Beruflich Dokumente
Kultur Dokumente
No. 14-1698
Argued:
Decided:
June 2, 2015
- 2 -
Ingalls
Industries,
Inc.
(HI)
petitions
for
review of the May 16, 2014 decision of the Benefits Review Board
(BRB) upholding the August 16, 2013 decision of Administrative
Law Judge (ALJ) Daniel Sarno, Jr. (Judge Sarno) granting the
claim of Ricky Eason (Eason) for temporary partial disability
under the Longshore and Harbor Workers Compensation Act (LHWCA
or the Act), 33 U.S.C. 901-950. 1
we grant the petition for review and remand the case to the BRB
to enter an order dismissing Easons claim for temporary partial
disability under the LHWCA.
I
A
The
LHWCA
establishes
federal
workers
compensation
covered
(medical
maritime
services
(compensation
for
and
employment.
supplies
disability),
See
to
id.
generally
treat
909
injury),
id.
907
id.
908
(compensation
for
- 3 -
death).
Like
other
workers
compensation
regimes--limited
LHWCA
requires
voluntarily,
that
without
employers
formal
pay
[disability]
administrative
benefits
proceedings.
shall
secure
the
payment
to
his
employees
of
the
LHWCA
incapacity
defines
because
[d]isability,
of
injury
to
in
earn
pertinent
the
wages
part,
which
as
the
employment.
categories
of
33
U.S.C.
disabilities
are
set
902(10).
forth
Four
in
the
different
LHWCA:
(1)
partial
disability;
and
(4)
temporary
partial
economic,
not
medical,
concept.),
- 4 -
the
degree
of
disability
cannot
be
Nardella
v.
Campbell
1975).
Consideration
measured
Mach.
by
Inc.,
must
be
medical
525
given
F.2d
to
condition
46,
the
49
alone,
(9th
Cir.
claimants
age,
& Dry Dock Co., 776 F.2d 1225, 1227 n.2 (4th Cir. 1985).
regard
to
duration,
until
he
reaches
Dir.,
OWCP,
909
claimant
maximum
F.2d
remains
medical
1256,
1259
temporarily
improvement.
(9th
Cir.
With
disabled
Stevens
1990).
v.
Maximum
Fabrication Inc. v. Dir., OWCP [Benge], 687 F.3d 1182, 1185 (9th
Cir.
2012)
(citation
and
internal
quotation
marks
omitted).
weekly
wage
totally disabled.
for
as
long
as
he
remains
permanently
1354.
remains
fixed
compensation
at
for
that
two-thirds
permanent
figure,
total
while
disability
is
weekly
annually
33 U.S.C. 910(f).
The
LHWCA
disability.
recognizes
two
types
of
permanent
partial
wage-earning
compensated
at
capacity
and,
two-thirds
of
like
the
total
disability,
difference
between
is
the
wage-earning
capacity.
Id.
908(c)(21).
The
body
compensation
wage.
Id.
parts,
at
and
two-thirds
pays
of
908(c)(1)-(17),
a
presumed
fixed
number
the
employees
(20).
These
(not
weeks
average
scheduled
amounts
capacity.
the
compensation
schedule
at
entitles
two-thirds
U.S.C. 908(c)(2).
of
of
weekly
for
under
loss
of
compensate
actual)
of
wage-earning
claimant
average
to
288
weekly
weeks
wage.
of
33
Id. 908(c)(19).
- 6 -
Thus, a claimant
with a 50% loss of the use of his leg would receive compensation
for 144 weeks.
disabled
due
scheduled
injury
cannot
choose
to
be
even
though
the
compensation
under
908(c)(21)
449 U.S. 268, 270-71 (1980) (holding that a claimant who was
permanently partially disabled due to a scheduled injury could
not choose to be compensated for his actual loss of wage-earning
capacity under 908(c)(21) rather than being compensated for
his loss as provided by the schedule).
