Barker v. U.S. Dept. of Labor, 97-1450

• Decision Date: 02 February 1998
• Docket Number: No. 97-1450,97-1450
• Parties: James W. BARKER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, et al., Respondents. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 431

138 F.3d 431

1998 A.M.C. 1992

James W. BARKER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, et al., Respondents.

No. 97-1450.

United States Court of Appeals, First Circuit.

Heard Feb. 2, 1998.

Decided March 11, 1998.

Gary A. Gabree, with whom Stinson, Lupton, Weiss & Gabree, P.A., Bath, ME, was on brief, for petitioner.

Stephen Hessert, with whom Norman, Hanson & DeTroy, Portland, ME, was on brief, for respondent Bath Iron Works Corporation.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

After sustaining an injury in the course of his employment as a mechanic for respondent Bath Iron Works Corporation and receiving temporary disability benefits, petitioner James W. Barker filed a claim for a supplemental scheduled award under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1986) (LHWCA or the Act). An Administrative Law Judge (ALJ) concluded that the asserted disability resulted from an unscheduled injury and denied both Barker's claim and his request for attorneys' fees. The Benefits Review Board (Board) affirmed in all respects. The petitioner asks us to instruct the Board in the error of its ways. Exercising our statutory jurisdiction to review final orders of the Board, see id. § 921(c), we deny the petition in its entirety.

I. Background

We limn the facts as found below, consistent with record support. ¹

While at work on December 14, 1989, the petitioner experienced cervical pain that radiated down through his left shoulder and arm. The petitioner proceeded under Maine's workers' compensation law, and received temporary disability payments for the period during which he was unable to work. He also received an award for whole-body permanent impairment (11%) under the state statute. See 39 Me.Rev.Stat. Ann. § 56-B (1987) (later repealed).

The petitioner eventually returned to work as a technical planner--a less strenuous position, but one for which he receives higher pay and better benefits. Nevertheless, his symptoms persisted. After more than three years of treatment, doctors attributed his enduring symptomatology (including radiculopathy and myofascial pain) to a cervical disk injury sustained in the work-related accident.

On January 27, 1993, the petitioner filed a claim for permanent partial disability benefits pursuant to 33 U.S.C. § 908(c), the pertinent text of which is reproduced in the Appendix. In addition to the benefits he already had received under the Maine workers' compensation statute, ² Barker claimed an entitlement to a scheduled award for a permanent partial disability to his left arm (a scheduled body part). See id. § 908(c)(1). Following an evidentiary hearing, the ALJ found (1) that the petitioner had not sustained an injury to his left arm, but only to his neck and shoulder; (2) that such an injury was not listed specifically in the schedule; (3) that, consequently, any award for a resultant permanent partial disability was limited to the amounts recoverable for unscheduled injuries pursuant to 33 U.S.C. § 908 (c)(21); and (4) that the petitioner was not entitled to recovery because, having returned to work at more than his pre-injury average weekly wage, he had demonstrated no loss of earning capacity. In a supplemental decision, the ALJ denied the petitioner's request for attorneys' fees. The Board affirmed both rulings. This proceeding followed.

II. Analysis

A. Permanent Partial Disability

We first weigh the petitioner's claim for supplemental (scheduled) compensation attributable to a putative permanent partial disability. Our review of the Board's ruling on this question is limited in scope. "We examine the record for material errors of law or for impermissible departure from the familiar 'substantial evidence' rubric in connection with the Board's assessment of the hearing officer's factual findings." Cornell Univ. v. Velez, 856 F.2d 402, 404 (1st Cir.1988). Under that paradigm, "inferences drawn by the factfinder must be accepted unless irrational." Id. at 404 n. 2. This means, of course, that as long as the inferences that the Board chooses to draw are adequately rooted in the evidence, a reviewing court ought not concern itself with whether it might have found a competing set of inferences persuasive. See Bath Iron Works Corp. v. Director, OWCP, 109 F.3d 53, 56 (1st Cir.1997); Sprague v. Director, OWCP, 688 F.2d 862, 866 (1st Cir.1982).

