Port of Portland v. OWCP, 98-70492
| Decision Date | 13 July 1999 |
| Docket Number | No. 98-70492,98-70492 |
| Citation | 192 F.3d 933 |
| Parties | (9th Cir. 1999) PORT OF PORTLAND; HELMSMAN NORTHWEST, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, & DEPARTMENT OF LABOR, Respondents |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] Robert E. Babcock, Lake Oswego, Oregon, for the petitioners.
Joshua Gillelan and Sandra Falzone, United States Department of Labor, Washington, D.C.; Meagan A. Flynn, Pozzi Wilson & Atchison, Portland, Oregon, for the respondents.
Petition for Review of an Order of the Benefits Review Board. OWCP No. 14-96262, 14-106287, BRB No. 97-831
Before: Betty B. Fletcher, Warren J. Ferguson and A. Wallace Tashima, Circuit Judges.
Donald Ronne ("Ronne") filed a claim for disability benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA or "Act"), 33 U.S.C. SS 901 et seq., for an injury to his knee that eventually led to total permanent disability. After a hearing, the administrative law judge determined, inter alia, that Ronne's disabling back condition was a "natural and unavoidable result" of the earlier knee injury, and therefore Ronne's compensation should be based on his average weekly wage at the time of the knee injury. The Benefits Review Board ("Board") affirmed. Port of Portland filed this petition for review, claiming that Ronne's benefits should be calculated as of the time total disability became manifest, not at the time he first suffered the injury. We hold that, where an employee's total disability naturally progresses from a single accidental injury, the employee should be compensated at the average weekly wage rate as of the time of the accident if he cannot return to his former employment after that time.
Donald Ronne had worked as a longshoreman since 1953, most recently for Port of Portland. On December 5, 1988, Ronne suffered a knee injury while working on the deck of a vessel. He temporarily ceased working and underwent surgery. Dr. Ira Weintraub, the doctor who performed the surgery, released Ronne to work at full duty in August 1989, although noting that he suffered a 20% permanent knee impairment.
Ronne's return to work, however, was short-lived. On October 29, 1989, while climbing a crane, he suffered severe knee pain. This new injury again forced him to stop working. Dr. Weintraub never released Ronne to return to longshore work, and he has not returned to any type of work since the injury. Ronne underwent two more knee surgeries over the next two years. The last one was performed on March 4, 1992.
By July 1992, Ronne started complaining about lower back pain. The pain persisted throughout 1993. Ronne, then age 64, tried to find work either as a security guard or a parking lot attendant, but met with no success. In December 1993, Dr. Weintraub interpreted an MRI scan as showing "some broad based disc bulging." Ronne was referred to a neurosurgeon, Dr. Mason, who diagnosed him with a narrowing of the lumbar canal and with a probable herniated disc. Both Dr. Mason and Dr. Weintraub shared the opinion that Ronne's back problem resulted from his knee injury, which caused him to walk with an awkward gait. Ronne elected to treat his back conservatively with physical therapy, although Dr. Mason had recommended surgery.
Ronne then filed this claim for benefits under the LHWCA. The parties stipulated that (1) Ronne could not return to waterfront work after his October 1989 knee injury; (2) his average weekly wage at the time of his first knee injury in 1988 was $963.64; and (3) his back condition was a secondary result or consequence of his 1989 knee injury. The ALJ concluded that Ronne was totally disabled after his third knee surgery on March 4, 1992 and could not perform any work. However, the ALJ found, between November 29, 1990 and March 4, 1992, Ronne could have found and performed suitable alternative work in the area as a parking lot attendant or a security guard. The ALJ granted benefits to Ronne for periods of temporary and partial permanent disability prior to March 4, 1992.1 The judge also granted total disability benefits to Ronne after March 1992 based on his average weekly wage at the time of his second knee injury in 1989. 2 The ALJ determined that Ronne's average weekly wage in 1989 was $963.64 since Ronne did not suffer any decrease in earning capacity between the two knee injuries. It is only this latter award of total disability benefits that Port of Portland challenges here.
