Huntington Ingalls Industries v. Ricky Eason

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1698

HUNTINGTON INGALLS INDUSTRIES, INC., f/k/a Northrup Grumman
Shipbuilding, Inc.,

Petitioner,

v.

RICKY N. EASON; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(13−0573)

Argued: March 25, 2015 Decided: June 2, 2015

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Petition granted by published opinion. Senior Judge Hamilton
wrote the opinion, in which Judge Niemeyer and Judge Floyd
joined.

ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK,
PC, Newport News, Virginia, for Petitioner. Matthew W. Boyle,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Gregory
Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia,
for Respondents. ON BRIEF: M. Patricia Smith, Solicitor of
Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter,
Counsel for Longshore, Gary K. Stearman, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Federal Respondent.

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HAMILTON, Senior Circuit Judge:

Huntington Ingalls Industries, Inc. (HI) petitions for

review of the May 16, 2014 decision of the Benefits Review Board

(BRB) upholding the August 16, 2013 decision of Administrative

Law Judge (ALJ) Daniel Sarno, Jr. (Judge Sarno) granting the

claim of Ricky Eason (Eason) for temporary partial disability

under the Longshore and Harbor Workers’ Compensation Act (LHWCA

or the Act), 33 U.S.C. §§ 901-950. 1 For the reasons that follow,

we grant the petition for review and remand the case to the BRB

to enter an order dismissing Eason’s claim for temporary partial

disability under the LHWCA.

I

A

The LHWCA establishes a federal worker’s compensation

system for employees injured, disabled, or killed in the course

of covered maritime employment. See generally id. § 907

(medical services and supplies to treat injury), id. § 908

(compensation for disability), id. § 909 (compensation for

1
Eason’s filing of his disability claim brought the
Director of the Office of Workers’ Compensation Programs (OWCP),
United States Department of Labor (the Director) into the case
as an interested party. Cf. Ingalls Shipbuilding, Inc. v. Dir.,
OWCP, 519 U.S. 248, 262–70 (1997) (holding that the Director may
appear as respondent in the courts of appeals when review is
sought of a BRB decision).

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death). Like other worker’s “compensation regimes--limited

liability for employers; certain, prompt recovery for employees-

-the LHWCA requires that employers pay [disability] benefits

voluntarily, without formal administrative proceedings.”

Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1354 (2012);

see also 33 U.S.C. § 904 (“Every employer shall be liable for

and shall secure the payment to his employees of the

compensation payable under sections 907, 908, and 909 of this

title.”).

The LHWCA defines “[d]isability,” in pertinent part, as

“incapacity because of injury to earn the wages which the

employee was receiving at the time of injury in the same or any

other employment.” 33 U.S.C. § 902(10). Four different

categories of disabilities are set forth in the LHWCA: (1)

permanent total disability; (2) temporary total disability; (3)

permanent partial disability; and (4) temporary partial

disability. Id. § 908(a)–(c), (e).

No standard is set forth in the LHWCA to determine the

degree of a disability (total or partial) or the duration of a

disability (permanent or temporary). Because disability under

the LHWCA is an economic concept, see Metro. Stevedore Co. v.

Rambo, 515 U.S. 291, 297 (1995) (“Disability under the LHWCA,

defined in terms of wage-earning capacity . . . , is in essence

an economic, not a medical, concept.”), the degree of a

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disability cannot be measured by medical condition alone,

Nardella v. Campbell Mach. Inc., 525 F.2d 46, 49 (9th Cir.

1975). Consideration must be given to the claimant’s age,

education, experience, mentality, ability to work as well as the

extent of the physical injury, and the availability of suitable

alternative employment. Fleetwood v. Newport News Shipbuilding

& Dry Dock Co., 776 F.2d 1225, 1227 n.2 (4th Cir. 1985). With

regard to duration, a claimant remains temporarily disabled

until he reaches “maximum medical improvement.” Stevens v.

Dir., OWCP, 909 F.2d 1256, 1259 (9th Cir. 1990). Maximum

medical improvement marks the time where “normal and natural

healing is no longer likely” to occur. Pac. Ship Repair &

Fabrication Inc. v. Dir., OWCP [Benge], 687 F.3d 1182, 1185 (9th

Cir. 2012) (citation and internal quotation marks omitted).

Thus, the “maximum medical improvement date ‘triggers a change

in the classification of a claimant’s disability from temporary

to permanent.’” Id. (quoting Haw. Stevedores, Inc. v. Ogawa,

608 F.3d 642, 653 (9th Cir. 2010)).

Which of the four categories of disability the claimant

falls in dictates the amount of compensation paid to him by his

employer. A permanently totally disabled employee is entitled

to weekly compensation amounting to two-thirds of his pre-injury

average weekly wage for as long as he remains permanently

totally disabled. 33 U.S.C. § 908(a); Roberts, 132 S. Ct. at

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1354. The compensation payable for a temporary total disability

remains fixed at that two-thirds figure, while weekly

compensation for a permanent total disability is annually

adjusted to reflect increases to the national average weekly

wage. 33 U.S.C. § 910(f).

