
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2179                             BATH IRON WORKS CORPORATION                           and LIBERTY MUTUAL INSURANCE CO.,                                     Petitioners,                                          v.                 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,                          UNITED STATES DEPARTMENT OF LABOR,                                     Respondent.                                 ____________________                         PETITION FOR REVIEW OF A FINAL ORDER                             OF THE BENEFITS REVIEW BOARD                                 ____________________                                        Before                               Boudin,  Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Bownes, Senior Circuit Judge.                                      ____________________                                 ____________________            Kevin M. Gillis, with whom Troubh, Heisler & Piampiano, P.A.  were            _______________            _________________________________        on brief for petitioners.            LuAnn  B. Kressley, with whom J. Davitt  McAteer, Acting Solicitor            __________________            __________________        of Labor, Carol A. De  Deo, Associate Solicitor for Employee Benefits,                  ________________        and  Janet  R.  Dunlop,  Counsel  for Longshore,  were  on  brief  for             _________________        respondent.                                 ____________________                                  February 12, 1998                                 ____________________                    BOWNES, Senior Circuit Judge.  The Longshore and Harbor                    BOWNES, Senior Circuit Judge.                            ____________________          Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C.A.     901          -  950 (West Supp. 1997),  requires employers to pay compensation          to certain maritime workers for disabling injuries resulting from          their employment.   An exception from total liability is provided          to employers under   8(f) of the LHWCA when the employer  proves,          among other things,  that a permanent partial  disability existed          prior  to the work-related  injury.   33 U.S.C.A.    908(f).   In          construing this exception,  this court, along with  other circuit          courts of appeals, has required the employer to come forward with          proof,  which is  not specifically  elucidated  in the  statutory          language, that the  pre-existing disability was "manifest  to the          employer" before   8(f) relief can obtain.  See Part II, infra.                                                        ___          _____                    In 1984  the LHWCA was  amended, inter alia,  to permit          claimants to receive compensation when a long-latent occupational          disease does  not become  apparent until after  the employee  has          retired.  This appeal  presents a novel  question in the wake  of          that amendment:  may an employer  obtain   8(f) relief  when both          the claimed pre-existing  disability and compensable occupational          disease do not become manifest until after the worker has retired          from  employment  with   the  responsible  employer?     In  such          instances, of  course,  the employer  cannot show  that the  pre-          existing  disability  was  "manifest  to  the  employer"  because          employment has ceased by the time both disabilities arise.                    Because the  question before  us is  purely legal,  the          facts  underlying  the  worker's  claim  need  only  be  sketched                                         -2-                                          2          briefly.   Phillip  J. Reno  voluntarily retired  from Bath  Iron          Works ("BIW")1 in  1985, after a total of  thirty-eight years2 in          various  positions.  It is  uncontroverted that at various stages          of his employment at BIW, Reno was exposed to asbestos.   In 1989          or  1990,  several  years after  his  retirement,  Reno  began to          experience shortness  of breath.   He was diagnosed at  that time          with  chronic  obstructive   pulmonary  disease  (emphysema)  and          interstitial lung disease.  Reno had been a cigarette smoker.  In          June of  1991, Reno  was referred to  a pulmonary  specialist who          diagnosed obstructive pulmonary disease,  primarily the result of          cigarette smoking,  and restrictive  pulmonary disease  resulting          from Reno's  asbestos  exposure.   Reno  was  assessed  a  twenty          percent  whole person  impairment due  to  the overall  pulmonary          impairments.  Reno filed a timely claim for workers' compensation          benefits on the basis of his partial pulmonary disability.                    BIW in  turn gave notice  of its intent to  seek relief          from the compensation liability under   8(f) of the LHWCA on  the          theory  that  Reno's smoking-related  emphysema  was  a permanent          partial disability  which  predated the  work-related  injury  of          asbestosis.   On December 3,  1993, the Administrative  Law Judge          ("ALJ")  awarded benefits  to  Reno  and denied  BIW  the    8(f)          relief.  Relying on our precedent, the ALJ held that in  order to                                        ____________________          1.   We  refer to  Petitioners BIW  and Liberty  Mutual Insurance          Company collectively as BIW.          2.  We feel compelled to note that, contrary to BIW's description          of  Reno's work  history,  thirty-eight  years  is  not  properly          characterized  as "employ[ment]  for  several  years."    Br.  of                                                _______          Petitioner at 2 (emphasis added).                                         -3-                                          3          obtain such  relief, an employer  must demonstrate that  the pre-          existing  disability  was  manifest  to  the  employer  prior  to          retirement.                      BIW appealed the legal basis  of the   8(f) decision to          the  Department  of  Labor's Benefits  Review  Board.    After no          action, the ALJ's decision became the final order of the Board on          September 12,  1996.   See Omnibus  Consolidated Rescissions  and                                 ___ ______________________________________          Appropriations Act  of 1996,  Pub. L. No.  104-134, 110  Stat. at          ___________________________          1321-219 (April 26,  1996).  Our jurisdiction over  the appeal is          proper under 33  U.S.C.A.   921(c).  Because the  issue before us          is purely a question of law, we exercise de novo review.  Liberty                                                                    _______          Mut.  Ins. Co.  v. Commercial Union  Ins. Co., 978  F.2d 750, 757          ______________     __________________________          (1st Cir. 1992).                    BIW  posits  that Reno's  emphysema  is a  pre-existing          permanent disability which, when  combined with his  occupational          disease  of asbestosis, created  a greater disability.   