TOPIC 6

Topic  6.2.1    Commencement of Compensation—Maximum Compensation for Disability and Death Benefits

Carpenter v. California United Terminals, 38 BRBS 56 (2004), grant'g and partly deny'g recon of 37 BRBS 149 (2003).

            This matter involves whether a second employer is entitled to a credit when a claimant first sustains a permanent partial disability while working for a first employer and then sustains a permanent total disability while working for the second employer. In this case, within the jurisdiction of the Ninth Circuit, the Board cited to Stevedoring Services of Americ v. Price, 366 F.3d 1045, 38 BRBS ___ (CRT)(9th Cir. 2004), rev'g in pert. part 36 BRBS 56 (2002) as being dispositive. In Price, the Ninth Circuit held 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."

            In the instant case, the ALJ had determined, as recognized by the Board, "that there was no increase, but rather a decrease, in claimant's income between the first and second injuries, and that the combination of the amounts between the first and second injuries, and that the combination of the amounts awarded in permanent partial and total disability benefits did not exceed two-thirds of claimant's average weekly wage at the time of [the second injury]. The Board affirmed the ALJ's finding that the instant case presented no danger of "double dipping," and his consequent determination that the claimant was entitled to receive concurrent awards of permanent partial and total disability benefits for purposes of Section 8(a).

            The Board further noted that the Ninth Circuit additionally held in Price that Section 6(b)(1) delineates the maximum compensation that an employee may receive from each disability award, rather than from all awards combined. In this regard, the Ninth Circuit reversed the Board's holding that the combined amount of the awards could not exceed the maximum compensation rate under Section 6(b)(1) is consistent with the plain language of the LHWCA. The Ninth Circuit's decision in Price thus rejects the Board's interpretation of Section 6(b)(1). The Board concluded that as the present case arises in the Ninth Circuit, the court's opinion was controlling.

            In the Board's first opinion in this matter, the Board reversed the ALJ's finding that the statutory maximum of Section 6(b)(1) is inapplicable and held that claimant's total award of benefits was limited to this applicable maximum. The Board then held, based on the reversal of the ALJ's aforementioned determination, that "[s]ince claimant is limited to the maximum award permissible under Section 6(b)(1), [the second employer] is entitled to a credit for permanent partial disability benefits paid by [the first employer.]" Now the Board finds that, pursuant to Price, "we vacate our prior decision regarding Section 6(b)(1) and reinstate the ALJ's holding that Section 6(b)(1) is inapplicable to the combined concurrent awards, there can be no credit due to [the first employer] for any payments made by [the second employer].

Topic  6.2.1    Commencement of Compensation—Maximum Compensation for Disability and Death Benefits

Stevedoring Servs. Of Am. v. Price, 366 F.3d 1045 (9th Cir. 2004).

            When a longshoreman has worked more than 75 percent of the workdays in the year preceding injury, the Ninth Circuit found that Section 10(a) does not excessively overcompensate the claimant.

            The court also found that Section 6(b)(1) delineates the maximum compensation that an employee may receive from each disability award, not from all awards combined. In situations of multiple awards, the court stated that it recognized that the amount of adjustments needed, if any, depended on the factual determination of the cause of the employee's increase in earnings between the time of his first and second injury:

"If an employee's increase in earnings is not caused by a change in his wage-earning capacity, allowing the employee to retain the full amount of both awards does not result in any double dipping. The reason is that the prior partial disability award compensates the employee for the reduction in his wage-earning capacity from the first accident, and the subsequent permanent total disability award compensates the employee for what remains of his earning capacity after that accident. [Citation omitted.] Taken together, the awards do not compensate the employee for more earning capacity than he has actually lost. In comparison, a double dipping problem would arise if a change in conditions since the first accident has mitigated or eliminated the prior injury's negative economic effect on the employee's ability to earn wages. In that case, because the first award overestimated the effect of the first injury on the employee's wage end up compensating the employee for more wage-earning capacity than he has actually lost."

   The Ninth Circuit stated that its holding as to Section 6(b)(1) is consistent with the plain language of the LHWCA and effectuates the underlying policy of the Act by shielding employers from high compensation payments for injuries to highly paid workers while providing employers an incentive to prevent future injuries to formerly injured employees.

Topic  6.2.1    Commencement of Compensation--Maximum Compensation for                                   Disability and Death Benefits

Carpenter v. California United Terminals, 37 BRBS 149)(2003).

            In a case involving concurrent awards for permanent partial and permanent total disability, the Board found that the Section 6(b)(1) statutory maximum compensation rate was applicable to concurrent awards rather than accepting the Director's position that Section 6(b)(1) should be considered in terms of each separate award of benefits. The Board found that the term "disability" must be construed in section 6(b)(1) such that, in instances of concurrent awards, it means the overall disability resulting from both injuries.

            The Board noted that the Director's position, i.e., that the Section 6(b) limit is applicable only on a single award basis would allow for a twice-injured worker to receive compensation in excess of the single injury person, despite the fact that their overall loss in wage-earning capacities are the same. "In contrast, the Board's approach, based on the plain language of Section 6(b) limiting compensation for ‘disability,' precludes this would-be inequity since both workers are subject to the same limit. The statute should not be interpreted in a way that results in claimant's receiving from two employers more than he could receive from one employer, pursuant to an explicit statutory provision."

            As to how offsets may be taken, the Board once more cites Hastings v. Earth Satellite Corp., 628 F.2d 85, 14 BRBS 345 (D.C. Cir. 1980), cert. denied, 449 U.S. 905 (1980) as outlining a flexible scheme for compensating loss of wage-earning capacity in cases of multiple injuries based on the facts in a specific case, rather than setting forth a mechanical rule.

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