The LHWCA recognizes two types of permanent partial

disability. One, commonly referred to as “unscheduled” or “non-

scheduled” compensation, is based on the employee’s actual loss

of wage-earning capacity and, like total disability, is

compensated at two-thirds of the difference between the

employee’s average weekly wage at the time of injury and his

post-injury wage-earning capacity. Id. § 908(c)(21). The

other, commonly referred to as “scheduled” compensation, covers

specified body parts, and pays a fixed number of weeks of

compensation at two-thirds of the employee’s average weekly

wage. Id. § 908(c)(1)-(17), (20). These scheduled amounts

compensate for a presumed (not actual) loss of wage-earning

capacity. Korineck v. Gen. Dynamics Corp. Elec. Boat Div., 835

F.2d 42, 43-44 (2d Cir. 1987). For example, the loss of a leg

under the schedule entitles a claimant to 288 weeks of

compensation at two-thirds of his average weekly wage. 33

U.S.C. § 908(c)(2). For a partial loss of the use of a leg,

which includes knee injuries, the number of weeks is multiplied

by the percentage of loss. Id. § 908(c)(19). Thus, a claimant

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with a 50% loss of the use of his leg would receive compensation

for 144 weeks. Notably, a claimant who is permanently partially

disabled due to a scheduled injury cannot choose to be

compensated for his actual loss of wage-earning capacity under

§ 908(c)(21), even though the compensation under § 908(c)(21)

potentially may be greater than the compensation paid under the

schedule. See Potomac Electric Power Co. [PEPCO] v. Dir., OWCP,

449 U.S. 268, 270-71 (1980) (holding that a claimant who was

permanently partially disabled due to a scheduled injury could

not choose to be compensated for his actual loss of wage-earning

capacity under § 908(c)(21) rather than being compensated for

his loss as provided by the schedule).

Compensation for temporary partial disability is “two-

thirds of the difference between the injured employee’s average

weekly wages before the injury and his wage-earning capacity

after the injury in the same or another employment.” 33 U.S.C.

§ 908(e). Under the LHWCA, temporary partial disability

compensation cannot be paid for a period longer than five years.

Id.

Once the claimant is classified in a particular disability

category, he need not necessarily remain in such category.

Benge, 687 F.3d at 1185. This is so because permanent/temporary

and total/partial are fluid concepts and not “cast in stone.”

Id. at 1186. Reclassification of a disability requires a

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showing of a “change[] [in] circumstances.” Id. at 1185; see

also 33 U.S.C. § 922 (providing that, with certain time limits,

“on the ground of a change in conditions . . . , the deputy

commissioner may . . . , whether or not a compensation order has

been issued . . . , review a compensation case . . . [and] issue

a new compensation order which may terminate, continue,

reinstate, increase, or decrease such compensation, or award

compensation”). For example, a claimant with a permanent

partial disability may become permanently totally disabled or

temporarily totally disabled if his injury worsens and renders

him permanently or temporarily totally disabled. See Benge, 687

F.3d at 1185-87 (holding that permanent partial disability

claimant became temporarily totally disabled following surgery

to treat injury). Likewise, a claimant with a permanent total

disability may be reclassified to having a permanent partial

disability if suitable alternative employment becomes available.

See Stevens, 909 F.2d at 1259-60 (holding that a permanent total

disability changes to a permanent partial disability when

suitable alternative employment becomes available to claimant).

It is also possible that a disability deemed permanent and total

or permanent and partial may improve “due to a remarkable

recovery, advances in medical science, or other reasons” such

that the claimant may be recharacterized as temporarily totally

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disabled or temporarily partially disabled. Benge, 687 F.3d at

1185.

B

On September 28, 2008, Eason injured his right knee while

employed as a pipe fitter at Newport News Shipbuilding and Dry

Dock Company (NNS) in Newport News, Virginia. 2 He went to the

medical clinic at NNS on October 1, 2008, complaining of pain in

his right knee. The injury, which was diagnosed on October 14,

2008 as a torn meniscus requiring surgery, kept Eason completely

out of work from October 2, 2008 through June 28, 2009. As a

result, HI paid Eason temporary total disability benefits for

this period.

On June 29, 2009, Eason returned to work at NNS full-time

as a pipe fitter. On September 23, 2009, Eason was evaluated at

Tidewater Physical Therapy and given a 14% lower extremity

permanent impairment rating. Sometime in October 2009, Dr.

