Deweert v. Stevedoring Serv. of Am.
| Decision Date | 13 September 2001 |
| Docket Number | No. 00-71273,00-71273 |
| Citation | 272 F.3d 1241 |
| Parties | (9th Cir. 2001) ARTHUR DEWEERT, PETITIONER, v. STEVEDORING SERVICES OF AMERICA; HOMEPORT INSURANCE CO.; DIRECTOR, OFFICEOF WORKERS' COMPENSATION PROGRAMS, RESPONDENTS |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles Robinowitz, Portland, Oregon, for the petitioner.
John Dudrey, Williams Fredrickson, LLC, Portland, Oregon, for the respondents.
On Petition for Review of an Order of the Benefits Review Board. OWCP No. 14-114890, BRB Nos. 99-0770, 99-1252
Before: Thompson, Tashima, and Graber, Circuit Judges.
Petitioner, Arthur DeWeert, filed a claim for benefits pursuant to the Longshore and Harbor Workers' Compensation Act (Act), 33 U.S.C. § § 901-950. An administrative law judge (ALJ) found that Petitioner's post-injury wage-earning capacity exceeded his pre-injury average weekly wage and, accordingly, awarded him the nominal sum of $1 per week. The Benefits Review Board (Board) upheld that award. We affirm.
The Board "may not substitute its views for those of the ALJ, but instead must accept the ALJ's findings unless they are contrary to the law, irrational, or unsupported by substantial evidence." King v. Dir., OWCP, 904 F.2d 17, 18 (9th Cir. 1990) (citation and internal quotation marks omitted. We review the Board's decision for "errors of law and adherence to the substantial evidence standard, and we may affirm on any basis contained in the record." Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir. 1998) (citation and internal quotation marks omitted).
Petitioner is a registered longshoreman. He injured his lower back while at work on October 31, 1993. Although in pain, he returned to work the following day. A few days later he made an appointment to see his family physician, Dr. McRae. On November 9, Dr. McRae diagnosed Petitioner as having a "muscular ligamentous strain" and cleared him for continued work. Petitioner returned to the doctor on November 16, complaining that he was still in pain. Dr. McRae recommended physical therapy and told Petitioner to take a week off from work. Following this week of rest, however, Petitioner was unable to return to his job as a longshoreman.
Upon examination of Petitioner's test results, Dr. McRae noted a "slightly abnormal" MRI and referred Petitioner to Dr. Delashaw, a neurosurgeon. Dr. Delashaw examined Petitioner on December 20, 1993, prescribed various medications, and recommended one week of bed rest. At a follow-up visit on January 3, 1994, Dr. Delashaw noted marked improvement but ordered a test to investigate the cause of Petitioner's continued pain. The procedure revealed "mild to moderate annular bulge" and moderate degenerative disc disease. Dr. Delashaw referred Petitioner to another neurosurgeon, Dr. Frank, to evaluate the need for surgery. Dr. Frank determined that surgery was unnecessary and, on February 14, Dr. Delashaw opined that Petitioner would "very likely" be able to return to work with continued physical therapy. Petitioner did so on April 4, 1994.
While lifting plywood at work on April 23, 1994, Petitioner re-injured his back. On April 29, this injury caused him to cease working for a second time. Dr. Delashaw performed additional tests but remained unable to explain Petitioner's complaints of back and leg pain. After some rest and additional physical therapy, Petitioner returned to work on July 6, 1994.
For nearly three years, Petitioner was able to manage sporadic flare-ups of back pain through occasional appointments with a chiropractor, Dr. Finkas. However, on March 12, 1997, Petitioner visited Dr. Delashaw again, complaining of a some-what more severe recurrence of back pain. Dr. Delashaw determined that Petitioner had suffered no additional injury. Instead, he noted that Petitioner was moderately obese and recommended that he stay physically active and lose weight.
On April 8, 1998, Dr. Finkas wrote a report stating that Petitioner responded favorably to chiropractic treatment when he suffered flare-ups of back pain. However, he opined that Petitioner's back condition was exacerbated by
Petitioner's employer paid him temporary disability benefits for the two periods when he was not working: November 17, 1993, to April 3, 1994; and April 29, 1994, to July 5, 1994. The current dispute began when Petitioner applied for permanent partial disability benefits.
