TOPIC 8.3

Topic  8.3.1    Permanent Partial Disability—Scheduled Awards—Some General Concepts

Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9^th Cir. Dec. 21, 2004).

            While the main focus of this case is on de minimis awards, the court, in a two to one decision, also decided to adopt Board and other circuit court precedent that a shoulder injury is unscheduled.  As to the de minimis issue, the court opined, “if there is a chance of future changed circumstances which, together with the continuing effects of the claimant’s injury, create a ‘significant potential’ of future depressed earning capacity, then the claimant is entitled to the possibility of a future modified award under Rambo II.”  See Metropolitan Stevedore Co v. Rambo, 521 U.S. 121 (1997)(“Rambo II”).

            Here the claimant had remained at work for several years in a clerical position rather than his prior longshoring position and was making more than he had at the time of injury.  The ALJ had found that the passage of time had outweighed the need for a de minimis award.  The court stated that unless the passage of time has directly removed one of the relevant factors—for example, if some of the claimant’s work restrictions were removed, or if market conditions changed for the better—the logic of the Rambo II test dictates that the mere fact that the claimant is earning above pre-injury levels cannot obviate the basis of the de minimis award. The court found, “the absence of economic loss thus far does not reflect an underlying absence of loss in physical function.  The significance of the injury is a substantial factor in the ‘significant potential of diminished capacity’ test articulated by Rambo II.”  Judge Tallman dissented on the de minimis portion of this opinion.

            The Ninth Circuit also took the opportunity to note it’s recently explicit opinion in Sestich v. Long Beach Container Terminal, 289 F.3d 1157, at 1160 (9^th Cir. 2002), ratifying the rule expressed previously in Board decisions that the statutory formula for wages contemplates wages at the time of injury, rather than projected present wages as the relevant baseline for comparison to actual present earning capacity.  Claimant had argued that he should collect benefits according to a hypothetical damages formula, under which the employer must compensate him for the difference between his actual economic position and his hypothetical economic position, which he would have enjoyed but for the injury.

Topic  8.3.1    Permanent Partial Disability--Scheduled Awards--Some General                                   Concepts

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.

Topic  8.3.1    Permanent Partial DEisability--Scheduled Awards–Some General                                 Concepts

[ED. NOTE: The following June 2003 decision is included in this digest news letter because it was received in July.]

Gillus v. Newport News Shipbuilding & Dry Dock Company, 37 BRBS 93 (2003).

            The Board found that when a claimant in temporary partial disability status filed a motion for modification seeking de minimis benefits, it was not, per se, invalid as an “anticipatory” claim. Specifically, here the claimant filed the motion after her doctor noted her increasing difficulty in performing her job and that she had progressive arthritis and probably would need knee replacement surgery in the future. Thus the claim was not “anticipatory” according to the Board.

            Further more, the Board found that simply because the claimant’s injury was to her leg, a body part covered by the schedule, does not mean that the claimant cannot receive a de minimis award. The board noted that the claimant had not claimed or been compensated for any permanent disability to her leg, nor has her condition been termed “permanent” by her physician. Thus, her modification claim for de minimis benefits was appropriately viewed as based upon an award for temporary partial disability benefits pursuant to Section 8(e). A Section 8(e) award is not precluded to a claimant who sustains an injury to a member listed in the Schedule at Section 8(c), but whose injury has not yet been found permanent. A claimant is limited to the schedule only where the claimant is permanently partially disabled.

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Topic  8.3.3    Permanent Partial Disability—Section 8(c)(1)  Loss of Use of Arm

Keenan v. Director, OWCP, ___ F.3d ___ (No 03-70442)(9^th Cir. Dec. 21, 2004).

            While the main focus of this case is on de minimis awards, the court, in a two to one decision, also decided to adopt Board and other circuit court precedent that a shoulder injury is unscheduled.  As to the de minimis issue, the court opined, “if there is a chance of future changed circumstances which, together with the continuing effects of the claimant’s injury, create a ‘significant potential’ of future depressed earning capacity, then the claimant is entitled to the possibility of a future modified award under Rambo II.”  See Metropolitan Stevedore Co v. Rambo, 521 U.S. 121 (1997)(“Rambo II”).

            Here the claimant had remained at work for several years in a clerical position rather than his prior longshoring position and was making more than he had at the time of injury.  The ALJ had found that the passage of time had outweighed the need for a de minimis award.  The court stated that unless the passage of time has directly removed one of the relevant factors—for example, if some of the claimant’s work restrictions were removed, or if market conditions changed for the better—the logic of the Rambo II test dictates that the mere fact that the claimant is earning above pre-injury levels cannot obviate the basis of the de minimis award. The court found, “the absence of economic loss thus far does not reflect an underlying absence of loss in physical function.  The significance of the injury is a substantial factor in the ‘significant potential of diminished capacity’ test articulated by Rambo II.”  Judge Tallman dissented on the de minimis portion of this opinion.

            The Ninth Circuit also took the opportunity to note it’s recently explicit opinion in Sestich v. Long Beach Container Terminal, 289 F.3d 1157, at 1160 (9^th Cir. 2002), ratifying the rule expressed previously in Board decisions that the statutory formula for wages contemplates wages at the time of injury, rather than projected present wages as the relevant baseline for comparison to actual present earning capacity.  Claimant had argued that he should collect benefits according to a hypothetical damages formula, under which the employer must compensate him for the difference between his actual economic position and his hypothetical economic position, which he would have enjoyed but for the injury.

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Topic  8.3.4    Permanent Partial Disability--Sections 8(c)(1) and 8.4 Conflicts Between Applicable Sections

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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Topic  8.3.26  Section 8(c)(22)  Multiple Scheduled Injuries

ERRATA

            The reference to “Section 22” should be corrected to read “Section 8(c)(22).”

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