Based on          this postulate, BIW points to both the plain language of    8(f),          and the substance and legislative history of the 1984  Amendments          to argue  that it is entitled to relief under   8(f).  In Newport                                                                    _______          News Shipbuilding  & Dry Dock  Co. v. Harris,  934 F.2d 548  (4th          __________________________________    ______          Cir. 1991), the  Fourth Circuit examined a similar situation, and          concluded that  "adherence to the [manifestation] requirement [in          instances of a long-latent occupational disease] would defeat the          real purposes of the  [1984] amendments,"  id. at 553.   In cases                                                     ___          such   as  these,   the  Harris   court   determined  that   "the                                   ______          manifestation requirement will  not be applied."  Id.   BIW urges                                                            ___                                         -4-                                          4          adoption of the  Harris holding,3 as a basis  for overturning the                           ______          decision of the Board below.                    We decline to  follow the Fourth Circuit  and therefore          affirm  the decision  of the  Board.   We find  the manifestation          requirement a  necessary prerequisite to   8(f) relief even where          the  compensation claim is based on a post-retirement long-latent          occupational disease.  Our analysis follows.                                         I.                                          I.                     Under    8(f) of the Act, "the  liability for permanent          partial and permanent  total disability, and death  benefits, [is          shifted] from employer to the Special Fund when the disability or          death is not due solely to the injury which is the subject of the          claim."   A2 Benefits  Review Board  Service, Longshore  Reporter                                                        ___________________          Desk Book    D8.20,  at  248 (Matthew  Bender, 1996).   In  these          _________          instances, after  an initial  period of  employer liability,  the          employee is "paid the remainder of the compensation that would be          due out of the  special fund established  in section 944 of"  the          LHWCA.  33 U.S.C.A.    8(f)(2)(A).  The Special Fund is currently          financed by assessments  on all covered employers,  part of which                                        ____________________          3.  Harris is the only circuit court of appeals decision to reach              ______          this issue as of yet.   In Ehrentraut v. Director, OWCP, 30  BRBS                                     __________    ______________          146 (1996), the Benefits Review  Board reached the question,  and          decided  that  the  pre-existing  disability  need only  manifest          itself to someone -- not necessarily the employer -- prior to the          compensable injury, id.  at 150.  The Director  has contested the                              ___          Board's jurisdiction to issue the opinion on the basis of Pub. L.          No. 104-134, supra, and the  case is currently pending before the                       _____          Third Circuit.   Director, OWCP  v. Sun Ship, Inc.,  No. 96-3648.                           ______________     ______________          Regardless, the  Board's Ehrentraut  decision is  entitled to  no                                   __________          special deference  here.   Potomac Elec.  Power Co.  v. Director,                                     ________________________     _________          OWCP, 449 U.S. 268, 278 n.18 (1980).          ____                                         -5-                                          5          is  prorated according  to the  extent to  which that  particular          employer's compensated  employees  make  use  of the  Fund.    33          U.S.C.A.   944(c).                    We  turn initially  to the  words of  the statute.   If          these are  not clear, "we  next examine the  legislative history,          albeit  skeptically, in search  of an unmistakable  expression of          congressional  intent."  Strickland v. Commissioner, Me. Dep't of                                   __________    __________________________          Human Servs., 48 F.3d 12, 17 (1st Cir. 1995).          ____________                    Section 8(f) currently reads, in relevant part:                    Injury increasing disability:                      (1)  In  any  case  in  which  an  employee                                                     ____________                    having   an   existing    permanent   partial                    _____________________________________________                    disability suffers injury, the employer shall                    __________                    provide compensation  for such  disability as                    is found  to be attributable  to that  injury                    based upon  the average  weekly wages  of the                    employee  at  the  time of  the  injury.   If                    following [certain statutorily scheduled] . .                    . injur[ies] . . . , the  employee is totally                    and permanently disabled,  and the disability                    is found not to be due solely to that injury,                    the employer  shall provide  compensation for                    the  applicable  prescribed period  of  weeks                    provided   for  in   that  section   for  the                    subsequent  injury,  or for  one  hundred and                    four weeks,  whichever is the greater . . . .                    In  all   other  cases  of   total  permanent                    disability or of  death, found not to  be due                    solely to that injury, of an employee  having                    an existing permanent partial disability, the                    employer  shall  provide .  .  . compensation                    payments or  death benefits  for one  hundred                    and  four  weeks  only.    If,  following  [a                    statutorily scheduled]  injury  . .  . ,  the                    employee has  a permanent  partial disability                    and the  disability is  found not  to be  due                    solely to that injury, and such disability is                    materially  and  substantially  greater  than                    that  which  would  have  resulted  from  the                    subsequent injury  alone, the  employer shall                    provide  compensation   for  the   applicable                    period of  weeks . .  . , or for  one hundred                                         -6-                                          6                    and  four  weeks,  whichever is  the  greater                    . . . .                      