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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH ROWE, JR.,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND
No. 96-2572
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(94-2264)
Argued: March 2, 1998
Decided: October 7, 1999
Before WIDENER and MURNAGHAN, Circuit Judges, and
HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Petition for review denied by published per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Benjamin McMullan Mason,
MASON & MASON, P.C., Newport News, Virginia, for Respon-
dents. ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Petitioner. Melissa R. Link, MASON &
MASON, P.C., Newport News, Virginia, for Respondent Newport
News Shipbuilding.
_________________________________________________________________
OPINION
PER CURIAM:
Claimant Joseph W. Rowe appeals from a denial of his claim for
an increase in his compensation for permanent partial disability under
the Longshore and Harbor Worker's Compensation Act, 33 U.S.C.
901-50. We affirm.
On February 20, 1991, the parties stipulated, in relevant part, to the
following facts:
1) That on March 19, 1985, Rowe injured his right knee
arising out of or in the course of his employment with New-
port News Shipbuilding and Dry Dock Company.
2) That at the time of the injury, Rowe's average weekly
wage was $536.76, yielding a compensation rate of $357.84
per week.
3) That Rowe was temporarily totally disabled from March
24, 1985 through April 7, 1985; March 5, 1986 through May
11, 1986; May 31, 1989 through August 21, 1989; and May
14, 1990 through September 8, 1990.
4) That in 1991 Rowe was compensated for a forty percent
permanent partial disability for loss of use of the right leg,
a compromise between a rating of fifty percent disability by
Dr. Helmuth W. Trieshmann Jr., Rowe's doctor, a rating of
thirty percent disability by Dr. Robert S. Neff, the compa-
ny's doctor.
Since the parties entered the agreement that resulted in compensa-
tion for forty percent permanent partial disability, Rowe claims that
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the economic impact of his injury has worsened. After surgery to his
knee in May 1989 and May 1990, Rowe was given light duty assign-
ments as a production planner at the shipyard, but was laid off in
March 1992. Subsequently, he worked as a superintendent for the
Bradford Corporation. He left that job in April 1993, after six months,
due to a heart disorder. Rowe then was a maintenance worker at the
Vickie Villa motel, but was laid off in October 1993. Thus, he filed
a claim for additional benefits under LHWCA based on the economic
effects of his injury.
A full hearing was held before an Administrative Law Judge on
October 19, 1993. On March 21, 1994, the ALJ issued a Decision and
Order in which he denied Rowe's claim for additional disability bene-
fits based on economic factors. In addition, the ALJ found that there
was no medical evidence from which to conclude that the extent of
Rowe's permanent partial disability had increased.* Rowe filed a
timely appeal to the Benefits Review Board. The decision of the ALJ
was affirmed by operation of Public Law 104-134. A petition for
review was timely filed in this court, and we have jurisdiction pursu-
ant to 33 U.S.C. 921(c).
The issue in this case is whether an injured claimant under
LHWCA may base his claim on economic factors when awarded
compensation for a scheduled disability as set forth in the Act under
33 U.S.C. 908(c)(1-20). This court addressed this same question in
Gilchrest v. Newport News Shipbuilding and Dry Dock Co., 135 F.3d
915 (4th Cir. 1998). In that case, the claimant injured his hands, and
an order was entered by the Director of 10% permanent partial dis-
ability in each hand, a scheduled injury. Thereafter he claimed loss of
wage earning capacity and sought increased benefits for that under
LHWCA for the scheduled injury. Similar to the present case, the
ALJ, affirmed by the Board, determined that under Potomac Electric
Power Co v. Director, OWCP (PEPCO), 449 U.S. 268 (1980), he
could not account for economic factors in calculating disability bene-
_________________________________________________________________
*Dr. Trieshmann sent a letter to Rowe's counsel in June 1992 stating,
in pertinent part, that: "it is my opinion that his condition has not deterio-
rated since the rating in October 1990." Then, in June 1993, Dr. Triesh-
mann similarly found that there had been no further deterioration in
Rowe's condition. This second issue has not been appealed.
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fits when the medical impairment falls within the schedule provided
in the statute at 908(c)(1-20).
On review, the claimant asserted that the ALJ erred by not consid-
ering loss of economic wage earning capacity in denying his claim for
increased benefits. We denied the petition for review in that case. In
PEPCO, the Supreme Court clarified the distinction between sched-
uled injuries, for which the claimant is limited to the compensation
provided in the statutory schedule, and injuries outside the schedule,
for which 908(c)(21) provides a potentially higher recovery by
incorporating economic factors. PEPCO, 449 U.S. at 274. Thus, we
held that the PEPCO decision precluded an increase in compensation,
based on economic factors, beyond that provided in the permanent
partial disability schedule of Section 908(c).
We can find no meaningful distinction between the facts of the
case presently before the court and those in Gilchrest.
The petition for review is accordingly
DENIED.
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