Director, Office of Workers’ Compensation Programs v. Rasmussen – Oral Argument – November 28, 1978

Media for Director, Office of Workers’ Compensation Programs v. Rasmussen

Audio Transcription for Opinion Announcement – February 21, 1979 in Director, Office of Workers’ Compensation Programs v. Rasmussen

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Warren E. Burger:

We will here arguments next in Director of the Office of Workers’ Compensation against Rasmussen and the consolidated case.

Mr. Jones, you may proceed whenever you are ready.

Kent L. Jones:

Mr. Chief Justice and may it please the Court.

This case concerns the proper construction of the benefit provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.

The facts have been stipulated.

In 1973, William C. Rasmussen was employed by petitioner Geo Control Incorporated under a public works contract with United States.

Dr. Rasmussen was killed during the course of his employment and it is undisputed that the respondents, Dr. Rasmussen’s surviving widow and son, are entitled to receive weekly death benefits under the Act.

A dispute arose, however, concerning the amount of benefits to be paid.

Respondents claim that under Section 9 (b) of the Act, they are entitled to receive two-thirds of Dr. Rasmussen’s weekly wages without limitation or a total benefit of approximately $530 per week.

The employer and the insurer, however, have taken the position that this proposed award exceeds a ceiling on benefits under the Act.

They contended and the Director of the Office of Workers’ Compensation Programs agreed that the ceiling on disability benefit set forth in Section 6 (b) (1) of the Act is made applicable to death benefits as well by Section 6 (d).

The dispute came before the Benefits Review Board, which rejected the Director’s position.

The Board concluded that when Congress amended Section 9 in 1972 to delete a fixed dollar maximum on death benefits, Congress expressed its intention to free death benefits from any ceiling restriction.

The decision of the Board was upheld on review by the Ninth Circuit.

It’s our position that when Congress deleted the fixed dollar maximum on death benefits in 1972 from Section 9 of the Act, they did so as part of an extensive revision of the Act and that a significant effect of that revision was to reformulate and transfer from Section 9 to Section 6 of the Act, the ceiling on death benefits.

As I will discuss, the legislative history shows the Congress intended to retain its ceiling on both death and disability benefits and that the effect of Section 6 (d) is to make the ceiling applicable to both.

In order to place the amendments within their proper context, I will first briefly review their legislative history and then discuss the way in which the provisions accomplish what Congress intended.

Harry A. Blackmun:

I take it then that your entire case rests on 6 (d)?

Kent L. Jones:

We believe that Section 6 (d) provides for the ceiling, the application of the 6 (b) (1) ceiling to death benefits.

We rest exclusively on 6 (d) except we regard 6 (d) is explained by the other provisions of the Act of course.

One of the deficiencies the 1972 amendments were designed to correct was the inadequacy of the fixed dollar maximums that were then applicable to death and disability benefits.

From 1961 the maximum limited compensation to $70 per week.

The National Commission on State Workers Compensation Laws, which was chartered by Congress to recommend reforms in Workers Compensation Programs, reported to Congress in 1972 that a substantial percentage of covered workers received wages that placed them above the fixed maximum limitations.

The Commission concluded that ceilings are justified as a means of containing the costs of the program and because high-income employees can and do obtain supplementary insurance from private sources.

They concluded, however, that in order to keep the ceilings current with inflation, the ceiling should be stated as a percentage of national average wages rather than as a fixed dollar maximum.

And therefore they recommended specifically that the ceiling for disability and death both be initially established at a 125% of national average wages with phased-in increases over a three year period to an ultimate ceiling of 200% of average wages.

The legislation adopted by Congress in 1972 reflects the substantial imprint of this recommendation.

Indeed the Senate report suggests that the legislation is fully consistent with the Commission’s recommendation.

In particular, Congress removed the fixed dollar maximum on both death and disability benefits and amended Section 6 (b) (1) of the Act to incorporate for disability benefits, a phased-in ceiling based on increase in percentages of national average wages just as the Commission had proposed.

The Congress then simply added an additional provision, stating expressly that if the phased-in ceiling was applicable to death benefits as well, this case would have not arisen.

Kent L. Jones:

Congress did not do that however.

The legislative history shows that in drafting Section 6 (d) though Congress intended to achieve this result and an additional objective at the same time.

The Senate and House reports note in drafting Section 6 (d), Congress was concerned that during the interval before the Commission’s proposed phased-in ceiling reached its ultimate maximum of 200%, workers receiving an initial award of benefits would find their benefits unfairly limited in future years to the lower parentage ceiling than prevailing at the time of their initial award.

