
USCA1 Opinion

	




          October 28, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1337                          LIBERTY MUTUAL INSURANCE COMPANY,                                     Petitioner,                                          v.                     COMMERCIAL UNION INSURANCE COMPANY, ET AL.,                                     Respondents.                              _________________________                         ON PETITION FOR REVIEW OF A DECISION                             OF THE BENEFITS REVIEW BOARD                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Boyle,* District Judge.                                         ______________                              _________________________               Stephen Hessert,  with whom Patricia A.  Lerwick and Norman,               _______________             ____________________     _______          Hanson & DeTroy were on brief, for petitioner.          _______________               Allan  M. Muir, with whom  Kevin M. Gillis  and Richardson &               ______________             _______________      ____________          Troubh were on brief, for respondent Commercial Union Ins. Co.          ______               Laura J.  Stomski, Attorney,  with whom Marshall  J. Breger,               _________________                       ___________________          Solicitor of Labor,  Carol A.  De Deo,  Associate Solicitor,  and                               ________________          Janet R.  Dunlop,  Counsel  for  Longshore, were  on  brief,  for          ________________          federal respondent.                              _________________________                              _________________________          __________          *Chief Judge, United  States District Court  for the District  of          Rhode Island, sitting by designation.                    SELYA,  Circuit Judge.    This doubleheader  of a  case                    SELYA,  Circuit Judge.                            _____________          presents  not  one,  but   two,  interrelated  questions.    Both          questions involve the nexus  between occupational disease and the          Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.             901-950 (1988).   First,  we must decide  whether, as  between          successive  insurance carriers, the primary obligation to provide          LHWCA  benefits is triggered by  a worker's disability  or by his          awareness of  the  potential for  disability.   Second,  we  must          decide  whether, as  between successive  insurance carriers,  the          date  of disablement is the date on which a worker's long-latency          disease  is first  diagnosed  or  the  date  on  which  he  first          experiences a decrease in earning capacity.  For the reasons that          follow,  we conclude that congressional intent and administrative          convenience are best  realized by  a system in  which, for  LHWCA          purposes, liability  for the  effects of an  occupational disease          falls  upon  the  last   responsible  insurer  on  the   date  of          disability,  as  determined  by  the date  of  decreased  earning          capacity.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    The underlying  facts are not seriously  disputed.  The          claimant, Frederick Libby, worked for Bath Iron Works Corporation          (BIW) from 1941  until 1985.   Throughout, he  faced exposure  to          asbestos.    In  December of  1980,  Libby  learned  that he  had          contracted asbestosis.  He remained on the job, doing his regular          work,  until February 13, 1985, when his physician advised him to                                          2          quit  work.   He never returned.   From  then on,  he was totally          disabled and entitled to LHWCA benefits.                    In  December 1980,  Commercial Union  Insurance Company          (CUI)   was  on  the  risk.     Soon  thereafter,  BIW  purchased          replacement  coverage  from  Liberty  Mutual   Insurance  Company          (Liberty).  Liberty's policy took effect on March 1, 1981.  Libby          filed his claim for  disability benefits pursuant to 33  U.S.C.            919(a)  on April  10, 1985.   Liberty  was still  the carrier  of          record.   An Administrative Law  Judge (ALJ) found  Libby's claim          compensable and, rejecting  Liberty's effort to  lay the onus  of          payment at CUI's doorstep, held Liberty responsible for benefits.          The  Benefits  Review  Board   (Board)  affirmed.    Liberty  now          petitions for  judicial review.1   See  33 U.S.C.    921(c).   We                                             ___          dismiss the petition.                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                                          A.                                          A.                                          __                         When Does Carrier Liability Attach?                         When Does Carrier Liability Attach?                         __________________________________                    The  threshold issue  here  is whether,  in respect  to                                        ____________________               1The principal  respondents in  this proceeding are  CUI and          the Director of  the Office of Workers' Compensation  Programs of          the United  States  Department  of Labor  (the  Director).    The          Director has a foot in each camp.  He supports the Board's ruling          that the date of  disability, rather than the date  of awareness,          controls.  However, he disagrees with the Board's formulation  of          how  the  date of  disability should  be  determined and  seeks a          modification  of  the  Board's  order  in  that  respect.    This          modification, if  granted, would change the  ratio decidendi and,                                                       _____ _________          in the bargain,  shift the onus  of payment from Liberty  to CUI.          BIW  is a doubly honorific party (petitioner and respondent).  We          ignore its nominal presence.                                          3          occupational  diseases, the  date of disablement  or the  date of          awareness  of  potential  disablement  determines  which  of  two          responsible  carriers is  liable for  LHWCA benefits.2   Although          the  question is  new  to us,  other  courts have  grappled  with          offshoots  of it.   The  seminal case  is Travelers  Ins. Co.  v.                                                    ___________________          Cardillo,  225 F.2d  137 (2d  Cir.), cert.  denied, 350  U.S. 913          ________                             _____  ______          (1955).  