General Const. Co. v. Castro
| Decision Date | 02 March 2005 |
| Docket Number | No. 03-72528.,03-72528. |
| Citation | 401 F.3d 963 |
| Parties | GENERAL CONSTRUCTION COMPANY; Liberty Northwest Insurance Corp., Petitioners, v. Robert CASTRO; Director, Office of Workers Compensation Programs, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Raymond H. Warns, Jr., Holmes Weddle & Barcott, Seattle, WA, for the petitioners.
William D. Hochberg and Nicole A. Hanousek, Law Office of William D. Hochberg, Edmonds, WA, for respondent Robert Castro.
Peter B. Silvain, Jr., Attorney, U.S. Department of Labor, Washington, D.C., for respondent Director, OWCP.
Roger A. Levy, Laughlin, Falbo, Levy & Moresi LLP, San Francisco, CA, for amicus curiae Longshore Claims Association.
Petition for Review of an Order of the Benefits Review Board. OWCP No. 14-129-450, BRB No. 02-0783.
Before: NELSON and RAWLINSON, Circuit Judges, and SCHWARZER,* Senior District Judge.
General Construction Co. and Liberty Northwest Insurance Corp. (General Construction), with amicus Longshore Claims Association (LCA), petition for review of the determination of the Benefits Review Board (BRB) that claimant Robert Castro is entitled to total disability compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1994) (LHWCA), during his period of participation in a vocational rehabilitation program approved by the Office of Workers' Compensation Programs (OWCP). General Construction also claims that the method the administrative law judge (ALJ) used to calculate Castro's average weekly wage was incorrect and that the OWCP violated General Construction's procedural rights under the Administrative Procedure Act (APA) and the Due Process Clause of the federal Constitution.
We deny the petition for review. The BRB appropriately affirmed the ALJ's award under the LHWCA, and the ALJ's wage calculation was correct under Ninth Circuit law. The BRB also correctly concluded that the OWCP's failure to grant General Construction a hearing before approving Castro's rehabilitation program did not violate General Construction's procedural or due process rights.
Under the LHWCA, we review BRB decisions "for errors of law and for adherence to the substantial evidence standard." See Alcala v. Dir., OWCP, 141 F.3d 942, 944 (9th Cir.1998). The BRB must accept the ALJ's factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3); see also Lockheed Shipbuilding v. Dir., OWCP, 951 F.2d 1143, 1144 (9th Cir.1991). "Like the [BRB], this court cannot substitute its views for the ALJ's views." Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544, 1546 (9th Cir.1991).
On questions of law, including interpretations of the LHWCA, we exercise de novo review. Gilliland v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir.2001). We need not defer to the BRB's construction of the LHWCA, but we "must... respect the [BRB's] interpretation of the statute where such interpretation is reasonable and reflects the policy underlying the statute." Id. (quoting McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.1990)). We also "accord considerable weight to the construction of the statute urged by the Director of the [OWCP] as [s]he is charged with administering" the LHWCA. Matson Terminals, Inc. v. Berg, 279 F.3d 694, 696 (9th Cir.2002) (quoting Force v. Dir., OWCP, 938 F.2d 981, 983 (9th Cir.1991) (internal quotation marks omitted)). "We will defer to the Director's view unless it constitutes an unreasonable reading of the statute or is contrary to legislative intent." Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
Claimant Robert Castro worked as a carpenter and pile driver from 1973 until he was disabled due to his injury in 1998. He began work as a pile driver for General Construction in 1998. On November 20, 1998, Castro slipped and fell on a crane step, tearing the anterior cruciate ligament in his right knee. After three surgeries, Castro was released to return to light duty work in August 2000. Castro attempted to return to work at General Construction, but the job he took, cutting metal plates with a torch while seated, was too strenuous, and his physician, Dr. Mandt, determined that it was beyond Castro's ability. No other light duty work being available at General Construction, Mandt recommended vocational retraining.
General Construction conducted labor market studies, which identified jobs the counselors believed Castro could perform, such as courier, cashier, and security officer. The starting wages for these jobs ranged between $8.00 and $10.00 per hour, or between $16,640 and $20,800 per year, but with experience, some could pay up to $25,000 per year. Castro testified that he investigated at least some of these jobs, but found that they were taken. Castro did not investigate other jobs because after commuting costs they would have paid around $2.00 per hour.