David Hoang (Dr. Hoang), Eason’s treating orthopedic surgeon,

“signed off” on the 14% rating, and, thus, Eason reached maximum

medical improvement for purposes of determining his eligibility

for permanent partial disability compensation. (J.A. 180).

Based on the 14% lower-extremity permanent impairment rating, HI

2
At the time of Eason’s injury, NNS was owned by Northrop
Grumman Shipbuilding, Inc. (NGS). In 2011, HI purchased NNS
from NGS. For ease of reference, we will refer to NGS as HI.

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paid Eason from October 16, 2009 through May 17, 2010, and from

May 19, 2010 through July 25, 2010, 40.28 weeks of scheduled

compensation for permanent partial disability at $992.29 (two-

thirds of his pre-injury average weekly wage of $1,488.43) per

week. See 33 U.S.C. § 908(c)(2) (loss of leg provides 288 weeks

of scheduled compensation); id. § (c)(19) (permanent partial

loss “may be for proportionate loss or loss of use of the

member”). 3 Thus, for approximately seven months, Eason received

scheduled permanent partial disability compensation in addition

to his regular weekly salary for performing his duties as a pipe

fitter at NNS.

Eason continued to work full-time as a pipe fitter through

May 17, 2010. On May 18, 2010, Eason met with Dr. Hoang and

reported that “his left knee was acting up on him and his right

knee was getting stiff intermittently, especially after sitting

for awhile.” (J.A. 180). Dr. Hoang noted “mild soreness” in

the right knee and “tenderness” in the left knee, (J.A. 83), and

he put Eason on light duty restrictions for both knees. These

3
HI paid 40.28 weeks of compensation for the scheduled
injury, rather than 40.32 weeks (288 weeks x .14 = 40.32 weeks).
Although the record under review is unclear as to why the
difference exists, it may well be because HI paid an intervening
day (May 18, 2010) of compensation for temporary total
disability. In any event, the .04 difference is not at issue in
this appeal.

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light duty restrictions prevented Eason from performing his

duties as a pipe fitter.

On his June 3, 2010 visit with Dr. Hoang, Eason reported

that his left knee “still hurts” and that his right knee was

“improving.” (J.A. 83). Dr. Hoang advised Eason to “continue

with the same work restrictions.” (J.A. 84). On July, 16,

2010, Eason reported to Dr. Hoang that his right knee was “doing

well” but the left knee was “grinding.” (J.A. 84). Dr. Hoang

directed Eason to “continue with the light duty [restrictions].”

(J.A. 85). Over the next month, Eason’s condition improved, and

he returned to work full-time as a pipe fitter at NNS on August

10, 2010.

Between May 19, 2010 and August 9, 2010, NNS did not offer

Eason light-duty employment within his restrictions. In

addition, during this period, Eason did not seek suitable

alternative employment within the relevant labor market.

C

Eason brought a claim against HI for temporary total

disability or, alternatively, temporary partial disability for

the May 19, 2010 through August 9, 2010 time period. In support

of his claim, Eason argued that during this time period he “was

not at maximum medical improvement.” (J.A. 13). He posited

that he was “undergoing ongoing medical treatment” and “under

temporary [work] restrictions.” (J.A. 13). Because no suitable

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alternative employment was available, he argued he was entitled

to temporary total disability compensation. Alternatively,

Eason argued that, even if HI’s alternative employment data were

entitled to “any weight,” he was entitled to temporary partial

disability compensation because his pre-injury salary exceeded

the salary of any alternative employment available. (J.A. 13).

Eason posited that, even though he received scheduled permanent

partial disability compensation for his knee injury, such

compensation did not prevent the recovery of additional

compensation for a temporary partial disability due to a flare

up of that injury. In response, HI argued that Eason reached

maximum medical improvement in October 2009. Because Eason

reached maximum medical improvement at that time and received

permanent partial disability compensation under the schedule, HI

posited that he was not entitled to any additional temporary

compensation--either total or partial--under the Supreme Court’s

decision in PEPCO. HI stressed that Eason’s scheduled

compensation for his knee injury presumed his actual loss of

wage-earning capacity for that injury, such that any temporary

compensation (total or partial) sought for a flare up of that

injury already was covered by the payments made under the

schedule.