With regard to successive employers, Cardillo held that:                                                        ________                    the  employer during  the last  employment in                    which the claimant  was exposed to  injurious                    stimuli,  prior to  the date  upon which  the                    claimant became aware of the fact that he was                    suffering   from   an  occupational   disease                    arising  naturally  out  of  his  employment,                    should be  liable for the full  amount of the                    award.          Id. at  145.  The  court devised  a similar test  with regard  to          ___          successive insurance carriers:                    the  carrier  who last  insured  the "liable"                    employer   during    claimant's   tenure   of                    employment, prior to the date claimant became                    aware of the fact  that he was suffering from                                        ____________________               2Our   reasoning  here   is  limited   to   cases  involving          occupational diseases.   Although Congress has  never defined the          term "occupational disease" for LHWCA purposes, we agree with the          Second Circuit  that "[t]he  generally accepted definition  of an          occupational disease  is any disease  arising out of  exposure to          harmful conditions  of the employment, when  those conditions are          present  in  a peculiar  or increased  degree by  comparison with          employment generally."  Gencarelle v. General Dynamics Corp., 892                                  __________    ______________________          F.2d 173,  176 (2d  Cir. 1989) (citation  and internal  quotation          marks omitted).  Asbestosis  and other occupational diseases give          rise to special  problems in assigning liability  under the LHWCA          because, in contrast to episodic injuries (i.e., injuries arising                                                     ____          from  isolated incidents  such as  a blow  or  a slip  and fall),          occupational  diseases involve  continued  exposure to  injurious          stimuli.   As  a result,  it is  often impossible  to identify  a          precise  date on  which an  injury stemming  from such  a disease          might realistically be said to have occurred.  See Travelers Ins.                                                         ___ ______________          Co. v. Cardillo, 225  F.2d 137, 144 (2d Cir.),  cert. denied, 350          ___    ________                                 _____ ______          U.S. 913 (1955).                                            4                    an occupational disease arising naturally out                    of his employment, should be held responsible                    for  the   discharge   of  the   duties   and                    obligations of the "liable" employer.          Id.   The parties agree that  Cardillo is the beacon  by which we          ___                           ________          must steer.  But, they are at loggerheads over the direction that          Cardillo's principles portend for the current controversy.          ________                    Liberty seizes upon  the Cardillo court's statement  of                                             ________          the  "last  responsible employer"  rule,  quoted  supra p.4,  and                                                            _____          argues  that  the question  before  us stands  decided:   because          Libby's condition  was diagnosed in 1980,  he necessarily "became          aware"  of his  occupational  disease at  that  time and,  hence,          liability should fall  upon CUI.   We find  this argument  overly          simplistic.   Statements in  judicial opinions cannot  be wrested          free  of their  factual moorings.   Cardillo  involved a  case of                                              ________          hearing loss in which  the worker's awareness of the  disease and          his actual disablement coincided.   The Cardillo court's language                                                  ________          must, therefore, be read  in this context.  It cannot  be applied          blindly  to  cases  in  which awareness  and  diminished  earning          capacity occur at separate times.                     Once we apply truth in labelling and treat the question          as open,  rather than as  a matter of  stare decisis, it  becomes                                                 _____ _______          evident  that  Liberty's  reliance  on  Cardillo   as  unswerving                                                  ________          authority for an all-encompassing awareness test is as shaky as a          shack built upon  the shifting sands.   Imposing liability  based          upon the date  of disability  rather than the  date of  awareness          when  the two dates do  not coincide better  serves the doctrinal          impetus  behind  Cardillo.    After  all,  the  last  responsible                           ________                                          5          employer rule, and its  eponymous offspring, the last responsible          insurer rule,  derive from an  acknowledged need to  minimize the          obstacles  confronting   efforts  at  precise   apportionment  of          liability  in the LHWCA context.   As we  explain below, judicial          and  legislative recognition  of this  need, together  with other          pertinent  considerations, converge  to support a  formulation of          the  last insurer rule that assigns liability based upon the date          of disability rather than the date of awareness.                    1.  Medical and Administrative Obstacles.  Deficiencies                    1.  Medical and Administrative Obstacles.                        ____________________________________          in medical knowledge  create choppy  seas for a  system in  which          awareness,  as   opposed   to  disability,   determines   carrier          liability.   As the Cardillo  court explained in  connection with                              ________          its  articulation  of  the   rules  governing  the  liability  of          employers and their insurers:                    The nature  of occupational diseases  and the                    dearth of medical certainty with respect to .                    .  . [their]  evolution, make  it exceedingly                    difficult, if not practically  impossible, to                    correlate the progression of the disease with                    specific   points   in   time   or   specific                    industrial experiences.          Cardillo,  225 F.2d  at  144.    This same  uncertainty  strongly          ________          suggests that the time of actual disability, rather than the time          of awareness, should govern application of the last insurer rule.          