279 F.3d 694 (9th Cir. 2002), 00-71391, Matson Terminals v. Werner Berg

Docket Nº:00-71391
Citation:279 F.3d 694
Party Name:MATSON TERMINALS, INC., EMPLOYER; COMMERCIAL INSURANCE SERVICE, THIRD PARTY ADMINISTRATOR, PETITIONERS, v. WERNER BERG; DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; U.S. DEPARTMENT OF LABOR, RESPONDENTS.
Case Date:January 29, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 694

279 F.3d 694 (9th Cir. 2002)

MATSON TERMINALS, INC., EMPLOYER; COMMERCIAL INSURANCE SERVICE, THIRD PARTY ADMINISTRATOR, PETITIONERS,

v.

WERNER BERG; DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; U.S. DEPARTMENT OF LABOR, RESPONDENTS.

No. 00-71391

United States Court of Appeals, Ninth Circuit

January 29, 2002

Submitted December 5, 2001[1] Pasadena, California

Page 695

Counsel William N. Brooks, II, Aleccia & Brooks, Long Beach, California, for petitioner Matson Terminals, Inc. Page 696

Judith E. Kramer, Carol A. De Deo, Samuel J. Oshinsky, Laura J. Stomski, U.S. Department of Labor, Office of the Solicitor, for respondent Director, Office of Workers' Compensation Programs.

On Petition for Review of an Order of the Benefits Review Board BRB No. BRB-99-1221A OWCP No. OWCP-18-63101 OALJ No. 98-LHC-1551

Before: Edward Leavy, Thomas G. Nelson and William A. Fletcher, Circuit Judges.

W. Fletcher, Circuit Judge

OPINION

In 1990, during the course of his employment with Matson Terminals, Inc., Werner Berg injured his knees in an industrial accident. He underwent arthroscopic surgery on both knees and received a worker's compensation award of $19,025.86 from Matson. In 1996, still employed by Matson, Berg again sustained work-related injuries to both knees.

An Administrative Law Judge (ALJ) awarded Berg disability benefits under § § 908(f) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § § 901 et seq. The ALJ found that the extent of Berg's pre-existing impairment to each knee was 16%, and found Matson liable for two separate 104-week benefit periods arising out of the 1996 injuries to Berg's knees. The ALJ awarded two benefit periods rather than one on the ground that Berg suffered injuries to two knees rather than one. The Benefits Review Board affirmed the ALJ's order. Matson appeals.

Our review of the Board's decision "is limited to determining whether that decision is erroneous as a matter of law . . . . The Board must accept the ALJ's findings unless they are contrary to law, irrational, or unsupported by substantial evidence." Director, OWCP v. Cargill, Inc., 718 F.2d 886, 887 (9th Cir. 1983). Because the Board "is not a policymaking agency[,] its interpretation of the LHWCA . . . is not entitled to any special deference from the courts." Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268...

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