Appeal from order of Benefits Review Board denying a claim for benefits as not timely filed under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 (1982 & Supp. V 1987). Affirmed on grounds that petitioner's injury was not peculiar to his employment and therefore was not an occupational disease entitled to a two-year statute of limitations under 33 U.S.C. § 913(b) (Supp. V 1987). Also found, that the statute of limitations was not tolled.
Oakes, Chief Judge, Lumbard and Pierce, Circuit Judges.
Nicholas Gencarelle was denied permanent total disability benefits under the Longshore and Harbor Workers' Compensation Act (the "Act" or "LHWCA"), 33 U.S.C. §§ 901-50 (1982 & Supp. V 1987), for injuries to his knees allegedly relating to his years of general maintenance work at General Dynamics' Electric Boat shipyard in Groton, Connecticut. He petitions under 33 U.S.C. § 921(c) (1982) for review of the order of the Benefits Review Board ("BRB") denying the benefits sought. We affirm the order.
Gencarelle worked nearly continuously at the shipyard from 1951 to 1975. Since 1956, he was a general laborer or maintenance man. As he described his job, he "did everything"--clean buildings, sweep roads, move furniture, and more. His responsibilities included bending over to clean underneath benches, squatting to clean under machines, and climbing to clean out ventilation and air ducts. In December 1966, Gencarelle stepped into a hole and twisted his right knee while walking down the south yard hill and was treated thereafter for a couple of months. He testified that he banged his knees several times, but only reported one of these incidents on December 4, 1967, for which on June 14, 1968, he was given a five percent permanent partial disability for loss of use under the Connecticut workers' compensation law.
Several years later, in January 1974, Gencarelle slipped and injured his left knee while cleaning the machine shop. He reported the injury and missed two days of work. In April 1975, he visited the shipyard hospital to report that both knees were in pain and to request a doctor's examination, but not to report any new injury. In May 1975, General Dynamics filed an injury report with the Secretary of Labor as required under 33 U.S.C. § 930(a) (Supp. V 1987) for the January 1974 injury. Gencarelle last worked in June 1975 and did not work thereafter, first because of a strike at the shipyard and then because of asbestosis for which he received workers' compensation benefits from December 1975 to December 1977 and ultimately a lump sum settlement.
After complaints of knee pain in March of 1978, Gencarelle was diagnosed on April 24, 1978, as having chronic synovitis. This is a chemical reaction of the lining of the knee joint to debris cast off from a degenerating or arthritic knee. On May 10, 1978, Gencarelle telephoned General Dynamics to report his condition and that he was to have surgery on both knees. He did undergo orthopedic surgery and had his right knee replaced in July 1978. On December 3, 1979, Gencarelle finally filed a claim arising from injuries to his knees for workers' compensation, which was served on his employer on January 17, 1980. In March 1982, General Dynamics filed an injury report with the Secretary of Labor for Gencarelle's chronic synovitis.
Gencarelle alleges that his synovitis was a different injury than any of the ones reported before. It was not, he alleges, the result of either the 1966, 1967, or 1974 injuries to his knees. Rather, he claims the synovitis was the result of repetitive trauma--bending, stooping, and climbing--required by his job that occurred after his last reported injury in January 1974 and before he left work in June 1975.
The Administrative Law Judge ("ALI") found that Gencarelle's synovitis was not the result of repetitive trauma, but rather was due to a combination of his previous knee injuries. Even assuming, however, that his synovitis was related to repetitive trauma, the ALI concluded that Gencarelle did not timely notify General Dynamics under 33 U.S.C. § 912(a) (Supp. V 1987) or timely file his claim under 33 U.S.C. § 913(a) (1982) since he knew or reasonably should have known that his knee condition was work-related as early as 1975.
On appeal, the BRB, applying the statutory presumption that all claims are within the coverage of the Act, 33 U.S.C. § 920(a) (1982), found that General Dynamics had not carried its burden of showing that Gencarelle's synovitis was not work-related. Nevertheless, it found that the claim was time-barred by the statute of limitations. Concluding that Gencarelle's chronic synovitis was not an "occupational disease," the BRB found that the special two-year statute of limitations for occupational diseases, 33 U.S.C. § 913(b)(2) (Supp. V 1987), running from the date of the employee's awareness of the relationship between the disease and his employment, did not apply. Accordingly, the one-year statute of limitations for all other work-related injuries had run by December 1979, the time when Gencarelle filed his claim. Further, the BRB found that the statute of limitations was not tolled under 33 U.S.C. § 930(f) (1982) by the employer's late filing of a report of the synovitis to the Secretary of Labor, because the synovitis was related to the 1974 injury for which General Dynamics had already filed a report. The BRB did not consider whether Gencarelle properly or timely notified General Dynamics of his injury.
In affirming the decision of the BRB, we note that the Director of the Office of Workers' Compensation Programs, Department of Labor, takes the broad position that Gencarelle's chronic synovitis, brought about by cumulative trauma, is an occupational disease, the cumulative trauma aggravating a pre-existing condition. We find, however, that Gencarelle's synovitis was not peculiar to his employment and so was not an occupational disease in this case. We hold, moreover, that General Dynamics' filing in 1975 of an injury report prevented tolling of the statute of limitations.
The Longshore and Harbor Workers' Compensation Act is a federal program to compensate maritime employees for on-the-job injuries leading to death or disability. See 33 U.S.C. § 903(a) (Supp. V 1987). "Injury" is defined to include only accidents and "occupational diseases" arising in the course of employment. See 33 U.S.C. § 902(2) (1982).
All disability claims are subject to a one-year limitations period, see 33 U.S.C. § 913(a), except occupational disease claims which enjoy a two-year limitations period from the date that the employee becomes aware or should have been aware of the relationship between the disease, ...