If awareness were to be more than a hollow slogan,  it would have          to  signify  an affected  worker's  knowledge  that a  particular          disease  would lead  to his  disablement during  his career.   To          reach this  point,  a physician  would have  to make  not only  a          diagnosis  but also  a  fairly exact  prediction  as to  how  the                                          6          disease  would   progress  in  an  individual  case.     This  is          treacherous, highly speculative terrain.                    In  contrast, the  question  of when  a worker  becomes          disabled,  while  complicated,  depends  largely  upon a  medical          diagnosis  of an existing condition.   No crystal  ball is needed          inasmuch  as no prediction of future events is entailed.  Because          there is, on average, much less room for legal wrangling over the          backward-looking,  one-part  question  of when  a  worker  became          disabled  than over  the  forward-looking,  two-part question  of          when, and if, a  worker will become disabled, a  rule emphasizing          the  former  datum  more  closely  coheres  with  the  principles          motivating the  last responsible employer  rule.   Or, looked  at          from  another  angle, if  uncertainty  with respect  to  the past          progression  of  a  disease  is  enough  of  a  consideration  to          influence  how  liability rules  should  be  shaped, as  Cardillo                                                                   ________          suggests, 225  F.2d at 144-45, there  is no sound reason  why the          far greater uncertainty associated with predictions of the future          course, progression,  and eventual severity  of a disease  is not          entitled to comparable weight.                    Then,  too, the subjective nature of Liberty's proposed          "awareness" test presents an array of epistemic difficulties.  As          the  Court has noted in a different context, "[t]here are special          costs to 'subjective' inquiries."  Harlow v. Fitzgerald, 457 U.S.                                             ______    __________          800, 816 (1982).   Dispute and delay will almost  always surround          attempts to answer the essentially subjective inquiry into when a          worker first  became aware  that he had  contracted a  particular                                          7          disease.  In  contradistinction, a last  insurer rule based  upon          date of  disability readily  lends itself  to objective  means of          proof,  encounters  fewer factual  obstacles,  and  more smoothly          implements  the LHWCA.    Hinging the  test  on the  more  easily          verifiable and  objective issue of  disablement will,  therefore,          result in a marked lessening of administrative difficulties.3                     2.  Congressional Intent.  Another persuasive rationale                    2.  Congressional Intent.                        ____________________          for   adopting  this   incarnation   of  the   rule  relates   to          congressional  intent. Of  course,  we are  called  upon here  to          elucidate a judge-made  rule, not a  legislative provision    but          the  rule governing  allocation  of insurer  liability, like  all          rules of  federal  common  law,  was presumably  motivated  by  a          concern "to  fill in  interstitially or otherwise  effectuate the          statutory  patterns enacted  in  the large  by Congress."  United                                                                     ______          States v. Little Lake  Misere Land Co., 412 U.S.  580, 593 (1973)          ______    ____________________________          (citation  and  internal    quotation marks  omitted);  see  also                                                                  ___  ____                                        ____________________               3Arguing that a date-of-disability  rule would be  "unwieldy          and confusing,"  Liberty posits  the following hypothetical:   if          Libby had incurred medical expenses in 1980,  when his asbestosis          was  diagnosed,  CUI  would  have  paid  them.    Hence,  Libby's          disablement in  1985 would have necessitated either a shifting of          responsibility for  these  previously incurred  medical  expenses          from the original  to the  subsequent insurer or  a framework  in          which  one  insurer  pays  medical benefits  while  another  pays          disability benefits.    See Petitioner's  Brief  at 10-11.    The                                  ___          perceived dilemma  strikes us  as inconsequential.   Moreover, an          awareness-oriented  system  would  have   offsetting  bookkeeping          costs; insurance  carriers whose policies were  canceled would be          required nevertheless to  keep the books  more open and  maintain          reserves  against  potential  claims  from  employees  of  former          insureds.  In some cases, the waiting period could be many years.          Finally, any added paperwork attributable to  adoption of a date-          of-disability rule  cannot compare with the  other administrative          inconveniences  inherent  in  a  system  where  awareness governs          liability.                                          8          Cardillo, 225 F.2d at  145.  Thus, while we are not bound, in the          ________          strictest   sense,  to   follow  some   specifically  articulated          statement of congressional intent, we look to the  more generally          expressed  will   of  Congress  for  guidance   in  fleshing  out          Cardillo's judge-made rule.  Cf., e.g., United  States v. Fisher,          ________                     ___  ____  ______________    ______          6  U.S. (2 Cranch) 358,  386 (1805) (Marshall,  C.J.) ("Where the          mind  labors to discover the design of the legislature, it seizes          everything from which aid can be derived.").                    When   enacting  the   LHWCA,   Congress  rejected   an          apportionment  provision  that would  have avoided  imposition of          total liability on last employers.   Hearing before the Committee          on  the Judiciary of the  House of Representatives  on H.R. 9498,          69th Congress, 1st Sess.,  held April 8, 15, 22, 1926 (Hearing on          H.R. 9498), Serial 16, 72, 74.  The Cardillo court drew from this                                              ________          legislative history the plausible  inference "that the failure to          amend was based upon a realization of the difficulties and delays          which would inhere in the administration of the Act,  were such a          provision incorporated  into it."  Cardillo, 225 F.2d at 145.  We                                             ________          believe that these   aims and objectives are best  satisfied by a          date-of-disability rule.  