In rejecting the widow’s argument, the appellate court noted that Section 921(c) references the “final decision” from the court of appeals.  It does not refer to the final resolution of the petitioner’s request for benefits, which may include proceedings before the Supreme Court.  On the other hand, the Court also rejected the employer’s argument that there was no longer any “award” requiring payment once the Court issued its opinion vacating the BRB’s order.

CONCLUSION

As noted above, the opinion of the Fifth Circuit is not binding on cases arising within the Ninth Circuit (covering California), however, it is instructive and persuasive on issues of first impression.  Thus, the holding in Charpentier provides useful guidance to employers and carriers when appealing compensation orders under the LHWCA. 

The holding in Charpentier is largely favorable to employers and/or carriers.  Specifically, if an employer or carrier is successful in overturning a compensation order at the appellate level, the employer or carrier need not continue payment of the underlying compensation order throughout any supplemental proceedings before the Supreme Court.  Thus, a worker cannot prolong the payment of benefits by petitioning to the Supreme Court.   

Charpentier is also relevant to the extent it provides guidance to avoid a penalty situation based upon a premature termination of benefits.  In particular, benefits should not be terminated based upon a favorable appellate opinion until that becomes final, i.e. when the appellate mandate issues. 

Although the issue addressed in Charpentier is a narrow one and arises only after a successful appeal, it is relevant to employers and carriers who currently have appeals pending before the circuit courts or who are contemplating the appeal of an ALJ compensation order.  This case should be looked to as persuasive authority when the issue of terminating benefits following a successful appeal does arise.