Stanley v. Western Maryland Railway Co.

COUCH, Judge. In this appeal we consider whether a dockworker’s exclusive remedy for an occupational injury is under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901 et seq. (as amended 1972), where part of the cause of injury occurred before the Act’s coverage. The Superior Court of Baltimore City (now Circuit Court for Baltimore City) refused to apportion the employer’s liability between the LHWCA and the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et seq., and ruled that the employee’s exclusive remedy was under the LHWCA.

The Court of Special Appeals affirmed. Stanley v. Western Maryland Railway Co., 56 Md.App. 235 , 467 A.2d 559 (1983). We agree. I James Stanley began working for Western Maryland Railway Company in 1942.

Starting in 1955 or 1956 and continuing through 1980, Stanley operated a crane located on the Curtis Bay Ore Pier. The crane emitted a loud roar which, over time, caused a deterioration in his hearing. Appellant first became aware of his auditory impairment in 1977. His condition steadily declined, and today he must wear a hearing aid in each ear.

Stanley initiated a negligence action against Western Maryland under the FELA in 1979. On defendant’s motion for summary judgment, the Superior Court for Baltimore City ruled that Stanley’s exclusive remedy was under the LHWCA. The court (Thomas, J.) specifically denied appellant’s request to proceed under the FELA for the portion of injury occurring before 1972, the year the LHWCA admittedly became applicable to Stanley. Defendant’s motion was thereby granted. ²⁰⁷ On appeal, the Court of Special Appeals also refused to apportion defendant’s liability between the two federal acts, and affirmed.

We granted certiorari to consider this important issue. II The LHWCA was enacted by Congress in 1927 to end the confusion regarding the rights of injured maritime employees. Pub.L. 69-509, 44 Stat. 1424 (as codified at 33 U.S.C. §§ 901 et seq.); Calbeck v. Travelers Insurance Co., 370 U.S. 114, 117-122 , 82 S.Ct. 1196, 1198-1202 , 8 L.Ed.2d 368, 371-74 (1962). Previously, seafaring workers were faced with the uncertainty, expense and delay of fighting out in litigation whether their particular case fell within or without state compensation schemes and remedies.

Calbeck, supra, 370 U.S. at 121-22 , 82 S.Ct. at 1200-01 , 8 L.Ed.2d at 373-74 . The LHWCA provided a uniform compensation act for all injuries to covered employees, Id. & n. 10, and facilitated the resolution of claims and granting of awards to the deserving worker, South Chicago Coal & Dock Co. v. Bassett, 104 F.2d 522, 526 (7th Cir.1939), aff'd, 309 U.S. 251 , 60 S.Ct. 544 , 84 L.Ed. 732 (1940). As with any workmen’s compensation legislation, however, trade-offs were exacted from employee and employer alike. In exchange for a certain and prompt recovery for claims against employers on behalf of the employee, employers were guaranteed specific limits on compensation and liability for the injuries of their workers.

Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 , 280-282 & n. 24, 101 S.Ct. 509 , 516 & n. 24, 66 L.Ed.2d 446, 456-57 (1980). Moreover, while employees could now recover for mishaps regardless of their personal fault, 33 U.S.C. § 904 (b), the LHWCA was to be the exclusive remedy for occupational injury, 33 U.S.C. § 905 (a). Both groups benefited from greatly expedited and simplified procedures concerning employee claims. Thus, the ²⁰⁸ LHWCA obviated the ever rising costs of litigation and insured against the unwarranted expenditure of court time.

Ramirez v. Toko Kaiun K.K., 385 F.Supp. 644, 649-50 (N.D.Cal.1974). The Act .was amended in 1972 to include those workers employed on piers and other areas adjoining navigable waterways. Pub.L. 92-576, 86 Stat. 1251 (as codified at 33 U.S.C. § 903 (a)). III We come now to Stanley’s primary contention on this appeal.

Before discussing this, however, it is necessary to briefly dispose of what is not in issue. Stanley does not suggest that the LHWCA, as amended, is in all respects inapplicable to his present condition. Indeed, he concedes that the LHWCA provides coverage to a pier worker, such as himself, as of 1972. Stanley is correct in this admission.

Employees engaged in unloading cargo from ships docked at the pier are generally within the coverage of the LHWCA. See, e.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 , 266-67 & n. 27, 97 S.Ct. 2348 , 2358-59 & n. 27, 53 L.Ed.2d 320, 334-35 (1977). What Stanley does dispute, however, is that the LHWCA provides the exclusive remedy for his long term exposure to injurious noise. He observes that most of the exposure occurred prior to the 1972 amendments when he, as a dockworker, was not covered by the former LHWCA.

He thereby seeks to apportion his claim between the LHWCA (for the amount of injury caused by his post-1972 exposure) and the FELA (for the pre-1972 exposure). Stanley’s sole authority for this proposition is language from a Benefit Review Board (Board) decision. 1 In Verder ²⁰⁹ ane v. Jacksonville Shipyards, Inc., 14 Ben.Rev.Bd.Serv. (MB) 220.15, BRB No. 76-244 (Aug. 13, 1981), an employee sought coverage under the LHWCA for injuries caused by his long term exposure to noise. The employee held numerous positions during his tenure at the maritime company, only some of which were covered by the Act. 14 Ben.Rev.Bd.Serv.

(MB) at 222, 224. The Board held that the Act provided coverage and compensation for Verderane’s full injury. In the Board’s opinion, the fact that the employee was exposed to additional excessive noise while working in non-LHWCA protected jobs did not affect the determination that Verderane’s entire disability was compensable, based on the earlier exposure. Id. at 225.

The Board further noted that in determining the threshold question of jurisdiction, the Board “must apply preamendment law to the period of exposure prior to 1972 when the Act became effective, and post-amendment law thereafter.” Id. at 223. Stanley interprets this language as giving him a right to apportion liability between the FELA and the LHWCA. The appellant contends that prior to 1972, he was not covered by the latter statute, and thus could have brought an action under the FELA. 2 The fact that he may now be covered by the LHWCA should not preclude him from still pursuing his FELA claim. Stanley thus proposes to apportion liability between the two acts and, in reality, sue Western Maryland twice.

We disagree with Stanley’s conclusion for several reasons. ²¹⁰ First, Stanley’s reliance upon Verderane is misplaced. As already mentioned, the Board utilized the quoted language and test solely to determine jurisdiction. Once the Board found that the LHWCA applied, it ruled that Verderane’s entire claim was compensable. 3 Verderane, supra, 14 Ben.Rev.Bd.Serv. (MB) at 225.

Similarly, in the instant case, the LHWCA decidedly applies to at least a portion of Stanley’s exposure to the harmful noise. He thus is not entitled to pursue a separate claim under the FELA. Second, while the precise issue of apportioning a single employer’s liability under the LHWCA and the FELA has not been previously addressed, our holding denying apportionment is in accord with the overwhelming weight of decisions from the courts and Board which have construed the LHWCA, and rejected the apportionment argument, in other contexts. In Traveler’s Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913 , 76 S.Ct. 196 , 100 L.Ed. 800 (1955), the court refused to apportion liability among the various employers for whom a particular claimant worked.

Rather, the last employer which exposed the employee to injurious stimuli was held liable for