After a hearing, the ALJ held that Petitioner was entitled to $1 per week, because he had not experienced a loss of earning capacity. The Board affirmed, and Petitioner filed this timely petition for review.
The Act authorizes compensation "not for physical injury as such, but for economic harm to the injured worker from decreased ability to earn wages." Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 126 (1997). Injured employees receive compensation for permanent partial disabilities based on a percentage of the difference between their pre-injury "average weekly wages" and their post-injury "wage-earning capacity." 33 U.S.C. § 908(c)(21); see also Sproull v. Dir., OWCP, 86 F.3d 895, 898 (9th Cir. 1996).
The ALJ found that Petitioner was not entitled to benefits because his post-injury wage-earning capacity exceeded his pre-injury average weekly wage. The ALJ awarded Petitioner $1 per week after finding that "there is a significant possibility that he may, in the future, experience a loss of wage earning capacity as a result of this injury" and that, if such a loss occurred, the award could then be modified upward. The Supreme Court has mandated de minimis awards in those circumstances. Rambo, 521 U.S. at 135-36.
Petitioner argues that the ALJ incorrectly calculated both his average weekly wage and his wage-earning capacity and, therefore, that the Board erred in accepting the ALJ's award of $1 per week. For the following reasons, we are not persuaded by Petitioner's arguments.
The Act provides that a claimant's pre-injury average weekly wage is to be determined by examining the 52 weeks immediately before "the time of the injury." 33 U.S.C. § 910. Although the Act defines "time of injury" for occupational diseases,1 it does not do so for accidental injuries like the one sustained by Petitioner. Port of Portland v. Dir., OWCP, 192 F.3d 933, 937 (9th Cir. 1999), cert. denied, 529 U.S. 1086 (2000).
In this case, the ALJ determined that the "time of injury" was October 31, 1993, the day on which Petitioner hurt his back. Petitioner contends that, under Johnson v. Director, OWCP, 911 F.2d 247 (9th Cir. 1990), the "time of injury" was November 16, 1993, the date on which he claims he became aware of his disability. Because of a quirk in Petitioner's vacation time, that 17-day difference would make his average weekly wage $40.43 higher.
In Johnson, the claimant's disability, "although due to a traumatic episode, was not evident" until more than three years later. Johnson, 911 F.2d at 249. The court observed that, " `[i]n most cases of traumatic injury, the time of injury will coincide almost exactly with the time the worker is disabled.' " Id. (quoting Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1288 (9th Cir. 1983)). However, in an "exceptional" case, " `injury' under the statute means injury . . . as of the time when the disability attributable to the injury becomes manifest." Id.
Petitioner argues that his claim is governed by Johnson and that the ALJ erred when she found the time of injury to be the date of Petitioner's accident rather than the date when Petitioner ceased working. His argument is unpersuasive for two reasons.
First, in Johnson, at the time of the traumatic episode, the claimant's disabling injury was "latent and unknown." 911 F.2d at 249; see also Port of Portland, 192 F.3d at 937. The opposite is true of Petitioner's injury: The ALJ found that
the facts of this case show that [Petitioner ] was aware of his injury the day it occurred, and was bothered enough by the effects that he made a doctor's appointment within the next few days (although the appointment did not occur until two weeks later) . . . . On these facts, I cannot conclude that the injury was "latent" . . . .
(Emphasis added.) Those findings are supported by substantial evidence.
Second, even if we were to accept Petitioner's claim that his disability first manifested itself fully on November 16, this is not the kind of "exceptional case" envisioned by the court in Johnson, where more than three years elapsed between the claimant's accident and the onset of disability. See Johnson, 911 F.2d at 249 (). Instead, Petitioner stopped working only 17 days after his accident. Johnson is distinguishable for this reason as well. Cf. Port of Portland, 192 F.3d at 937 ().
Petitioner seems to be arguing for a bright-line rule that would make the "time of injury" the date when the claimant actually stopped working, but there is no support for such a rule either in the Act or in Johnson. Even in the context of occupational diseases, the relevant date is when the claimant is or should be aware of the disability. Here, the ALJ found that the claimant was actually aware of the disability on the date of injury.
For these reasons, we hold that Johnson does not assist Petitione...
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