The reports state that the drafters of Section 6 intended “to the extent that employees receiving compensation for total permanent disability or survivors receiving death benefits, receive less than the compensation they would receive if they were no phase-in.

Their compensation is to be increased as the ceiling moves to 200%.”

The language of Section 6 (d) gains its meaning from this expression of congressional understanding.

Section 6 (d) provides, in not these words but to this effect, that determinations made pursuant to Section 6 which include the determination of the phased-in ceiling for each period in Section 6 (b) (1), “shall apply to employees or survivors currently receiving permanent total disability or death benefits as well as to those newly awarded compensation during that period.”

It seems from the legislative history, the Congress understood Section 6 (d) to accomplish two results.

It provides that the periodic determination of ceiling benefits pursuant to Section 6 (b) (1) shall apply to survivors receiving death benefits.

It further provides that as the phased-in ceiling is increased towards the ultimate maximum of 200% of average wages, the newly determined ceiling is to be applicable to survivors and to the permanently, totally disabled whether or not they receive their initial award in that year.

Thus if a person were to receive a survivor or disability award in the year where the ceiling was 125% of national average wages, three years later when the ceiling moved up to 200% of national average wages, their compensation would be adjusted up to that new ceiling.

Certainly, the language in Section 6 (d) can be understood the way Congress understood it.

The Section cannot adequately be understood any other way.

The Court of Appeals dismissed Section 6 (d) as only referring to the annual computation of national average wages which is performed by the secretary under 6 (b) (3) of the Act and the Court concluded that this computation was relevant only to the determination of minimum benefits.

The Court said that Section 6 (d) merely assures that minimum benefits are adjusted annually to reflect inflation.

This construction of Section 6 (d) deprives the provision of any meaning.

In amending, the Act in 1972, Congress adopted the additional recommendation of the National Commission and provided in Section 10 that the recipients of permanent total disability compensation and survivors’ benefits the precise people referred to in Section 6 (d) are to receive an annual increase in their benefits equal to the percentage increase in national average wages.

As we have discussed in detail in our brief and as the Third Circuit fully described in their opinion in the O’Keefe case, the Section 10 inflation adjustment accomplishes precisely the result that the Court of Appeals in this case assigned to Section 6 (d).

If Section 6 (d) means only what the Court of Appeals concluded, the Section is surplusage to the statute.

It’s of course the Court’s responsibility to give meaning to every word and clause of the statute where possible and this is especially true we submit in a situation such as this, where the legislative history reflects that the Section was intended to have an active role.

That role is articulated in the Senate and the House reports, which state their understanding that the adjustment under Section 6 (d) will make the phased-in, the redetermination of the phased-in ceiling on disability benefits applicable to both classes of beneficiaries.

Harry A. Blackmun:

I suppose you must concede that Congress as is so often the case, could have drafted it a little more intelligently?

Kent L. Jones:

Indeed, we should had.

I think that the basic problem is that Section 6 (d) — Congress tried to do too much.

I think the legislative history reflects though what Congress’ understanding of what it was doing and even if the language is ambiguous, the expression of congressional understanding should be controlling.

The respondents claim that —

John Paul Stevens:

Mr. Jones, while you are interrupted, where is Section 10 in the briefs you rely on this?

Kent L. Jones:

Yes, it is shown on page 16 of our brief in the text.

Its effect is discussed in our brief on pages 30 and 31 and in the O’Keefe case I believe it’s discussed toward the end of the opinion.

John Paul Stevens:

It’s cited as 10 (f) there.

Kent L. Jones:

Well, 10 (f) and 10 (h) are both relevant as we discuss briefly in our brief.

10 (f) applies the annual inflation adjustment to the recipients of benefits, who have received their initial award following the date of the amendments.

10 (h) requires that the same adjustment be made for persons who receive their awards in prior years.

John Paul Stevens:

Do you quote 10 (h) in your brief?

Kent L. Jones:

I believe it is quoted.

30.

Kent L. Jones:

Pardon me.

Page 30, footnote 15.

Kent L. Jones:

Yes.

John Paul Stevens:

I thank you.

Kent L. Jones:

10 (h) as you can see is a compendious provision, but the provision that it is relevant in this regard is 10 (h) (3) which is at the bottom of the right hand column on page 31, which makes subsection 10 (f) applicable to awards of benefits prior to the effective date of the amendments.

Respondents say that the language in Section 6 (d) is ambiguous in that the remedial nature of the Act — because of the remedial nature of the act, that they the statute should be constituted in their favor.