In all  other cases in  which the  employee                    has a permanent partial disability, found not                    to be  due solely  to that  injury, and  such                    disability  is  materially  and substantially                    greater than that  which would have  resulted                    from   the  subsequent   injury  alone,   the                    employer   shall  provide   in  addition   to                    [statutorily      mandated     compensation],                    compensation for  one hundred and  four weeks                    only.          33 U.S.C.A.   908(f)(emphasis added).                      Thus two categories of resulting disability are covered          under    8(f):  (1) total  permanent disability  found to  be the          result  of  the   workplace  injury  (statutorily  scheduled   or          otherwise) combined with the existing disability; and (2) partial          permanent   disability found  to be the  result of  the workplace          injury (statutorily  scheduled or  otherwise)  combined with  the          existing   disability,   where   the   resulting  disability   is          "materially and  substantially greater"  because of  the combined          effect.  Reno's  situation falls under the latter  category.  The          first sentence of  the section contains  the language crucial  to          all  requests for relief:    8(f)  cases are  those "in  which an          employee having an existing permanent partial disability  suffers                             _____________________________________          injury."                    The  statute,  however,  is silent  on  the  meaning of          "existing permanent partial disability."   See 33 U.S.C.A.    902           ________                                  ___          (definitions).  At  first blush then,  BIW's argument makes  some          sense;  it is,  at least,  an  arguable reading  to suggest  that          Reno's  emphysema was an  "existing permanent partial disability"                                         -7-                                          7          by the  time the asbestosis made itself known.  Leaving aside the          question  of when  injury  occurs  for  purposes  of  long-latent          occupational diseases,4 the issue turns  to a large degree on how          one interprets the word "existing."  For purposes of this appeal,          does  it  mean  existing during  employment,  or  existing before          another   disability   becomes  apparent?      The  manifestation          requirement,  to which  we now  turn,  was in  large measure  the          result of  courts' determinations  on the  meaning of  "existing"          disability.                                         II.                                         II.                    The font of the manifestation requirement can be traced          to the  Supreme Court's opinion in Lawson v. Suwanee Fruit & S.S.                                             ______    ____________________          Co.,  336  U.S. 198  (1949).    There,  the  Court was  asked  to          ___          determine the proper meaning of  "disability" in the context of            8(f)'s  coverage  for  "previous disabilit[ies]."    Id.  at 200.                                                               ___          Because   the  definitional   portion   of   the  LHWCA   defined          "disability" in relation to an injury "arising out of and in  the          course  of  employment," id.  (quoting  LHWCA    2(2)),  a thorny                                   ___          question of statutory interpretation emerged: must  the "previous          disability"  also  arise  out  of  an  employment-related injury?          After a review  of the Act's legislative history,  id. at 201-04,                                                             ___                                        ____________________          4.   Our inquiry  would be simplified  if the  statutory language          explicitly defined  the time of  injury in such cases.   Instead,          the definition of "injury" includes "such occupational disease or          infection  as  arises  naturally  out  of  such  employment,"  33          U.S.C.A.   902(2), and as we examine infra, wage calculations for                                               _____          occupational disease reference  the onset of disabling  effect as          the time of "injury," 33 U.S.C.A.   910(i).  There is, therefore,          room for argument on the point.                                         -8-                                          8          the Court  answered in the negative, id. at  206. "If we read the                                               ___          definition  [of  disability]  into     8(f)(1)  in  a  mechanical          fashion, we create  obvious incongruities in the language, and we          destroy one of the major purposes of the second injury provision:          the  prevention of  employer  discrimination against  handicapped          _________________________________________________________________          workers."    Id.  at  201  (emphasis  added).      It  was Lawson          _______      ___                                           ______          generally, and this  emphasized language in particular  which the          courts   of  appeals   have  seized   upon   in  developing   the          manifestation requirement.                      In 1970, the D.C. Circuit interpreted   8(f) as it then          existed,5 and formally extracted for the first time what has come          to  be known as the  "manifestation" requirement -- requiring the          employer to show that the pre-existing disability was manifest to          the employer before   8(f) relief can obtain.  American Mut. Ins.                                                         __________________          Co. of Boston v. Jones, 426 F.2d  1263 (D.C. Cir. 1970).  Denying          _____________    _____            8(f) relief to the employer, the  court stated that "nothing in          the record  gives any indication  that [the claimant], up  to the          time of his  [work-related] injuries, showed a  sufficient degree          of  social maladaption  due  to  limited  intelligence  that  his          disability could be fairly classed  as 'manifest.'"  Id. at 1268.                                                               ___          The  American Mutual court's construction  of   8(f) was informed               _______________          by  what it determined  to be the  primary purpose of  the   8(f)          exception: "to remove  that aspect of discrimination  against the                                        ____________________          5.  At the time, the language was "combin[ation] with  a previous                                                                   ________          disability."  Longshoremen's and Harbor Workers' Compensation Act          __________             8(f)(1), 44  Stat. 1424,  1429  (1927) (emphasis  added).   We          examine the lack of import in the language change infra.                                                            _____                                         -9-                                          9          disabled which would otherwise be  encouraged by the very statute          intended to protect  them."  Id. at 1267.  Thus, it was reasoned,                                       ___          "discrimination  .  .   .  must  rest   upon  knowledge  of   the          characteristic upon which the discriminationis to be based."  Id.                                                                        ___                    It was  not long before other circuit courts of appeals          adopted  the  same requirement.   See  e.g., Dillingham  Corp. v.                                            _________  _________________          Massey,  505 F.2d  1126, 1128  (9th Cir.  1974); Atlantic  & Gulf          ______                                           ________________          Stevedores, Inc.  v. Director, OWCP,  542 F.2d 602, 606  (3d Cir.          ________________     ______________          1976); Duluth, M.  and I. R.  Ry. Co. v.  United States Dep't  of                 ______________________________     _______________________          Labor, 553 F.2d 1144, 1148-51 (8th Cir. 1977).           _____                    This  court has  required  the  employer  to  meet  the          manifestation  requirement  since   General  Dynamics  Corp.   v.                                              ________________________          Sacchetti, 681  F.2d 37, 39-40  (1st Cir.  1982).  We  required a          _________          showing of "manifest[ation] to the employer," because we observed          that    8(f)  "was designed  to  encourage employers  to hire  or          continue  to  employ  handicapped workers  by  ensuring  that the          employer would not have to  compensate in full for a subsequently          incurred   permanent   disability   when   that  disability   was          attributable in part to a  previously existing handicap." Id.  We                                                                    ___          have steadfastly adhered to this requirement.  Director,  OWCP v.                                                         _______________          General   Dynamics   Corp.,   980   F.2d   74,   76   (1st   Cir.          __________________________          1992)(Lockhart);6  Bath Iron Works  Corp. v. Director,  OWCP, 950                ________     ______________________    _______________          F.2d 56,  58 (1st Cir.  1991); CNA Ins.  Co. v. Legrow,  935 F.2d                                         _____________    ______                                        ____________________          6.   Because  of the  fact that  the parties  litigating disputes          under the LHWCA are frequently the same, courts generally use the          last  name of the individual  claimant for purposes of short-form          citation, regardless of  whether that claimant is a  party to the          appeal.  We do so here.                                         -10-                                          10          430,  435 (1st  Cir. 1991); White  v. Bath Iron  Works Corp., 812                                      _____     ______________________          F.2d 33, 35  (1st Cir. 1987); Director, OWCP  v. General Dynamics                                        ______________     ________________          Corp., 787 F.2d  723, 725 (1st Cir. 1986)(Fantucchio).   See also          _____                                     __________     ________          Director, OWCP v.  Bath Iron Works Corp. (Johnson),  129 F.3d 45,          ______________     _____________________  _______          50 (1st Cir. 1997)(reiterating non-discrimination purpose  behind            8(f)).  Our  current jurisprudence therefore dictates  that, in          order "[t]o prove that  it is entitled to Section 8(f) relief, an          employer must show that, (1) the employee had a permanent partial          disability  that  existed prior  to  the second  injury;  (2) the          second injury contributed  to that disability; and  (3) the prior          disability  was 'manifest' to the employer."   Lockhart, 980 F.2d                                                         ________          at 76.                    As  we  have  noted,  we   turned  to  what  has   been          consistently  elucidated  as  the  core  purpose  of     8(f)  --          prevention of discrimination  -- to  inform our  adoption of  the          manifestation requirement.   Sacchetti, 681 F.2d at 40.   Indeed,                                       _________          our most extensive  analysis of the manifestation  requirement to          date reiterated that the "crucial issue [in   8(f) relief], . . .          is  the  potential  for  discrimination  against  the  disabled."          Lockhart,  980 F.2d at 81.   We stated  that "[t]he centrality of          ________          this issue  is  emphasized  in all  our  cases  interpreting  the          [LHWCA]."  Id.  The challenged standard employed by  the Board in                     ___          Lockhart's  case,  which  involved   a  question  concerning  the          permanency of the pre-existing  disability, queried whether there          was  "sufficient information regarding the existence of a serious          lasting  problem  which  would motivate  a  cautious  employer to                                         -11-                                          11          consider  terminating the  employee." Id.  at  80.   We held  the                                                ___          standard  proper because  "[i]t effectuates  the  purpose of  the          manifest  requirement and Section  8(f) by making  only potential          discriminators eligible for Section 8(f) relief." Id. at 82.                                                            ___                    To date, eight  other circuits besides ours  apply this          requirement:   the Second,  Third, Fourth, Fifth,  Eighth, Ninth,          Eleventh  and District of  Columbia.  Sealand  Terminals, Inc. v.                                                ________________________          Gasparic, 7 F.3d  321, 323 (2d Cir.  1993)(per curiam); Director,          ________                                                _________          OWCP v. Universal Terminal & Stevedoring Corp., 575 F.2d 452, 455          ____    ______________________________________          (3d Cir. 1978); Director, OWCP v. Newport News Shipbuilding & Dry                          ______________    _______________________________          Dock  Co. (Langley),  676 F.2d  110, 114  (4th Cir.  1982); Ceres          _________  _______                                          _____          Marine Terminal  v. Director, OWCP,  118 F.3d 387, 392  (5th Cir.          _______________     ______________          1997);  Duluth, 553 F.2d  at 1149-51  (8th Cir.  1977); Director,                  ______                                          _________          OWCP v.  Cargill, Inc., 709  F.2d 616, 618-19 (9th  Cir. 1983)(en          ____     _____________          banc); C.G.  Willis, Inc. v.  Director, OWCP, 31 F.3d  1112, 1115                 __________________     ______________          (11th Cir. 1994); C & P Tel. Co. v. Director, OWCP, 564 F.2d 503,                            ______________    ______________          512-15 (D.C. Cir. 1977).  Only the Sixth Circuit has rejected the          manifestation  requirement,  substituting instead  the  directive          that the  pre-existing disability be  manifest to someone  -- not          necessarily the  employer --  prior to  the work-related  injury.          