Stevedoring Services of America v. Price
| Decision Date | 11 May 2004 |
| Docket Number | No. 02-71207.,No. 02-71578.,02-71207.,02-71578. |
| Citation | 366 F.3d 1045 |
| Parties | STEVEDORING SERVICES OF AMERICA; Homeport Insurance Co., Petitioners, v. Arel PRICE; Eagle Pacific Insurance Company; Director, Office of Workers Compensation Programs, Respondents. Arel Price, Petitioner, v. Stevedoring Services of America; Homeport Insurance Co.; Eagle Pacific Insurance Company; Director, Office of Workers Compensation Programs, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Dudrey, Williams Fredrickson, LLC, Portland, OR, for the petitioners and cross-respondents Stevedoring Services of America and Homeport Insurance Company.
Charles Robinowitz, Portland, OR, for the respondent and cross-petitioner Arel Price.
Russell A. Metz, Metz & Associates, P.S., Seattle, WA, for the respondents Stevedoring Services of America and Eagle Pacific Insurance Company.
On Petition for Review of an Order of the Benefits Review Board.
Before TROTT, FISHER and GOULD, Circuit Judges.
This case requires us to decide the proper method for calculating an injured employee's average annual earnings under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. (2001), and to what extent the LHWCA limits an employee's total disability compensation from multiple awards when the employee has received a permanent partial disability award and a subsequent permanent total disability award. We adhere to our holding in Matulic v. Director, OWCP, 154 F.3d 1052, 1058 (9th Cir.1998), that calculating an employee's average annual earnings under 33 U.S.C. § 910(a) does not excessively overcompensate him when he has worked more than 75 percent of the workdays in the year preceding his injury. Furthermore, we hold that when an increase in an employee's average weekly wage between the time of a prior permanent partial disability and subsequent permanent total disability is not caused by a change in his wage-earning capacity, permitting him to retain the full amount of both awards does not result in any "double dipping." We also hold that 33 U.S.C. § 906(b)(1) delineates the maximum compensation that an employee may receive from each disability award, not from all awards combined.
On March 27, 1979, Arel Price injured his lower back and elbow when he fell several feet from a broken ladder while working for Stevedoring Services of America ("Stevedoring"). Price was awarded permanent partial disability benefits of $196.01 per week under the LHWCA.1 SAIF Corporation, the employer's insurance carrier in 1979, is responsible for those benefits. During the year preceding the injury, Price had worked as a longshoreman and a commercial fisherman, earning an average weekly wage of $627.88. Administrative Law Judge Brissenden determined that Price's residual wage-earning capacity after the injury was $333.87 per week.2 Price returned to work in 1981 as a longshoreman after undergoing decompressive back surgery. He could no longer work as a fisherman because it was too hard on his back, and he was restricted to light jobs as a longshoreman. After another work-related accident in 1991 when a chain fell on him, Price underwent a second decompressive back surgery. Although he returned to work in 1992, Price's back got worse over the years to the point that he was taking pain medication every day on a regular basis. Upon the advice of his doctor, Price stopped working on July 2, 1998.
In October 2000, Administrative Law Judge Vittone ("ALJ") awarded Price permanent total disability benefits as of July 3, 1998. He ordered Homeport Insurance Company ("Homeport"), Stevedoring's insurance carrier in 1998, to pay compensation based on Price's 1998 average weekly wage, which the ALJ calculated to be $1156.15 under 33 U.S.C. § 910(a). The ALJ permitted Price to retain his 1979 permanent partial disability benefits but ruled that 33 U.S.C. § 908(a) limits the combined amount of Price's 1979 and 1998 awards to two-thirds of Price's 1998 average weekly wage, relying on our decision in Brady-Hamilton Stevedore Co. v. Director, OWCP, 58 F.3d 419 (9th Cir.1995).
The Benefits Review Board ("Board") determined that Price's 1998 average weekly wage was $1525.90, not $1156.15, due to an error in the ALJ's method of calculation under § 910(a).3 The Board affirmed the ALJ's decision in all other respects. Specifically, with respect to the maximum limit, the Board stated, "[C]oncurrent awards combined cannot exceed 66 2/3 percent of [a] claimant's average weekly wage at the time of the second injury." Applying this limit to Price's case, the Board concluded, "As claimant is entitled to two-thirds of his 1998 average weekly wage as compensation for his permanent total disability, Homeport's liability will be reduced by the amount of the ongoing permanent partial disability payments, as otherwise claimant would receive[] more than that allowed under Section 8(a)."4
In their petition for review, Stevedoring and Homeport contend that the ALJ and Board applied the wrong statutory provision to calculate Price's 1998 average weekly wage. In his cross-petition, Price argues that Homeport is not entitled to any credit for SAIF's payments to Price.5 We conclude that the ALJ and Board properly applied § 910(a) to calculate Price's 1998 average weekly wage but erred in reducing Price's 1998 award by the amount of SAIF's payments under his 1979 award.