We, of course, agree that the Act is remedial, but the question here is what the purpose of Congress was in enacting this legislation.

The general — there are certainly no general remedial policy that’s ever been expressed that favors unrestricted ceilings on workers compensation benefits.

The consistent course that State and Federal legislation in this area has been to provide equivalent ceiling limitations on both state, I mean on both disable permanent disability and death benefits.

The few states that have departed from their consistent course have provided higher ceilings for disability than for death benefits and I think that reflects the underlying objectives or rational for the ceiling restrictions.

The ceilings consistently be then understood as justified by the need to contain the cost of the program and because high-income employees can and do obtain insurance to protect their supplemental needs.

Death is the risk that’s most often insured against.

The brief submitted by the petitioner Geo Control notes approximately 95% of upper income employees obtained death insurance.

So, if Congress were concerned with a choice as to which, where the remedial need were greater, they would presumably have concluded that disability was the greater need.

In it — more over the need of the family is greater when the benefit must support not only the family, but the disabled worker as well.

And in light of all of these concerns, I think Chief Judge Wright was correct in the Boughman case in stating that it would have been anomalous for Congress to have left departed from that consistent remedial understanding of the consistent treatment of death and disability benefits without ever so stating.

I would like to note that the legislative history on which the Court of Appeals relies for its contrary conclusion, simply doesn’t focus on the question that is presented here.

The portions of the Committee reports that the Court of Appeals refers to state only the literal affect of the amendment to Section 9 by stating that the fixed dollar maximum on death benefits was removed from that Section.

It was of course necessary to remove the fixed dollar maximum on death benefits from Section 9 to allow the higher, substantially higher ceiling benefits established in Section 6 to have affect.

More over the statement of the literal affect of the removal of the fixed dollar maximum from Section 9 follows the Committee’s explanation that the phased-in ceiling in Section 6 will be applicable to both the permanently totally disabled and to survivors.

If there are no questions – –

John Paul Stevens:

Mr. Jones, isn’t it correct that if you are drafting the statute and you wanted to just substitute a different fixed, different maximum on death benefits, you would have put it in the new 9 (e)?

Kent L. Jones:

I think that if I had done it, the simplest way would have been added to 6 (b) (1) rather than having an entire additional clause paralleling 6 (b) (1) could have added the words to 6 (b) (1).

John Paul Stevens:

You don’t think they would have just put it back in the same place, it came out of before?

Kent L. Jones:

I don’t —

John Paul Stevens:

It seems to me when I read 9 (e) as I was reading just left something else here if that’s what you are meant?

Kent L. Jones:

No, I think that the legislative history suggested what Congress thought it was doing and what it intend to do in Section 6 (d) was to bring into Section 6 the limitation on death benefits because of the economy of its — if you look at Section 6 (b) (1) it’s a fairly good size provision and to repeat the provision entirely in Section 9 would have served no purpose that isn’t served just by referring to the Section 6 (b) (1) limit and making it applicable in Section 6 itself to death benefits.

If there are no further questions, I — thanks.

Warren E. Burger:

Very well.

Mr. Sennett?

Albert H. Sennett:

Mr. Chief Justice and may it please the Court.

My name is Albert Sennett and I represent Geo Control and the insurance company New Hampshire Insurance.

The task of statutory construction is one of discerning the intend of a legislature.

We submit that the intend of Congress in this particular matter to provide the same maximum limits for disability and death benefits can be discerned from the following considerations.

Both bills, Senate Bill 525 introduced in the 92nd Congress and House Bill 3505 introduced in the same Congress provided for identical maximums.

Report of The National Commission of State Workers Compensation Laws recommended the same maximum weekly benefits for disability and death benefits and the report accompanying Senate Bill 238 states that the Committee believes that the provisions of the bill presented are fully consistent with the recommendations with National Commission in its report issued July 21, 1972.

As my brother has stated that the reference from 6 (d) of the Act to death benefits and disability benefits is also a fact to be considered by this Court.

This coupled with the fact that the 10 (f) of the Act makes the provisions for all the adjustments necessary, makes all these separate independent and meaning to 6 (d) as presented to this Court a few minutes ago.

The fact that the identical maximums are fully consistent with all State Workers’ Compensation Laws is another fact to consider.

The concept of payments to injured workers, who have been deprived of their wages by reason of industrial injury, is a concept to provide replacement of wage laws.

The consideration for replacing the wage laws in return calls for some limitation in the upper limits of liability in the employer.