A hearing was held before ALJ Richard Malamphy (Judge

Malamphy). In his decision, Judge Malamphy found that Eason

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reached maximum medical improvement in October 2009. He also

found that the evidence did not support Eason’s claim of

temporary total disability. With regard to temporary partial

disability, relying on the Supreme Court’s decision in PEPCO,

Judge Malamphy ruled that Eason’s disability compensation for

his knee injury was limited to the amount required by the

schedule. He explained that “[t]he Act presumes that the

scheduled award fully compensates claimant for any loss in wage-

earning capacity” and, “[t]herefore, any temporary loss of wage

earning capacity Claimant suffered is not compensable in

addition to the scheduled award.” (J.A. 184). In other words,

Judge Malamphy held that the scheduled compensation award

compensated Eason for his knee injury and that Eason was not

entitled to additional compensation for any temporary partial

loss of wage-earning capacity for that same injury.

On appeal, the BRB vacated Judge Malamphy’s decision. The

BRB affirmed Judge Malamphy’s finding that Eason reached maximum

medical improvement in October 2009. The BRB ruled, however,

that this finding did not preclude the recovery of temporary

partial disability compensation for Eason’s knee injury.

Referring to language in PEPCO that states “that a scheduled

injury can give rise to an award for permanent total disability”

and that “once it is determined that an employee is totally

disabled the schedule becomes irrelevant,” 449 U.S. at 277 n.17,

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the BRB found that “the fact that permanent partial disability

benefits were fully paid under the schedule is not determinative

of a claimant’s entitlement thereafter to permanent total,

temporary total, or temporary partial disability benefits.”

(J.A. 188-89). Consequently, the BRB remanded the case to the

ALJ to determine whether Eason’s work restrictions from May 19,

2010 through August 19, 2010 prevented him from performing his

usual work. If they did, the BRB stated, Eason would have

established a prima facie case of temporary total disability.

See Newport News Shipbuilding & Dry Dock Co. v. Dir., OWCP, 315

F.3d 286, 292 (4th Cir. 2002) (noting that an LHWCA “claimant

must first establish a prima facie case by demonstrating an

inability to return to prior employment due to a work-related

injury”). The burden would then shift to HI to establish the

availability of suitable alternative employment that Eason was

capable of performing. See id. (outlining burden shift).

According to the BRB, HI could meet its burden by showing that

suitable alternative employment was available to Eason in the

relevant labor market. See id. at 293 (noting that an employer

meets its burden by demonstrating, inter alia, that suitable

alternative employment was available in the relevant labor

market). Thus, on remand, the BRB required the ALJ to determine

if HI met its burden, such that its obligation to pay disability

benefits would be reduced or eliminated. See id. (“Under our

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precedent, if the employer meets its burden, its obligation to

pay disability benefits is either reduced or eliminated, unless

the disabled employee shows that he diligently but

unsuccessfully sought appropriate employment.” (citation and

internal quotation marks omitted)).

On remand, the case was reassigned to Judge Sarno. Judge

Sarno found that Eason was not able to return to his usual work

from May 19, 2010 through August 9, 2010. However, Judge Sarno

found that HI had established the availability of suitable

alternative employment for 32 hours per week at $7.25 per hour.

Judge Sarno concluded that Eason was temporarily partially

disabled from May 19, 2010 through August 20, 2010 and entitled

to compensation of $845.82 per week (two-thirds of the

difference between $1,488.43 per week, Eason’s average weekly

wage at the time of the injury, and $219.70 per week, Eason’s

residual wage-earning capacity based on the national average

weekly wage in 2008, the year of Eason’s injury). 4

4
Judge Sarno noted that HI had established that Eason had a
wage-earning capacity under § 908(e) of $232.00 per week in
2010. This amount was adjusted downward to $219.70 per week in
order to account for inflation between 2008 and 2010. See
Walker v. Wash. Metro. Area Transit Auth., 793 F.2d 319, 321 n.2
(D.C. Cir. 1986) (“In order to make a fair comparison between
wages, the Board looks to the amount the post-injury job paid at
the time of the claimant’s injury. This allows the Board to
compare the wages without worrying about the effect of
inflation.”); Quan v. Marine Power & Equip. Co., 30 BRBS 124,
1996 WL 581786, at *4 (BRBS 1996) (“Sections 8(c)(21) and 8(h)
(Continued)
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 HI appealed Judge Sarno’s decision to the BRB, arguing once

again that Eason was precluded from receiving any additional

compensation in addition to that received under the schedule.

The BRB found that it had already rejected that argument in its

earlier decision. It also affirmed, as unchallenged on appeal,

Judge Sarno’s findings that Eason was unable to perform his

usual work from May 19, 2010 through August 20, 2010 and that HI

had established suitable available alternative employment.

Consequently, it affirmed Judge Sarno’s award of compensation

for temporary partial disability from May 19 through August 20,

2010. 5 It is from this BRB decision that HI filed its timely

petition for review.

II

We review the BRB’s decision for errors of law and to

ascertain whether the BRB adhered to its statutorily-mandated

standard for reviewing the ALJ’s factual findings. Gilchrist v.

Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th

require that a claimant’s post-injury wage earning capacity be
adjusted to account for inflation to represent the wages that
the post-injury job paid at the time of claimant’s injury.”).
5
Because he returned to work on August 10, 2010, Eason
concedes that Judge Sarno (and the BRB) erroneously awarded
temporary partial disability compensation from August 10, 2010
through August 20, 2010.

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Cir. 1998). As to the BRB’s interpretation of the LHWCA, our

review is de novo because the BRB is not a policy-making agency

and, thus, its statutory interpretation is not entitled to any

special deference from us. Id. However, the Director’s

reasonable interpretation of the LHWCA is entitled to some

deference. See Norfolk Shipbuilding & Drydock Corp. v. Hord,

193 F.3d 797, 801 (4th Cir. 1999) (“We note that this is the

result advocated by the Director of the Office of Workers’

Compensation Programs, to whose reasonable interpretation of the

LHWCA we accord some deference.”).

In its petition for review, HI challenges Judge Sarno’s

award of temporary partial disability benefits from May 19, 2010

through August 20, 2010. HI argues that a claimant, like Eason,

who receives scheduled compensation for a permanent partial

disability cannot subsequently receive additional temporary

partial disability compensation because the receipt of scheduled

permanent partial disability compensation for an injury includes

any temporary partial disability compensation. Moreover, HI

reads the LHWCA and PEPCO as precluding a claimant, like Eason,

with a scheduled injury from receiving any additional temporary

disability compensation--either total or partial--for the same

injury. 6 Eason counters by arguing that receipt of scheduled

6
HI concedes that a claimant who receives scheduled
(Continued)
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permanent partial disability compensation for an injury is not

determinative of entitlement to temporary partial disability

compensation for the same injury. According to Eason, PEPCO is

not particularly helpful to HI because it only dealt with a

permanent partial disability claim and not a claim, as here, for

temporary partial disability. He suggests that his claim for

temporary partial disability is viable because his knee injury

flared up, preventing him from working as a pipe fitter from May

19, 2010 through August 9, 2010, though he apparently concedes

that suitable alternative employment was available during that

time. He also posits that his argument is supported by PEPCO

because the Court there recognized the availability of total

disability compensation for a scheduled injury.

The Director, while agreeing with the result urged by HI,

takes a middle course. He agrees with HI that a scheduled

permanent partial disability claimant cannot receive additional

temporary partial disability compensation for the injury

underlying the permanent partial disability compensation because

such temporary compensation essentially is duplicative to the

permanent partial disability compensation is not precluded from
subsequently receiving permanent total disability compensation.
See Petitioner’s Reply Br. at 2-3 (noting that scheduled
compensation is “exclusive to all other forms of compensation,
except for permanent total disability under 33 U.S.C. § 908(a)
of the Act”).

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scheduled compensation. He also agrees with HI that a claimant

who receives scheduled permanent partial disability compensation

is not precluded from subsequently receiving permanent total

disability compensation. However, the Director disagrees with

HI that a claimant who receives scheduled permanent partial

disability compensation for an injury is precluded from

receiving temporary total disability compensation for the same

injury. According to the Director, the LHWCA’s statutory

framework supports his construction of the Act and nothing in

PEPCO precludes reclassification of a scheduled permanent

partial disability to a temporary total disability. However,

because Eason’s injury has remained permanent and partial, the

Director posits that reclassification of his injury is not

warranted, and, thus, Eason is precluded from recovering any

additional disability compensation for his knee injury.

We agree with the position espoused by the Director, which

we accord some deference. Hord, 193 F.3d at 801. Eason

suffered a scheduled injury. Thus, his permanent partial

disability compensation is set by the schedule. PEPCO, 449 U.S.

at 270-71. Such scheduled compensation is presumed to cover

Eason’s actual partial loss of wage-earning capacity due to that

partial disability. See ITO Corp. of Balt. v. Green, 185 F.3d

239, 242 n.3 (4th Cir. 1999) (“The presumed effect of scheduled

disabilities on a claimant’s wage-earning capacity has been set

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by Congress within a fairly narrow range. Benefits are payable

for a specific duration regardless of the actual impact of the

disability on the claimant’s prospects of returning to longshore

(or any other) work.”); Bethlehem Steel Co. v. Cardillo, 229

F.2d 735, 736 (2d Cir. 1956) (noting that, “as to any schedule

loss, there is a conclusive presumption of loss or reduction of

wage-earning capacity”). Once Eason’s permanent partial

disability compensation is set under the schedule, he is not

entitled to receive additional disability compensation for the

same scheduled injury unless the circumstances warrant a

reclassification of that disability to permanent total or

temporary total. See, e.g., Benge, 687 F.3d at 1185-87

(permitting claimant, who received unscheduled permanent partial

disability compensation, to receive temporary total disability

compensation because subsequent surgery rendered her temporarily

totally disabled); Hord, 193 F.3d at 801-02 (allowing claimant,

who was paid permanent partial disability compensation under the

schedule to recover temporary total disability compensation); DM

& IR Ry. Co. v. Dir., OWCP, 151 F.3d 1120, 1122-23 (8th Cir.

