HUNTINGTON INGALLS INDUSTRIES, INC., f/k/a Northrup Grumman Shipbuilding, Inc., Petitioner,
RICKY N. EASON; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents
Argued March 25, 2015
On Petition for Review of an Order of the Benefits Review Board. (13-0573).
Jonathan Henry Walker,
MASON, MASON, WALKER & HEDRICK, PC, Newport News, Virginia, for Petitioner.
Matthew W. Boyle, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Gregory Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia, for Respondents.
M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter, Counsel for Longshore, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.
Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Senior Judge Hamilton wrote the opinion, in which Judge Niemeyer and Judge Floyd joined.
Huntington 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. For the reasons that follow,
we grant the petition for review and remand the case to the BRB to enter an order dismissing Eason's claim for temporary partial disability under the LHWCA.
The LHWCA establishes a federal worker's compensation system for employees injured, disabled, or killed in the course of covered maritime employment. See generally id. § 907 (medical services and supplies to treat injury), id. § 908 (compensation for disability), id. § 909 (compensation for death). Like other worker's " compensation regimes--limited liability for employers; certain, prompt recovery for employees--the LHWCA requires that employers pay [disability] benefits voluntarily, without formal administrative proceedings." Roberts v. Sea-Land Servs., Inc., 132 S.Ct. 1350, 1354, 182 L.Ed.2d 341 (2012); see also 33 U.S.C. § 904 (" Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title." ).
The LHWCA defines " [d]isability," in pertinent part, as " incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U.S.C. § 902(10). Four different categories of disabilities are set forth in the LHWCA: (1) permanent total disability; (2) temporary total disability; (3) permanent partial disability; and (4) temporary partial disability. Id. § 908(a)-(c), (e).
No standard is set forth in the LHWCA to determine the degree of a disability (total or partial) or the duration of a disability (permanent or temporary). Because disability under the LHWCA is an economic concept, see Metro. Stevedore Co. v. Rambo, 515 U.S. 291, 297, 115 S.Ct. 2144, 132 L.Ed.2d 226 (1995) (" Disability under the LHWCA, defined in terms of wage-earning capacity . .., is in essence an economic, not a medical, concept." ), the degree of a disability cannot be measured by medical condition alone, Nardella v. Campbell Mach. Inc., 525 F.2d 46, 49 (9th Cir. 1975). Consideration must be given to the claimant's age, education, experience, mentality, ability to work as well as the extent of the physical injury, and the availability of suitable alternative employment. Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225, 1227 n.2 (4th Cir. 1985). With regard to duration, a claimant remains temporarily disabled until he reaches " maximum medical improvement." Stevens v. Dir., OWCP, 909 F.2d 1256, 1259 (9th Cir. 1990). Maximum medical improvement marks the time where " normal and natural healing is no longer likely" to occur. Pac. Ship Repair & Fabrication Inc. v. Dir., OWCP [Benge], 687 F.3d 1182, 1185 (9th Cir. 2012) (citation and internal quotation marks omitted). Thus, the " maximum medical improvement date 'triggers a change in the classification of a claimant's disability from temporary to permanent.'" Id. (quoting Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 653 (9th Cir. 2010)).
Which of the four categories of disability the claimant falls in dictates the amount of compensation paid to him by his employer. A permanently totally disabled employee is entitled to weekly compensation amounting to two-thirds of his pre-injury average
weekly wage for as long as he remains permanently totally disabled. 33 U.S.C. § 908(a); Roberts, 132 S.Ct. at 1354. The compensation payable for a temporary total disability remains fixed at that two-thirds figure, while weekly compensation for a permanent total disability is annually adjusted to ...