American Ship Bldg. Co. v. Director, OWCP, 865 F.2d 727, 732 (6th          _______________________    ______________          Cir. 1989).                    To  say that the  requirement is by  now well-ensconced          within the  rubric of the LHWCA  would be an understatement.   We          must  note, however,  that despite  the  Benefits Review  Board's          description  of the manifestation  requirement as a "well-settled                                         -12-                                          12          concept,"  Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92, 99                     _______    ___________________________          (1991), the Supreme Court has not yet decided its validity.                                         III.                                         III.                    The   manifestation  requirement   has  been   properly          characterized as   "a  'judicial gloss'  which  Congress has  not          acted to erase."   American Shipbuilding, 865  F.2d at 730.   Nor                             _____________________          could we  erase it  if we wanted  to.   It is well  settled that,          "[i]n a  multi-panel circuit, newly constituted panels, generally          speaking, are bound by prior panel decisions on point." Metcalf &                                                                  _________          Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935,          __________    ____________________________________          939 n.  3 (1st Cir.  1993).  We  are, however, confronted  with a          situation  made  novel  by  congressional  amendment,   and  must          therefore determine whether those amendments should effectuate  a          change in our traditional analysis of requests for   8(f) relief.                    As  an  initial  matter,   we  remain  convinced   that          application  of the manifestation  requirement to requests  for            8(f) relief is the  proper way to  give the Section its  intended          meaning.  We  think the LHWCA's legislative history  shows that            8(f) was  designed to serve  a very specific and  limited purpose          with regards  to the  operation of the  compensation scheme  as a          whole.   Because  the manifestation requirement  effectuates this          limited purpose, we affirm our adherence to it.                                          A.                                          A.                    The original LHWCA was passed  in 1927 in response to a          series of Supreme Court decisions that invalidated prior attempts          to  cover  maritime  workers  under  existing state  compensation                                         -13-                                          13          structures.  See G. Bober & M. Wible, Compensable Injury or Death                       ___                      ___________________________          Arising Under the Longshore and Harbor Workers' Compensation Act,          ________________________________________________________________          35 Loyola  L. Rev.  1129, 1131  (1990).   "It was  held that  the          matter [of maritime  compensation] was  outside state  cognizance          and  exclusively within  federal maritime  jurisdiction . .  . ."          Calbeck    v.   Travelers   Ins.   Co.,   370   U.S.   114,   117          _______         ______________________          (1962)(discussing  Southern  Pac.  Co. v.  Jensen,  244  U.S. 205                             ___________________     ______          (1917)).7   Around the  time the LHWCA  was debated  and crafted,          workers'  compensation schemes had  become so popular  that "[b]y          1920, all  but eight states  had adopted Compensation Acts."   A.          Larson,  The Nature  and Origins  of  Workmen's Compensation,  37                   ___________________________________________________          Cornell L. Q. 206, 233 (1952).                    One  of   the  major  problems   with  state   workers'          compensation  schemes,  however,   was  the  effect   that  "non-          apportionment" of the  cost of  compensation had  on the  already          disabled worker.   By  holding the last  employer liable  for the          results of  accumulated injury,  it was  argued, employers  had a          significant  incentive  to  discriminate  against  those  workers          already physically disabled.8  Johnson, 129 F.3d at 50.  The most                                         _______          commonly  reiterated  example  of this  effect  derives  from the          Oklahoma experience.  As stated in Lawson,                                             ______                                        ____________________          7.  Justice Brennan's opinion in Calbeck provides a comprehensive                                           _______          discussion of the judicial  decisions and legislative maneuvering          which led to passage of the Act.  370 U.S. 117-124.          8.   "Non-apportionment" is  also described  as the  "aggravation          rule," because it holds one employer liable for the results of an          aggravating injury.                                           -14-                                          14                    Nease v. Hughes Stone Co., 114 Okla. 170, 244                    _____    ________________                    P. 778 [(1925)], held the employer liable for                    total  compensation for  loss  of the  second                    eye.    After  the  decision,  Mr.  Huber [of                    Oklahoma]  reports,  "thousands  of one-eyed,                    one-legged, one-armed, one-handed  men in the                    State  of Oklahoma were  let out and  can not                    get  employment  coming under  the  workmen's                    compensation  law of Oklahoma.  . . .   Those                    . . .   court  decisions   put   us  in   bad                    shape. . . . The  decision displaced  between                    seven  and eight thousand men in less than 30                    days in Oklahoma."          336  U.S.  at  203-04  (quoting United  States  Bureau  of  Labor          Statistics,  Bull.  No.   536  at  268,  272   (1931))(first  two          alterations added).  As one example  of the flavor of the debate,          it was  stated that  compensation systems  without second  injury          provisions, "would become  an instrument of persecution .  . . of          men  who  are  physically  handicapped."    Id. at  203  (quoting                                                      ___          testimony  of Joseph  Parks of Massachusetts  Industrial Accident          Commission, United States  Bureau of Labor Statistics,  Bull. No.          564 at 278 (1932)).                    As  originally enacted, an  employer was entitled  to            8(f)  relief  "[i]f an  employee  receive[d] an  injury  which of          itself would only  cause permanent partial disability  but which,          combined with a previous disability, does in fact cause permanent          total disability."  44 Stat. at 1429.  The legislative history of          the  Act demonstrates that  Congress responded to  the unintended          effect of non-apportionment  by including a "second  injury fund"          in  the statute.    