On this occasion, our review is also circumscribed by the myriad factual findings that stand unchallenged. For example, the petitioner does not contest either the Board's finding that his left arm was not injured in the accident or its related finding that the condition of his left arm results solely from his neck and shoulder injuries. He objects instead only to the Board's taxonomy--its classification of the impairment to his left arm as coming within the ambit of a neck and/or shoulder injury because it derives from those injuries. The petitioner says that, regardless of whether the impairment is the product of a direct injury or a symptom of some other (unscheduled) injury, it is a separate compensable harm for purposes of section 908(c).

To resolve this riddle, we must repair to basic precepts of statutory construction. In respect to persons covered by the statute--and the respondent concedes that the petitioner is such a person--the LHWCA provides that "compensation shall be payable ... in respect of disability" which "results from an injury." 33 U.S.C. § 903(a). Although the LHWCA, in something of a tautology, defines the term "injury" as an "accidental injury ... arising out of and in the course of employment," id. § 902(2), the parties agree that the December 1989 injury, which the petitioner sustained while at work, fits within that definition. We turn, then, to the question of disability.

The LHWCA defines the term "disability" 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." Id. § 902(10). But a diminution of earning capacity is not always a necessary concomitant for disability payments. Under the Act, an award for permanent partial disability can be calculated in one of two ways. See Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 269-70, 101 S.Ct. 509, 510-11, 66 L.Ed.2d 446 (1980). If the permanent partial disability is scheduled, that is, described in 33 U.S.C. § 908(c)(1)-(20), the employee is entitled to recover two-thirds of his average weekly wage for a specified number of weeks, irrespective of whether he suffered a loss of earning capacity. If, however, the disability does not fit within the schedule, loss of earning capacity assumes decretory significance: the employee is remitted to subsection (c)(21), which entitles him to recover only an amount equal to two-thirds of the difference between his pre-injury average weekly wage and his post-injury earning capacity for the period of his disability. See 33 U.S.C. § 908(c)(21). This distinction is critically important here: if the petitioner cannot qualify for a scheduled award under section 908(c)(1)-(20), then he cannot qualify for any award at all inasmuch as he does not contest the Board's finding that his residual earning capacity has not been diminished. Our inquiry reduces, then, to the operation of the schedule.

The petitioner's claim is stark in its simplicity: his left arm allegedly is permanently impaired, the impairment stems from a compensable injury, and the resultant disability therefore is covered under section 908(c)(1). On this view, the fact that the impairment derives from an injury to his neck (a non-scheduled body part) does not enter into the calculus. We think that this syllogism is insupportable.

Although the language of section 908(c), taken in isolation, may admit of differing interpretations, one thing is certain--an individual can obtain compensation only through the statutory path appropriate to the character of his injury. The structure and purpose of the statute demand this construction. The LWHCA seeks to compensate covered employees for injuries suffered at work that adversely impact wage-earning capacity. See 33 U.S.C. § 902(10) (defining "disability"--a central concept--as "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment"). Congress sought to cover the range of injuries to the human body in section 908(c), and in so doing, distinguished between scheduled and unscheduled injuries: the schedule (the first twenty subsections of section 908(c)) enumerates specific body parts that can suffer injury; and section 908(c)(21) governs, to use Congress's phrase, "[i]n all other cases." Moreover, in describing the unscheduled injuries, Congress specifically noted that all awards must be based upon diminution of earning capacity, but did not so indicate anent the scheduled injuries.

This distinction is of relatively little moment, for the purpose of both unscheduled and scheduled compensatory schemes is to redeem lost earning capacity no matter whether the injury afflicts a specified or unspecified body part. See 33 U.S.C. § 908(21) (specifically calculating lost wage-earning capacity); Rupert v. Todd Shipyards Corp., 239 F.2d 273, 275-76 (9th Cir.1956) (per curiam) ("Schedules are set up not to put a price on certain parts of the human body, but to ameliorate an otherwise intolerable administrative burden by providing a certain and easily applied method of determining the effect on wage-earning capacity of typical and classifiable injuries."). As any distinction between scheduled and unscheduled injuries rests principally on the ease with which the loss of earning capacity is calculated (by schedule or by proof), we conclude that they are part of the same compensatory scheme, with no room for overlap. Thus, when an individual...