OWCP referred Castro to vocational rehabilitation counselor Carol Williams to develop a rehabilitation plan. She and Castro decided on hotel management by a "process of elimination." As part of his vocational rehabilitation plan, 2403 approved by OWCP sometime prior to August 1999 and initiated in August 1999, Castro enrolled in a hotel tourism program at a local college. He was scheduled to take classes from September 13, 2000, through June 7, 2002. Evidence suggested that after completing the program, Castro could expect to earn around $16,000 initially and to progress, with experience, to approximately $27,580 per year, or to as much as $40,000 per year as manager at a larger hotel.1
Williams disagreed with General Construction's labor-market survey, claiming that the positions identified would be difficult for Castro because of his physical limitations, which included limits on his manual dexterity due to a previous hand surgery. Williams also took the position that Castro would have "a great deal of difficulty" going to school and working at the same time. Castro spent between forty-six and fifty-four hours per week on his vocational program. His commute to school took anywhere from one and one-half to two and one-quarter hours. He spent fifteen to eighteen hours per week in class and another twenty-five hours per week in study and preparation for class. While in school, Castro worked briefly in a paid internship, but after working about eighty hours he had to resign due to his vocational program's demands and requirements.
When Williams retired at the end of 2000, Castro began to see a new vocational consultant, Stan Owings. Owings concluded that Castro was limited to sedentary jobs or those requiring only light physical exertion, and stated that some of the jobs General Construction identified are "reasonable examples of jobs and wages currently available to" Castro. Owings also recognized that Castro "may return to work with or without completing the education curriculum in which he is currently enrolled." As of the dates of the hearing before the ALJ, June 20, 2001, and the ALJ's decision, May 8, 2002, Castro had not completed his schooling.
Castro earned $38,422.57 in 1995, $38,571.33 in 1996, $39,648.34 in 1997, and $39,717.62 in 1998, the year of his injury. General Construction initially paid compensation to Castro based on an average weekly wage of $988.62. On July 3, 2000, however, General Construction reduced this payment to one based on a $500 weekly wage, stating that Castro had not produced requested evidence, including earning statements from prior employment supplementing the $9886.18 he earned at General Construction in the year prior to his injury. On July 11, 2000, General Construction reinstated Castro's compensation based on a recalculated average weekly wage of $756.65. Castro argued that his weekly wage should be $1006.60 and, in support of his motion for partial summary judgment, submitted a declaration stating that during the fifty-two weeks before his accident, he worked a total of 201.35 days. The wage records Castro submitted indicate that in most of the weeks he worked, he worked for forty hours.
Castro filed a claim with the OWCP in November of 1998, seeking permanent partial disability benefits under the LHWCA's schedule for a 35% impairment to his right knee and seeking temporary and permanent total disability benefits for the period he was enrolled in the vocational rehabilitation program.
In May 2002, following a formal hearing, the ALJ issued a decision finding Castro's scheduled disability rating to be 17% and awarding Castro permanent partial disability benefits on the basis of his knee injury for a period of 48.96 weeks (17% of the statutory 288 weeks), pursuant to 33 U.S.C. 2405 § 908(c)(2), (19).2 On the issue of Castro's claim for total disability benefits, the ALJ determined that Castro had met his burden of demonstrating inability to return to his usual work (and thus total disability, permitting compensation additional to that for his scheduled injury) but also that General Construction had established the availability of some suitable alternate employment. Nevertheless, the ALJ found that because Castro was enrolled in a vocational rehabilitation program and had shown that completion of the program both precluded employment and gave him the best long-term earning potential, he was entitled to total disability benefits for the duration of the program, under Louisiana Insurance Guaranty% Ass'n v. Abbott, 40 F.3d 122, 127-28 (5th Cir.1994).3
With respect to the calculation of Castro's award, the ALJ rejected General Construction's assertion that § 10(c) of the LHWCA, 33 U.S.C. § 910(c), should govern, applying instead § 10(a), 33 U.S.C. § 910(a), in accordance with our holding in Matulic v. Director,...
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