See supra Part II(A)(1).  Moreover, the                                    ___ _____          reported  discussion  on  the proposed  amendment  indicates that          Congress believed  the employer  at the time  "disability begins"          should be liable.  See, e.g., Hearing on H.R. 9498, at Serial 16,                             ___  ____          72, 74.  Since  "the treatment of carrier liability  was intended          to  be  handled  in  the  same  manner  as  employer  liability,"          Cardillo,   225  F.2d  at   145,  this  bit   of  history  argues          ________                                          9          convincingly that  the date  of disability should  also determine          which of the "liable" employer's insurance carriers must bear the          onus of payment.4                    Further evidence of congressional intent can be gleaned          from  recent  amendments  to  the  LHWCA.    Prior  to  1984,  an          employee's  awareness of  a relationship  between "the  injury or          death," on the one hand,  and the employment, on the  other hand,          triggered  the running of  the statutory period  for filing claim          notices under 33 U.S.C.    912(a).  Similarly, former  section 13          barred a claim  unless filed within a  year "after the  injury or          death."  33  U.S.C.   913 (a)  (1982) (amended).  Declaring  that          "[t]he  term 'injury'  .  . .  has  little applicability  in  the          context  of a disability or death which  is the result of a long-          latency  occupational disease," H.R.  Rep. No. 570,  Part I, 98th          Cong., 2d Sess.  10, reprinted  in 1984 U.S.Code  Cong. &  Admin.                               _________  __          News 2734, 2743, a legislative committee offered amendments which          Congress  enacted in 1984.   In the LHWCA's  revised version, the          filing  period begins  to  run when  "the  employee or  claimant"          learns of the tri-cornered relationship among the employment, the          disease, and the disability.  See 33 U.S.C.    912(a), 913(b)(2).                                        ___          We take this to mean that Congress identified onset of disability                                        ____________________               4We note that, because  the parties do not dispute  that BIW          is the liable  employer (Libby,  after all, worked  for only  one          employer throughout the relevant period), the question of whether          explicitly  to   adopt  or  revise  Cardillo's  last  responsible                                              ________          employer  rule  is  not before  us.    However,  since the  rules          governing  the  allocation  of  employer  and  insurer  liability          operate  synergistically,  their  formulations  will  perforce be          closely related.                                          10            not occurrence  of an  injury or awareness  of an  occupational          disease     as  the  critical factor  in  filing  LHWCA  claims.5          Indeed,  the  committee report  specifically  stated  that "[t]he          first change to the body which results from exposure to a harmful          physical agent  or a toxic substance often is not disabling . . .          it is  disability which  should trigger the  compensation claim."          H.R.  Rep. No.  570,  supra, 1984  U.S.C.C.A.N.  at 2743.    That                                _____          language  rather  plainly  implies that  the  compensation  claim          itself, including any attendant liability, cannot arise until the          disability begins.6   See  Argonaut  Ins. Co.  v. Patterson,  846                                ___  __________________     _________          F.2d 715, 720 (11th Cir. 1988).                     Liberty advances  two reasons why  the 1984  amendments          should not affect our  decision here.  First, it asserts that the          amended provisions  serve different functions than the provisions          to  which the  last  insurer  rule  relates,  ergo,  the  reasons          underlying their enactment  shed no  light on our  inquiry.   The          assertion constitutes a classic non sequitur.  In all cases where          Congress  has avoided  echolalia, different  statutory provisions          will serve different functional  ends.  But, this does  not imply          that  Congress's  statements  and  actions with  respect  to  one                                        ____________________               5Amendments   to  the  provision  governing  computation  of          average weekly  wages for claimants  suffering from  occupational          disease  effected  similar  changes.   See  33  U.S.C.    910(i).                                                 ___          Again, the legislative history  buttresses the idea that Congress          enacted  these changes because it saw "the onset of the disabling          condition" as an  important factor.   H.R. Rep.  No. 570,  supra,                                                                     _____          1984 U.S.C.C.A.N. at 2745.               6We  refer here  only to  claims for  compensation    not to          claims for medical or other ancillary benefits.                                          11          portion  of  a  statute  provide  no  insight  into  the   proper          interpretation  of  other portions  of  the  same statute.    The          reverse  is often  true.  See, e.g.,  United States  v. Riverside                                    ___  ____   _____________     _________          Bayview  Homes, Inc.,  474 U.S.  121, 138  & n.11  (1985); United          ____________________                                       ______          States  v.  Mitchell,  445  U.S.   535,  542-43  (1980);  2A   J.          ______      ________          Sutherland,  Statutes and  Statutory Construction   47.02 (1992).                       ____________________________________          When, as  here, we are confronted with the task of divining which          of  two  seemingly  plausible  interpretations  of  a  judicially          created rule comports more  clearly with congressional intent, it          would   be  presumptuous   to   ignore   explicit   congressional          pronouncements addressing the issue.   See, e.g., North Haven Bd.                                                 ___  ____  _______________          of Educ.  v. Bell, 456 U.S.  512, 535 (1982); Cannon  v. Univ. of          ________     ____                             ______     ________          Chicago, 441 U.S. 677, 687 n.7 (1979).          _______                    In a second attempt to resist the onslaught of the 1984          amendments, petitioner relies on  the Ninth Circuit's decision in          Port of Portland v. Director, OWCP, 932 F.2d 836 (9th Cir. 1991).          ________________    ______________          This  reliance is  mislaid.    In  Port  of  Portland,  the  last                                             __________________          responsible  employer  was attempting  to  foist  liability on  a          subsequent non-responsible  employer (i.e., a  business in  whose                                                ____          employ  the  claimant  had  not been  exposed  to  any  injurious          stimuli).   The last responsible employer  argued that, since the          claimant became disabled  while in the  employ of the  subsequent          non-responsible employer,  the latter  should be held  liable for          compensation.   The court  brushed the argument  aside, observing          that  it contradicted the Cardillo  formulation.  See  id. at 841                                    ________                ___  ___          ("Cardillo remains good law.").            ________                                          12                    The case  at hand  is  vastly different.   Rather  than          suggesting  that  the 1984  amendments  uprooted  rules of  LHWCA          liability which have been  settled since Cardillo, we acknowledge                                                   ________          that the amendments  have no substantive  effect on the  question          before  us.   We find  them to  be useful,  however, in  divining          congressional intent with respect  to the proper workings of  the          statutory  scheme  in  an area  of  the  law  that Cardillo  left                                                             ________          unsettled.  On that basis, the pronouncements of Congress in 1984          constitute additional support for our conclusion that legislative          intent favors a system identifying disability, and not awareness,          as the  critical factor  in the  assignment of  carrier liability          under the LHWCA.7                    3.    The Authorities.   Our  canvass  of the  case law                    3.    The Authorities.                          _______________          discloses  that the only other court of appeals that has directly          confronted the  same question ruled  that the date  of disability          governs insurer liability  under the  LHWCA.   See Argonaut,  846                                                         ___ ________                                        ____________________               7We recognize that in certain settings the use of subsequent          legislative history may be  controversial.  Compare, e.g., United                                                      _______  ____  ______          States  v.   Price,  361   U.S.  304,  313   (1960)  (denigrating          ______       _____          argumentation  based on  subsequent  legislative  history)  with,                                                                      ____          e.g.,  Red Lion  Broadcasting Co.  v. FCC,  395 U.S.  367, 380-81          ____   __________________________     ___          (1969) (welcoming such  argumentation).  We believe  the value of          resort to subsequent legislative history is  best decided case by          case.  See  generally Andrus v. Shell Oil  Co., 446 U.S. 657, 666                 ___  _________ ______    ______________          n. 8  (1979)  (admonishing that  subsequent  legislative  history          "should not be rejected out of hand  as a source that a court may          consider").  In this endeavor, context is all-important.  Because          our task  here is  to map the  contours of  a judicially  created          rule,  we  look  to  the 1984  amendments  not  in  an effort  to          elucidate the  otherwise obscure meaning of  a specific statutory          provision  enacted in  1926, but  rather, in  hopes of  obtaining          guidance  as  to  which interpretation  of  that  rule fits  more          comfortably within the overall statutory framework.  Common sense          tells  us that  legislative  history, whether  contemporaneous or          subsequent, can be used for such a purpose.                                          13          F.2d at 719-20.  Cases examining closely analogous questions lend          great credence to this result.  See Port of Portland, 932 F.2d at                                          ___ ________________          840 (date  of disability governs employer  liability); Cordero v.                                                                 _______          Triple  A Mach. Shop, 580 F.2d 1331, 1337 (9th Cir. 1978) (same),          ____________________          cert. denied,  440 U.S. 911 (1979); see also 4 A. Larson, The Law          _____ ______                        ___ ____              _______          of  Workmen's Compensation,     95.25(a) (1990)  (stating that  a          __________________________          date-of-disability rule  is "frequently  chosen" in the  workers'          compensation area).  Finally,  administrative precedent is in the          same vein.  See, e.g., Thorud v. Brady Hamilton Stevedore Co., 18                      ___  ____  ______    ____________________________          BRBS 232, 235 (1986) (holding that carrier liability attaches  as          of   date  that  employee's   long-latency  occupational  disease          "affected  his  ability  to   earn  wages");  Carver  v.  Ingalls                                                        ______      _______          Shipbuilding,  Inc., 24  BRBS  243, 246-47  (1991) (holding  that          ___________________          employer liability attaches at date of disablement).  In sum, the          case  law, while it is  fairly sparse, favors  the result that we          reach today.                    A  point  made by  the  Argonaut  court concerning  the                                            ________          letter  of the  Cardillo  formulation bears  reiteration at  this                          ________          juncture.   The Eleventh Circuit, observing  that Cardillo linked                                                            ________          awareness  to  suffering,  concluded  that mere  awareness  of  a          disease  is not, in and  of itself, tantamount  to suffering from          that disease, especially since the term "suffering" carries "very          particular connotations which we cannot assume the Second Circuit          meant to ignore."  Argonaut, 846 F.2d at 719.  We agree with this                             ________          analysis.  And,  disablement meshes much  more smoothly with  the          concept of suffering than does awareness.                                          14                    4.    Other  Considerations.    We  offer  three  final                    4.    Other  Considerations.                          _____________________          comments concerning Liberty's lament that  the date-of-disability          rule is fundamentally unfair.   (1) CUI contracted with BIW at  a          time  when  Libby seemed  in  good health.    Conversely, Liberty          contracted with BIW  at a later date, when Libby's  disease was a          matter of  record and BIW  actually knew of  it.  In  that sense,          this case presents  a choice  between assigning  liability to  an          insurer  which possessed no way  of knowing of  an employee's as-          yet-undiagnosed affliction  or assigning liability to  an insurer          that was chargeable with advance knowledge when it underwrote the          risk.   As between the  two, it  can hardly be  deemed unfair  to          assign liability to the  latter.  Nor  is this an aberration;  on          average, the opportunities for advance knowledge will be at least          equal, and often greater, on  the part of the  date-of-disability          insurer.   (2) As with the last responsible employer rule itself,          the date-of-disability version of  the last insurer rule achieves          proportionality,  if  not  in   particular  cases,  then  in  the          insurance industry  as a whole.   See Cordero, 580  F.2d at 1336.                                            ___ _______          It  is trite,  but  true, that  every insurer  will  be the  last          insurer sometime.   (3)  For purposes  of treating  carriers like          Liberty  fairly,  it  is  less  important  that  we   choose  any          particular formulation  of the  last insurer  rule than that  the          chosen rule be fixed and known so that its effects may enter into          actuarial calculations of premiums to be charged.                     5.  Summation.  Recognizing, as  we do, that Cardillo's                    5.  Summation.                        _________                                ________          animating principles  and the  spirit of the  LHWCA both  dictate                                          15          that  disablement is  the  critical factor  in assigning  carrier          liability, we align ourselves  on this issue with the  Board, the          respondents,  and  the weight  of authority.    We hold  that, as          between two insurers  disputing which must  pay claims under  the          LHWCA, the carrier which last insured the  liable employer during          the period in  which the  claimant was exposed  to the  injurious          stimuli and  prior to the date the claimant became disabled by an          occupational disease arising naturally  out of his employment and          exposure   is  responsible   for  discharging   the  duties   and          obligations of the liable employer.                                          B.                                          B.                                          __                             When Is a Worker "Disabled"?                             When Is a Worker "Disabled"?                             ___________________________                    This  brings us to the second issue.  The Director, who          agrees  that the  date  of disability  rather  than the  date  of          awareness must dictate liability  as between successive insurers,          asseverates that  the mere  diagnosis of an  occupational disease          which   will  inevitably  become   disabling,  e.g.,  asbestosis,                                                         ____          constitutes disability as a  matter of law.8  This  contention is          planted in  the soil of  our earlier  opinion in Bath  Iron Works                                                           ________________          Corp. v.  White, 584  F.2d  569 (1st  Cir. 1978).   But,  fertile          _____     _____          though the soil of circuit precedent may be, White cannot sustain                                                       _____          this particular genus of argumentation.                    1.   Standard of Review.   The issue  presented poses a                    1.   Standard of Review.                         __________________          pure  question  of law.   Therefore,  our  standard of  review is                                        ____________________               8In  this  case,  the  asseveration  redounds  to  Liberty's          benefit,  and  Liberty has  not  disclaimed  it.   The  Director,          however, is clearly its principal sponsor.                                          16          plenary.  See,  e.g., Stauble v. Warrob, Inc.,  ___ F.2d ___, ___                    ___   ____  _______    ____________          (1st Cir. 1992) [Nos.  92-1102, 1103, slip op. at 5] (adopting de                                                                         __          novo standard of review for legal questions) (collecting cases).          ____                    The Director attempts to vary this  standard, asserting          that we should defer to his judgment and expertise.  The circuits          are  badly fractured in respect  to the degree  of deference that          ought properly to be afforded to the Director's interpretation of          the LHWCA.   No fewer  than four  circuits cede deference  to the          Director's construction  of the  LHWCA, at  least in  cases which          focus  upon perceived  ambiguities in the  statutory text.   See,                                                                       ___          e.g., Force v. Director, OWCP, 938 F.2d 981, 983 (9th Cir. 1991);          ____  _____    ______________          Newport News Shipbuilding & Dry Dock Co. v. Howard, 904 F.2d 206,          ________________________________________    ______          208  (4th Cir. 1990); Peabody  Coal Co. v.  Blankenship, 773 F.2d                                _________________     ___________          173, 175 (7th Cir. 1985);  Boudreaux v. American Workover,  Inc.,                                     _________    ________________________          680 F.2d  1034, 1046  & n.23  (5th  Cir. 1982)  (en banc),  cert.                                                                      _____          denied,  459  U.S.  1170   (1983).    Two  other   circuits  have          ______          consistently refused  to defer.   See Director,  OWCP v.  General                                            ___ _______________     _______          Dynamics  Corp., 900 F.2d 506, 510 (2d Cir. 1990); Director, OWCP          _______________                                    ______________          v. O'Keefe, 545 F.2d 337, 343 (3d Cir. 1976).  The Sixth Circuit,             _______          although originally  inclined to  extend  deference, see  Saginaw                                                               ___  _______          Mining Co. v.  Mazzulli, 818 F.2d 1278, 1283 (6th Cir. 1987), has          __________     ________          since decided that deference is inappropriate.  See American Ship                                                          ___ _____________          Bldg. Co. v.  