Rambo v. Director, Office of Workers' Compensation Programs
Decision Date | 24 June 1994 |
Docket Number | No. 92-70783,92-70783 |
Parties | John RAMBO, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Metropolitan Stevedore Company, Respondents. |
Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Pierry, Pierry and Moorhead, Wilmington, CA, for petitioner.
LuAnn Kressley, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for respondents.
Petition for Review of an Order of the Benefits Review Board
Before: REINHARDT and LEAVY, Circuit Judges, and BROWNING, * District Judge.
Opinion by Judge LEAVY.
In 1983, the appellant John Rambo ("Rambo") was awarded $80.16 per week in worker's compensation for a permanent partial disability to his back and leg. Rambo subsequently attended crane school and obtained a position as a crane operator. In 1990, Rambo's employer, Metropolitan Stevedore Company ("Metropolitan") moved to have his benefits terminated. Despite the fact that Rambo's physical condition had not changed, Metropolitan argued that Rambo was no longer eligible for the benefits because he was presently working at a job that paid him $1,505.21 per week--almost 300% of Rambo's pre-injury average weekly wage.
The Administrative Law Judge ("ALJ") found in favor of Metropolitan and terminated Rambo's benefits. The ALJ determined that Rambo's new job was a "change in conditions" within the meaning of 33 U.S.C. Sec. 922. 1 The Benefits Review Board affirmed. Both the ALJ's and the Board's decisions relied upon Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225 (4th Cir.1985), which held that a mere change in a claimant's wages could satisfy the "change in conditions" requirement for modification. Neither decision cited any Ninth Circuit cases. However, our cases make clear that only a change in a claimant's physical condition can justify an award modification. A change in a claimant's wages, training, skills, or educational background is insufficient. Accordingly, we reverse the decision of the Benefits Review Board ("BRB").
Under our cases, a mere change in a claimant's wages, training, skills, or educational background is not sufficient to meet the "change in conditions" requirement for an award modification. Rather, a party seeking to modify an award must prove that the claimant has undergone a change in his physical condition. See, e.g., Pillsbury v. Alaska Packers Ass'n, 85 F.2d 758, 760 (9th Cir.1936), rev'd on other grounds, 301 U.S. 174, 57 S.Ct. 682, 81 L.Ed. 988 (1937) .
For example, in McCormick S.S. Co. v. United States Employees' Compensation Comm'n, 64 F.2d 84 (9th Cir.1933), we held that a mere change in a claimant's wages--without proof of a change in his physical condition--was not sufficient to satisfy the "change in conditions" requirement of 33 U.S.C. Sec. 922. See id. at 86 ( ).
Here, the respondent relies exclusively upon the Fourth Circuit's decision in Fleetwood, which held that a mere change in a claimant's wages could satisfy the "change in conditions" requirement of 33 U.S.C. Sec. 922. As the Fleetwood dissent noted, the Fourth Circuit's rule is in direct conflict with the Ninth Circuit's rule. See id. at 1235 (Warriner, J., dissenting) . A three-judge panel may not overturn Ninth Circuit precedent. United States v. Lewis, 991 F.2d 524, 526 n. 1 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993).
As the Fleetwood dissent points out, id., the Fourth Circuit's rule...
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Metropolitan Stevedore Co. v. Rambo
...capacity will occur with a change in actual wages only when those wages fairly and reasonably represent such capacity. Pp. ____. 28 F.3d 86 (CA9 1994), reversed and KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and......
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Metropolitan Stevedore Co. v. Rambo
...the Ninth Circuit reversed on the ground that §22 authorizes modification of an award only for changed physical conditions, Rambo v. Director, OWCP, 28 F.3d 86 (1994). We in turn reversed in Rambo I, holding that " [t]he fundamental purpose of the Act is to compensate employees (or their be......
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Rambo v. Director, Office of Workers' Compensation Programs
...for our consideration of issues raised originally on appeal but not discussed in our earlier decision. Rambo v. Director, Office of Workers' Compensation Programs, 28 F.3d 86 (9th Cir.), rev'd and remanded sub nom., Metropolitan Stevedore Co. v. Rambo, --- U.S. ----, 115 S.Ct. 2144, 132 L.E......