See Johnson,  129 F.3d  at  50 (stating  that                              ___ _______          conclusion); Ceres Marine, 118 F.3d at 389 (same).   Although the                       ____________          legislative history of  the original Act is  not voluminous, what                                         -15-                                          15          does exist  drives our conclusion that   8(f) was included in the          LHWCA   specifically   to   ameliorate  the   effects   of   non-          apportionment.  Discriminatory  effect  was  certainly  seriously          considered.  For instance, Representative Bowling stated during a          colloquy on a potential apportionment scheme that even under such          a system, the disabled employee was likely to remain jobless.  To                                                                         __          Provide  Compensation  for Employees  Injured  and Dependents  of          _________________________________________________________________          Employees  Killed in  Certain Maritime  Employments:  Hearings on          _________________________________________________________________          H.R.  9498  Before the  House  Committee on  the  Judiciary, 69th          ___________________________________________________________          Cong., 1st Sess. at 74  (1926) ("Well, that sounds like 'good-by'          [sic] for the [disabled employee]").                      Perhaps the  most  telling exchange  on point  occurred          during hearings over the Senate  version of the bill, which would          later  be enacted.    Mr.  E.  M. Braxton  of  the  Newport  News          Shipbuilding & Dry Dock  Company reiterated his concern  that the          Act would require employers to "examine every man who applies for          work; and the  poor dog that is suffering  from some disease will          be turned away from our  plant because . . . as a  matter of life          and death financially we will  have to turn him down."   Hearings                                                                   ________          on  S.3170 Before  the  House Committee  on  the Judiciary,  69th          __________________________________________________________          Cong., 1st Sess. at 196 (1926).   In rebuttal, a witness in favor          of the legislation testified as follows:                    The second  injury proposition is as  much to                    the  advantage   of  the  employer   and  his                    interests as  it is  for the  benefit of  the                    employee.   It protects that employer who has                    hired, say, a  one-eyed worker  who goes  and                    loses  his other  eye  and  becomes  a  total                    disability.   The employer without  this sort                    of thing  would have  to pay  total permanent                                         -16-                                          16                    disability compensation.   Then, on the other                    hand, this also protects the worker  with one                    eye from  being denied employment  on account                    of  his being an  extra risk.   Now by simply                    taking this up  in this way it is possible to                    protect  both the employer and to protect the                    one-eyed employee  also.   It is  one of  the                    best  social  inventions  in  legislation  of                    which I have knowledge.          Id. at 208 (testimony of Mr. Andrews).  See also Lawson, 336 U.S.          ___                                     ________ ______          at 202 (quoting same).                    We  think   the   foregoing   demonstrates   that   the          development  of  the  manifestation requirement  rests  on  solid          ground.   Because  the legislative  history of  the original  Act          demonstrates that   8(f) was specifically designed to  reduce the          incentive for discrimination,  it makes logical sense  that "only          potential discriminators [are] eligible for Section 8(f) relief."          Lockhart, 980 F.2d at 82.          ________                                          B.                                          B.                    In 1972, the LHWCA was amended,9 see Longshoreman's and                                                     ___                                        ____________________          9.   There were, of course, other amendments  to the Act prior to          1972.   According to  one Report  generated as  part of the  1984          Amendments,                      [O]ther  employee  groups   were  [eventually]                 covered  under the Act.   The District  of Columbia                 Workmen's Compensation Act (1928) extended coverage                 to  employees of  private employers  in Washington,                 D.C.  The Defense Base Act (1941) extended coverage                 to  employees of  federal  contractors at  military                 bases or on public works contracts performed in any                 place  outside the continental  United States.  The                 Nonappropriated Fund  Instrumentalities Act  (1952)                 applied   the  LHWCA   to  civilian   employees  of                 nonappropriated fund instrumentalities of the Armed                 Forces  (such as  post exchanges).    In 1953,  the                 Outer Continental Shelf Lands Act extended coverage                 to employees  on the  U.S. Outer Continental  Shelf                 involved in  exploring for  and developing  natural                 resources.                                         -17-                                          17          Harbor Workers' Compensation Act Amendments  of 1972, Pub. L. 92-          576, 86  Stat. 1251  (1972), "[t]he  principle purpose  of .  . .          [which was] to  . . .  upgrade the benefits,  extend coverage  to          protect additional workers,  provide a specified cause  of action          for  damages against third  parties, and to  promulgate necessary          administrative reforms,"   S. Rep. No. 92-1125, at  1 (1972).  As          part of the 1972  Amendments, the language of   8(f) was changed,          substituting  the  language  of  "previous  disability"  for  the          current  language of "existing permanent partial disability."  86          Stat. at 1257.  The Amendments also opened the door for employers          to   8(f) relief where  the resulting combined disability was not          total, but partial.  Id.                               ___                    There is nothing in the legislative history of the 1972          Amendments to  suggest that the core purpose  of   8(f) was being          altered along with  its language.  See  Duluth, 553 F.2d  at 1149                                             ___  ______          (making that  determination); C  & P Telephone,  564 F.2d  at 512                                        ________________          (same).  To the contrary, both the Senate and House Report stated          that the chosen "method of spreading the risk among all employers          is  intended by  the  committee to  encourage  the employment  of          handicapped workers."  