
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2106                             BATH IRON WORKS CORPORATION,                          BIRMINGHAM FIRE INSURANCE COMPANY,                                     Petitioners,                                          v.                 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,                              U.S. DEPARTMENT OF LABOR,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                              THE BENEFITS REVIEW BOARD                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                             Hill,* Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Kevin  M. Gillis  with whom  Troubh, Heisler  & Piampiano  was  on            ________________             ____________________________        brief  for petitioners Bath Iron Works Corporation and Birmingham Fire        Insurance Company.            Stephen Hessert  with whom Norman,  Hanson & DeTroy  was on  brief            _______________            ________________________        for insurer respondent Liberty Mutual Insurance Company.            Gary  A. Gabree with whom Stinson, Lupton & Weiss was on brief for            _______________           _______________________        claimant respondent Alvin D. Acord.                                  ____________________                                  September 10, 1997                                 ____________________        _________________________        *Of the Eleventh Circuit, sitting by designation.                 BOUDIN, Circuit  Judge.   Alvin Acord  suffered injuries                         ______________            while employed by  Bath Iron Works Corporation,  and obtained            benefits  after state workers'  compensation proceedings.  He            then sought and received a  further award under the Longshore            Act,  33 U.S.C.    901 et seq.   On this appeal, we hold that                                   _______            the federal award was barred by collateral estoppel, and, for            the  benefit  of  future litigants,  we  address  briefly the            alternative statute  of limitations  defense advanced  by the            petitioner insurer.                 The events and procedural history are complicated, but a            condensed version will set the scene.   Acord began work as a            test electrician at Bath in 1974.  In 1982 he suffered upper-            body injuries  and in 1983,  a knee injury and  knee surgery;            and  in 1984  he was transferred  to a  desk job.   He sought            disability  benefits  under the  Maine  Workers' Compensation            Act, 39  Me. Rev.  Stat. Ann.    1  et seq.  (1989), and,  in                                                _______            October  1987,  was  awarded  25  percent partial  disability            benefits.                   Between  1983 and  1987, Acord experienced  a half-dozen            incidents  of trauma  to his  knee  wherein some  provocation            would cause  the knee to  give way; one incident  occurred in            June 1987,  when Acord  stubbed his toe  and then  jammed his            knee as he rose from his desk.  Acord underwent further  knee            surgery and  returned to his  desk job in November  1987, now            working only four  hours a day based on  his doctor's advice.                                         -2-                                         -2-            Degenerative  arthritis in his knee joints indicated that his            condition would worsen.                 One  year  later,  in  November  1988,   Bath's  company            physician told Acord that he was being let go.  The record is            murky  but it  was  apparently Acord's  own opinion  that the            coming winter  would  aggravate  his knee,  and  it  was  the            doctor's view that there would be no  suitable work available            if  Acord's physical restrictions increased.  Acord has since            sought reemployment at Bath, without success.                 Birmingham Fire Insurance  Company ("Birmingham"), which            provided Bath's  insurance coverage at  the time of  the June            1987 injury,  began to  pay Acord  total disability  benefits            when he was dismissed in  November 1988.  But Birmingham also            petitioned the Maine workers'  compensation agency, asking it            to  declare that the insurer  had no continuing liability for            the June 1987 injury.  In February 1989, after an evidentiary            proceeding, a  Maine  commissioner held  that Birmingham  had            proven  that the  June  1987  incident  did  not  permanently            contribute to Acord's  condition; this decision  was affirmed            by the commission's appellate division in September 1990.                 In  related proceedings, Acord asked the Maine agency to            increase his  previous and  continuing 25  percent disability            award  based  on  the  1983  injury;  Acord  urged  that  his            condition   had  worsened  since   1983.     After  extensive            proceedings,  the Maine agency  ruled in  June 1992  that the                                         -3-                                         -3-            original  disability  payment  should   be  increased  to  50            percent, representing  increased disability  since 1983,  and            that the payments should be made by Liberty Mutual  Insurance            Company.  