On Petition For Review of an Order of the Benefits Review Board, United States Department of Labor
Biggs, Gibbons, and Hunter, Circuit Judges.
In this petition to review an order of the Benefits Review Board,*fn1 Atlantic & Gulf Stevedores, Inc., a statutory employer under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50, seeks to set aside (1) the decision of the Administrative Law Judge that the death of the claimant's husband was work-related, and (2) the decision of the Benefits Review Board modifying the decision of the Administrative Law Judge that the employer's liability be limited, pursuant to § 8(f) of the LHWCA, 33 U.S.C. § 908(f), to 104 weeks' compensation. The claimant, a widow of a longshoreman, resists the first aspect of this petition. The Director of the Office of Workers' Compensation Programs, Department of Labor, resists the second. We deny relief with respect to the first claim, but grant the petition for review with respect to the second.
On December 16, 1972 Stanley Aleksiejczyk, a longshoreman hatch boss, collapsed and died of heart failure aboard the SS Export Adventurer. Shortly after his death his widow, Mary Aleksiejczyk, filed a claim for death benefits under the LHWCA. Atlantic & Gulf opposed the claim, contending that the fatal heart attack was not work related. The employer also maintained that if it was liable for death benefits, that liability was, by virtue of § 8(f), limited to 104 weeks' compensation. Any benefits in excess of 104 weeks were said to be chargeable to the Special Fund maintained in the Treasury of the United States pursuant to § 44 of the LHWCA, 33 U.S.C. § 944, because at the time of his death Aleksiejczyk was suffering from a previous disability. Both issues were litigated before an Administrative Law Judge, who concluded that the fatal heart attack was work-related and that the decedent was suffering from a previous disability within the meaning of § 8(f). The Director, Office of Workers' Compensation Programs, filed a timely notice of appeal and petition for review, as a party in interest adversely affected or aggrieved, to the Benefits Review Board. See 33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.201(a) (1975). That petition for review did not put in issue the finding of the Administrative Law Judge that Aleksiejczyk's fatal heart attack was work-related, but only the finding that the Special Fund was liable for payments of death benefits extending beyond the 104th week. Atlantic & Gulf did not appeal to the Benefits Review Board. The Board, without considering whether the employee's death was work-related, held that the employer was liable for the entire amount of compensation due Mrs. Aleksiejczyk.
I. Atlantic & Gulf's petition to review the determination that death was work-related.
Mrs. Aleksiejczyk contends, and we think rightly so, that we cannot grant relief from the finding that her husband's death was work-related. The statute granting us jurisdiction over this matter provides that
[any] person adversely affected or aggrieved by a final order of the [Benefits Review] Board may obtain a review of that order in the United States court of appeals . . . by filing . . . a written petition praying that the order be modified or set aside.
Certainly the employer is a party aggrieved by the Board's order, since the order increased its liability. But it is the Board's order that we review, not the entire case. The Board's order in this instance did not deal with the compensability of the death. It dealt only with the allocation of liability between the employer and the Special Fund. The statute provides that
[a] compensation order shall . . . unless proceedings for the suspension or setting aside of such order are instituted [before the Board,] become final at the expiration of the thirtieth day thereafter.
Since the decision of the Administrative Law Judge directed Atlantic & Gulf to pay 104 weeks of compensation, the employer was a party affected or aggrieved by that order. Thus the company, as well as the Director, could have appealed to the Benefits Review Board. 20 C.F.R. § 802.201(a) (1975). Had it done so, the Board would have been afforded the opportunity of considering the contention that the fatal heart attack was not work-related. This case is distinguishable from those instances where the employer prevails on all issues in the proceedings before the Administrative Law Judge, and thus never is aggrieved by an order. Such an employer could not, under the statute and the regulations, appeal; nevertheless, it should be permitted to assert any ground which would justify the denial of relief, even if an intermediate tribunal in the administrative process did not pass on the issue in the first instance.*fn2 But where, as here, the administrative appellate process afforded the opportunity for review of the contention sought to be raised, a reviewing court should not consider it in the absence of exhaustion of that opportunity.
The employer points out that under the statute the record on which the Board acts is that made before an Administrative Law Judge, and that its review is by the same "substantial evidence in the record considered as a whole" standard of review which we would employ. 33 U.S.C. §§ 921(b)(3), (c); 5 U.S.C. § 706(2)(E). See H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., 1972 U.S. Code Cong. & Admin. News 4709 (suggesting that judicial review is by the substantial evidence standard). But while permitting a bypass of the Board would not interfere with the administrative development of a factual record, and while our interpretation of the law must ultimately guide the Board, we think that it is nevertheless proper to insist upon exhaustion of the administrative remedy of appeal to the Board. It may be anticipated that a party aggrieved by an action of an Administrative Law Judge will in many instances find corrective action at the Board level, thus obviating the need for judicial review. See, e.g., Christian v. New York Department of Labor, 414 U.S. 614, 622, 39 L. Ed. 2d 38, 94 S. Ct. 747 (1974). Moreover, 33 U.S.C. § 921(a) evinces a strong interest in prompt finality of compensation claims. Unlike many other instances in which failure to exhaust remedies results in the total and permanent loss of rights, the LHWCA contains a provision for the modification of awards in certain cases. See 33 U.S.C. § 922; O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 30 L. Ed. 2d 424, 92 S. Ct. 405 (1971). This mitigates whatever hardship may attach to the requirement that the exhaustion doctrine must be observed in longshoremen's cases. We thus hold that a party in interest affected or aggrieved by a decision or order of an Administrative Law Judge in a compensation ...