S.  Rep. No. 92-1125, at 7;  H.R. Rep. No.          92-1441, at 8 (1972).                                          ____________________                      Since  original enactment,  the  Act has  been                 amended ten times.  Amendments in 1934, 1938, 1948,                 1956,  1960, 1961,  and 1969  revised or  increased                 benefits.  In 1958, the Act was amended  to require                 employers  to  maintain   a  reasonably  safe  work                 environment.          S. Rep. No. 97-498, at 20 (1982).                                         -18-                                          18                                         IV.                                         IV.                    BIW's primary argument  is that the 1984  Amendments to          the  Act, Pub.  L. No.  98-426,  98 Stat.  1639 (1984),  required          abolishing  the application of the manifestation requirement to            8(f) requests  in cases where  an occupational disease  or injury          does not appear until  after employment has  ceased.  One of  the          principles   of  statutory  interpretation  is  that  a  "settled          construction  of an  important  federal  statute  should  not  be          disturbed unless and until Congress  so decides."  Reves v. Ernst                                                             _____    _____          & Young,  494 U.S.  56, 74 (1990)(Stevens,  J., concurring).   We          _______          recognize  that "considerations of stare decisis weigh heavily in                                             _____ _______          the area  of statutory  construction, where  Congress is free  to          change   [the  courts']   interpretation  of   its  legislation."          Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977).            __________________    ________                    Although the  Amendments added  a provision  permitting          such  claims "if  filed within  two years  after the  employee or          claimant becomes aware, or . .  . should have been aware, of  the          relationship between the employment" and the disease, 98 Stat. at          1649 (codified at  33 U.S.C.A.   913(b)(2)), we  can find nothing          in the  text of the  Amendments, nor its legislative  history, to          suggest that Congress  intended to alter  the application of  the          manifestation requirement to requests for   8(f) relief.                      The Harris  court seized upon,  and BIW directs  us to,                        ______          language in a  House Report as  a basis for  its argument that             8(f)  applies to a  pre-existing disability not  manifested until          after the employee has stopped working.  Harris, 934 F.2d at 552.                                                   ______                                         -19-                                          19          As  part of  the introductory  summary  of the  bill, the  Report          stated that the  Amendments were "intended to reduce  the cost of          Longshore  coverage for employers in  the covered industries in a          manner which will disturb, to  the most limited extent  possible,          the rights and benefits which  the Longshore Act provides."  H.R.          Rep.  No.  98-570, at  3 (1983),  reprinted in  1984 U.S.C.C.A.N.                                            ____________          2734, 2736.  Thus,  the Harris court deduced that an expansion of                                  ______          an  individual's right  to file  a claim  should be  coupled with          corresponding relief  for the employer.   934 F.2d  at 552.   But          review  of  the   entirety  of  that  House   Report,  and  other          legislative documents,  demonstrates  that  the  quoted  language          cannot support the weight ascribed to it.                    First, there  is compelling evidence  that Congress was          well  aware   of,  and  in  fact  endorsed,  application  of  the          manifestation  requirement  to    8(f)  cases.   A  Senate Report          states  that "[a]n employer able to demonstraate [sic] actual or,                                                                 ______          in some cases, constructive knowledge  that an injured worker had                         ______________________          a  permanent disability which  pre-dated a compensable  injury is          often able  to shift to  the Special Fund the  responsibility for          paying a very  substantial portion of the amounts  payable to the          worker."  S.  Rep. No. 97-498, at 35  (1982)(emphases added); see                                                                        ___          also  S. Rep.  No.  98-81, at  34  (1983)(same).   We think  this          ____          language is  most reasonably read  as referring to the  manner in          which courts of appeals had analyzed disputes concerning   8(f) -          - by requiring a showing of actual or constructive knowledge with          evidence of  "manifestation."   Similarly, the  House and  Senate                                         -20-                                          20          Reports on  the 1984  bill expressly  recognized that  "[s]ection          8(f) of the  Act was designed to encourage employers  to hire and          retain  disabled workers by  distributing much of  the additional          cost of industrial injury attributable  to pre-existing permanent          disabilities  among all  employers and  carriers  subject to  the          Act."  S. Rep.  No. 97-498, at  34-35; S. Rep.  No. 98-81, at  34          (same  language).  Thus  "[t]he goals of  Section 8(f) remain[ed]          valid," S.Rep.97-498, at35, aspartand parcelofthe 1984Amendments.                    Ultimately  fatal   to  BIW's   position  is   evidence          concerning  how Congress  conceptualized  its amendment  allowing          claims  for  long-latent  occupational  diseases.   Consider  the          following language from the House Report:                    The first  change to the  body which  results                    from exposure to a  harmful physical agent or                    a  toxic substance  often  is not  disabling.                    Since  it  is  the  disability  which  should                    trigger the compensation claim, the Committee                    notes that unlike  traumatic occurrences, the                                                              ___                    period of  time between the 'injury'  and the                    _____________________________________________                    arising  of a  compensation  claim in  such a                    __________________________________                    long-latency occupational disease case may be                    so long as  to make the requirement  that the                    employee  file  a  Notice  of  Injury  within                    thirty days  of the 'injury' nonsensical. . .                    .                      