Liberty Mutual had  been Bath's insurer at the time            of the June 1983 injury.                 Shortly  before this  new ruling,  Acord  in March  1992            filed for  federal workers'  compensation benefits  under the            Longshore Act.  It is not uncommon for employees connected to            maritime  affairs  to be  covered by  both federal  and state            compensation statutes, and federal jurisdiction in  this case            has not been disputed.  In the federal proceeding, Acord took            the  position that  his  June  1987  injury entitled  him  to            permanent  total disability  benefits  because  it  left  him            unable  to fill  the  material handler  position that  he had            previously held.                 Birmingham  resisted Acord's  federal claim  on multiple            grounds: that  the claim, filed  almost five years  after the            incident,  was  barred  by the  federal  one-year  statute of            limitations,  33  U.S.C.     913;  that  collateral  estoppel            precluded Acord from  claiming permanent injury based  on the            June 1987  incident; and that the medical  evidence failed to            support  such  a claim  of  permanent  injury based  on  that            incident.  A  federal administrative law judge  took evidence            on  the  federal  claim,  reserving  judgment  on  the  legal            defenses.                                         -4-                                         -4-                 In September  1993, the  federal ALJ  issued a  decision            awarding permanent total  disability benefits  to Acord,  and            against Birmingham,  from and after Acord's last  day at work            in  November  1988.   The  decision  rejected  the collateral            estoppel  and  statute of  limitations  defenses, on  grounds            described below, and  concluded on the  merits that the  June            1987 incident had  caused a permanent further  aggravation in            Acord's knee condition.                   Birmingham sought review  by the  Department of  Labor's            Benefits Review Board,  33 U.S.C.   921(b), but  the Benefits            Review  Board took  no action  on  the matter.   Because  the            matter had been pending before the Benefits Review Board  for            more than one year and the Benefits Review Board had taken no            action on it, it became final for purposes of judicial review            in  September 1996.   Pub.  L. 104-134,    101(d),  110 Stat.            1321-219  (1996).    Birmingham then  sought  review  in this            court.   See 33 U.S.C.    921(c).   Acord,  needless to  say,                     ___            supports the ALJ's decision.                 We agree  with Birmingham  that the  federal ALJ  should            have given collateral  estoppel effect to the  Maine agency's            determination, in its  February 1989 decision, that  the June            1987 injury "had no lasting effect on Mr. Acord's condition."            The  state agency finding, in turn, precludes Acord's present            claim.   Only the  first of  these two propositions  requires            much discussion.                                         -5-                                         -5-                 Often, respect for  a prior judgment is mandated  by the            full faith and credit  clause, U.S. Const. art.  IV,   1,  or            its  statutory  counterpart, 28  U.S.C.    1738.    A literal            reader  might doubt  that  either  has much  to  do with  the            present  case,  because  (among  other  reasons)  the  former            constrains  states, not federal  entities, and the  latter is            directed  explicitly to federal courts and says nothing about            federal  agencies.    But the  policy  arguments  for similar            treatment--especially avoidance  of duplicative  litigation--            tend to be the same.                 Without dwelling overmuch on the rationale, the  Supreme            Court  has  instructed  that "federal  courts  must  give the            [state] agency's  factfinding the  same preclusive effect  to            which   it  would  be   entitled  in  the   State's  courts."            University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986).            _______________________    _______            Ordinarily, the  state  agency must  have been  acting in  an            adjudicative capacity, United States v. Utah Constr. & Mining                                   _____________    _____________________            Co.,  384  U.S.  394,  422  (1966),  but  that  condition  is            ___            satisfied in  this case.   And Maine  does treat  such agency            findings as a proper basis  for precluding relitigation.  Van                                                                      ___            Houten v.  Harco Constr.,  Inc.,  655 A.2d  331, 333-34  (Me.            ______     ____________________            1995).                 