Director, OWCP, 865 F.2d 727,  730 (6th Cir. 1989);          _________     ______________          Director, OWCP v. Detroit  Harbor Terminals, Inc., 850 F.2d  283,          ______________    _______________________________          287-88 (6th Cir. 1988).  Our court has not addressed the subject.                    We need not enter  this thicket today.  In  the instant                                          17          case, the relevant uncertainty is as to the workings of a  judge-          made rule.   The Director  insists that, "under  the law of  this                                                    _______________________          Circuit,  the date of disability from  an occupational disease is          _______          the  date  of diagnosis."    Director's  Brief  at  20  (emphasis          supplied).   He concedes that,  "should this Court  find that its          precedent  in White  does  not  apply  to  this  case  to  define                        _____          disability as of diagnosis  then, [sic] the Board's determination          that Liberty  Mutual was  liable .  . .  should be  upheld," for,          without  White, "the  onset  date for  the claimant's  disability                   _____          would be the date on which the claimant first suffered  a loss of          wage-earning capacity."  Id. at 23.                                     ___                    Under these unusual circumstances,  we see no basis for          deference.     The   Director's  position  concerns   merely  his          interpretation  of the case  law, not  his interpretation  of the          controlling  statute.  It is  nonsense to suggest  that a federal          court must defer to  an administrative agency in  determining the          meaning  and  applicability   of  the   court's  own   precedent.          Accordingly, we  examine  the Director's  assertion  that,  under          White,   diagnosis  constitutes  disability  for  LHWCA  purposes          _____          without  any special  deference  but with  the customary  respect          afforded all litigants.                    2.  The Significance  of White.  The claimant  in White                    2.  The Significance  of White.                        __________________________                    _____          worked  as a skilled pipecoverer  until learning in  1966 that he          had  contracted asbestosis.    He  was  then  transferred  to  an          unskilled position in the  employer's machine shop.   The machine          shop job ordinarily  commanded a lower stipend, but  the employer                                          18          continued  to remunerate White at  his former wage  rate.  White,                                                                     _____          584  F.2d at 572.  Notwithstanding the continuation of wages, the          Board found that White sustained a diminution in earning capacity          because his  disease prevented him from  continuing his customary          employment and required him to accept inferior employment to earn          a  livelihood.   The  Board reasoned  that,  even though  White's          earnings were intact, his earning capacity  was reduced since the          disease had robbed him  of the ability to obtain  a pipecoverer's          wages on  the open  market.   On  review, we  upheld the  Board's          conclusion that White was entitled to partial disability payments          covering the period of his stay in the machine shop.  See id.  at                                                                ___ ___          576.                    Our decision  in White, then, stands  primarily for the                                     _____          proposition  that reduction  in  earning capacity    not  out-of-          pocket  loss   is the  proper test for  availability of permanent          partial disability payments.  See White v. Bath Iron Works Corp.,                                        ___ _____    _____________________          812 F.2d 33, 35 & n.5 (1st Cir. 1987)  (applying this proposition          in  an  unrelated case  and citing  White  in support);  see also                                              _____                ___ ____          Gardner  v. Director, OWCP, 640  F.2d 1385, 1390  (1st Cir. 1981)          _______     ______________          (citing White for  essentially the same proposition).   This test                  _____          is firmly  rooted in  the language of  the LHWCA, a  statute that          defines disablement in pertinent  part as the "incapacity because          of injury to  earn the wages which the  employee was receiving at          the time of the injury in the same or any other employment."   33          U.S.C.   902(10).                    This much is uncontroversial.   In the Director's view,                                          19          however, White also  teaches a  second lesson:   that, for  LHWCA                   _____          purposes, diminished earning capacity  is a necessary concomitant          of asbestosis from and  after the time the disease  is diagnosed.          We disagree.   To  be sure,  in  the White  case, the  employee's                                               _____          disease was  sufficiently advanced that,  arguably, diagnosis and          diminished earning capacity coincided.  But, it is too  much of a          stretch  to  conclude  that,  because  diagnosis  and  diminished          earning capacity  may sometimes  occur in tandem,  the former  is          indistinguishable  from the latter.   We do not  believe that the          White  court  either  held   or  intimated  that  disability  and          _____          diagnosis are one and the same concept.                    In  a last-ditch  effort  to instill  this belief,  the          Director highlights an excerpt from our opinion in White:                                                             _____                    The diagnosis  . .  . of probable  asbestosis                    determined  medically  that   White  had   an                    occupational disease.  There  was a time bomb                    implanted in his lungs, the power of which to                    disable  and  destroy  became  stronger  with                    increased  exposure  to  asbestos dust.    To                    argue that  there  must be  outward  physical                    symptoms  before  a   finding  of   permanent                    partial  disability  flies  in  the  face  of                    common sense as well as the medical evidence.          584  F.2d at 576.   The Director  says that  this passage equates          diagnosis with  disability.  He  is wrong.   The White court  was                                                           _____          merely dispelling an argument that a finding of permanent partial          disability    always   requires    proof   of    overt   physical          symptomatology.      