The Board must accept the ALJ's findings of fact if they are supported by "substantial evidence." 33 U.S.C. § 921(b)(3); Container Stevedoring Co. v. Director, OWCP, 935 F.2d 1544, 1546 (9th Cir.1991). We conduct an independent review of the administrative record to determine if the Board adhered to this standard. Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1329 (9th Cir.1980). The Board's interpretation of the LHWCA is a question of law reviewed de novo and is not entitled to any special deference. Stevedoring Servs. of Am. v. Director, OWCP, 297 F.3d 797, 801-02 (9th Cir.2002). We respect the Board's interpretation, however, if it "is reasonable and reflects the underlying policy of the statute." Kelaita v. Director, OWCP, 799 F.2d 1308, 1310 (9th Cir.1986).
Stevedoring and Homeport claim that the ALJ and Board erred in calculating Price's 1998 average weekly wages. An employee's "average weekly wages" are computed by dividing the claimant's "average annual earnings" by 52 weeks. 33 U.S.C. § 910(d)(1). There are three methods for calculating a claimant's average annual earnings.
Under the method prescribed in § 910(a), the ALJ would first divide the actual earnings of the claimant during the 52 weeks preceding the injury by the number of days actually worked by the claimant in that period to obtain the claimant's "average daily wage." Id. § 910(a); see Matulic v. Director, OWCP, 154 F.3d 1052, 1055-56 (9th Cir.1998). Next, the ALJ would multiply the average daily wage by either 260 if the claimant is a five-day worker or 300 if the claimant is a six-day worker to get the claimant's "average annual earnings." 33 U.S.C. § 910(a). Section 910(b) uses a similar formula but computes the claimant's average daily wage based on the earnings of a typical worker in the same class engaged in similar employment in the same general location, rather than the claimant's actual earnings. See id. § 910(b). In contrast, § 910(c) has no fixed algorithm. Instead, it requires the ALJ to establish a figure that "shall reasonably represent the annual earning capacity" of the claimant. Id. § 910(c).
The ALJ and the Board used § 910(a) to calculate Price's 1998 average annual earnings. Stevedoring and Homeport argue that the ALJ and Board should have applied § 910(c) rather than § 910(a). Section 910(a) applies when the claimant "worked in the employment in which he was working at the time of the injury ... during substantially the whole of the year immediately preceding his injury." Id. § 910(a). Section 910(b) applies when the claimant did not work in that employment during "substantially the whole of such year." Id. § 910(b). Only if § 910(a) and (b) "cannot reasonably and fairly be applied" does § 910(c) apply. Id. § 910(c); see Matulic, 154 F.3d at 1056.
The presumption is that § 910(a) or (b) applies rather than § 910(c). See Matulic, 154 F.3d at 1057. However, sections 910(a) and (b) cannot reasonably and fairly be applied when employment in the industry is "casual, irregular, seasonal, intermittent, and discontinuous," Marshall v. Andrew F. Mahony Co., 56 F.2d 74, 78 (9th Cir.1932); when applying sections 910(a) and (b) would result in "excessive compensation" in light of the injured worker's actual employment record, Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336, 1342 (9th Cir.1982), vacated on other grounds, 462 U.S. 1101, 103 S.Ct. 2446, 77 L.Ed.2d 1329 (1983); or when there is insufficient evidence in the record to enable the ALJ to make an accurate calculation under sections 910(a) and (b), id.
Determining Price's 1998 average annual earnings under § 910(a) would not result in excessive compensation. In Matulic we announced a bright line rule that "when a claimant works more than 75% of the workdays of the measuring year the presumption that § 910(a) applies is not rebutted." 154 F.3d at 1058. Here, the ALJ found that Price worked 197 days during the 52 weeks preceding his 1998 total disability. Because Price is a five-day worker, there are 260 total working days in the measuring year. 33 U.S.C. § 910(a). That means Price worked 75.77 percent of the measuring year (197 divided by 260). Price falls near the line that Matulic drew but clearly within it. Therefore, calculating Price's 1998 average weekly wage under § 910(a) "falls well within the realm of theoretical or actual `o...
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