Of  course, one  could  say that  a  federal court  must            respect  state agency factfinding  but a federal  agency need            not.    Yet  Elliott  itself relied  heavily  upon  Thomas v.                         _______                                ______                                         -6-                                         -6-            Washington Gas Light Co., 448 U.S. 261, 281 (1980), where the            ________________________            Supreme Court said that an  agency finding in one state could            bind another  state's agency under the full  faith and credit            clause.   Elliott, 478 U.S.  at 798-99.  And  several circuit                      _______            decisions  have held that a federal  agency is normally bound            to  respect  findings  by another  agency  acting  within its            competence.  West  Helena Sav. & Loan Assoc.  v. Federal Home                         _______________________________     ____________            Loan Bank Bd., 553 F.2d  1175, 1180-81 (8th Cir. 1977); Safir            _____________                                           _____            v. Gibson, 432  F.2d 137,  143-44 (2d  Cir.) (Friendly,  J.),               ______            cert. denied, 400 U.S. 850 (1970).            ____________                 Although  the tendency is  plainly in favor  of applying            collateral estoppel in  administrative contexts, the  subject            is a  complex one,  with many variations;  and it  is perhaps            well not to generalize too broadly.  See  18 Wright & Miller,                                                 ___            Federal Practice  and  Procedure    4475,  at  762-63  &  n.3            ________________________________            (1981).  Here, no conflict exists between the tendency of the            courts and the position  of the agency involved, because  the            Benefits  Review Board  itself  has declared  that collateral            estoppel effect  is to  be given under  the Longshore  Act to            appropriate   findings    of   "other   state    or   federal            administrative tribunals."   Barlow v. Western  Asbestos Co.,                                         ______    _____________________            20  B.R.B.S. (MB)  179, 180  (1988); see  also Vodanovich  v.                                                 _________ __________            Fishing Vessel  Owners Marine  Ways, Inc.,  27 B.R.B.S.  (MB)            _________________________________________            286, 290-92 (1994).                                         -7-                                         -7-                 In this case, the refusal  of the federal ALJ to respect            the  Maine   finding  appears  to   have  been  based   on  a            misunderstanding  of  Supreme  Court  case  law   on  another            subject.1   However,  Acord  seeks to  defend  the result  on            narrower  and  more  conventional grounds.    He  argues that            differences  in  burdens  of proof,  and  in  the substantive            standards, under  the Maine and federal  compensation schemes            make collateral estoppel inappropriate.  These are legitimate            arguments, but they ultimately do not succeed in this case.                 It  is quite true that collateral estoppel effect may be            denied  because  of  differences  in  burden  of  proof  (for            example, where  the victor  in the first  case has  a greater            burden in the second).   Newport News Shipbuilding & Dry Dock                                     ____________________________________            Co.  v. Director,  OWCP,  583 F.2d  1273,  1278-79 (4th  Cir.            ___     _______________            1978), cert. denied,  440 U.S. 915 (1979).  Here, Birmingham,                   ____________            by  seeking a  judgment from  Maine  limiting its  liability,            undertook  the burden  of  proving,  by  a  preponderance  of            evidence,  that the  June  1987  incident  had  no  permanent            effect.  See Nichols v. Viner  Bros., Inc., 573 A.2d 789, 790                     ___ _______    __________________                                            ____________________                 1The ALJ said  that collateral estoppel could  not apply            because state workers' compensation schemes and the Longshore            Act share  concurrent jurisdiction.   See Sun  Ship, Inc.  v.                                                  ___ _______________            Pennsylvania,  447  U.S.  715, 722  (1980).    But concurrent            ____________            jurisdiction, and  even the possibility of successive awards,            do  not tell  one anything  about collateral  estoppel.   See                                                                      ___            Thomas, 448 U.S. at 280-82.            ______                                         -8-                                         -8-            (Me. 1990).  The Maine  agency concluded that this burden had            been carried.                 In the  federal  agency proceeding,  Birmingham bore  no            heavier burden;  if anything,  it had a  lighter one.   