1The LHWCA provides that the time for filing a hearing loss

claim does not begin to run "until the employee has received an

audiogram ... which indicates that the employee has suffered a loss

1

United States Court of Appeals,

Fifth Circuit.

No. 96-60676.

Lovett R. WILKERSON, Petitioner,

v.

INGALLS SHIPBUILDING, INC.; Director, Office of Workers'

Compensation Programs, United States Department of Labor,

Respondents.

Oct. 23, 1997.

Petition for Review of a Decision of the Benefits Review Board.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

In 1972, Lovett Wilkerson retired after working fourteen years

at the shipyard of Ingalls Shipbuilding, Inc. ("Ingalls"), in

Pascagoula, Mississippi. The year before he retired, his average

weekly wage was $167.70. In 1992, he underwent tests that revealed

he suffered a permanent hearing loss in both ears, and the parties

agree that he suffered a binaural hearing impairment of 19.23%. It

is undisputed that his hearing loss was a result of the noise to

which he was exposed at Ingalls and thus that the injury occurred

in the course of his employment.

In March 1992, Wilkerson notified Ingalls of his disability

claim under the Longshore and Harbor Workers' Compensation Act

("LHWCA"). It is undisputed that the claim was timely filed.1
of hearing." 33 U.S.C. § 908(c)(13)(D). 

 

2This figure was based on the fact that Wilkerson's stipulated

19.23% hearing loss entitled him to 38.46 weeks of compensation at

a rate equal to two-thirds his average weekly wage of $167.70. See

33 U.S.C. § 908(c)(13)(B) (permanent partial binaural hearing loss

compensated by 200 weeks' wages, discounted by degree of loss). 

 

3A person suffering hearing loss after prolonged exposure to

excessive noise is deemed to have been injured on the last day he

was exposed. Bath Iron Works Corp. v. Office of Workers'

Compensation Programs, 506 U.S. 153, 165, 113 S.Ct. 692, 699-700,

121 L.Ed.2d 619 (1993). Here, the last exposure was the day of

Wilkerson's retirement on October 6, 1972. 

2

Although Ingalls controverted the claim, it nevertheless began

compensating Wilkerson, paying him $4,299.83 between April 1992 and

May 1993, based on the scheduled compensation under the LHWCA.2

Despite this payment, Wilkerson pursued his claim before an

administrative law judge ("ALJ"). In addition to the $4,299.83, he

sought attorneys' fees, penalties, and prejudgment interest from

the 1972 date of his injury.3

At a hearing before the ALJ, Ingalls argued that it had in

fact already overcompensated Wilkerson for his injury. Under the

statutory scheme in force at the time of his injury—upon his

retirement—it owed only $2,692.20. Ingalls maintains this argument

on appeal.

At the time of Wilkerson's retirement, the LHWCA allowed a

maximum benefit of only $70 per week: much less than the $111.80

to which Wilkerson would otherwise have been entitled under § 908.

After Wilkerson retired but before he filed his claim, Congress

amended the LHWCA to provide a much higher maximum benefit,

determined yearly by the Department of Labor as a factor of the
3

national average wage. See 33 U.S.C. § 906. Thus, on November 26,

1972, the cap jumped to $167 and has been increasing with inflation

ever since.

The ALJ agreed that Ingalls owed only the $70 weekly maximum,

and held that because Wilkerson was entitled only to $2,692.20, he

must reimburse Ingalls for its overpayment. The ALJ further ruled

that Ingalls was not liable for penalties or attorneys' fees. The

ALJ's decision was affirmed by the Benefits Review Board ("BRB") by

operation of law on September 12, 1996. See Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, §

101(d), 110 Stat. 1321, 1321-219 (1996).

II.

The petition for review presents two distinct questions. The

first—made apparent by the above recitation of facts—is whether

Wilkerson should receive compensation according to the maximum rate

in effect at the time of his injury (his retirement), or instead

according to the maximum at some later time. This question is

easily resolved, as the statute makes plain that compensation is

governed by the maximum rate in effect at the time of an award.

The second question—not so straightforward—is from what date,

if at all, prejudgment interest ought to be calculated.

Particularly in light of the twenty-year lag between Wilkerson's

injury and his claim, it matters very much whether interest should

be awarded from the date of his injury, the date of his claim, or

the date his compensation became due.

We are informed in part by Strachan Shipping Co. v. Wedemeyer,
 

4Ingalls states in its brief: "Solely for purposes of this

claim, Employer would be agreeable to an Order of this Court which

vacates the [ALJ's] holding that Claimant must reimburse Ingalls

the overpayments made." 

4

452 F.2d 1225 (5th Cir.1971), which upheld an award of prejudgment

interest under the LHWCA, dating from the time compensation becomes

due without an award. Strachan did not decide whether an award of

prejudgment interest under the compensation provisions of the LHWCA

might accrue from the time of the injury. For the reasons set

forth below, we conclude that it may not.

