TOPIC 8.4

Topic  8.4.1    Conflicts Between Applicable Sections—Unscheduled Injuries and Total Disability

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  8.4.4    Conflict Between Applicable Sections--Multiple Scheduled Injuries/Successive Injuries 

ERRATA

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

Topic  8.4.4    Conflict Between Applicable Sections--Multiple Scheduled Injuries/Successive Injuries 

Matson Terminals, Inc. v. Berg, 279 F.3d 694 (9th Cir. 2002).

            When both of a claimant's knees are injured in one accident, Section 8(c)(22) indicates that there should be two liability periods. Since the claimant's two knees were discrete injuries under Section 8(f), the Ninth Circuit found that the Board and ALJ were correct in imposing two 104-week liability periods on the employer. "It is irrelevant that the injuries arose from the same working conditions or that they arose from a single cause or trauma. What is relevant is that the working conditions caused two injuries, each separately compensable under Section 8(f)."

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