This has been consistently the type of trade-off and the type of political bargaining process that is in the history of this Act and the history of other State Worker’s Compensation Acts.

It is generally have been felt and we believe it is demonstrated again in this particular series of Sections that the upper limits of the places where the cut-off becomes effective, the theory being that the higher paid employees are capable of providing against the impact of death, capable of providing impact against disastrous loses to their family.

That the concern Congress showed in this particular instance was with the lower paid employees and the impact of this particular Act guarantees certain basic returns to lower employees, which were not present in the old Act and that seems to be the major thrust of many of the changes that they propagated in the 1972.

The fact is that if Congress wished to depart from this traditional and historic consistent pattern, it would appear that some very clear express statement had been made with respect to the law.

Basically the respondent’s position here is an attempt to interpret a the fact that one — one Section of the Act there is no omission — reference to these benefits.

The other point that I wish to take in a few minutes that I have left in time that I have reserved for this Court, is that the argument advanced in the respondents’ brief at page 28 suggest that the no ceiling limit is justified in industrial deaths because this represents only approximately 1% of all industrial injuries and perhaps some special exception would be required.

The fact of the matter is that death benefits are defined in the Section 9 of the Act is applying both to deaths which occurred directly as a result of industrial injury as well as deaths which are occurred by reason of unrelated causes, if at the time of the person’s demise, he is suffering a permanent and total disability.

This is a much larger class of people and would give even an increased anomalous situation the ones that have been demonstrated in the briefs.

In sum then we would respectfully submit that in light of the consistent pattern of providing for maximum limits in light of the fact that this is a compensation system meant to replace wage loss, there is then will be no consistency and no logic and assuming that Congress intended to depart from the traditional way of solving compensation loss cases and substituting them entirely in anomalous situation.

I intend to reserve about two minutes of rebuttal if the Court has any questions?

Warren E. Burger:

Very well, Mr. Ostmann.

James Buckley Ostmann:

Mr. Chief Justice and may it please this Court.

We believe that there are really two questions in this case; one to the Congress eliminate the death benefit maximum payments from the statute in the 1972 amendments and if they did so was the elimination a conscious and deliberate act.

James Buckley Ostmann:

Respondent’s answer to both questions yes.

Yes the Congress did eliminate the death benefit maximum payments from the Act and yes the elimination was a conscious and deliberate act by the Congress.

When the statute is read as amended, one thing is apparent.

In no Section is there a clear death benefit maximum.

In Section 9, where the death benefit maximums have been set out traditionally and exclusively specifically at 9 (e) it has been eliminated, excised from the statute.

At Section 6 (b) there are a maximum set out a phase-in maximums, but they are applied only to disability by the clear language of Section 6 (b).

Section 6 (d) does mention both death benefits and permanent total disability, but does not contain any maximum.

It does have a purpose we submit, which we will discuss in a few moments.

Because there has been some obscurity in Section 6 (d) and because eliminating death benefits maximums is a departure from this Act’s history and in fact from general Workmen’s Compensation prior tribunals have looked at the legislative history to determine what the intention of Congress was.

In the legislative history, it’s important to note that from the very beginning when S.2318 was first introduced by Senator Eagleton, maximums for disability and death were excised from the recommendations.

No mention whatsoever made of any maximums for disability or death.

Further from the beginning of the hearings in this matter, Senator Eagleton stated in his opening remarks that S.2318 “would eliminate the maximum payment limitations.”

And further from the beginning there was no doubt among all the witnesses testified before that Committee as to the effect and the intend of S.2318.

Needless to say there was much testimony on this proposal.

It was discussed by Judge DeVany in his decision in order and also in our brief.

The industry side of course, opposing it, labor side generally thinking it was advisable.

Following that testimony, a revised 2318 was submitted.

It was substantially rewritten.

Section 6, 6 (b) (1) created a new maximum for disability based on an increasing national average weekly wage and it had a phase-in of this new maximum.

Section 9 was also rewritten.

It is not overlooked, it’s not forgotten.

Specifically at Section 9 (e) for instance, a new minimum was inserted by the revised 2318 which was tied to the national average weekly wage, a term added to the revised S.2318.

We think when the original S.2318’s version of Section 9 (e) is seen and read and is compared to the revised S.2318 version of 9 (e) which was enacted into law, the reader finds a striking similarity.

In fact, the Sections are almost identical, except for changing the basis for the minimum benefits in deaths from a dollar figure to the national average weekly wage.