Compensation
for
temporary
partial
disability
is
two-
Under
the
LHWCA,
temporary
33 U.S.C.
partial
disability
he
need
not
necessarily
remain
in
such
category.
at
1186.
Reclassification
- 7 -
of
disability
requires
new
compensation
reinstate,
order
increase,
compensation).
or
For
which
decrease
example,
may
such
terminate,
compensation,
claimant
with
continue,
or
award
permanent
at
1185-87
(holding
that
permanent
partial
disability
changes
to
permanent
partial
disability
when
permanent
and
partial
may
improve
due
to
remarkable
- 8 -
1185.
B
On September 28, 2008, Eason injured his right knee while
employed as a pipe fitter at Newport News Shipbuilding and Dry
Dock Company (NNS) in Newport News, Virginia. 2
He went to the
As a
Tidewater
Physical
permanent
impairment
Therapy
rating.
and
given
Sometime
14%
in
lower
October
extremity
2009,
Dr.
permanent
partial
disability
compensation.
(J.A.
180).
- 9 -
paid Eason from October 16, 2009 through May 17, 2010, and from
May 19, 2010 through July 25, 2010, 40.28 weeks of scheduled
compensation for permanent partial disability at $992.29 (twothirds of his pre-injury average weekly wage of $1,488.43) per
week.
of
scheduled
loss
may
member). 3
be
compensation);
for
id.
proportionate
(c)(19)
loss
or
(permanent
loss
of
use
partial
of
the
reported that his left knee was acting up on him and his right
knee was getting stiff intermittently, especially after sitting
for awhile.
(J.A. 180).
the right knee and tenderness in the left knee, (J.A. 83), and
he put Eason on light duty restrictions for both knees.
These
light
duty
restrictions
prevented
Eason
from
performing
his
(J.A. 83).
(J.A. 84).
On July, 16,
2010, Eason reported to Dr. Hoang that his right knee was doing
well but the left knee was grinding.
(J.A. 84).
Dr. Hoang
light-duty
addition,
during
employment
this
within
period,
Eason
his
restrictions.
did
not
seek
In
suitable
brought
claim
against
HI
for
temporary
total
In support
of his claim, Eason argued that during this time period he was
not at maximum medical improvement.
(J.A. 13).
He posited
(J.A. 13).
- 11 -
Because no suitable
temporary
total
disability
compensation.
Alternatively,
(J.A. 13).
disability
compensation
did
compensation
not
prevent
for
the
his
knee
recovery
injury,
of
such
additional
medical
improvement
in
October
2009.
Because
Eason
in
PEPCO.
HI
stressed
that
Easons
scheduled
already
was
covered
was
held
by
the
payments
made
under
the
schedule.
A
hearing
Malamphy).
before
ALJ
Richard
Malamphy
(Judge
that
the
evidence
did
not
support
Easons
He also
claim
of
knee
schedule.
injury
He
was
limited
explained
to
that
the
[t]he
amount
Act
required
presumes
by
the
that
the
scheduled award fully compensates claimant for any loss in wageearning capacity and, [t]herefore, any temporary loss of wage
earning
capacity
Claimant
suffered
Malamphy
held
that
the
is
not
(J.A. 184).
scheduled
compensable
in
In other words,
compensation
award
compensated Eason for his knee injury and that Eason was not
entitled to additional compensation for any temporary partial
loss of wage-earning capacity for that same injury.
On appeal, the BRB vacated Judge Malamphys decision.
The
disability
compensation
for
Easons
knee
injury.
the BRB found that the fact that permanent partial disability
benefits were fully paid under the schedule is not determinative
of
claimants
temporary
total,
(J.A. 188-89).
entitlement
or
thereafter
temporary
partial
to
permanent
disability
total,
benefits.
first
establish
prima
facie
case
by
demonstrating
an
of
performing.
See
id.