III.

We give deference to an ALJ's findings of fact. Miller v.

Central Dispatch Inc., 673 F.2d 773 (5th Cir. Unit A 1982). The

BRB, however, "is not a policymaking agency; its interpretation of

the LHWCA thus is not entitled to any special deference from the

courts." Potomac Elec. Power Co. v. Director, Office of Workers'

Compensation Programs, 449 U.S. 268, 279 n. 18, 101 S.Ct. 509, 515

n. 18, 66 L.Ed.2d 446 (1980); see McDermott, Inc. v. Boudreaux,

679 F.2d 452, 456 n. 5 (5th Cir.1982).

IV.

We begin by noting that on appeal, Ingalls has waived its

claim to reimbursement.4 Wilkerson therefore would keep the

$4,299.83, regardless of whether we find that amount was legally

due. The amount of compensation originally due is relevant

nonetheless, for it constitutes the principal amount on which

prejudgment interest, if any, would be due.

The LHWCA, as amended, calls for the Secretary of Labor yearly
5

to calculate the "national average weekly wage" and provides that

200% of this sum be the maximum compensation available under the

LHWCA. 33 U.S.C. § 906(b). The same statutory provision resolves

the question before us. It provides that a given year's maximum

compensation "shall apply to employees or survivors ... newly

awarded compensation during such [year]." 33 U.S.C. § 906(c)

(emphasis added).

Wilkerson was "newly awarded compensation" by the ALJ on

November 10, 1993. The maximum weekly compensation available

during that year was $738.30. Wilkerson's scheduled compensation

of $111.80 falls well below that maximum. Therefore, he is

entitled to the full amount of scheduled compensation under §

908(c)(13)(B), the amount originally paid by Ingalls: 38.46 weeks

at $111.80 per week, or $4,299.83.

We reject Ingalls's objection that the amended act—and the

more generous maximum—should not be applied "retroactively." In

addition to the unequivocal statutory imperative here, we note that

"application of new statutes passed after the events in suit is

unquestionably proper in many situations. When the intervening

statute authorizes or affects the propriety of prospective relief,

application of the new provision is not retroactive." Landgraf v.

USI Film Prods., 511 U.S. 244, 273, 114 S.Ct. 1483, 1501 (1994).

V.

Wilkerson claims prejudgment interest commencing on the date

he was injured. Ingalls maintains that the ALJ was correct in

finding that prejudgment interest began to accrue only on the date
 

5This is the source of the old, but now little-regarded, rule

that prejudgment interest is awarded only on liquidated claims—that

is, claims in which the precise amount of damages is ascertainable.

Liquidated claims—for example, where contract payments are

wrongfully withheld—present the most obvious case in which full

compensation must include payment for the time value of the money

payable as damages. See Michael S. Knoll, A Primer on Prejudgment

6

Wilkerson made his claim known.

The LHWCA does not provide for prejudgment interest. This

circuit, however, approved of such awards in Strachan, noting that

"an employee does not receive full compensation due him where an

employer controverts his right unless interest is added to the

delayed payments." 452 F.2d at 1229. The question, then, is not

whether prejudgment interest is appropriate in LHWCA cases, but

from what date it begins to accrue. To our knowledge, no court has

directly addressed this issue.

A.

There is a "general rule that prejudgment interest should be

awarded in maritime cases, subject to a limited exception for

"peculiar' or "exceptional' circumstances." City of Milwaukee v.

Cement Div., Nat'l Gypsum Co., 515 U.S. 189, 195, 115 S.Ct. 2091,

2095, 132 L.Ed.2d 148 (1995), quoted in Probo II London v. Isla

Santay MV, 92 F.3d 361 (5th Cir.1996). The purpose of prejudgment

interest is the basic principle of compensatory damages: that the

injured party should be made whole. In the parlance of admiralty

courts, "restitutio in integrum is the leading maxim applied ... to

ascertain damages." Id. at 196, 115 S.Ct. at 2096 (collision

case). In order to compensate an aggrieved party fully, he must be

compensated for the loss of use of the money due as damages.5
Interest, 75 TEXAS L.REV. 293, 298 (1996). 

7

Recognizing this principle, admiralty courts generally have awarded

prejudgment interest accruing from the time the damage was

incurred. See, e.g., In re Oil Spill by Amoco Cadiz, 954 F.2d

1279, 1335 (7th Cir.1992) (prejudgment interest award of about $128

million).

If Wilkerson's case sounded in negligence against a vessel

under 33 U.S.C. § 905(b), the law guiding our decision would be

relatively evident. In such cases, the award of prejudgment

interest is left essentially to the district court's discretion and

is reviewable only for clear error or abuse of discretion. See,

e.g., Koch Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178,

1183 (5th Cir.1996). And although it is within a court's

discretion to borrow the prejudgment interest law of the state in

which it sits, under the exclusivity provisions of the LHWCA it is

the federal maritime law that applies. Webster v. M/V Moolchand,

730 F.2d 1035, 1040 (5th Cir.1984).

B.