Respondents submit that it is beyond reason to say that Congress some how suffered some sort of collective amnesia and forgot what the original S.2318 meant, forgot what Senator Eagleton said it would accomplish and forgot the tremendous amount of testimony from the witnesses that described a very intent and action of S.2318.

Rather it is far more sensible and logical to say that the Congress realized what it was doing and that it consciously and deliberately did not add a maximum in Section 9 (e).

Stepping back for a moment in the sequence of legislative history, just before revised S.2318 was written an important event took place and that was the report of the National Commission on State Workmen’s Compensation Laws.

It was submitted to the President and to the Congress.

This report was a comprehensive study of State Workmen’s Compensation Systems and it made certain recommendations for what it thought provision should be in this field.

As with any other Commission, there are many members, many different view points and this is seen when one looks behind the recommendations to the discussions that led up to the recommendations.

James Buckley Ostmann:

For instance, when maximums and minimums were discussed by the Commission it was found to be only uneasy case for those and of two the Commission found maximums to be the more troublesome.

William H. Rehnquist:

Did the Commission distinguish between maximums and minimums for disability and maximum and minimums for death benefits?

James Buckley Ostmann:

When they discussed maximums and minimums at the beginning of the report, there was no distinction made.

That portion of discussing the advisability of maximums and minimums, the report I believe had application to both death and disability.

William H. Rehnquist:

Did they later make any distinguish between?

James Buckley Ostmann:

Yes they, we believe they did.

We believe that there were some comments made that I am going to get you in a moment, where the report discusses death in a matter different from disability.

For instance, in the opening paragraph on death benefits, the Commission makes an interesting comment.

It says that death is the ultimate work related tragedy and deserves full compensation.

Now later, of course, they reached the conclusion that the same maximum in their estimation should apply, but that statement was their opening statement with respect to death benefits.

No similar statement was made with respect to disability.

Later in discussing the proportion of the wage that should be replaced in death cases, the Commission discussed the advisability that perhaps a higher percentage of the average wage of the deceased should be replaced in death cases, basing it on the incentive argument.

The incentive argument being that, when a worker is disabled, it is good for him, it is good for society, it is good for the industry if this individual is encouraged to get back to work and be productive again.

Because of that, that is one reason why benefits are limited in workmen’s compensation to a percentage of that wage.

Now, the Commission did end up as I said recommending the same percentage, but we believe that this discussion is important because this discussion was part of the legislative history.

It was something that the Congress read and must have considered when it revised 2318.

And it also establishes some discussion, some reason for having benefits higher in the death benefit case than in the disability case.

The rationale was there.

Further as Judge DeVany pointed out, the recommendations of the National Commission with respect to death and disability were minimum recommendations only.

Prior to each percentage that they recommended that are cited in the briefs, the Commission said the benefit should be at least this much.

William H. Rehnquist:

Isn’t it true that a death benefit could be lost by a widow’s remarriage in a fairly short period of time whereas a disability benefit could continue for a rather indefinite period of time?

James Buckley Ostmann:

That’s correct.

If a widow remarries, she receives a lump sum payment and after that she gets no further death benefits and the disability of course could continue as long as a disability exists, permanent total disability.

There is a final important point about the National Commission’s report.

It has been argued here that with respect to death benefits, the Congress intended to follow rather precisely, the recommendations of the National Commission and they cited something from the legislative history saying that, the new Act, the 1972 amendments were fully consistent with the National Commission’s recommendations.

Implicitly then that the Congress did not intend to go beyond the National Commission recommendations.

However, there is another Section in the Act as amended that disproves this argument.

It was mentioned by Mr. Sennett.

In Section 9, the first sentence says, if the injury causes death or if the employee who sustains permanent, total disability due to the injury thereafter dies from causes other than the injury, the compensations would be known as a death benefit.

It’s our submission that’s a radical and even revolutionary concept in workmen’s compensation.

James Buckley Ostmann:

To say that, the survivors of a permanently totally disabled worker will get death benefits though that worker dies of a cause totally unrelated to his injury is a drastic departure and yet it is in this Act.

Warren E. Burger:

I am not sure what you want us to draw from that concept?

James Buckley Ostmann:

Well, I think what’s important about that is that concept was not recommended by the National Commission, was not even discussed by the National Commission.

The National Commission defined death benefits as paying this to survivors of a worker who dies “as a result of work-related injury or disease.”

John Paul Stevens:

Mr. Ostmann, on that point, if the person dies while he is receiving permanent disability benefits under the statute, the Section you just read, will that disability benefit be converted into a death benefit?

James Buckley Ostmann:

I wouldn’t say it is exactly converted.

