486
Blackmun, J., dissenting
party as he would have received from his employer under the LHWCA, the employer owes him no benefits.
Section 33(g) of the LHWCA, 33 U. S. C. § 933(g), addresses the situation in which a claimant-plaintiff settles an action against a third party for less than he would have received under the Act. Under § 33(f), considered alone, the claimant in this situation would always be able to collect the remainder of his statutory benefits from the employer. To protect the employer from having to pay excessive § 33(f) compensation because of an employee's "lowball" settlement, § 33(g) conditions LHWCA compensation, in specified circumstances, upon the employer's written approval of the third-party settlement. See Banks v. Chicago Grain Trimmers Assn., Inc., 390 U. S. 459, 467 (1968).
Before the LHWCA's 1984 amendments, § 33(g) provided that if a "person entitled to compensation" settled for less than the compensation to which he was entitled under the Act, then the employer would be liable for compensation, as determined in § 33(f), only if the person obtained and duly filed with the Department of Labor the employer's written approval of the settlement. The meaning of the term "person entitled to compensation" has proved to be a difficult issue, both in the pre-1984 version of the Act and—as this case demonstrates—in the Act's current form.
B
This issue apparently was considered first in O'Leary v. Southeast Stevedoring Co., 7 BRBS 144 (1977), aff'd, 622 F. 2d 595 (CA9 1980). In that case, the employer denied liability for the death of the claimant's husband, contending that the decedent was not an employee covered by the LHWCA and that the injury did not arise out of his employment. 7 BRBS, at 145. The employer persisted in denying liability even after its position was rejected by the Benefits
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