Acord            himself  had the burden of proving  permanent injury from the            June 1987 incident,  although he was  aided by a  conditioned            federal  presumption   that  "the  claim  comes   within  the            provisions  of this  chapter."   33  U.S.C.    920(a).   This            presumption   merely   requires   an   employer  to   provide            "substantial  evidence" that the  accident did not  cause the            harm,   and  then  the   presumption  vanishes.     Brown  v.                                                                _____            I.T.T./Continental Baking  Co. & Ins. Co., 921  F.2d 289, 295            _________________________________________            (D.C. Cir.  1990); Sprague v.  Director, OWCP, 688  F.2d 862,                               _______     ______________            865-66 (1st Cir. 1982).  Thus, Acord's first argument fails.                 Acord  next  argues  that  the  federal  regime  employs            different substantive standards  than the  Maine regime,  and            points  to  a  tradition of  interpreting  the  Longshore Act            "liberally" in favor of claimants.   Voris v. Eikel, 346 U.S.                                                 _____    _____            328, 333  (1953).    Certainly  a  difference  in  the  legal            standards pertaining to two proceedings may defeat the use of                                                    ___            collateral estoppel.  See Restatement (Second) of Judgments                                    ___ _________________________________            28(3), (4) (1982); cf. Long Island College Hosp. v. NLRB, 566                               ___ _________________________    ____            F.2d 833, 842, 844-45 (2d  Cir. 1977), cert. denied, 435 U.S.                                                   ____________            996  (1978).   But  this  is  so  only where  the  difference            undermines the rationale of the doctrine.                                         -9-                                         -9-                 Here, in  the Maine  proceeding, Acord's  doctor, Donald            Kalvoda, as well  as another treating physician,  Mark Henry,            testified that Acord suffered from degenerative  arthritis in            his knee  which was  worsening with the  passage of  time and            could  have been  temporarily exacerbated  by  the June  1987            injury;  but both  doctors said  unequivocally  in the  state            proceeding that the June 1987 incident had no lasting effect.            The state  agency  so found.   It  is hard  to  see why  this            factual finding should  be affected by whether  the pertinent            statute is broadly or narrowly construed.                 Similarly,  we agree with  Acord that federal  and Maine            law deal  somewhat differently with cases where  a later job-            related injury aggravates  an earlier one.   Federal case law            may depart from Maine's approach by making the later employer            or insurer  liable for  the cumulative  injury, Liberty  Mut.                                                            _____________            Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 756 (1st            ________    _________________________            Cir. 1992), and  mitigating this liability through  a complex            statutory  regime.   33 U.S.C.     908(f).   But again,  this            difference has  no apparent  logical bearing  on the  factual            question whether the June 1987 event caused permanent injury.                 Our  own  research  suggests  that  the  most  pertinent            difference  between  federal  and  Maine law  may  lie  in  a            different area.   Maine case law may be  more grudging in its            willingness to  compensate  the aggravation  of  an  existing            condition where the aggravation appears to be  part of normal                                         -10-                                         -10-            life rather than  the result of some increased  risk peculiar            to the job.2  If there were any indication that this attitude            had influenced  the Maine  agency  finding at  issue in  this            case, there might be reason  to hesitate in giving collateral            estoppel effect to this finding.                 But the expert medical evidence in the Maine proceedings            (already  described)  pointed   directly  to  the  conclusion            reached by  the Maine  agency: that  the  June 1987  incident            caused no permanent  injury.  There is no  hint whatever that            the Maine agency thought that a permanent injury had occurred            in June  1987 but  should be disregarded  because it  was not            compensable  under  Maine  law.   Whether  the  Maine factual            finding  was right  or wrong,  the agency  was not  evidently            influenced by any difference between federal and Maine law.                 The Maine finding may have been wrong, even though amply            supported by the evidence offered  in that case.  The federal            ALJ reached  a  different conclusion  by  crediting  slightly            different deposition  testimony from Dr.  