UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 01-60643

__________________

COOPER/T. SMITH STEVEDORING COMPANY,

INCORPORATED,

Petitioner,

v.

ROSEMARY LIUZZA, Widow of Jake Liuzza;

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

Respondents.

______________________________________________

Petition for Review of an Order of the Benefits Review Board

______________________________________________

June 5, 2002

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Cooper/T. Sm

i th Stevedori

ng Com pany, Incorporated (Cooper/T. Smith), petitions for review

of a final order of the Benefits Review Board (BRB) issued January 10, 2000, and a final order of

the BRB issued June 29, 2001, affirming a decision and order on remand by an administrative law

judge (ALJ) awarding disabilit y and death benefits pursuant to the Longshore and Harbor Workers'

Compensation Act (LHWCA ), 33 U.S.C. § 901 et seq. (1994). In its petition, Cooper/T. Smith2

raises an issue of first impression: whether 33 U.S.C. § 914(j) entitles an employ er to a credit or

offset against a widow’s death benefits for the overpayment of disabilit y benefits erroneously awarded

by the ALJ. Cooper/T. Smith also argues that the BRB erred in finding substantial evidence

demonstrati ng t hat the employee’s lung disease was causally related to his employment with

Cooper/T. Smith and that Cooper/T. Smith was the last responsible employer. Finding no error, we

deny the petition for review.

I. BACKGROUND

Jake Liuzza, now deceased, worked as a longshoreman for numerous employers between

1947 and 1984. During this time period it is alleged that he was exposed to asbestos. He voluntarily

retired in 1984. In May 1993, he was diagnosed as having squamous cell carcinoma, a malignant lung

cancer. Later that month, a left upper pulmonary lobectomy was performed. The cancer reappeared

in August o f 1994, and a second resection was performed. He died on September 30, 1994.

Subsequently, Liuzza’s widow, Rosemary Liuzza (widow), filed a claim under the LHWCA, seeking

death benefits as well as disability benefits on behalf of the decedent.

The ALJ found that the widow had established a causal rela t io nship between Liuzza’s

employment and his lung cancer. The ALJ also determined that Liuzza had been totally disabled from

May 18, 1993 through the date of his death on September 30, 1994. Accordingly, the ALJ awarded

permanent partial disabilit y compensation based u po n a one hundred percent impairment for the

relevant time period pursuant to 33 U.S.C. § 908(c)(23), death benefits pursuant to § 909, and funeral

expenses.

Cooper/T. Smith appealed, arguing that the ALJ erred in concluding that i t was the

responsible employer, that the widow had established a causal relationship between the employment3

and the lung cancer, and that Liuzza had been totally disabled. The BRB vacated the finding with

respect to the extent of Liuzza’s disabilit y prior to his deat h and remanded the case for

reconsideration of the extent of impairment pursuant to the American Medical Association Guides

to the Evaluation of Permanent Impairment (4th ed. 1993). The BRB affirmed the decision in all

other respects.

On remand, the ALJ found that the decedent was not entitled t o any permanent partial

disabilit y benefits from June 1, 1993, t hro ugh July 27, 1994, but was entitled to compensation

benefits based on a fifty-one percent impairment rating from May 18, 1993, to May 31, 1993, and

from July 28, 1994, until his death. The ALJ rejected Cooper/T. Smith’s claim that it was entitled

to an offset of overpayment of disabilit y b enefits already paid against death benefits it owed the

widow. The BRB affirmed the ALJ’s decision and order on remand. Cooper/T. Smith now petitions

this Court for review of the BRB’s decisions.

II. ANALYSIS

A. Standard of Review

We r eview st atutory interpretation by the BRB d e novo

. E quitable Equip. Co. v. Dir.,

OWCP

, 191 F.3d 630, 631 ( 5t h Cir. 1999). Further, our review of BRB decisions is limited to

considering errors of law and whether the BRB properly concluded that the ALJ's factual findings

were supported by substantial evidence on the record as a whole. S ee Darby v. Ingalls Shipbuilding,

Inc

., 99 F.3d 685, 688 (5th Cir. 1996); s ee also 20 C.F.R. § 802.301(a) (setting forth BRB's scope

of review of ALJ's decision). "Substantial evidence is that relevant evidence--more than a scint illa but

less than a preponderance--that would cause a reasonable person t o accept the fact finding."

