Rambo v. Director, Office of Workers' Compensation Programs

• Decision Date: 10 April 1996
• Docket Number: No. 92-70783,92-70783
• Citation: 81 F.3d 840
• Parties: , 96 Cal. Daily Op. Serv. 2447, 96 Daily Journal D.A.R. 4120 John RAMBO, Claimant-Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Metropolitan Stevedore Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 840

81 F.3d 840

1996 A.M.C. 1384, 96 Cal. Daily Op. Serv. 2447,

96 Daily Journal D.A.R. 4120

John RAMBO, Claimant-Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS;

Metropolitan Stevedore Company, Respondents.

No. 92-70783.

United States Court of Appeals, Ninth Circuit.

April 10, 1996.

On Remand from the United States Supreme Court.

Before: REINHARDT and LEAVY, Circuit Judges, and BROWNING, ^* District Judge.

Partial Concurrence and Partial Dissent by Judge REINHARDT.

LEAVY, Circuit Judge:

INTRODUCTION

This appeal is before us on remand from the Supreme Court 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.Ed.2d 226 (1995). We now reverse the Benefits Review Board's order affirming the termination of Rambo's benefits and remand for entry of a nominal award.

FACTS AND PRIOR PROCEEDINGS

In 1980, appellant John Rambo (Rambo) injured his back and leg while working as a longshore frontman for Metropolitan Stevedore Company (Metropolitan). Rambo filed We reversed the BRB in the belief that the "change in conditions" requirement for an award modification under § 922 required proof that Rambo had undergone a change in his physical condition. Rambo, 28 F.3d at 87. The Supreme Court reversed, holding "that a disability award may be modified under § 22 where there is a change in the employee's wage-earning capacity, even without any change in the employee's physical condition." Metropolitan Stevedore Co., --- U.S. at ----, 115 S.Ct. at 2150. The Supreme Court remanded the case "[b]ecause Rambo raised other arguments before the Ninth Circuit that the panel did not have the opportunity to address." Id.

                a claim with the Department of Labor that was submitted to an Administrative Law Judge (ALJ).   In 1983 the ALJ awarded Rambo $80.16 per week in worker's compensation for a permanent partial disability, pursuant to § 8(c)(21) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 908(c)(21) (1986) (LHWCA).   Section 22 of the LHWCA allows for modification of a disability award "on the ground of a change in conditions or because of a mistake in a determination of fact."  33 U.S.C. § 922.   In 1990, Metropolitan requested an award modification to terminate Rambo's benefits.   Rambo's physical condition had not changed, but he was working as a crane operator, a job that paid him almost 300% of his pre-injury average weekly wage.   In opposing the requested modification, Rambo argued that his award could not be modified because he had been promised by Metropolitan's attorney that he would get the $80.16 weekly payment for the rest of his life, or, alternatively, that the new job was not a "change in conditions" within the meaning of 33 U.S.C. § 922.   The ALJ ruled that Rambo's award of benefits did not constitute a settlement and, therefore, could properly be modified and that Rambo's new job was a "change in conditions" that supported modification.   The ALJ then terminated Rambo's benefits.   The Benefits Review Board (BRB) affirmed
                

The two issues raised by Rambo and not decided in our earlier ruling are:

(1) Should the employer be estopped from filing a 33 U.S.C. § 922 Petition for Modification because of the representation of its attorney to "Rambo" that the award would be paid for life?

(2) Given the 1983 Stipulated Decision and Order Permanent Disability Benefits, "in the interest of justice", should this case be remanded for the entry of a nominal award of loss of wage earning capacity?

Petitioner's Opening Brief at 7 & 9. Metropolitan moves to dismiss Rambo's appeal on the ground that these issues were not raised before the ALJ or BRB.

ANALYSIS

Standards of Review

The BRB must accept the ALJ's factual findings if they are supported by substantial evidence. 33 U.S.C. § 921(b)(3). BRB decisions are reviewed by the appellate courts for "errors of law and adherence to the substantial evidence standard." Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 889 (9th Cir.1993) (internal quotations omitted). Because the Board is not a policy-making agency, its interpretation of the LHWCA is not entitled to any special deference from the courts. We have noted, however, that we will "respect the Board's interpretation of the statute 'where that interpretation is reasonable and reflects the policy underlying the statute.' " Long v. Director, Office of Workers' Compensation Programs, 767 F.2d 1578, 1580 (9th Cir.1985) (citations omitted) (quoting National Steel & Shipbuilding Co. v. United States Dep't of Labor, 606 F.2d 875, 880 (9th Cir.1979)).