1998) (allowing a claimant who received permanent partial

disability compensation to subsequently recover disability

compensation for permanent total disability); cf. PEPCO, 449

U.S. at 277 n.17 (“Indeed, since the § 8(c) schedule applies

only in cases of permanent partial disability, once it is

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determined that an employee is totally disabled the schedule

becomes irrelevant.”). This is so because, once a disability

becomes total, it makes no sense to apply a presumption designed

to approximate a claimant’s permanent partial disability

compensation. A permanent or temporary total disability

presumes the loss of all wage-earning capacity, while a

permanent partial disability involves only a partial loss. See

Benge, 687 F.3d at 1187 (noting that any total disability

presupposes the loss of all wage-earning capacity). Thus, an

increase in the disability compensation for the change from

permanent partial to either permanent total or temporary total

is warranted to account for the additional actual loss in wage-

earning capacity. Such a conclusion comports with the basic

purpose of the LHWCA, which is to provide compensation for the

actual loss of wage-earning capacity. See Korineck, 835 F.2d at

44 (noting that the purpose of the LHWCA is “to provide work

benefits for lost earning capacity”).

In contrast, in the case of a scheduled permanent partial

disability that allegedly changes to a temporary partial

disability because the claimant’s injury flared up, there is no

additional loss of wage-earning capacity. The claimant’s loss

of wage-earning capacity already is accounted for under the

schedule. In other words, the scheduled compensation accounts

for all the lost wages due the claimant under the LHWCA. To

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hold otherwise would allow for an impermissible double recovery.

Cf. id. (“Denying additional [scheduled] benefits to one already

receiving benefits for total permanent disability serves to

avoid double recoveries.”). Like the claimant in Korineck,

whose scheduled compensation claim was subsumed by the

compensation he already was receiving for permanent total

disability, Eason’s temporary partial disability claim is

subsumed by the compensation he received under the schedule.

Id. at 43-44.

To be sure, in the case before us, there is no record

evidence supporting a reclassification of Eason’s disability to

a permanent total or temporary total disability. His disability

has remained permanent and partial since September 2008. His

scheduled compensation is presumed to cover his actual loss of

wage-earning capacity for any flare up of his knee injury that

did not prevent him from working in some type of suitable

alternative employment. Green, 185 F.3d at 242 n.3. Since

Eason does not allege that the flare up rendered him permanently

or temporarily totally disabled, he is not entitled to any

additional disability compensation for his knee injury.

Eason’s argument that the LHWCA permits the recovery of

additional temporary partial disability compensation under the

circumstances of this case is unpersuasive. First, his

argument, if accepted, permits an impermissible double recovery.

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He was compensated for his actual loss of wage-earning capacity

due to his injury under the schedule and now he is seeking

additional compensation for the same injury. We see nothing in

LHWCA that permits such a double recovery. See Port of Portland

v. Dir., OWCP, 932 F.2d 836, 839 n.1 (9th Cir. 1991) (noting

that, under the LHWCA, “an employee may not obtain a double

recovery for a disability for which compensation has already

been paid”); cf. Strachan Shipping Co. v. Nash, 782 F.2d 513,

515 (5th Cir. 1986) (en banc) (noting that the “credit doctrine,

created by the BRB for the singular purpose of avoiding double

recoveries, provides that an employer is not liable for any

portion of an employee’s disability for which the employee has

actually received compensation under the LHWCA”). Second,

Eason’s construction of the LHWCA defeats the intent of the

schedule in the Act. The schedule is designed to provide quick

compensation for certain permanent partial disabilities and,

simultaneously, to fix the employer’s liability exposure. See

PEPCO, 449 U.S. at 282 (“The use of a schedule of fixed benefits

as an exclusive remedy in certain cases is consistent with the

employees’ interest in receiving a prompt and certain recovery

for their industrial injuries as well as with the employers’

interest in having their contingent liabilities identified as

precisely and as early as possible.”); see also Travelers Ins.