Significantly,   the  sentence   immediately          following the quoted passage states:                         The  Board's   conclusion  that  White's                    disease did, in fact, result in an impairment                    of  earning capacity  and thus  a compensable                                          20                    disability   is   supported  by   substantial                    medical  and  factual   evidence  and  has  a                    reasonable legal basis.          Id.  In other words, White does not instruct that, as a matter of          ___                  _____          law,  asbestosis, once  diagnosed, automatically  lessens earning          capacity.9  White teaches,  instead, that on particular occasions                      _____          the Board  may find that  diagnosis and reduced  earning capacity          coincide  and that  it may do  so despite the  absence of outward          physical  symptoms, provided  that its  decision is  supported by          other substantial evidence of  diminished earning capacity.  See,                                                                       ___          e.g., B.S. Costello, Inc. v. Meagher, 867 F.2d 722, 727 (1st Cir.          ____  ___________________    _______          1989) (citing  White as  a "substantial evidence"  case); Cornell                         _____                                      _______          Univ.  v. Velez,  856 F.2d  402, 404  (1st Cir.  1988) (similar);          _____     _____          Sprague  v. Director,  OWCP, 688  F.2d 862,  865 (1st  Cir. 1982)          _______     _______________          (similar).                    Once White is placed  into proper perspective, there is                         _____          little more to  say.   Even the Director  agrees that  diminished                                        ____________________               9If White stood for this proposition, the result would be an                   _____          awkward  mitosis of the  statutory definition.   For  purposes of          assigning   carrier   liability,   diagnosis   would   constitute          disablement (defined  by the LHWCA  as an "incapacity  because of          injury to earn  . . .  wages."  33 U.S.C.    902(10)).   Yet, for          purposes   of  collecting   compensation,  diagnosis   would  not          constitute  such an  incapacity  (as even  the Director  does not          contend that, as a matter of law, all workers diagnosed as having          a  disease  are  entitled  to  immediate  receipt  of  incapacity          benefits regardless of the work they are continuing to  do or the          wages  they  are  continuing  to  earn).    In  short,  were  the          Director's reading of White correct, an ALJ would initially  have                                _____          to determine whether a  diminishment in wage earning capacity  of          the first  species had  occurred and,  thereafter, would  have to          answer the entirely different  question of whether a diminishment          in wage earning capacity of the  second type had occurred.  We do          not think that White  requires the statute to be  construed in so                         _____          convoluted a fashion.                                          21          earning capacity  is the appropriate indicium  of disablement and          that  the date on which a worker  suffers a diminution in earning          capacity is  the date of  disablement for  purposes of  assigning          carrier liability.   The LHWCA unambiguously  supports this view,          see 33 U.S.C.    902(10) (defining disability), circuit precedent          ___          reaffirms the  proposition, see White,  584 F.2d at  575 (stating                                      ___ _____          that "the test [for permanent partial disability] is diminishment          of wage  earning capacity"),  the commentators agree,  see, e.g.,                                                                 ___  ____          Larson, supra,    95.25(a),10 and  the case law  elsewhere is  in                  _____          accord.  See,  e.g., Stevens  v. Director, OWCP,  909 F.2d  1256,                   ___   ____  _______     ______________          1259  (9th Cir.  1990),  cert. denied,  111  S. Ct.  798  (1991);                                   _____ ______          McBride v. Eastman  Kodak Co.,  844 F.2d 797,  798-99 (D.C.  Cir.          _______    __________________          1988);  Korineck v. General Dynamics  Corp., 835 F.2d  42, 43 (2d                  ________    _______________________          Cir.  1987); Fleetwood v.  Newport News  Shipbuilding &  Dry Dock                       _________     ______________________________________          Co., 776 F.2d 1225, 1229 (4th Cir. 1985).          ___                    Here, there is no claim that Libby's disease diminished          his earning  capacity prior to  the time he  was forced  to leave          work in  1985.  To the contrary, the  ALJ found an absence of any          evidence  that Libby  suffered a  diminution in  earning capacity                                        ____________________               10According to Professor Larson:                         When the onset of  disability is the key                    factor in assessing liability under the last-                    injurious-exposure rule, it does  not detract                    from the operation of  this rule to show that                    the  disease  .  .  .   had  become  actually                    apparent, or had received medical treatment .                    .  .  so  long  as  it had  not  resulted  in                    disability.          Larson, supra,   95.25(a) (citations omitted).                  _____                                          22          prior  to 1985.   The  Board  affirmed this  finding.   Since the          finding  is solidly anchored in the record, the last insurer rule          assigns liability to Liberty as the insurer at that time.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    In this  case, all roads  lead to Rome.   Congressional          intent,  the  efficient  administration  of  the  LHWCA,  circuit          precedent  (properly read),  and the  better-reasoned authorities          converge.   We hold, therefore,  that the date  of disability, as          determined  by  the date  of  decreased  earning capacity,  fixes          liability as among successive insurers for LHWCA purposes.                      We  need  go no  further.   The  petition to  review is          dismissed and the Board's  decision is affirmed.  Costs  shall be          taxed in favor of CUI.          So Ordered.          So Ordered.          __________                                          23