Director, OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997). This Court “may4

not substitute our judgment for that of the ALJ, nor reweigh or reappraise the evidence, but may only

deter mine whet her evidence exists to support the ALJ’s findings.” P ool Co. v. Cooper, 274 F.3d

173, 178 (5th Cir. 2001) (internal quotation marks and citations omitted).

B. Denial of Offset for Overpayment under 33 U.S.C. § 914(j)

As previously set forth, Cooper/T. Smith paid disabilit y benefits erroneously awarded by the

ALJ’s init ial decision and order. Relying on 33 U.S.C. § 914(j), Cooper/T. Smith challenges t he

ALJ’s denial of its request to offset against the death benefits due to the widow any overpayment of

the employee’s disability benefits. This appears to be a question of first impression.

Like other workers’ compensation programs, the LHWCA “represe nts a com promise between

the interests of injured workers, who receive a certain and immediate recovery, and the interests of

employers and insurers, who in turn receive definite and lower limit s on potential liabilit y than would

have been applicable in common-law tort actions for damages.” C eres Gulf v. Cooper, 957 F.2d

1199, 1205 (5th C ir. 1992) (internal quotation marks and citations omitted). With respect to

reimbursement, we have explaine d t hat the LHWCA does not provide a basis upon which an

employer may recover overpayments directly from the employee. I d. Recovery of any overpayment

“can only be an offset against future LHWCA compensation.” Id.

In answering any statutory question, we begin with the language of the statute itself. United

States v. Ron Pair Enterprises

, 489 U.S. 235, 241, 109 S.Ct. 1026, 1030 (1989). Section 914(j) is

entitled “Reimbursement for advance payments,” and provides that: “If the employer has made

advance payments of compensation, he shal l be ent itled to be reimbursed out of any unpaid1 The LHWCA contains only two other provisions for recovery of overpayment fro m t he

employee, §§ 908(j) and 922. Ceres Gulf, 947 F.2d at 1205. As with § 914(j), those two sections

only allow recovery from the employee’s unpaid compensation. Cooper/T. Smith does not allege that

these sections apply to the instant claim.

2 Cooper/T. Smith does cite a BRB decision. H awkins v. Harbert Int ernational, Inc., 33

BRBS 198 (1999). However, because the BRB is not a policy-making agency, we owe its decisions

no deference. P ool Co., 274 F.3d at 177. In any event, the BRB decision in H awkins is inapposite.

Indeed, in the case at bar on appeal from the ALJ’s decision on remand, the BRB expressly

distinguished Hawkins because it involved one death benefit (on behalf of the widow and child), and

this case involves two separate claims, a disability claim and a death benefits claim.

5 installment or installments of compensation due.” 1

In denying Cooper/T. Smith’s request for offset of the overpayment, the ALJ cited our

decision in Ceres Gulf, 957 F.2d 1205, and ruled that there was no statutory basis for such an offset

because the claims were separate. Cooper/T. Smith correctly contends that the primary issue in C eres

Gulf was whether the district court had subject matter jurisdic t io n fo r an original action by an

employer to recover advance payments made to it s fo rmer employee under the LWHCA. As

previously indicated, in Ceres Gulf we explained that because Congress permitted recovery only as

an offset against future benefits in the statutory provisions of the LHWCA, we should not imply a

federal remedy for reimbursement. 957 F.2d 1205-09. C eres Gulf , however, does not address the

issue joined in this case, which is whether disabilit y compe nsat io n may be credited against death

benefits. Cooper/T. Smith cites no Fifth Circuit precedent (or any other circuit for that matter) in

support of its argument. 2

On the other hand, the Direct o r o f the Office of Workers’ Compensation Programs, U.S.

Department of Labor (Director), relying on circuit precedent, has filed a brief arguing that § 914(j)

does not provide a basis for Cooper/T. Smith to be reimbursed for i t s overpayment of Liuzza’s

disabilit y payments by collecting out of unpaid installments of the widow’s death benefits. We afford3 As previously quoted, § 914(j) provides as follows: “If the employer has made a dvance

payments of compensation, he shall be entitled t o be reimbursed out of any unpaid installment or

installments of compensation due.” (emphasis added).