Co. v. Cardillo, 225 F.2d 137, 144 (2d Cir. 1955) (noting that

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schedule “conclusively establishe[s]” the loss of wage-earning

capacity and “its extent”). Yet, under Eason’s construction of

the LHWCA, the employer’s liability exposure is anything but

fixed. Rather, the liability exposure is subject to increase

essentially any time a scheduled claimant is placed on temporary

work restrictions. Such a construction of the LHWCA makes

little sense. 7

We also note that the Director understandably rejects HI’s

interpretation of the LHWCA because it forecloses the receipt of

temporary total disability compensation following the receipt of

scheduled disability compensation. HI’s interpretation of the

LHWCA has two flaws. First, it is inconsistent with Benge and

Hord, where the permanent partial claimants were permitted to

receive temporary total disability compensation after proper

reclassification of their respective disabilities. Benge, 687

F.3d at 1185-87; Hord, 193 F.3d at 802. Second, HI’s

interpretation runs counter to the language of the LHWCA, which

says that permanent partial disability compensation (scheduled

or unscheduled) shall be paid “in addition to” the compensation

7
Of course, nothing prevents a claimant who is receiving
scheduled permanent partial disability compensation from seeking
additional compensation to reflect a higher percentage of
permanent loss of the relevant body part due to the aggravation
of the injury that gave rise to the scheduled compensation. See
New Haven Terminal Corp. v. Lake, 337 F.3d 261, 268-69 (2d Cir.
2003) (discussing the interplay of the aggravation rule and the
credit doctrine).

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paid for a “temporary total disability.” 33 U.S.C. § 908(c).

This language contains no temporal limitation. Thus, such

additional temporary total disability compensation can be paid

before the permanent partial disability compensation (for

example, as in this case, Eason received temporary total

disability compensation for his injury before receiving

scheduled compensation for the same injury) or after (for

example, as in Benge, where the claimant received temporary

total disability compensation for her injury after receiving

unscheduled compensation for the same injury). The receipt of

such additional temporary total disability compensation ensures

that the claimant is compensated for his actual loss in wage-

earning capacity (including the loss not presumed by the

schedule) and, thus, fulfills the basic purpose of the LHWCA.

See Korineck, 835 F.2d at 44 (noting that the purpose of the

LHWCA is “to provide work benefits for lost earning capacity”).

Therefore, HI’s construction of the LHWCA is inconsistent with

the case law and thwarts the basic purpose of the LHWCA.

We realize that the schedule created by Congress allows for

overcompensation in some instances and undercompensation in

others. For example, a claimant with a scheduled injury may be

compensated even though he never misses a day of work and, thus,

incurs no actual wage loss whatsoever. At the same time, the

schedule may undercompensate a claimant whose loss of wage

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earning capacity may be greater than that compensated under the

schedule. If a claimant who loses a hand only earns 50% of his

pre-injury salary after reaching maximum medical improvement,

the claimant would not, after 9.4 years, be compensated under

the schedule as much as he would have been for an unscheduled

injury. As recognized by the Supreme Court in PEPCO, such

inequities simply are a manifestation of the system created by

Congress which we are not at liberty to disturb. See 449 U.S.

at 282-83 (noting that “requiring resort to the schedule may

produce certain incongruous results” because, on the one hand,

“even though a scheduled injury may have no actual effect on an

employee’s capacity to perform a particular job or to maintain a

prior level of income, compensation in the schedule amount must

be paid,” while on the other hand, “the schedule may seriously

undercompensate some employees”); id. at 284 (noting that the

fact that the schedule “leads to seemingly unjust results in

particular cases does not give judges a license to disregard it”

where Congress employed “compelling statutory language”); see

also Green, 185 F.3d at 242 n.3 (“Depending on one’s point of

view, this approach could reasonably be seen as either tending

to overcompensate claimants with non-scheduled disabilities, or

as under compensating those receiving payments pursuant to the

schedule. Nonetheless, despite its inevitable inequities and

the unwieldiness of its application, this aspect of the system

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apparently functions in the manner intended by Congress, as

evidenced by its being left essentially undisturbed since its

enactment in 1927.”). 8

Finally, we reject both Eason’s and HI’s interpretation of

PEPCO. 9 Eason interprets PEPCO as supporting his argument that a

claimant who is receiving scheduled compensation for a permanent

partial disability may receive additional compensation for

temporary partial disability due to the same injury. HI’s

interpretation of PEPCO is quite different. It interprets the

case as foreclosing a claimant who is receiving scheduled

compensation for an injury from ever receiving temporary (total

or partial) disability compensation for that injury.