Kalvoda given after                                                                    _____            the Maine proceeding;  the ALJ also chose to  place weight on            Acord's testimony  that he  had begun  to suffer  a different            sort  of pain  after the  June  1987 incident.    If the  ALJ                                            ____________________                 2Compare Gardner v. Director, OWCP, 640 F.2d 1385, 1387,                  _______ _______    ______________            1389  (1st  Cir.  1981) (aggravation  from  standing  on hard            surfaces  compensable  under  Longshore  Act)  with  Hamm  v.                                                           ____  ____            University   of  Maine,  423  A.2d  548,  550-51  (Me.  1980)            ______________________            (aggravation from chopping salad not compensable  under Maine            statute).                                         -11-                                         -11-            decision were before  us on the merits, it  would probably be            sustained, given the deference due to the factfinder.                 But the  point of collateral estoppel is  that the first            determination is binding not because  it is right but because            it   is  first--and  was  reached  after   a  full  and  fair            opportunity between the parties to litigate the issue.  Acord            has given  us no reason to doubt that he had that opportunity            in the Maine proceeding.  And,  it is by no means clear  that            the Maine  result was  wrong: the issue,  as in  many medical            causation matters, was probably a close call.                 At  oral argument,  Acord  offered yet  another argument            against collateral estoppel in workers' compensation matters,            saying  that in  Maine  (as elsewhere)  a  change in  medical            condition often  allows the reopening  or renewal of  a prior            claim.  Admittedly, this practice (evidenced here by the 1992            increase in Acord's own award  to 50 percent) is a limitation            on  conventional res  judicata.   In a  civil tort  action, a                             _____________            court will not normally reopen a final judgment because later            events show  that the  injury was worse  than supposed.   Cf.                                                                      ___            Restatement, supra,   73(2).            ___________  _____                 But a  willingness to  modify  an award  based on  later            changes  in medical  condition is  not the  same as  giving a            _______            party two chances to litigate the same historical fact (here,            whether the June  1987 injury caused permanent damage).  Such            findings  of historical  fact  are given  collateral estoppel                                         -12-                                         -12-            effect  by  compensation  commissions,  including  the  Maine            commission.   Van  Houten, 655  A.2d at  334; Vodanovich,  27                          ___________                     __________            B.R.B.S. (MB) at 290-92.3  Even assuming that Acord preserved            this final argument, it does not avail.                 Historical accident has  given employees like  Acord the            benefit  of two different  compensation regimes.   Apart from            limitations  on duplicative  recovery,  occasions exist  when            successive  claims under federal  and state law  are entirely            permissible;  but  successive  claims  are still  subject  to            various conventional  limitations, like  collateral estoppel.            Overall,  collateral estoppel  may as  easily  be helpful  to            claimants  as to  employers or insurers,  and it  reduces the            litigation costs for everyone.                  Acord's claim is  also probably barred by  the Longshore            Act's  one-year statute of  limitations, 33 U.S.C.    913(a).            The incident giving rise to  the claim occurred in June 1987;            the federal  claim was filed  in March 1992.   The statute of            limitations  defense was  properly  raised and  it  obviously            precluded Acord's claim  unless the claim was rescued  by the            tolling  provision contained  in 33  U.S.C.    913(d),  which            reads as follows:                                            ____________________                 3In  this very  case  the Maine  commission's  appellate            division affirmed  a commissioner's rejection of  a separate,            later  claim by  Acord  for benefits  deriving from  the 1987            injury,  explaining that  "the petition  [is]  barred by  the            doctrine of  res judicata  because of  a prior  determination                         ____________            [i.e.,  in February  1989]  that the  effects  of the  injury             ____            ended."                                         -13-                                         -13-                      Where recovery is  denied to any person,  in a                 suit  brought at  law or  in  admiralty to  recover                 damages  in  respect  of injury  or  death,  on the                 ground  that such person  was an employee  and that                 the defendant was an employer within the meaning of                 this  chapter and  that such  employer had  secured                 compensation to  such employee under  this chapter,                 the  [one-year] limitation of time prescribed . . .                 