6 deference to the Director’s interpretations of the LHWCA and the amount of deference depends upon

the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors which give it power to persuade, if lacking power to

control.” P ool Co., 274 F.3d at 177. Here, we are persuaded by the Director’s reasoning that the

BRB did not err in denying Cooper/T. Smith’s request for reimbursement pursuant to § 914(j).

The Director propounds two principal arguments in support of its position. First, it argues

that the plain language o f § 914(j) forecloses reimbursement. Second, the Director argues that

interpreting § 914(j) to be claim specific is consistent with caselaw interpreting the LHWCA.

With respect to the former argume nt, the Director asserts that the overpay m ents of

compensation for which Cooper/T. Smith seeks reimbursement were made in satisfaction of a

com pensat io n o rder issued by the ALJ, thereby not in “advance” of that order as indicated by the

language of § 914(j). 3 Section 914(j), however, does not specify the event to which the payments are

made in advance. Additionally, the Director states that neither the LHWCA nor the regulations

define the phrase “advance payments of compensation.”

“The canons of statutory construction dictate that when construing a statute, the court should

give words their ordinary meaning and should not render as meaningless the language of the statute.”

White v. Black, 190 F.3d 366, 368 (5 th Cir. 1999) (citation omitted). The Director asserts that the

word “advance” is com

mo nly understood to indicate that the payments must take place prior to a

specific event. “Advance payments” are defined as “payments made in anticipation of a contingent

or fixed future liability or obligation.” Black’s Law Dictionary 52 (6 th ed. 1990).4 United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 1015 (1992).

5 Congress was aware of the shipbuilders’ position against allowing offsets against only future

benefits pursuant to the proposed § 914(j) for fear of losing an opportuni ty to recover overpayments.

Lennon v. Waterfront Transport, 20 F.3d 658, 661 (5th Cir. 1994) ( Compensation for Employees

in Certain Maritime Employments: Hearings on S. 3170 Before a Subcomm. Of the Senate Comm.

On the Judiciary, 69th Cong., 1st Sess. 53 (1926)). Despite this awareness, Congress made clear

that it “was conce rned abo ut the disabled worker receiving benefits promptly after being found

deserving of same.” Id. (citation and internal quotation marks omitted).

7 If “advance” payments included payments made after an award was or dered, that woul d

appear to render the term “advance” nearly meaningless. In other words, virtually all payments of

compensation would be “advance” if we included payments made after an award was ordered. Such

an interpretation would contravene the canon of sta t utory construction that “a statute must, if

possible, be construed in such fashion that every word has some operative effect.” 4 Further, such an

interpretation would not be consistent with a fundamental tenet of the LHWCA, “‘the expectation

that employers will pay compensation promptly and dir ect ly, wit hout the necessity of a formal

award.’” Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456, 459 (5 t h Cir.

2001) (quoting 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 7-1, at

381 (3d ed. 2001)). 5

We are mindful that § 914(j), a provision for reimbursement, is an incentive for employers

to promptly make payments for injuries. Once an employer has been ordered to pay an award, the

need for incentive pursuant to § 914(j) disappears. Indeed, the statute has another provision that

applies if payment is not made pursuant to an award. Section 914(f) provides that if any

compensation ordered pursuant to an award is not paid within ten days after it is due, “there shall be

added to such

unpaid compensation an amount equal to 20 per centum thereof.” Under these

circumstances, we are persuaded that “advance” refers to a time prior to the award. Here, Cooper/T.8

Smith did not pay compensation until the award was ordered, and thus, the payments should not be

deemed “advance payments of compensation” under § 914.

Further, although we have discovered no controlling case, our precedent informs our decision.

In Oceanic Butler, Inc. v. Nordahl, 842 F.2d 773 (5 th Cir. 1988), this Court held that an employer

and insurer were not entitled to offset the disabili t y set t lement amount against liability to the

employee’s widow for death benefits. In that case, an employee, his employer, and insurer entered

into a settlement agreement for disabilit y compensation and applied for the required approval of the

deputy commissioner pursuant to the provisions of the LHWCA. S ee § 908(i). One week later the

employe e perished. At that point, the settlement application was awaiting approval by the district

director. The widow subsequently filed a separate claim for death benefits.

