Huntington Ingalls Indus., Inc. v. Eason

• Decision Date: 02 June 2015
• Docket Number: No. 14–1698.,14–1698.
• Citation: 788 F.3d 118
• Parties: HUNTINGTON INGALLS INDUSTRIES, INC., f/k/a Northrup Grumman Shipbuilding, Inc., Petitioner, v. Ricky N. EASON; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

788 F.3d 118

HUNTINGTON INGALLS INDUSTRIES, INC., f/k/a Northrup Grumman Shipbuilding, Inc., Petitioner

v.Ricky N. EASON; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 14–1698.

United States Court of Appeals, Fourth Circuit.

Argued: March 25, 2015.

Decided: June 2, 2015.

ARGUED:Jonathan Henry Walker, Mason, Mason, Walker & Hedrick, PC, Newport News, Virginia, for Petitioner. Matthew W. Boyle, United States Department of Labor, Washington, D.C.; Gregory Edward Camden, Montagna, Klein, Camden, LLP, Norfolk, Virginia, for Respondents. ON BRIEF:M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter, Counsel for Longshore, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Federal Respondent.

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Opinion

Petition granted by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge NIEMEYER and Judge FLOYD joined.

HAMILTON, Senior Circuit Judge:

Huntington Ingalls Industries, Inc. (HI) petitions for review of the May 16, 2014 decision of the Benefits Review Board (BRB) upholding the August 16, 2013 decision of Administrative Law Judge (ALJ) Daniel Sarno, Jr. (Judge Sarno) granting the claim of Ricky Eason (Eason) for temporary partial disability under the Longshore and Harbor Workers' Compensation Act (LHWCA or the Act), 33 U.S.C. §§ 901 –950.¹ For the reasons that follow, we grant the petition for review and remand the case to the BRB to enter an order dismissing Eason's claim for temporary partial disability under the LHWCA.

I

A

The LHWCA establishes a federal worker's compensation system for employees injured, disabled, or killed in the course of covered maritime employment. See generally id. § 907 (medical services and supplies to treat injury), id. § 908 (compensation for disability), id. § 909 (compensation for death). Like other worker's “compensation regimes—limited liability for employers; certain, prompt recovery for employees—the LHWCA requires that employers pay [disability] benefits voluntarily, without formal administrative proceedings.” Roberts v. Sea–Land Servs., Inc., ––– U.S. ––––, 132 S.Ct. 1350, 1354, 182 L.Ed.2d 341 (2012) ; see also 33 U.S.C. § 904 (“Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title.”).

The LHWCA defines “[d]isability,” in pertinent part, 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.” 33 U.S.C. § 902(10). Four different categories of disabilities are set forth in the LHWCA: (1) permanent total disability; (2) temporary total disability; (3) permanent partial disability; and (4) temporary partial disability. Id. § 908(a)-(c), (e).

No standard is set forth in the LHWCA to determine the degree of a disability (total or partial) or the duration of a disability (permanent or temporary). Because disability under the LHWCA is an economic concept, see Metro. Stevedore Co. v. Rambo, 515 U.S. 291, 297, 115 S.Ct. 2144, 132 L.Ed.2d 226 (1995) (“Disability under the LHWCA, defined in terms of wage-earning capacity ..., is in essence an economic, not a medical, concept.”), the degree of a disability cannot be measured by medical condition alone, Nardella v. Campbell Mach. Inc., 525 F.2d 46, 49 (9th Cir.1975). Consideration must be given to the claimant's age, education, experience, mentality, ability to work as well as the extent of the physical injury, and the availability of suitable alternative employment. Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225, 1227 n. 2 (4th Cir.1985). With regard to duration, a claimant remains temporarily disabled until he reaches “maximum medical improvement.” Stevens v. Dir., OWCP, 909 F.2d 1256, 1259 (9th Cir.1990). Maximum medical improvement marks the time where “normal and natural healing is no longer likely” to occur. Pac. Ship Repair & Fabrication Inc. v. Dir., OWCP [Benge ], 687 F.3d 1182, 1185 (9th Cir.2012) (citation and internal quotation marks omitted). Thus, the “maximum medical improvement date ‘triggers a change in the classification of a claimant's disability from temporary to permanent.’ ” Id. (quoting Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 653 (9th Cir.2010) ).