They are two separate benefits, but at the point of his death he would no longer receive permanent total disability benefits and if he had survivors or wife or children or both, they would receive death benefits under the Act.

John Paul Stevens:

And then if he was in a high enough weekly wage, here the benefit would rise?

James Buckley Ostmann:

That’s correct.

John Paul Stevens:

Yeah.

James Buckley Ostmann:

Respondents submit that this language, I just mentioned from Section 9 which is another example of the Congress here treating death benefits in a more expansive way that they have been treated before.

Conclusively establishes that the Congress did not intend to be bound by the recommendations of the National Commission, but rather intended to be go beyond those recommendations and to establish what Senator Williams called “the first serious step towards reform of our society’s workmen’s compensation laws in the past 50 years.”

Turning to Section 6 (d), the Section has received a tremendous amount of attention in this litigation, respondents would submit that attention is misplaced.

Section 6 (d) when it is read contains no maximum, that much is clear.

However, we believe that Section 6 (d) does have a purpose in our feeling about that purpose is a bit different from petitioners’.

We believe that Section 6 (d) is designed to say that only two classes of beneficiaries will receive the benefit of an increasing national average weekly wage under this legislation.

We believe that in affect it states its point conversely, mainly that the lesser classes of disability do not get the benefits of an increasing national average weekly wage.

And we believe that this point can be best illustrated by using the example of a high income temporary total disability individual.

If he is injured today, his benefits are easy to calculate.

There is a national average weekly wage in effect, his benefits are limited to 200% of that national average weekly wage.

It’s a mathematical calculation.

Now, if a person has the same injury a temporary total disability receipt.

Next year during the next period and his high income again there is no problem figuring his benefits, it’s the same function.

The only difference would be that because the national average weekly wage has been going up because of our inflationary society, his benefits will be higher.

The question becomes what happens to the first example.

If his temporary disability extends to the next period, does he get an increase in his benefits or do his benefits stay frozen at the level when they are awarded.

Section 6 (b) does not really explain that, Section 6 (b) recites 200% of national average weekly wage is the maximum.

We believe it could be read either way.

That yes every one goes up if their benefits are based on an national average weekly wage or it could be read at their frozen, it’s an unclear point.

Section 10 (f) mentioned by the government does not apply because it only concerns by its very nature permanent total disability and death benefits.

James Buckley Ostmann:

It’s designed to clarify.

It’s a mathematical Section stating just how those two classes of beneficiaries will have their befits enhanced.

We believe that Section 6 (d) is in there to clarify that the temporary total disability recipient will not get any increases.

There is no doubt that the Section is obscure, it doesn’t state its point precisely, we believed that rating gives the Section meaning, we believe it clarifies a point that is not clarified otherwise.

John Paul Stevens:

But Mr. Ostmann, if the exclusion of temporary disability beneficiaries from the language of 6 (d) is intended to exclude them, why wouldn’t the same rationale apply to the Section 10 as well because if that refers only to permanent and death and fails to mention temporary why wouldn’t, why do you need the (d)?

James Buckley Ostmann:

We believe that 10 (f) is in there to show that all recipients of permanent total disability and death benefits will get the increase, the benefit of an increase because without that Section the only individuals that would get an increase would be those whose benefits are figured on a national average weekly wage.

In other words, the middle range recipients.

John Paul Stevens:

I understand that, but wouldn’t 10 (f) of its own force exclude temporary disability recipients for any increases?

James Buckley Ostmann:

It would perhaps exclude the entire range of them but we would say without 6 (d) the question would still be open in minimum and maximum situations where the benefits are figured in disability on the national average weekly wage.

We don’t think the point is clear from 10 (f).

We believe in those instances there might be a question open as to whether or not an increase should be granted and we believe that as why 6 (d) is in the statute.

Harry A. Blackmun:

Mr. Ostmann, if there is redundancy between the two sections, do you think that your case is demolished, can you live with redundancy?

James Buckley Ostmann:

Well, I could live with redundancy Your Honor.

Harry A. Blackmun:

It’s a question whether we can?

James Buckley Ostmann:

Yes, that’s true, that’s certainly the question.

If we don’t believe that there is redundancy though.

We have tried to find a reason for 6 (d).

It hasn’t been easy, but we believe that this is the purpose of this Section, we don’t believe that 6 (d) and 10 (f) are identical.

John Paul Stevens:

There is one strange thing about the 6 (d), it refers to determinations under this subsection?

James Buckley Ostmann:

Yes.

John Paul Stevens:

What subsection you understand that it referred to?