The employer and insurer then sought to withdraw from the settlement agreement, and in the

alternative, argued they were entitled to offset the settlement payment for the employee’s disabilit y

benefits against its liabilit

y for the widow’s death benefits claims to avoid a “double recovery.” With

respect to the withdrawal determination, we held the employer’s/insurer’s promise to pay disabilit y

benefits valid and binding when made, thus rejecting the request to withdraw from the settl ement

agreement. With respect to the double recovery argument, the employer/insurer did not rely on §

914(j), and we characterized the request as an “extrastatutory ” offset. We recognized t hat if t he

settlement had been approved prior to the employee’s death, there could have been no “extrastatutory ” offset. Thus, we framed the question to be “whether a submit ed but unapproved

settlement is closer to an approved application or an entirely unsettled claim.” N ordahl, 842 F.2d at

785. We found it to be the former and therefore concluded that the employer/insurer was not entitled

t o an “extra-statutory offset” of the disability payment against its liability to the widow for deat h6 In N ordahl, immediately after the above-quo t ed language, we continued discussing a

decision by an ALJ in another case in which the ALJ allowed disabilit y payments to offset a widow’s

death benefits. 842 F.2d at 785 (discussing Martin v. Kaiser Co., 20 B.R.B.S. 679 (1987)(ALJ)).

Without much explanation, we speculated that “[i]n Martin, the widow sought both benefits in the

same proceeding, and so administrative offset m ay have been appropriate under overriding policy

considerations, despite the lack of statutory authority.” I d. (emphasis in original). In any event, we

expressly found the “persuasiveness of Martin ” to be “suspect.” N ordahl, 842 F .2d at 785. W e

agree and based on the analysis set forth above expressly reject the ruling in Martin.

9 benefits.

Cooper/T. Smith argues that because the instant award for both the di sability and death

benefits were made payable to the widow, the award is one payment. This Court has recognized that

disabilit y and death benefits are “two distinct statutory benefits.” Nordahl, 842 F.2d at 786; see §

908 (“Compensation for disabilit y”) and § 909 (“Compensation for death”). Also, there is language

in Nordahl that counsels against such a determination:

[The] settlement of [the employee’s] disputed disabilit y claims has no

effect whatsoever upon her widow’s benefits, because she does not

seek the disabilit

y set t lement . While it is reasonable to assume that

Mrs. Nordahl will take at least some porti on of her childless husband’s

estate, it is equally plausible that the entire $75,000 will go to a home

for destitute longshoremen; the point is that her right to death benefits

is unaffected by potential payment from proceeds of her hus band’s

claim. No inquiry into the disposition of the estate is necessary o r

even appropriate in evaluating the existence of her right, though

administrative determination of the level of death benefits payable, if

any, will consider her other sources of support, including the size of

the estate.

Nordahl, 842 F.2d at 785. 6

In the instant case, there is no contention that the widow prosecuted the disabilit y claim in

anything other than a proper capacity, i.e., legal representative of the decedent’s estate. As such, we

are not persuaded t hat t he ALJ’s order to pay the widow the decedent’s compensation somehow

changed the nature of the statutory benefit. Thus, we reject the invitation to deem these two claims7 Dr. Liuzza is of no relation to the employee or the widow.

10 as one.

Cooper/T. Smith’s final argument with respect to reimbursemen t is that the principles of

equity and fairness require that it receive a credit against any further death benefits owe d to the

widow. This Court has previously rejected the opportunity to weigh the equities in the context of

a request for reimbursement pursuant to § 914(j). S ee Guidry v. Booker Drilling Co., 901 F.2d 485

(5 t h Cir. 1990) (concluding that an award of attorney’s fees was “separate” from a compensation

award, we held that the employer could not deduct from the attorney ’s fees the amount i t had

overpaid to the employee pursuant to § 914(j)). Even were we willing to weigh the equities, we do

not find that the instant situation warrants departure from the language of the statute.

In conclusion, we are satisfied that, in view of the language of § 914 and congressional intent,

our precedent addressing similar issues, and the deference owed the Director’s interpretation, the

BRB properly concluded that § 914(j) does not provide a basis for Cooper/T. Smith to be reimbursed

for its overpayment of a deceased emplo yee’s disability payments by collecting out of unpaid

installments of the widow’s death benefits.

C. Substantial Evidence

Cooper/T. Smith argues that the widow failed to bring forth substantial evidence that Liuzza’s

illness or death was caused by asbestos. Essentially, Cooper/T. Smith faults the ALJ for crediting

the opi nio n o f Liuzza’s expert rather than its experts’ opinions. Liuzza’s expert, Dr. Gerald E.