Here, however, Wilkerson sued his employer under the

compensation provisions of the LHWCA, 33 U.S.C. § 904. This

presents a different circumstance. The amount of a compensation

award for permanent partial disability leaves almost no room for

discretion. The Act, id. § 908(c), spells out detailed payment

terms for virtually every conceivable injury. With few
 

6The most notable exception to this bright-line scheme is §

908(c)(20), which calls for "proper and equitable compensation not

to exceed $7,500" for serious disfigurement. Even here, we note

that a bright-line maximum is imposed. 

8

exceptions,6 all that is needed to formulate an award is a

determination of the disability, knowledge of the wages of the

worker and of the maximum compensation amounts, and a calculator.

The certainty of this scheme is not an accident. In return

for a no-fault rule, 33 U.S.C. § 904(b), employers and insurers

gain the benefit of relative certainty in their prospective

liability, and the system gains from the reduced transaction costs

associated with the presumably efficient administration of the

scheme.

Working within this framework, and abiding by the text of the

statute, we must decline to adopt any rule that would change the

amount of statutory compensation. Under the statute, an employee's

compensation becomes due, if not controverted, fourteen days after

he files notice, even absent an award. 33 U.S.C. § 914(a),(b).

The amount of compensation due is explicitly set by statute. See

33 U.S.C. § 907. To hold that an employee is entitled to interest

dating from the time he is injured would be to alter the amount of

compensation he is due under the statute and thus to undermine the

will of Congress.

This reasoning is in accord with Strachan. There, the Deputy

Commissioner sought to award prejudgment interest "from the time

payment would have been due, had not the employer controverted the

right to compensation." Id. at 1226. Nowhere in that opinion, or
9

in any other, was there a hint that prejudgment interest would be

appropriate from the time of injury.

Further, a rule that interest may accrue only from fourteen

days after the date of the claim not only is necessitated by the

terms of the statute, but also is consistent with the overall

scheme embodied in it. To allow interest from the time of injury

would introduce uncertainty into an otherwise straightforward

inquiry. In this case, Ingalls would not have known—and would not

have been able to pay immediately—the exact amount due Wilkerson,

as the rate, availability, and accrual date of prejudgment interest

would almost certainly be the subject of dispute.

Furthermore, the result we reach lends incentives to both

employees and employers. One of the reasons we upheld interest

awards in Strachan was to eliminate the incentive employers

otherwise would have to controvert—and thus delay—the payment of

meritorious claims. 452 F.2d at 1229-30. This rationale would not

be furthered by an award of interest dating from the injury, where

no claim has yet been made. On the contrary, such an award would

create an incentive for an employee to delay bringing any claim he

might have, secure in the knowledge that his employer would deliver

a risk-free return on the unpaid claim. For these reasons, then,

we decline to extend Strachan to allow prejudgment interest under

the LHWCA accruing from the date of the injury.

C.

Applying this rule to the present facts, we conclude that

Wilkerson is not entitled to prejudgment interest. Although
10

Ingalls controverted Wilkerson's March 12, 1992, claim, it

voluntarily began compensating him on April 7, 1992. The first

installment would have become due fourteen days after the claim was

filed, i.e., on March 28. Because Ingalls began compensating

Wilkerson but delivered its first payment late, we must again look

to the statute, which provides a remedy for late payments.

The LHWCA provides an exclusive remedy for the late payment of

compensation installments by stating that "[i]f any installment of

compensation payable without an award is not paid within 14 days

after it becomes due ... there shall be added to such installment

an amount equal to 10 per centum thereof." 33 U.S.C. § 914(e).

The statute thus allows a fourteen-day grace period for

compensation payments, after which a substantial penalty is

charged. The availability of this statutory remedy precludes the

availability of the judge-made remedy of prejudgment interest where

installment payments are made, but arrive late. Because Ingalls

commenced payment less than fourteen days after March 28 and

continued payment in accordance with the statute, it does not owe

interest or penalties.

VI.

The only remaining issue is Wilkerson's request for attorneys'

fees. It is now apparent that his attorneys gained him nothing

more than the $4,299.83 Ingalls had tendered before he brought the

matter before the BRB. He therefore is not entitled to recover

attorneys' fees. See 33 U.S.C. § 928(b).

VII.
11

In sum, we conclude that the ALJ erred by reducing Wilkerson's

compensation award to reflect the statutory maximum in effect on

October 6, 1972, and that Wilkerson is entitled to the $4,299.83 in

benefits paid. He is entitled to neither prejudgment interest nor

attorneys' fees. We GRANT the petition for review, VACATE the

decision of the BRB, and REMAND for further proceedings consistent

with this opinion.