To the same effect, triggering the  statute                    of limitations for the filing of compensation                    claims on the  date of 'injury'  makes little                    sense  in  the  context  of  an  occupational                               __________________________________                    disease in  which the disabling  condition or                    _____________________________________________                    the death does not follow immediately  on the                    _____________________________________________                    "injury."                    ________          H.R. Rep. No. 98-570, at 10-11 (emphases added).                      What  is  important  here  is  that  in  crafting  this          particular  amendment concerning  occupational disease,  Congress                                         -21-                                          21          conceptualized the "injury" as occurring  at the time of exposure          to the  causative agent, which  would necessarily  have to  occur          during  employment.   At  the  very least,  this  Report language          precludes   the   argument  that   Congress   was   removing  the          manifestation  requirement  in  instances  involving  these   new          occupational  disease claims.  Because the "injury" was conceived          as occurring  during  employment,    8(f)  retained  its  regular          meaning   --  applying  when  "an  employee  having  an  existing          permanent  partial  disability  suffers injury."  33  U.S.C.A.             8(f)(1).                     This  Report  language  is  affirmed   by  the  amended          statutory language itself; and we  must read statutes as a whole,          rather than focus  on isolated phrases.  Conroy  v. Aniskoff, 507                                                   ______     ________          U.S.  511, 515  (1993).    As part  of  the occupational  disease          amendment, there also had to be a determination made as to how to          calculate the amount of compensation paid in such cases.  Because          the  existing   formula  generally  calculated   compensation  in          reference  to "the average weekly  wage . . .  at the time of the          injury," 33  U.S.C.A.    910, there was  concern that  very long-          latent  diseases would  leave  disabled  retirees  in  an  unfair          economic situation because  wages increased over time,  H.R. Rep.          No. 98-570,  at 11-12.   It was  therefore decided  that in  such          instances, "the time  of injury shall be deemed to be the date on                                                   ______          which  the  employee  becomes aware,  or  . . . should  have been          aware, of the  relationship between the employment,  the disease,          and the death or disability."   98 Stat. at 1647-48 (codified  at                                         -22-                                          22          33 U.S.C.A.   910(i))(emphasis added).  Thus, by establishing the          time of  injury at a  time closer to  the onset of  the disabling          symptoms for  purposes of  wage calculation,  Congress implicitly          recognized  that the injury-in-fact to the physical body occurred          during  the occupational exposure,  but did not  become disabling          until later.   Although the 1984  Amendments were most  certainly          designed  in part  to "reduce  the  cost of  . .  .  coverage for          employers in  the covered industries,"   H.R. Rep. 98-570,  at 3,          quoted in Harris, 934 F.2d at 552,  they did so in a multitude of          _________ ______          ways.10  Providing   8(f) relief to employers under facts such as          these was simply not one of them.                     We point out additional authority for our ruling.  Just          after  the 1984 Amendments,  the Department of  Labor amended the          regulations  interpreting the  LHWCA to  include,  for the  first          time, the manifestation  requirement.  50  Fed. Reg. 401  (1985),          amended, 51  Fed.  Reg.  4285  (1986)(codified  at  20  C.F.R.             702.321(a) (1)(1997)).   Thus, if  we found that  the legislative          history provided guidance less clear  than it does, we would have          little  trouble  deferring  to the  Department's  interpretation,          given our finding -- in Part III, supra -- that the manifestation                                            _____          requirement  "is based  on  a  permissible  construction  of  the          statute."    Chevron  U.S.A. Inc.  v.  Natural  Resources Defense                       ____________________      __________________________          Council, Inc., 467 U.S. 837, 843 (1984).          _____________                                        ____________________          10.   For example, the  definition of "employee" was  modified to          exclude  clerical workers and others  whose "work does not expose          them to traditional maritime hazards."   H.R. Rep. No. 98-570, at          3; see 98 Stat. at 1639.               ___                                         -23-                                          23                    The argument has also been made that, in instances such          as  these, the manifestation requirement serves no useful purpose          because  there is  no  potential  for  discrimination  where  the          employee  has  already  retired.     It  is  not,  however,   the          manifestation   requirement  that   has  an   anti-discrimination          purpose, but   8(f) which has such a purpose.  The requirement is          only  a  judicially created  tool,  developed  in  order to  help          determine when  the purpose of    8(f) is  being served.   As our          analysis demonstrates,    8(f) was designed  for a very  specific          reason  --  to  remove the  discriminatory  incentive  created by          holding   the  last  employer  liable  for   the  results  of  an          aggravating  injury.  The  manifestation requirement ensures that          requests for    8(f) relief  remain within the intended  scope of          the Section.   The requirement  is not an additional  hurdle, but          rather an  integral part  of    8(f).   We are  therefore not  at          liberty to either  apply or discard the requirement  as different          facts are presented,  especially in the absence  of congressional          directive.                      We do not think it  is either unreasonable or unfair to          preclude access  by the  employer to the  Special Fund  under the          facts of this  case.   There can  be little doubt  that Reno  was          exposed to asbestos during his working career at BIW, and BIW has          not  contested  that  Reno's  exposure  to  asbestos  during  his          employment  at  BIW caused  his asbestosis.   They  are therefore          properly  liable for  the results  of  this work-related  injury.                                         -24-                                          24          Because they have not met their burden of establishing a right to            8(f) relief, the decision of the Board is affirmed.                                                        affirmed.                                                      _________                                         -25-                                          25