shall   begin  to  run   only  from  the   date  of                 termination of such suit.                 The  wording of this provision strongly suggests that it            has nothing to do with Acord's situation.  It may be doubtful            that  the Maine compensation proceeding is properly described            as "a  [damage] suit  brought at law  or in  admiralty;" but,            even  assuming   otherwise,  "recovery"  in  that   suit  was            certainly not denied "on the  ground" that the claimant  "was            an employee and the defendant was an employer" covered by the            federal statute.  There is thus a compelling "plain language"            argument against Acord's reliance on section 913(d).                 The evident  purpose of  section  913(d) reinforces  its            language.  Worker compensation statutes were an innovation by            which employers obtained statutory immunity to tort liability            in  exchange for liability  without fault.   Especially where            there  might be some doubt  whether the Longshore Act covered            the  employee--often a  close question--a  precautionary tort            suit  might be  filed;  the  tolling  provision  was  plainly            intended  to  protect the  employee's  compensation claim  if            statutory  immunity  defeated  the precautionary  suit.   See                                                                      ___            Ayers v. Parker, 15 F. Supp. 447, 451 (D. Md. 1936).  Nothing            _____    ______            like this happened in Acord's case.                                         -14-                                         -14-                 Congress  could  also  have provided  that  the  federal            statute   is   tolled  wherever   a  claimant   begins  state            compensation proceedings addressed to the same injury, but it            did  not.   It  is  not obvious  that  federal courts  should            enlarge an express  tolling provision on policy  grounds, nor            are the policy grounds very compelling: once the ground rules            are  clear, it  is  easy  enough for  a  claimant to  file  a            precautionary  federal claim within  one year of  the injury,            even if the claimant prefers first to pursue a state remedy.                 This might seem  to be the end of the matter except that            the Fifth Circuit declared some years ago that section 913(d)            does  toll  the  Longshore Act  limitations  period  in cases            similar  to  Acord's.    Ingalls  Shipbuilding  Div.,  Litton                                     ____________________________________            Systems, Inc.  v. Hollinhead, 571  F.2d 272 (5th  Cir. 1978).            _____________     __________            The court's reasoning relies heavily on the general principle            of liberal interpretation of the  Longshore Act, id. at  274,                                                             ___            which  may  seem  a  doubtful  reason  for  ignoring  express            language.  Ingalls is also at odds with several well-reasoned                       _______            district court cases,4 and has  not been adopted by any other            circuit.    The  Benefits  Review  Board  apparently  follows            Ingalls in the  Fifth Circuit, Calloway v.  Zigler Shipyards,            _______                        ________     ________________            16 B.R.B.S. (MB)  175, 177  (1984), but  that is  only to  be            expected.                                            ____________________                 4See  Dawson v. Jahncke Drydock,  Inc., 33 F. Supp. 668,                  ___  ______    ______________________            669 (E.D. La.  1940); Ayers, 15 F. Supp.  at 449-53; Romaniuk                                  _____                          ________            v. Locke, 3 F. Supp. 529, 530 (S.D.N.Y. 1932).               _____                                         -15-                                         -15-                 Nevertheless, Ingalls  is the only circuit  precedent on                               _______            the issue,  and there  might be a  concern about  fairness to            claimants  if  we  departed  from  Ingalls  without  warning.                                               _______            Accordingly, we  have thought it  wiser to rest  our decision            here  on  collateral  estoppel  but  to  note  as dictum  our            substantial  doubts about  Ingalls.   These  doubts will  not                                       _______            foreclose  a future  panel from  deciding  the Ingalls  issue                                                           _______            afresh, but  their expression now should give ample notice to            future  claimants to protect  their federal claims  by filing            within one year.                 Reversed.                 _________                                         -16-                                         -16-