James Buckley Ostmann:

I believe as everyone in the case has agree that there was an oversight that should refer to Section 6.

John Paul Stevens:

It would be a Section rather —

James Buckley Ostmann:

Yes, because in that bill it was a subsection.

Warren E. Burger:

I suppose counsel you have read some of the published articles of members of the Congress, which would hardly support your suggestion that the — really members the Congress knew what was in the statute and how the statutory scheme worked.

These experienced members of Congress have written published articles, they simply haven’t the time to gather?

James Buckley Ostmann:

Yes Your Honor, that it is true however we believe that when the entire legislative history is read here, the choices to go what the government called the torturous route of finding through a myriad of provisions, a death benefit maximum or to declare that the Congress eliminated it.

Warren E. Burger:

Well, they couple that argument as I hear that either express or by implication that this tortured route takes them to what is the sensible and reasonable solution and did any other route does not produce the sensible and reasonable solution in light of the total purposes of the Act?

James Buckley Ostmann:

We would not agree with that Your Honor.

We think it is important to realize at the beginning S.2318 intended to remove all maximums.

James Buckley Ostmann:

True and it was revised we believe that there was a compromise that a new maximum was inserted in disability, but that the Congress decided in death cases because it is a different class of benefits because there is no incentive argument which is one of the reasons for a lower level of benefits and with respect of those the families of workers they shouldn’t be fretted with an arbitrary ceiling.

The family of a high income worker should be able to live in the method that they have been accustomed to and that’s more beneficent and more humane than treating them in any other way.

John Paul Stevens:

Mr. Ostmann after hearing this before the revised 2381 or 2318 whichever it was proposed, how much testimony was there in support of the view that there should be no maximums at all, is there significant testimony?

James Buckley Ostmann:

There was substantial testimony to that effect, Your Honor.

The labor side for instance was supportive of that proposal.

John Paul Stevens:

So, what you are cutting through all the language, your basic position is that even though it doesn’t appear in the legislative reports directly that there must been a compromise between the two facts and they said okay we will but the ceiling in — keep a ceiling on disability and take it often and.

James Buckley Ostmann:

Yes, we believe that for instance the National Commission’s discussions of death in a different light indicates that.

The citation of the enhanced definition of death benefits was something else that was added now.

That wasn’t discussed in the National commission nor to my knowledge was it proposed by anyone before the Congress and testimony, yet it was added and it is definitely a clear provision.

William H. Rehnquist:

What if we would conclude that the statutory language is absolutely clear that disabilities do have maximums and death benefits do not, but we were also to conclude that we can’t think of any conceivable reason why Congress would do that, should we affirm or reverse?

James Buckley Ostmann:

I would say affirm, Your Honor because I believe the function of the judiciary is to determine what the statute says and what the Congress intended.

We believe that if this Court is going to find for petitioners it will have to in effect rewrite this Section because there is no death benefit maximum set out anywhere in the statute.

Language will have to effectively be inserted.

Byron R. White:

Having no reason wouldn’t be as bad as having an unreasonable reason?

James Buckley Ostmann:

Well, either one Your Honor I guess but.

Byron R. White:

Either one, either way you can — [Attempt to Laughter].

James Buckley Ostmann:

In any event in our estimation 6 (d) is designed to establish that the lower classes of disability are frozen at the level when they are awarded.

Statutory construction of the statute has always been beneficent of purpose liberally construed in favor of the worker.

William H. Rehnquist:

Was this part of the 1972 amendments were — there were some trade-offs on both sides?

James Buckley Ostmann:

Yes.

William H. Rehnquist:

So then why do you talk about this being beneficently construed and liberally construed toward a worker?

It was a give and take thing with the unions on one side management on the other.

There is no reason why this Court should favor one over the other, is there?

James Buckley Ostmann:

I think historically the development of workmen’s compensation has been to benefit the worker.

William H. Rehnquist:

Well then, that may be true historically, but as I understand your response to my question there was just some pretty hard nosed bargaining in 1972 and management was on one side and labor was on the other?

James Buckley Ostmann:

That’s correct Your Honor, but the benefits were enhanced for instance unseaworthiness doctrine was removed as an alternative remedy, that was one of the trade-offs and there were others.

William H. Rehnquist:

How should we construe the removal of the unseaworthiness doctrine, unseaworthiness doctrine beneficently, remedially?

James Buckley Ostmann:

We believe that when the statute is to be construed by the courts, it is to be construed in favor of the worker and his family because that has been the historical purpose of workmen’s comp to create a liability without fault against the employee.