Liuzza, 7 is Board Certified in anatomic and clinical pathology, with a certified subspecialty in forensic

pathology. Unlike Cooper/T. Smith’s experts, Dr. Liuzza did not subscribe to the theory that because

the employee was not diagnosed with the disease asbestosis, the exposure to asbestos could not have11

contributed to his illness. Instead, Dr. Liuzza testified that the exposure to asbestos, combined with

the employee’s cigarette consumption, caused the lung cancer. The ALJ found that such a position

was supported by the medical literatu re submitted by the widow. Additionally, although one of

Cooper/T. Smith’s experts, Dr. Cagle, did not believe that th e exposure to asbestos caused the

disease, he admitted that the finding of two asbestos bodies on iron stained sections of the employee’s

lung indicated an above background level of exposure to asbestos.

More specifically, Cooper/T. Smith contends that t he employee’s expert relied solely on

u ndo cumented history provided to him by widow’s counsel. In its decision and order awarding

benefits, the ALJ recognized that the employee’s expert stated that his opinion was contingent on a

“documented significant exposure to asbestos and that [his opinion] is based on probabilities.” The

ALJ expressly found that the exposure to asbestos was significant and that the varying accounts of

the employee’s history of smoking did not change the fact that the “amount was significant.” The

ALJ concluded that although the employee’s expert “testified that hi s conclusions were based on

some assumptions regarding Decedent’s history, these assumptions proved to be accurate.” We have

determined that there is substantial evidence to support this finding.

Cooper/T. Smit h also challenges the ALJ’s finding that the employee’s last exposure to

asbestos had been during his employment with Cooper/T. Smith. It is well established that under the

LHWCA the last employer “is responsible for payme nt o f t he full amount of benefits awarded as

compensation to claimants for occupational diseases.” A vondale Industr ies, Inc., v. Director, OWCP,

977 F.2d 186, 190 (5th Cir. 1992). We have recognized that:

Congress intended that the employer during the last emplo yment in

which the claimant was exposed to injurious st imuli, prior to the date

upon which t he claimant became aware of the fact that he was12 suffering from an occupational disease arising out of his employment,

should be liable for the full amount of the award.

Id. (quoting Travelers Insurance Co. v. Cardillo

, 225 F.2d 137, 145 (2d Cir. 1955)). This rule is not

one of compensability. I d. I nst ead, “it is a judicially created rule for allocating liability among

employers in cases where an occupational disease develops after prolonged exposure.” I d. (citation

omitted). A p rima facie case is made by establishing that the conditions existed during the

employ ment t hat could have caused the harm. An employer may rebut this presumption by

demonstrating that the exposure did not cause the harm or that t he employee was exposed to

injurious stimuli during subsequent employment covered by the LHWCA. Id. We have held that if

the exposure has the potential to cause the harm, the length of the exposure is irrelevant. Id

.

In the instant case, the employee’s son and wife testified that he was exposed to asbestos

during his employment with Cooper/T. Smith. As set forth above, we have rejected the argument that

exposure to asbestos did not cause the harm. Cooper/T. Smith also argues that Liuzza failed to

bring forth “any reliable evidence to establish

. . . that the decedent was employed by Cooper/T.

Smith at the time of his last injurious exposure.” Cooper/T. Smith misunderstands the burden-shifting

framework that underlies the last employer rule. Under t his rule, t he employ ee does not have to

prove that the employer is liable. A vondale

, 977 F .2d at 190. As previously indicated, once the

employee meets his burden of showing that he sustained harm and that he was exposed to conditions

during his employment that could have caused the harm, there exists a compensable claim. There is

no requirement that the employee prove that the employer in question was the last employer. It is

the employer’s burden to rebut the presumption that rises after the employee presents a prima facie

case. In its brief, Cooper/T. Smith points to evidence indicating that Liuzza performed more work13

as a longshoreman for other employers during the years he was exposed to asbestos. Nevertheless,

we are unpersuaded that it has carried its burden of showing a specific, subsequent employment

during which Liuzza was exposed to asbestos. Under these circumstances, we find substantial

evidence to support the ALJ’s conclusion that the employee’s last exposure to asbestos was during

his employment with Cooper/T. Smith.

For the above reasons, the petition for review is DENIED.