ON PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD, U.S. DEPARTMENT OF LABOR (BRB Nos. 78-320, 79-275 & 79-275A)
Before Adams and Sloviter, Circuit Judges, and VanARTSDALEN, District Judge.*fn*
This appeal involves the standards for the timeliness of a complaint under the Longshoremen's and Harborworkers' Act ("the Act"), 33 U.S.C. §§ 901-950 (1976). Frank Janusziewicz, a former employee of Sun Shipbuilding & Dry Dock Company ("Sun"), petitions for review of an order of the United States Department of Labor Benefits Review Board ("Board"), which reversed a decision by an administrative law judge ("ALJ"), held as a matter of law that Janusziewicz's complaint was not timely filed, and thereby denied compensation under the Act for Janusziewicz's allegedly work-related disability.
The Act requires a claimant such as Janusziewicz to comply with certain application deadlines in order to be entitled to compensation. At issue here is the requirement in section 912(a)*fn1 that a claimant notify both his employer and the Deputy Commissioner of his injury*fn2 within thirty days of either the date of the occurrence of the injury, or the date on which the employee is aware, or in the exercise of reasonable diligence should have been aware, that the injury is work-related. The Act provides that failure to comply with the thirty-day notification requirement will not bar the claim if (1) the employer had knowledge of the injury, and the Deputy Commissioner determines that the employer has not been prejudiced by the failure to give notice, or (2) the Deputy Commissioner excuses the lack of compliance with the notice provision on the ground that for some satisfactory reason notice could not have been given. Id. § 912(d).
We vacate the order of the Board, which held that the record could not, as a matter of law, support any determination that Janusziewicz had met the requisites for timely filing under section 912(a). Because we do not agree that the record would be insufficient to support the findings necessary to such a determination if made, and because the ALJ did not make sufficient findings to resolve this point, we remand the matter for further proceedings. A remand will also provide an opportunity for the ALJ to determine, if necessary, whether any lack of timeliness on the part of Janusziewicz is excused by the terms of section 912(d). In addition, we hold that the Aetna Insurance Company (Aetna), which paid benefits to Janusziewicz to compensate for injuries related to those which serve as the subject of this complaint, may intervene in the proceedings on remand.
Janusziewicz was employed by Sun as an "erector," a position involving the installation of steel on ships in an environment of smoke and fumes. He worked for ten years without significant health problems until 1975, when he developed a respiratory ailment that required several intermittent hospitalizations and occasional absences from work. Although the record is unclear as to his exact diagnosis, Janusziewicz was informed by a physician that he had industrial asthma, emphysema, and acute bronchitis. Moreover, his doctors counseled him to avoid exposure to fumes, smoke, and dust. Despite this warning, Janusziewicz continued on the job at Sun until 1977, when prolonged exposure to alcohol fumes while working aggravated his condition.
During 1975 and 1976, Janusziewicz received almost $4,000 in disability benefits under the Aetna Insurance Company (Aetna) group health insurance plan provided to Sun employees. This plan paid benefits solely for a non-occupational illness or injury. Although he previously had certified on his Aetna claim form that his infirmity was not work-related, on February 9, 1976, Janusziewicz filed for compensation under the Act for an alleged work-related respiratory condition.*fn3 Sun received notice of this latter claim on March 8, 1976.
After a hearing in February 1978, the ALJ found that Janusziewicz suffered from a pre-existing respiratory disorder that was aggravated by the dust, smoke, and fumes encountered at work*fn4 and awarded him compensation under the Act. On appeal, the Board remanded the case both for further evaluation of the evidence and for a more complete statement of the reasons supporting the ALJ's findings of fact and conclusions of law. The Board stressed the need for an explanation of the ALJ's conclusion that Sun had received timely notice of the injury under section 912 of the Act. Following remand, Aetna filed a petition to intervene before the ALJ, asserting a conditional right to reimbursement of benefits that already had been paid to Janusziewicz under its non-occupational disability policy with Sun. The ALJ denied Aetna's petition.
On remand, the ALJ found that Janusziewicz became aware of the relationship between his illness and his work on February 9, 1976, the date he filed his claim under the Act. Therefore, because Sun received the claim form on March 8, 1976, the ALJ concluded that Sun had timely notice under section 912(a).*fn5 On appeal, the Board reversed, determining that Janusziewicz had failed to comply with the notice requirements of section 912. It stated that the ALJ erred by applying a subjective test for determining the date of injury: that is, by looking to Janusziewicz's actual awareness of the connection between his illness and his work. According to the Board, section 912 requires the application of an objective test: the date of injury is the date when the claimant became aware or should have become aware of the relationship between his illness and employment. Applying this standard, the Board concluded that there was no basis for the ALJ's determination that Janusziewicz first became aware of his work-related condition on the date he filed his claim under the Act. Rather, the Board ruled that Janusziewicz's awareness that his condition was work-related must be inferred to have been no later than April or May of 1975, when he was apprised of the diagnosis of "industrial asthma." Under such an interpretation, Sun's receipt of notice in March 1976 was not timely under section 912(a). The Board then considered whether Sun had actual knowledge of Janusziewicz's work-related illness under the statute of limitations exception in section 912(d)(1). After citing Janusziewicz's receipt of non-occupational illness benefits between January 1975 and December 1976 as mitigating a finding of employer knowledge during that period, the Board concluded that there was no evidence of actual knowledge by Sun of Janusziewicz's work-related illness until its receipt of the claim in March 1976.*fn6
On this appeal, Janusziewicz argues that the Board erred as a matter of law in failing to presume, pursuant to section 920 of the Act, that notice of the claim required by section 912, had been given. In addition, Janusziewicz asserts that the Board gave improper consideration to the date when Janusziewicz was told he had "industrial asthma" because his claim was filed for disability benefits not as a result of industrial asthma but as a result of chronic obstructive bronchitis.
Under the Act, the Board does not make independent findings of fact, but instead reviews the findings of the ALJ to ensure that they are "supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b) (3). Although the Act permits a litigant to file a petition for review of Board decisions in a federal appellate court, id. § 921(c), the statute does not set out the standard of review for the court to apply. Case law, however, has established that a court of appeals is to review Board decisions for (a) errors of law, and (b) to make certain that the Board adheres to its own scope of review. See Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979); Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73, 76 n.12 (3d Cir. 1978); Director, Office of Workers' Compensation Programs v. Universal Terminal & Stevedoring Co., 575 F.2d 452, 454 (3d Cir. 1978). Consequently, this Court does not review the Board's ...