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Petitioner Insurance Company of North America ("INA") seeks review of a United States Department of Labor Benefits Review Board ("BRB" or the "Board") order awarding death benefits to Respondent Freelove Peterson, widow of Respondent Paul Peterson, under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. §§ 901 et seq. Decedent Paul Peterson was hospitalized in November 1984 and diagnosed as having a malignant lung tumor. The tumor was caused, at least in part, by Peterson's exposure to asbestos while working as a submarine builder in the 1960s. Approximately one month after entering the hospital for treatment, Peterson died from the ailment. Thereafter, Mrs. Peterson filed two claims under the LHWCA. The first, on behalf of her husband, sought disability benefits for the period of his hospitalization. The second sought death benefits for herself as his surviving widow.

An Administrative Law Judge ("ALJ") heard the case and found that the LHWCA in effect in 1967, the date of Peterson's last 1402*1402 possible exposure to asbestos, applied. Benefits were denied upon a finding that Peterson's injury did not meet the situs requirement, as defined in the Act prior to amendment in 1972, that the injury occur "upon the navigable waters of the United States (including any dry dock)." 33 U.S.C. § 903(a) (superseded). Mrs. Peterson appealed to the Board, which reversed the ALJ's decision. The Board ruled that, in cases of long latency diseases caused by exposure to harmful stimuli, the appropriate law to apply is the law in effect on the date the disease manifests. The Board then applied the LHWCA as amended in 1972 and determined that Peterson met the definition of employee under the amended Act, 33 U.S.C. § 902(3), and that he had been injured at an appropriate situs as redefined by the amendment, 33 U.S.C. § 903(a). Thus, the BRB awarded death benefits to Mrs. Peterson and remanded to the ALJ for calculation of disability benefits.

On appeal, INA argues that the BRB erred when it utilized the law in effect on the date of manifestation of the disease. INA maintains that the law in effect at the time of last exposure should govern because nothing in the language of the Act, amendments, or the legislative history indicates that the date of manifestation rule should be used to determine the applicable law. Additionally, INA contends that use of the manifestation rule results in an impermissible retroactive application of the amended Act by expanding the class of individuals entitled to recover for exposures occurring prior to the amendments' effective date. The Director, Office of Workers' Compensation Programs, United States Department of Labor (the "Director") agrees with this position but nevertheless urges us to affirm the BRB's award of benefits on the alternate ground that substantial evidence supports a finding that Peterson was exposed to asbestos upon the navigable waters of the United States as defined in the pre-1972 Act. INA, on the other hand, maintains that the ALJ was correct in finding that Peterson was not injured upon the navigable waters of the United States and that recovery therefore should be denied. We conclude that the Board did not err in holding that the law in effect on the date of manifestation of the cancer is the appropriate law to apply, and hence deny the petition for review. As such, we need not address the alternate ground for affirmance proposed by the Director.


969 F.2d 1400 (1992)



U.S. DEPT. OF LABOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Freelove Peterson, (Widow); Paul Peterson, (Decedent), Respondents.

No. 1068, Docket 91-4193.

United States Court of Appeals, Second Circuit.

Argued April 1, 1992.

Decided July 16, 1992.

New York Law School location: File #1454, Box #129