The Benefits Review Board (“BRB”) recently considered Section 8(c)(22) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and whether that statute requires consecutive payments for multiple scheduled losses. In Thornton v. Northrup Grumman Shipbuilding, Inc., the Claimant sustained a right knee injury that resulted in a 15% impairment to the right leg. The Claimant then suffered a second injury which resulted in a 43% impairment to his left leg. The Employer accepted both claims and it paid compensation in accordance with the ratings. It first paid the right leg impairment and then it paid for the left leg impairment. While payments for the left leg were ongoing, Claimant’s right leg impairment increased to 50%. The conflict between the parties concerned the start date for the payments associated with the additional right leg impairment. Claimant contended that payments should have started in 2007, when the doctor assigned the increased impairment, and that he was entitled to interest for late payments. The Employer contended that it correctly began paying the additional right leg impairment rating after it had paid all benefits owed for the left leg.
Section 8(c)(22) provides: “In any case in which there shall be a loss of, or loss of use of, more than one member or parts of more than one member set forth in paragraphs (1) to (19) of this subdivision, not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or part thereof, which awards shall run consecutively…” 33 U.S.C. § 908(c)(22).
After a review of the pertinent statutory language, the BRB reasoned that the phrase “in any case” is synonymous with the word “whenever.” If words in a statute are to be given their plain meaning, then “the phrase ‘in any case’ encompasses ‘any’ situation in which the claimant is entitled to multiple scheduled awards, regardless of whether they arise from one accident or claim or from multiple accidents or claims.” Further, these awards will run consecutively, not concurrently. Here, the Employer correctly argued that it did not have to pay benefits for the additional right leg impairment until after it stopped paying for the left leg impairment.
Thornton v. Northrop Grumman Shipbuilding, Inc., BRB No. 10-0336 (Dec. 22, 2010).