In PEPCO, the Supreme Court addressed whether a claimant

who was permanently partially disabled due to a scheduled injury

could choose to be compensated for his actual loss of wage-

8
Of course, Eason is on the overcompensation end of the
equation. He was awarded actual partial wage loss for the May
19 through August 20, 2010 time period at a compensation rate of
$845.82 per week (two thirds of the difference between his
average weekly wage of $1,488.43 and his residual wage-earning
capacity of $219.70 per week). Thus, Eason would receive
$11,237.22 in actual partial wage loss compensation. By
contrast, Eason’s scheduled award entitled him to $40,009.13 in
compensation (40.32 weeks x $992.29 per week). Thus, his
scheduled award paid him $28,771.91 more for a presumed loss of
wage-earning capacity than he would have been entitled to for
his actual loss.
9
The BRB’s interpretation of PEPCO is in line with Eason’s
interpretation of that case.

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earning capacity under § 908(c)(21), rather than being

compensated for his presumed loss as provided by the schedule.

449 U.S. at 270. 10 The Court held that the LHWCA did not

authorize such an election, and, therefore, a claimant’s

recovery for a scheduled injury “must be limited by the

statutory schedule.” Id. at 271. The Court focused on the

language of § 908(c)(21), which calls for the payment of actual

loss of wage-earning capacity “‘[i]n all other cases’” of

permanent partial disability. Id. at 274 (quoting 33 U.S.C.

§ 908(c)(21)). The Court interpreted this language to mean all

permanent partial disability cases not specifically enumerated

in the schedule, namely § 908(c)(1) to (20). Id. Thus, the

Court held that injuries or disabilities covered by the schedule

must be compensated according to the schedule, whereas permanent

partial disabilities not covered by the schedule are subject to

compensation based on the actual loss of wage-earning capacity.

Id. at 278-82.

The Supreme Court in PEPCO rejected the argument that its

construction of the LHWCA would not fulfill the remedial

10
As noted earlier, unscheduled permanent partial
disability awards are based on the actual loss of wage-earning
capacity. 33 U.S.C. § 908(c)(21). The claimant in PEPCO sought
wage-loss compensation under § 908(c)(21) because his loss of
wage-earning capacity was over 40% and § 908(c)(21) would have
provided far more compensation than the schedule otherwise
allowed. 449 U.S. at 271.

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purposes of the Act and that it would produce anomalous results

that Congress probably did not intend. Id. at 280-84. The

Supreme Court pointed out that the LHWCA represents a compromise

between the interests of employers and employees. Id. at 282.

The Court stated that the use of fixed scheduled benefits as an

exclusive remedy “is consistent with the employees’ interest in

receiving a prompt and certain recovery for their industrial

injuries as well as with the employers’ interest in having their

contingent liabilities identified as precisely and as early as

possible.” Id. As noted above, the Court also recognized the

incongruous results which the schedule could produce by over or

undercompensating an employee for his actual loss in wage-

earning capacity. Id. at 282-84. The Court stated, however,

that this fact did not give it license to disregard the

“compelling statutory language” and that it was up to Congress

to reexamine the statute if anomalies were occurring frequently.

Id. at 284.

Eason’s interpretation of PEPCO is flawed. The Supreme

Court in PEPCO did not imply, as he posits, that a claimant who

is receiving scheduled compensation for a permanent partial

disability can receive additional compensation for temporary

partial disability due to the same injury. The Court merely

said that a scheduled injury does not preclude an award of total

disability. Id. at 277 n.17. This is not surprising since a

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total disability increases the claimant’s actual loss in wage-

earning capacity. In any event, just because the Court cited

with approval the receipt of total disability compensation

following a scheduled injury, it does not follow that the Court

would countenance the duplicative recovery that occurs when a

claimant receives temporary partial disability compensation for

an injury that the claimant already has received (or is

receiving) scheduled compensation. As we noted above, the LHWCA

does not permit such duplicative recoveries. See Port of

Portland, 932 F.2d at 839 n.1 (noting that the LHWCA is designed

to avoid double recoveries for the same injuries).

HI’s interpretation of PEPCO also is flawed. The Court in

PEPCO did not hold, as HI posits, that a claimant who is

receiving scheduled compensation for an injury is foreclosed

from receiving temporary (total or partial) disability

compensation for that injury. Rather, as noted above, the Court

simply held that a permanent partial disability claimant could

not choose between the schedule and § 908(c)(21). 449 U.S. at

278-82. Thus, the Court did not address whether the receipt of

scheduled compensation forecloses the receipt of additional

temporary disability compensation, and we read nothing in PEPCO

lending support for HI’s interpretation of the case.

In sum, the PEPCO decision is not outcome determinative for

either Eason or HI. The case addressed a discrete issue, and

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the reasons advanced by Eason and HI for an expansive reading of

the decision are not compelling. Cf. Korineck, 835 F.2d at 44

(noting the “narrow issue” decided by the PEPCO Court).

III

For the reasons stated herein, we grant the petition for

review and remand the case to the BRB to enter an order

dismissing Eason’s claim for temporary partial disability under

the LHWCA.

PETITION GRANTED

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