Which of the four categories of disability the claimant falls in dictates the amount of compensation paid to him by his employer. A permanently totally disabled employee is entitled to weekly compensation amounting to two-thirds of his pre-injury average weekly wage for as long as he remains permanently totally disabled. 33 U.S.C. § 908(a) ; Roberts, 132 S.Ct. at 1354. The compensation payable for a temporary total disability remains fixed at that two-thirds figure, while weekly compensation for a permanent total disability is annually adjusted to reflect increases to the national average weekly wage. 33 U.S.C. § 910(f).

The LHWCA recognizes two types of permanent partial disability. One, commonly referred to as “unscheduled” or “non-scheduled” compensation, is based on the employee's actual loss of wage-earning capacity and, like total disability, is compensated at two-thirds of the difference between the employee's average weekly wage at the time of injury and his post-injury wage-earning capacity. Id. § 908(c)(21). The other, commonly referred to as “scheduled” compensation, covers specified body parts, and pays a fixed number of weeks of compensation at two-thirds of the employee's average weekly wage. Id. § 908(c)(1)-(17), (20). These scheduled amounts compensate for a presumed (not actual) loss of wage-earning capacity. Korineck v. Gen. Dynamics Corp. Elec. Boat Div., 835 F.2d 42, 43–44 (2d Cir.1987). For example, the loss of a leg under the schedule entitles a claimant to 288 weeks of compensation at two-thirds of his average weekly wage. 33 U.S.C. § 908(c)(2). For a partial loss of the use of a leg, which includes knee injuries, the number of weeks is multiplied by the percentage of loss. Id. § 908(c)(19). Thus, a claimant with a 50% loss of the use of his leg would receive compensation for 144 weeks. Notably, a claimant who is permanently partially disabled due to a scheduled injury cannot choose to be compensated for his actual loss of wage-earning capacity under § 908(c)(21), even though the compensation under § 908(c)(21) potentially may be greater than the compensation paid under the schedule. See Potomac Electric Power Co. [PEPCO ] v. Dir., OWCP, 449 U.S. 268, 270–71, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980) (holding that a claimant who was permanently partially disabled due to a scheduled injury could not choose to be compensated for his actual loss of wage-earning capacity under § 908(c)(21) rather than being compensated for his loss as provided by the schedule).

Compensation for temporary partial disability is “two-thirds of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or another employment.” 33 U.S.C. § 908(e). Under the LHWCA, temporary partial disability compensation cannot be paid for a period longer than five years. Id.

Once the claimant is classified in a particular disability category, he need not necessarily remain in such category. Benge, 687 F.3d at 1185. This is so because permanent/temporary and total/partial are fluid concepts and not “cast in stone.” Id. at 1186. Reclassification of a disability requires a showing of a “change[ ] [in] circumstances.” Id. at 1185 ; see also 33 U.S.C. § 922 (providing that, with certain time limits, “on the ground of a change in conditions ..., the deputy commissioner may ..., whether or not a compensation order has been issued ..., review a compensation case ... [and] issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation”). For example, a claimant with a permanent partial disability may become permanently totally disabled or temporarily totally disabled if his injury worsens and renders him permanently or temporarily totally disabled. See Benge, 687 F.3d at 1185–87 (holding that permanent partial disability claimant became temporarily totally disabled following surgery to treat injury). Likewise, a claimant with a permanent total disability may be reclassified to having a permanent partial disability if suitable alternative employment becomes available. See Stevens, 909 F.2d at 1259–60 (holding that a permanent total disability changes to a permanent partial disability when suitable alternative employment becomes available to claimant). It is also possible that a disability deemed permanent and total or permanent and partial may improve “due to a remarkable recovery, advances in medical science, or other reasons” such that the claimant may be recharacterized as temporarily totally disabled or temporarily partially disabled. Benge, 687 F.3d at 1185.

B

On September 28, 2008, Eason injured his right knee while employed as a pipe fitter at Newport News Shipbuilding and Dry Dock Company (NNS) in Newport News, Virginia.² He went to the medical clinic at NNS on October 1, 2008, complaining of pain in his right knee. The injury, which was diagnosed on October 14, 2008 as a torn meniscus requiring surgery, kept Eason completely out of work from October 2, 2008 through June 28, 2009. As a result, HI paid Eason temporary total disability benefits for this period.

On June 29, 2009, Eason returned to work at NNS full-time as a pipe fitter. On September 23, 2009, Eason was evaluated at Tidewater Physical Therapy and given a 14% lower extremity permanent impairment rating. Sometime in October 2009, Dr. David Hoang (Dr. Hoang), Eason's treating orthopedic surgeon, “signed off” on the...