Petition for Review of an Order of the Benefits Review Board Submitted March 2, 1998* Pasadena, California
Before: Melvin Brunetti, David R. Thompson and Thomas G. Nelson, Circuit Judges.
The opinion of the court was delivered by: Judge Brunetti
Appellant Todd Shipyards Corporation ("Todd") formerly employed claimant/appellee Prudencio Chavez ("Chavez"). During and as a result of that employment, Chavez developed both hypertension and asbestosis. Chavez was awarded total disability compensation under the Longshore and Harbor Workers' Compensation Act ("the Act"), 33 U.S.C. S 901 et seq. The only issue before the court today is whether Todd is entitled to recompense for some of the injuries. Specifically, Todd petitions for review of the June 30, 1993 decision of the Benefits Review Board ("BRB") and the January 13, 1994 decision and order on remand from Administrative Law ("ALJ") Judge Lasky, finding that Todd was not entitled to credit for Chavez's asbestos related third party settlements pursuant to the Act. We have jurisdiction, 33 U.S.C.S 921(c), and deny the petition for review.
Chavez worked at Todd from 1964 to 1980 where he was exposed to asbestos, dust, smoke, fumes, and high levels of noise. He left in January, 1980, unable to perform his job due to asbestosis and hypertension. On June 10, 1981, Adminis- trative Law Judge ("ALJ") Evans awarded Chavez permanent and total disability benefits under the Act. ALJ Evans did not determine whether the asbestosis and hypertension were work related or how much each of the two diseases contributed to Chavez's disability.
Chavez filed a civil suit against various asbestos manufac- turers, suppliers, and distributors seeking civil recovery for his asbestosis. In 1986, Todd attempted to terminate Chavez's compensation rights alleging that Chavez failed to get Todd's approval before entering into third party settlements in viola- tion of S 33(g) of the Act. ALJ Lasky held a hearing on this matter and on August 15, 1986, he found that Chavez had not entered into settlement with any third party defendant and therefore was not barred from receiving compensation under S 33(g). He also rejected Chavez's proposed apportionment of any prospective third party proceeds holding that apportion- ment was unavailable under the Act to reduce an employer's credit. Finally, ALJ Lasky found that the credit issue was ripe for resolution.
The Benefits Review Board upheld ALJ Lasky's determi- nation that Chavez had not entered into any settlements but reversed on the ripeness issue.
On appeal to the Ninth Circuit, the court found that the credit apportionment issue was indeed ripe for review, but remanded to the BRB to determine the issue. The court fur- ther affirmed ALJ Lasky's findings that no settlement was entered into. See Chavez v. Director, OWCP, 961 F.2d 1409 (9th Cir. 1992).
June 30, 1993, on remand, the BRB held that Todd's enti- tlement to any credit hinged on the answer to two factual questions: (1) which disability was the basis of Chavez's claim under the Act, and (2) whether each of Chavez's dis- abilities was ...