(outlining
burden
shift).
employment
was
available
in
the
relevant
labor
disabled
unsuccessfully
employee
sought
shows
that
appropriate
he
diligently
employment.
but
(citation
and
Judge
Sarno found that Eason was not able to return to his usual work
from May 19, 2010 through August 9, 2010.
found
that
HI
had
established
the
availability
of
suitable
Sarno
concluded
that
Eason
was
temporarily
partially
disabled from May 19, 2010 through August 20, 2010 and entitled
to
compensation
of
$845.82
per
week
(two-thirds
of
the
wage-earning
capacity
based
on
the
national
average
findings
that
Eason
was
unable
to
perform
his
usual work from May 19, 2010 through August 20, 2010 and that HI
had
established
suitable
available
alternative
employment.
II
We
review
the
BRBs
decision
for
errors
of
law
and
to
Gilchrist v.
Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th
Cir. 1998).
deference
reasonable
from
us.
interpretation
deference.
Id.
of
the
However,
LHWCA
is
the
Directors
entitled
to
some
193 F.3d 797, 801 (4th Cir. 1999) (We note that this is the
result
advocated
by
the
Director
of
the
Office
of
Workers
receives
disability
scheduled
cannot
subsequently
for
receive
permanent
additional
partial
temporary
temporary
partial
disability
compensation.
Moreover,
HI
HI concedes
(Continued)
that
claimant
- 17 -
who
receives
scheduled
of
entitlement
to
temporary
partial
disability
partial
disability
compensation
for
the
injury
scheduled compensation.
not
precluded
from
subsequently
disability compensation.
HI
that
disability
claimant
who
compensation
receiving
permanent
total
scheduled
for
injury
an
permanent
is
partial
precluded
from
According
to
the
Director,
the
LHWCAs
statutory
precludes
reclassification
of
scheduled
permanent
However,
posits
that
reclassification
of
his
injury
is
not
accord
suffered
some
a
deference.
scheduled
Hord,
injury.
193
Thus,
F.3d
his
at
801.
Eason
permanent
partial
239, 242 n.3 (4th Cir. 1999) (The presumed effect of scheduled
disabilities on a claimants wage-earning capacity has been set
- 19 -
capacity).
Once
Easons
permanent
partial
scheduled
injury
reclassification
temporary
of
total.
unless
that
the
circumstances
disability
See,
e.g.,
to
Benge,
warrant
total
or
permanent
687
F.3d
at
1185-87
(allowing
disability
compensation
claimant
compensation
for
who
to
permanent
received
subsequently
total
permanent
recover
disability);
cf.
partial
disability
PEPCO,
449
in
cases
of
permanent
partial
- 20 -
disability,
once
it
is
approximate
compensation.
presumes
the
claimants
permanent
loss
of
all
permanent
or
partial
disability
total
disability
temporary
wage-earning
capacity,
while
687
F.3d
at
1187
(noting
that
any
total
in
the
disability
compensation
for
the
See
disability
Thus, an
change
from
that
allegedly
changes
to
temporary
partial
wage-earning
schedule.
capacity
already
is
accounted
for
under
the
for all the lost wages due the claimant under the LHWCA.
- 21 -
To
benefits
double
disability,
total
recoveries.).
scheduled
compensation
for
he
Like
compensation
already
Easons
permanent
was
disability
the
claim
claimant
was
receiving
temporary
in
by
permanent
disability
to
Korineck,
subsumed
for
partial
serves
the
total
claim
is
His disability
His
not
prevent
him
from
alternative employment.
working
in
some
type
of
suitable
Since
Eason does not allege that the flare up rendered him permanently
or
temporarily
totally
disabled,
he
is
not
entitled
to
any
of
this
case
is
unpersuasive.