Discussion

Metropolitan moves to dismiss Rambo's appeal for failure to raise the issues before the ALJ and BRB. Issues not raised before these bodies will not be heard on appeal. Goldsmith v. Director, Office of Workers' Compensation Programs, 838 F.2d 1079, 1081 (9th Cir.1988); Long, 767 F.2d at 1583.

There is no bright-line rule to determine whether a matter has been properly raised. A workable standard, however, is that the argument must be raised sufficiently

for the trial court to rule on it. In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.1989) (citations omitted).

1. Estoppel.

Rambo argued to the ALJ that Metropolitan's Application for Modification under § 922 "should be dismissed because the parties settled this claim in 1983.... The employer agreed to pay $80.16 per week 'indefinitely.' " On appeal to the BRB Rambo argued that there was a "settlement" between the parties and that Metropolitan was "estopped" from withdrawing from the settlement.

Both the ALJ and BRB treated Rambo's arguments as assertions that the 1983 Order constituted a settlement under 33 U.S.C. § 908(i)(1). They found that the Order was not a statutory settlement and, consequently, Metropolitan could seek modification under § 922. Neither the ALJ nor the BRB ruled on the estoppel issue. That they did not rule on it is not controlling, however, if the issue was sufficiently raised below for the ALJ and BRB to rule on it. Smiley v. Director, 984 F.2d 278, 281 (9th Cir.1993). The ALJ and the BRB could have ruled on the estoppel issue. Thus, Rambo can raise the estoppel argument on appeal.

Application of the estoppel doctrine requires four elements: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the facts; and (4) he must rely on the former's conduct to his injury. Ellenburg v. Brockway, 763 F.2d 1091, 1096 (9th Cir.1985) (citing Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir.1981); 1 S. Williston, Williston on Contracts § 139 (3d ed. 1957)). Rambo testified before the ALJ that, on the day of his 1983 hearing, he met with his attorney and Metropolitan's attorney and they both told him that he was going to receive $80.16 per week for life. Rambo didn't recall whether his attorney told him the award could be modified. $80.16 is what Rambo was entitled to under the LHWCA for a 22 1/2% permanent partial disability based on an average pre-injury weekly wage of $534.38. 33 U.S.C. § 908(c)(23) (compensation equals 66 2/3% of average weekly wages multiplied by the percentage of permanent impairment). The parties stipulated to the injury, the degree of disability, the compensation rate, and to an award of $80.16 per week "subject to ... all other provisions of the [LHWCA]."

Rambo received no less an award than he was entitled to under the statute. Both the ALJ and BRB determined that the 1983 "Decision and Order--Awarding Benefits" was not a settlement of Rambo's claim against Metropolitan, but an award of benefits based on the parties' stipulations and subject to modification under § 922. Thus, at least one of the elements necessary for application of estoppel is missing: reliance on Metropolitan to Rambo's detriment. Estoppel does not bar Metropolitan from seeking an award modification.

2. Nominal Award.

Even though Rambo did not specifically mention a nominal award before the ALJ or BRB we can consider the propriety of a nominal award on appeal. "A claim for total disability benefits includes any lesser degree of disability." Young v. Todd Pac. Shipyards Corp., 17 BRBS 201, 204 n. 2 (1985). By contesting downward modification of his award, Rambo was asserting his right to an award of any size.

Rambo argues that the BRB should have modified his award to a nominal amount "in the interest of justice," rather than terminating it entirely. We have not determined the propriety of a nominal award to preserve the right to future benefits in either an initial award determination or, as here, in a modification proceeding. See Todd Shipyards v. Office of Workers' Compensation, 792 F.2d 1489, 1491 (9th Cir.1986). The Second, Fifth, and District of Columbia Circuits have ruled that nominal awards may be used to preserve a possible future award where there is a significant physical impairment without a present loss of earnings. LaFaille v. Benefits Review Board, 884 F.2d 54, 62 (2nd Cir.1989); Hole v. Miami Shipyards Corp., 640 F.2d 769, 772 (5th Cir.1981); Randall v The BRB, however, "has repeatedly expressed its dissatisfaction with de minimis awards of benefits, viewing them as judicially created infringements upon the province of the legislature because they indefinitely extend the time period provided for modification by Section 22." Mavar v. Matson Terminals, Inc., 21 BRBS 336 (1988) (citations omitted). Under § 922, a compensation case may be reviewed and a new compensation order issued, which terminates, continues, reinstates, increases or decreases an award, at any time prior to one year after the date of last payment of compensation or...