Price v. Stevedoring Serv. of Am., Inc.

• Decision Date: 15 December 2010
• Docket Number: Nos. 08-71719,s. 08-71719
• Parties: Arel PRICE, Petitioner, v. STEVEDORING SERVICES OF AMERICA, INC.; Eagle Pacific Insurance Company; Homeport Insurance Co.; Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

627 F.3d 1145

Arel PRICE, Petitioner,

v.STEVEDORING SERVICES OF AMERICA, INC.; Eagle Pacific Insurance Company; Homeport Insurance Co.; Director, Office of Workers' Compensation Programs, Respondents.

Nos. 08-71719.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 2009.

Filed Dec. 15, 2010.

Charles Robinowitz, Law Office of Charles Robinowitz, Portland, OR, for petitioner Arel Price.

Russell A. Metz, Seattle, WA, for respondents Stevedoring Services of America and Eagle Pacific Insurance Company.

Gregory F. Jacob, Rae Ellen James, Mark A. Reinhalter, Matthew W. Boyle, U.S. Department of Labor, for the Federal Respondent, Director, Officer of Workers' Compensation Programs.

On Petition for Review of a Final Order Of the Benefits Review Board. BRB No. 07-0567.

Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and RONALD M. WHYTE, Senior District Judge.^*

Opinion by Judge N.R. SMITH; Concurrence by Judge O'SCANNLAIN.

OPINION

N.R. SMITH, Circuit Judge:

Interest on past due disability payments under the Long-shore and Harbor Workers' Compensation Act ("LHWCA" or "Act"), 33 U.S.C. § 901 et seq., is properly calculated as simple interest at the rate defined in 28 U.S.C. § 1961(a).

We have jurisdiction under 33 U.S.C. § 921(c), and we affirm the decision of the Department of Labor Benefits Review Board ("BRB" or "Board").

I. FACTUAL AND PROCEDURAL HISTORY

Arel Price ("Price") was injured by a falling ship-lashing-chain on October 2, 1991, while employed by Stevedoring Services of America, Inc. ("Stevedoring"). Price had surgery for his injury on April 22, 1992, and returned to work on November 24, 1992. Price worked from that day until July 2, 1998, when he stopped working on the advice of a physician.

Though Price's claims for his injury had not yet been formally adjudicated, Stevedoring paid Price temporary total disability workers' compensation payments of $676.89 per week from the date he was injured until January 4, 1992. Later, in1997, Stevedoring also reimbursed Price's disability insurance carrier $21,206.00 for compensation due Price for his injury during the time period from January 4, 1992, until November 23, 1992.

Notwithstanding these payments, the parties disagreed concerning the proper amount of disability benefits. The Commissioner therefore referred the case to an Administrative Law Judge ("ALJ"). The ALJ subsequently determined Price's average weekly wage at the time of injury to be $333.87. Upon eventual appeal of that decision to the Ninth Circuit, we remanded Price's average weekly wage for reconsideration. See Stevedoring Servs. of Am., Inc. v. Price, Nos. 02-71207 & 02-71578, 2004 WL 1064126, at *2-3 (9th Cir. May 11, 2004).

On remand, Price challenged the interest calculation on his past due disability payments. He contended: 1) the interest rate defined in 26 U.S.C. § 6621 (the provision of the tax code defining the interest rate applicable to over- or under-payment of taxes) or, in the alternative, 2) annually compounded interest under 28 U.S.C. § 1961(b) should apply to his past due payments. After hearing argument, the ALJ first revised Price's average weekly wage to $1,198.09. Because two-thirds of Price's average weekly wage ($798.73) exceeded the fiscal year 1991 maximum compensation rate ($699.29 a week), see 33 U.S.C. § 906, the ALJ awarded Price compensation at the 1991 fiscal year maximum. The ALJ also awarded Price simple interest on past due compensation at the rate established in 28 U.S.C. § 1961(a).¹ 28 U.S.C. § 1961(a) defines interest for post-judgment interest payable on United States district court judgments and does not directly apply to compensation under the LHWCA. However, the Board has used the rate defined in that section to award simple interest on past due payments since 1984. See Grant v. Portland Stevedoring Co., 16 BRBS 267, 270 (1984). The 28 U.S.C. § 1961(a) rate changes with fluctuations in the market as it is tied to the weekly average of one-year United States treasury bonds.

Price appealed the ALJ decision to the Board, making the same arguments he presented to the ALJ. The Board, citing Reposky v. International Transportation Services, 40 BRBS 65 (2006), rejected Price's argument regarding the applicable maximum rate of compensation. The Board likewise rejected Price's argument regarding interest, affirming the ALJ's decision to award simple interest at the rate determined by 28 U.S.C. § 1961(a).

Price now appeals.