William H. Rehnquist:

How about the elimination of the unseaworthiness remedy, how should that be construed?

James Buckley Ostmann:

I think that’s a very clear elimination, Your Honor.

James Buckley Ostmann:

I don’t think that there has to be any construction of that part of the statute, that’s not an issue and I don’t think there is any question that the unseaworthiness was eliminated by this Act.

Thurgood Marshall:

Because it just didn’t make sense.

James Buckley Ostmann:

In a sense it created dual remedies for the workers, that’s correct.

It has been said that to remove death benefit maximums is too radical, too drastic, could not have been intended.

We believe though as I just mentioned that the statute had been radical from the beginning, that there is other radical changes in this Act designed to enhance benefits for workers.

Further such questions or questions of degree and questions of policy, which we believe are more properly presented to the Congress rather than this Court.

In conclusion, when reviewing the entire record surrounding the 1972 amendments, we believe it becomes clear that Congress intended to truly modernize the statute and it truly bring benefits and benefit levels up to a reasonable state and that as a part of this reasonable and beneficent amendment of this Act, the Congress consciously and purposely eliminated any artificial limits on the payments to the families of deceased workers.

Thank you.

Albert H. Sennett:

I have a brief rebuttal.

I find myself largely in agreement with the former speaker that the act has been there for some purpose.

The intent of Congress had clearly indicated in the Act and that is to increase benefits substantially.

However, I have heard no presentation to this Court and I have seen none in the briefs presented and I have seen none in the history we have studied, which can offer some rational analysis or a logical distinction as to why there should be a differential between disability benefits and death benefits.

John Paul Stevens:

Mr. Sennett, can I interrupt you there?

Supposing it would have been logically, some Senators, Senator Eagleton and others thought it would have been logical and take the ceilings off entirely, if there is a case got that position?

Albert H. Sennett:

There certainly is, Your Honor.

John Paul Stevens:

But why is it totally irrational for a couple of Senators on opposite sides of the argument to say, well we split the difference and will take it off one, but not the other?

Albert H. Sennett:

Because in the light of a compensation system which is meant to replace the loss of wages to a family, the logic would be to as indicated previously in the opening remarks to increase disability benefits because the impact of a loss of wages of a man who is —

John Paul Stevens:

Well, but may be in a negotiation between the two they thought there are less dollars writing on death benefits than there are disability benefits and let’s make this our trade-off.

Albert H. Sennett:

It’s perhaps, well it might be well to speculate about that but along those lines keep in mind the Longshore Act by extension applies to employees of District of Columbia to commonwealth employees to a vast variety of employees, many of them enjoyed very substantial salaries greatly in excess of what has been contemplated for Longshoremen.

I think the best way I can rebut this is to illustrate what would happen if the position of Mr. Ostmann were correct.

In other words, if Mr. Rasmussen had suffered a total and permanent disability instantly upon his injury and it was irreversible and left him entirely at the mercy of vagaries of time and his family, he would be enjoying a $167 a week plus the additional increments that we have been discussing so that at the present time if he was still alive and still he would be be receiving $398 a week.

According to the proposition advanced by Mr. Ostmann immediately upon his demise his family would enjoy $532 a week.

We submit to this court there is no logic to that —

Warren E. Burger:

And with that 167, they would have to divide all the care for him?

Albert H. Sennett:

That 167 would last and that is the reason for the increases on a yearly basis provided by the Congress, it’s exactly what Congress had in mind Mr. Justice and that is because of that concern of that kind of money would not reflect the needs of a family.

There was increases up to 200% so that the present time that family would had would enjoy $398 a week.

Warren E. Burger:

Just where we get this concept of a premium on death?

Albert H. Sennett:

Yes, Your Honor, I think that this perhaps in illustration —

Warren E. Burger:

The family was one one fewer persons to support and no medical bills gets almost three times as much as the family which still has the totally disabled father head of the household.

Albert H. Sennett:

It sounds like somewhat of a cynical remark, kept in light of the fact this is a compensation system and not a damage system.

Albert H. Sennett:

I think that is the proper characterization of the implications of what is being advanced —

Warren E. Burger:

That course is that you and the Solicitor General argued that reading of the statute just doesn’t make any sense and Congress should not be considered to help.

We intended that.

Albert H. Sennett:

We believe that Congress has given a signal to the Court and the signal perhaps is a bit murky, but the signal was there and that one examines the intent of a system I think the answer is relatively straight forward and self-evident.

If there no other questions, I’ll be happy to retire.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.