First,
his
We see nothing in
v. Dir., OWCP, 932 F.2d 836, 839 n.1 (9th Cir. 1991) (noting
that, under the LHWCA, an employee may not obtain a double
recovery for a disability for which compensation has already
been paid); cf. Strachan Shipping Co. v. Nash, 782 F.2d 513,
515 (5th Cir. 1986) (en banc) (noting that the credit doctrine,
created by the BRB for the singular purpose of avoiding double
recoveries,
provides
that
an
employer
is
not
liable
for
any
received
compensation
construction
for
of
the
under
LHWCA
the
defeats
LHWCA).
Second,
the
of
intent
the
certain
permanent
partial
disabilities
and,
See
restrictions.
Such
construction
of
the
LHWCA
makes
little sense. 7
We also note that the Director understandably rejects HIs
interpretation of the LHWCA because it forecloses the receipt of
temporary total disability compensation following the receipt of
scheduled disability compensation.
LHWCA has two flaws.
temporary
total
disability
compensation
at
1185-87;
Hord,
193
F.3d
at
802.
after
proper
Benge, 687
Second,
HIs
language
contains
no
temporal
33 U.S.C. 908(c).
limitation.
Thus,
such
the
example,
as
disability
scheduled
example,
total
permanent
in
this
partial
case,
compensation
compensation
as
in
disability
Benge,
disability
Eason
for
for
received
his
the
compensation
injury
same
temporary
before
injury)
where
the
claimant
compensation
for
her
or
after
after
total
receiving
received
injury
(for
(for
temporary
receiving
The receipt of
capacity
(including
the
loss
not
presumed
by
the
in
some
instances
and
undercompensation
in
may
undercompensate
claimant
- 25 -
loss
of
wage
pre-injury
salary
after
reaching
maximum
medical
improvement,
As
recognized
by
the
Supreme
Court
in
PEPCO,
such
Congress
employed
compelling
statutory
language);
see
apparently
functions
in
the
manner
intended
by
Congress,
as
disability
partial
may
receive
disability
due
additional
to
the
as
foreclosing
claimant
who
is
compensation
same
injury.
for
HIs
It interprets the
receiving
scheduled
- 27 -
earning
capacity
under
908(c)(21),
rather
than
being
U.S.
authorize
recovery
at
270. 10
such
for
an
The
Court
election,
scheduled
statutory schedule.
held
and,
injury
Id. at 271.
that
the
LHWCA
therefore,
must
be
did
not
claimants
limited
by
the
of
wage-earning
capacity
[i]n
all
other
cases
of
Id.
Thus, the
of
the
LHWCA
would
10
not
fulfill
the
remedial
As
noted
earlier,
unscheduled
permanent
partial
disability awards are based on the actual loss of wage-earning
capacity. 33 U.S.C. 908(c)(21). The claimant in PEPCO sought
wage-loss compensation under 908(c)(21) because his loss of
wage-earning capacity was over 40% and 908(c)(21) would have
provided far more compensation than the schedule otherwise
allowed. 449 U.S. at 271.
- 28 -
Id. at 280-84.
The
Id. at 282.
Id.
this
fact
an
employee
for
his
Id. at 282-84.
did
not
give
actual
loss
in
wage-
it
license
to
disregard
the
The Supreme
receiving
disability
scheduled
can
receive
compensation
additional
for
permanent
compensation
for
partial
temporary
- 29 -
approval
the
receipt
of
total
disability
compensation
injury
that
the
claimant
already
not
permit
such
has
received
(or
is
duplicative
recoveries.
See
Port
of
Portland, 932 F.2d at 839 n.1 (noting that the LHWCA is designed
to avoid double recoveries for the same injuries).
HIs interpretation of PEPCO also is flawed.
PEPCO
did
receiving
from
not
hold,
scheduled
receiving
as
HI
posits,
compensation
temporary
for
(total
that
an
or
The Court in
claimant
injury
is
partial)
who
is
foreclosed
disability
449 U.S. at
forecloses
the
receipt
of
additional
III
For the reasons stated herein, we grant the petition for
review
and
remand
the
case
to
the
BRB
to
enter
an
order
- 31 -