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Contents of Main Volume | Contents of Supplement
DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
PDF Version: Volume I (Topics 1-21) | Volume II (Topics 22-90)
Description |
Topic |
Commencement of Compensation |
6 |
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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