The ALJ held that Ronne's disabling back condition was not a distinct injury but a continuation of the October 1989 knee injury. Applying the Board's precedent in Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991), the ALJ concluded that in "natural progression" cases, such as Ronne's, the average weekly wage is calculated as of the time of the initial traumatic injury. The Board affirmed, holding that the compensable injury was Ronne's knee injury, and therefore, benefits for the consequential back condition must be calculated based on his average weekly wage at the time of the knee injury. We review the Board's decision for errors of law and for its adherence to the substantial evidence standard for reviewing the ALJ's findings of fact. See Alcala v. Director, OWCP, 141 F.3d 942, 944 (9th Cir. 1998).
Port of Portland argues that the Board's compensation decision is inconsistent with this circuit's precedent and with the LHWCA, which requires that compensation for Ronne's knee injury be "factored out" of any award for total disability. Accordingly, Port of Portland contends that Ronne's benefits should be based on his projected earning capacity as a security guard or parking lot attendant at the time immediately preceding the manifestation of his back problem. That weekly wage is $170. The Director of the Office of Workers' Compensation Programs also rejects the Board's calculation of Ronne's award, but for a different reason. The Director urges us to consider Ronne's back condition an occupational disease, entitled to special provisions under the Act. Under these provisions, Ronne's benefits should be based on a national average weekly wage rate of $369.15.
The LHWCA uniformly sets both liability and compensation from the "time of injury." The Act provides that compensation shall be based on the injured worker's average weekly wage at the time of the injury. 33 U.S.C. SS 908(a) and 910. Disability also is defined as the inability to earn wages that the employee was receiving at the time of injury. 33 U.S.C. S 902(10). The Act defines "injury" as "accidental injury . . . arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally and unavoidably results from such accidental injury . . . ." S 902(2). For occupational diseases that do not immediately result in disability, the Act defines "time of injury" as the date the claimant becomes aware or should have been aware of the relationship between his employment, the disease, and the disability.S 910(i). If the employee has been retired for longer than one year after this date, the average weekly wage is the national average weekly wage at that time. S 910(d)(2)(B). Unlike the provisions for occupational diseases, the Act does not define "time of injury" for accidental injuries. We have recognized, however, that in most cases of traumatic injury the date of injury and the date of disability coincide. See Johnson v. Director, OWCP, 911 F.2d 247, 249 (9th Cir. 1990) (citing Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1288 (9th Cir. 1983)).
Port of Portland contends that our decision in Ronne's case is controlled by Johnson. In that case, we held that the victim of a traumatic accident, like the victim of an occupational disease, should be compensated at the average weekly wage rate at the time his latent disability manifested itself, not at the time of the accident. Id. at 250. Margaret Johnson had fallen through an opening in a vessel, injuring her hands, wrist and hip. She continued to work for years afterward, despite some pain and swelling, but eventually had to cease work altogether.
We find Johnson distinguishable from the situation here. Johnson applied to a case where the disabling symptoms of an earlier accident did not appear for years after the accident. The court clearly analogized the manifestation of "latent and unknown injuries" in accidental injury cases to the rationale for making "time of injury" in occupational disease cases coincide with the manifestation of disability. Id. at 249. The court's reasoning was based chiefly on the fact that Johnson continued to work after her accidental injury, as is true for workers exposed to asbestos, for example. Without a rule extending the time of injury in occupational disease cases to latent accidental injuries, workers like Johnson would not receive the benefit of the higher wage they had accumulated because they could continue in their waterfront employment. Id. at 250. In other words, they had not suffered any decrease in earning capacity, or disability.
Ronne's situation is quite different from Johnson's, however. Ronne's disability, as the term is used in the LHWCA, was not latent since he suffered significant loss of earning capacity when he injured his knee in 1989. He was disabled from the moment he suffered that knee injury and was never released to continue his employment as a longshoreman. Instead, his disability eventually became total and permanent when his back problem arose as a result of the knee. Accordingly, unlike Johnson, his income at the time of total disability was significantly less than his income at the time of his partial knee disability. The fact that he could have received a substantially lower wage in some other job...
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