II. DISCUSSION

A. Standard of Review

The only question before us is one of statutory interpretation. When interpreting the LHWCA, we look first to the plain language of the statute. Stevedoring Servs. of Am. v. Price, 382 F.3d 878, 890 (9th Cir.2004) (citing Bowen v. Director, OWCP, 912 F.2d 348, 351 (9th Cir.1990)). If the meaning of the Act is clear, that is the end of our inquiry. See Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is "silentor ambiguous" with respect to a specific issue, however, we look to the position of the agency. Id. at 843, 104 S.Ct. 2778; see Found. Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 625 (9th Cir.1991).

With respect to the LHWCA, we deal with two administrative entities, the Board and the Director. "The Board's interpretation of the LHWCA is a question of law reviewed de novo and is not entitled to any special deference." Price, 382 F.3d at 883 (citing Stevedoring Servs. of Am. v. Director, OWCP, 297 F.3d 797, 801-02 (9th Cir.2002)). However, "we accord 'considerable weight' to the construction of the statute urged by the Director of the Office of Workers' Compensation Programs, as he is charged with administering it." Force v. Director, OWCP, 938 F.2d 981, 983 (9th Cir.1991). "We will defer to the Director's view unless it constitutes an unreasonable reading of the statute or is contrary to legislative intent." Matson Terminals, Inc. v. Berg, 279 F.3d 694, 696 (9th Cir.2002) (citing Chevron, 467 U.S. at 842-45, 104 S.Ct. 2778).

B. Limits on Compensation

Title 33 U.S.C. § 906(b) and (c) establish a maximum limit on compensation under the LHWCA. This maximum limit is calculated each fiscal year. 33 U.S.C. § 906(c). Price argues that the ALJ erred in applying the maximum compensation rate for fiscal year 1991 (the year Price became disabled). Price contends the ALJ should have applied the maximum compensation rate in effect for the year the ALJ issued his decision: fiscal year 2000.

As explained in our recent opinion in Roberts v. Director, OWCP, 625 F.3d 1204 (9th Cir.2010), 33 U.S.C. § 906(b) and (c) require us to apply the maximum compensation rate from the fiscal year in which the individual becomes entitled to compensation (i.e., the date of injury), not the rate in place for the fiscal year when the ALJ issues a formal compensation award. Therefore, the Board and the ALJ did not err by capping Price's compensation by the fiscal year 1991 rate.

C. Applicable Interest Rate

As we have stated before, the LHWCA contains no express provision with respect to interest on past due payments. See Found. Constructors, 950 F.2d at 625. As the statute is silent on the issue of interest, the question before us is whether the Director's proposed construction of the Act is unreasonable. See id. We will not "substitute our own construction 'for a reasonable interpretation made by the administrator of an agency.' " Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778).

The Director's position,² that simple interest on past due payments should be awarded at the rate defined in 28 U.S.C. § 1961(a), is not unreasonable. In the absence of any reference to interest in the Act, we measure the reasonableness of the Director's position against the Act's general purpose of compensating disabled employees. See id. (determining whether interest is appropriate on past due payments based on "the remedial intent of the Act").³

Awarding simple interest at the rate defined in 28 U.S.C. § 1961(a) is not an unreasonable method of compensating a claimant for past due compensation. Since the statute ties the interest rate to the one-year United States treasury bill rate, the interest rate applicable to past due payments adjusts with changes in the market. See 28 U.S.C. § 1961. In this way, the interest rate of § 1961(a) approximates the interest one could earn on an investment over a period of time, adjusted for changes in the market. Of course, Price suffered some loss due to the delay in his payment. However, applying a market-sensitive interest rate to past due compensation is an appropriate-and certainly not an unreasonable-way to compensate for this loss.

In determining whether the 28 U.S.C. § 1961(a) rate reasonably fulfills the general compensatory objective of the Act, we also consider other provisions of the Act which compensate an employee for delay. It is salient to this inquiry to recognize that the Act specifically provides compensation for late payments. For payments due under the Act but not formalized in a compensation order, any payments not paid within 14 days of the time they are due are subject to a penalty of 10% of the unpaid amount. See 33 U.S.C. § 914(e). If payments are mandated by a compensation order, this penalty is 20%. Id. § 914(f). These penalties are separate from and in addition to interest awarded for past due payments by the ALJ at the 28 U.S.C. § 1961(a) rate.

Price ignores the late payment penalty provisions of 33 U.S.C. § 914 in arguing that interest awarded under 28 U.S.C. § 1961(a) is unreasonable. He argues that the interest rate defined in 26 U.S.C. § 6621 better approximates the cost of borrowing money for a disabled employee. Price further contends that the Director's position (using an interest rate approximating interest earned on saved money) is unreasonable because, in reality, most disabled employees will actually need to borrow.

As an initial matter, we have no evidence...