ON PETITION FOR REVIEW OF THE DECISION OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR
Before: GIBBONS, SLOVITER, and BECKER, Circuit Judges
This is the second time we have considered this claim for disability compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. In the first appeal, we sustained the contention of the employer, Sun Ship, that claimant Walker was not excused from his failure to comply with the notice requirement contained in section 12(a) of the Act, 33 U.S.C. § 912(a), by section 12(d) (1) of the Act, 33 U.S.C. § 912(d) (1), but we remanded in order to afford Walker an opportunity to demonstrate that he was excused pursuant to section 12(d) (2) of the Act, 33 U.S.C. § 912(d) (2). Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73 (3d Cir. 1978). The Administrative Law Judge then held that Walker's failure to give notice within thirty days as required by the Act was excused under section 12(d) (2), and awarded compensation to Walker.The Benefits Review Board vacated the ALJ's award, holding that Walker was not excused from the failure to give timely notice. We deny the petition for review of the decision of the Benefits Review Board.
The facts of this case are not disputed. Walker was employed at Sun Ship's Chester, Pennsylvania shipbuilding facility for thirty-two years. During most of that time, he worked as a "burner" and was regularly exposed to toxic vapors in close quarters. On December 10, 1974, Walker was compelled to leave work after inhaling paint fumes. After four days at home, Walker entered the hospital, where he was treated for pheumonia. Although he was released from the hospital shortly thereafter, Walker has never returned to work. He filed a claim for non-occupational disability benefits and received twenty-six weeks of benefits beginning in early 1975.
In September 1975, Walker contacted the law firm of Galfand, Berger, Senesky, Lurie & March (Firm) about the possibility of obtaining workers' compensation for an eye injury sustained in 1953. In the course of this meeting, Walker revealed that he was unemployed as a result of lung problems. At counsel's suggestion, Walker was examined on November 25, 1975 by a lung specialist. At the conclusion of this examination, the physician informed Walker and his son (who was also present) that Walker had a lung illness attributable to his working at Sun. In a letter of December 11, 1975, received by the Firm on December 13, the physician notified counsel of the results of the examination. Shortly thereafter, a member of the Firm telephoned Walker's son to advise him that the physician had concluded that Walker's lung illness was work-related, and was told by the son to "get the ball rolling" on a compensation claim.
A claim for Walker's eye injury was filed by the Firm on January 5, 1976, but no claim for the lung illness was filed until February 5, 1976. Sun did not receive a copy of the lung claim until March 10, 1976.
Sun opposed the claim on the ground that Walker had failed to give it notice of his injury within thirty days as required by section 12(a) of the Act. Following a hearing, the Administrative Law Judge held that Wlaker's claim was not barred because it fell within the exception contained in section 12(d) (1), which provides that failure to give notice shall not bar a claim if the employer "had knowledge of the injury or death and the deputy commissioner [now ALJ] determines that the employer . . . has not been prejudiced by failure to give such notice." The Benefits Review Board affirmed, but we reversed, holding that in order "[t]o bring Section 912(d) (1) into play, the employer must know that the employee was injured and that his job was the cause." Sun Shipbuilding & Dry Dock Co. v. Walker, 590 F.2d 73, 76 (3d Cir. 1978) (emphasis added). We concluded that "the circumstances of this case do not support a finding that Sun knew that Walker's job was the cause of his injury." Id. However, "[i]n order to fully effectuate the beneficent purposes of the Act," we remanded to allow Walker an opportunity to show that his failure to give notice should be excused under section 12(d) (2). Id. at 77.
On remand, the ALJ stated that Congress "intended to afford administrative law judges a good deal of discretion in determining excusability [under section 12(d) (2)] in order to avoid harsh and unjust results which would be contrary to the humanitarian and beneficent goals of this legislation." He concluded that excusability under section 12(d) (2) should be governed by a number of factors: "(1) the length of time involved (2) whether the employer was prejudiced (3) the harm that will result to Claimant and, most important, (4) fault on the part of Claimant." The ALJ found that the delay in this case "was relatively short;" that Sun had not been prejudiced; that "the denial of this claim will penalize Claimant drastically;" and that counsel's fault in failing to give notice should not be imputed to Walker, "an uneducated and unsophisticated individual [who] retained an experienced workers' compensation law firm to represent his interests and . . . relied upon counsel to do everything necessary to protect [his] interest." The ALJ held that therefore Walker's failure to notify Sun was excused, and ordered that Sun make permanent disability compensation payments to Walker.
On appeal by Sun, the Benefits Review Board vacated the compensation award, holding, inter alia, that the failure to give timely notice was not excused by Walker's reliance on his counsel. The BRB remanded the claim with instructions to dismiss. Walker filed this petition for review.
Section 12(a) of the Longshoremen's and Harbor Workers' ...