 412 F.3d 407, 411 (2d Cir. 2005). The Director’s reasona ble interpretation of Section 3(e) “brings at least some added pe rsuasive force to our conclusion.” Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 136 (1997). 13 the distinction the Board sought to draw is premised on its mistaken view that the use of the present tense of claim in Section 3(e) does not limit the credit to the specific injury , disability or death claimed. Because we think Cong ress’s choice of verb tense is significa nt, we believe Section 3(e), like section 33(f), contains limiting languag e and thus cases apply ing section 33(f) are instructive. In sum, we hold that Section 3(e) limits the credit that can be taken to amounts paid for th e s am e i nj ur y, d ea th or di sa bi li ty currently being c laimed under the L ongshor eman’s A ct. 7 The Board e rred wh en it rule d the enti re $30,0 00 of the Se

ttlement c ould be cr

edited a gainst M rs. Barscz’s death benefits. While the only “injury, disability , or death” at issue in this case is Mr. Barsc z’s death , the Settle ment cove

red both c laims for

Mr. Barscz’s dea

th and cla ims relat ing to Mr. Barscz’s injury . In order to appropria tely limit the credit to the death bene fits being claimed, the Settlement amount must be apportioned between the amount paid to settle Mr. Barscz’s injury and disability

claims and the amount paid to settle Mrs. Barscz’s future death cla ims. The text of the Se

ttlement provides s cant gu idance on this issue

and on re mand it may

be nece ssary

to conduct f urther f act-fin ding. Th ere re

mains the q

uestion of who bears the burd

en of pro of on this apportionment. It is to that question that we now turn. B. Who Bears the Burden of Proof on Allocation of the State Settlement ?8 To the exte nt that Section 3(e)can be u nderstoo d to opera

te as an a ffirmat ive defe nse to liability under the Long shorema

n’s Act, w e take no te of the Supreme C ourt’s ob servation in Greenwich Colleries that requiring a party asserting an affirmative defe nse to bear the burden of proof on that defense is consistent with section 7(c). 512 U.S. at 278.

9 While the position we adopt is consistent with the views of the Director, this does not add any pe

rsuasive force to our conclusion. The Director is not charged with administering the APA and his views are not entitled to deference. Rambo , 521 U.S. at 137 n.9. 14 The adjudicative procedures for cla ims brought under the Long shoreman’s Act are gover ned by the APA. 3 3 U.S.C. § 91 9(d) (he arings under the Long shorema

n’s Act c onducted

in accord ance wi th APA); see also Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 138 (1997). Under section 7(c) of the APA “the proponent of a rule or order has the burden of proof.” 5 U.S.C. § 556(d). In Rambo , the Supre me Court explained th at when a n employ er seek s to modify a compensa

tion award due to a “change in c onditions” under section 22 of the Longshoreman’ s Act, the employer is the proponent of the order seeking modification and thus section 7(c) of the APA dictates that the employ er bears the burden of proof. Rambo , 521 U.S. at 139. We see no reason to treat a motion to modify an award by

claiming a credit under Section 3(e) an y di ffere ntly than a mot

ion to modif

y a n award under se ction 22. We

conclude that a pa rty seeking to claim a credit under Section 3(e) is a proponent of the order and, under section 7(c ) of the APA, that party bea

rs the burden of proof in proving that a cre dit should be applied. 8 It is bey ond cavil that when a party bears the burden of proof, it bears that burden f or each element o f its clai

m. As we ha

ve explained, it is a necessa ry element o f the Sec tion 3(e) credit that the amount paid to the employee or their survivor be for the same injury claimed. Thus the burden o f proof on the issue of alloc ation lies

with the pa

rty seeking the cre dit, Elec tric Boa

t. 9 Placing the burde n of proof on the pro

ponent of the Secti on 3(e) c

redit is c onsistent w

ith15

how courts have applied section 33(f), a section of the Longshoreman’ s Act which we have already noted is analogous to Section 3(e). See Force , 938 F.2d at 985; I.T.O. Corp. , 967 F.2d at 973. While t

he decis ions under

section 3 3(f) re ly, not on the A PA, but on th e “over

all humanitarian policy” of

the Longshoreman’ s Act which requires that “all doubtful questions of fact be resolved in favor of the injured employ ee,” Force , 938 F.2d at 985 (quotation marks omit ted), we vie w thei r reaso ning as provi ding ad diti onal s uppor t for o ur hol ding. For the reasons stated above, we hold that in apply ing Section 3(e) the burden of proof lies on the party that see

ks to apply the cre dit. On remand Electric Boat will bear the burde n of proof on t he alloc ation of the Settleme nt.

III. For the reasons set forth above, we hold that under Section 3(e) only the por tion of the Settlement that covered Mrs. Barscz’s state law dea th claims may be cr

edited against her Longshoreman’ s Act death benefits. Further, we hold that on rema nd, the party cla

iming the Section 3(e) credit, Electric Boat, bea rs the burden of proof in establishing the apportionment of the Settle ment. The

Septembe

r 29, 2005 decision

and orde r of the B oard is REVERSED , and

we REMAND for further proceedings c onsistent with this Opinion.