David Boudreau v. Industrial Resources, Inc.

FILED
NOT FOR PUBLICATION
MAY 26 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID T. BOUDREAU, No. 19-73011

Petitioner, BRB No. 18-0562

v.
MEMORANDUM*
INDUSTRIAL RESOURCES, INC.; et al.,

Respondents.

On Petition for Review of an Order of the
Benefits Review Board

Argued and Submitted May 5, 2021
Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and SILVER,** District
Judge.

Petitioner David Boudreau seeks review of the Benefits Review Board’s

(BRB) order affirming an Administrative Law Judge’s (ALJ) decision awarding

Boudreau permanent partial disability benefits pursuant to the Longshore and

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
Harbor Workers’ Compensation Act. The BRB “reviews the ALJ’s decision for

substantial evidence and ‘may not substitute its views for those of the [ALJ] or

engage in a de novo review of the evidence.’” Chugach Mgmt. Servs. v. Jetnil, 863

F.3d 1168, 1173 (9th Cir. 2017) (quoting Kalama Servs., Inc. v. Dir., Off. of

Workers’ Comp. Programs, 354 F.3d 1085, 1090 (9th Cir. 2004)); see

33 U.S.C. § 921(b)(3). We review the BRB’s decision for “errors of law and for

adherence to the substantial evidence standard.” Kalama Servs., 354 F.3d at 1090.

“The panel and BRB must therefore accept the ALJ’s factual findings unless the

factual findings are contrary to the law, irrational, or unsupported by substantial

evidence.” Chugach Mgmt. Servs., 863 F.3d at 1173 (quotation marks and citation

omitted). We have jurisdiction pursuant to 33 U.S.C. § 921(c), and we deny the

petition in part and grant it in part. We remand for recalculation of Boudreau’s

award. Because the parties are familiar with the facts, we recite only those

necessary to decide the petition.

1. The BRB did not err by declining to award nominal benefits. “[A]

worker is entitled to nominal compensation when his work-related injury has not

diminished his present wage-earning capacity under current circumstances, but

there is a significant potential that the injury will cause diminished capacity under

future conditions.” Metro. Stevedore Co. v. Rambo (Rambo II), 521 U.S. 121, 138

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(1997). Pursuant to the parties’ stipulation, the ALJ found that Boudreau’s right

arm injury was a “scheduled injury” and that Boudreau was permanently partially

disabled. A claimant with a scheduled permanent partial disability is presumed to

have a current loss of wage-earning capacity. Id. at 126 (explaining that “for

certain enumerated or ‘scheduled’ injuries,” incapacity to earn pre-injury wages “is

conclusively presumed”). Because Boudreau is presumed to have a current loss of

wage-earning capacity—and is being compensated for that disability—Boudreau is

not entitled to a nominal award of benefits pursuant to Rambo II. Id. at 138.

2. Boudreau argues the BRB and ALJ erred by calculating the

impairment of Boudreau’s right arm without considering Boudreau’s congenital

absence of a left arm below the elbow. Boudreau contends the ALJ should have

applied the aggravation rule to account for his preexisting condition. “The

aggravation rule is a doctrine of general workers’ compensation law [that] provides

that, where an employment injury aggravates, accelerates, or combines with a

preexisting impairment to produce a disability greater than that which would have

resulted from the employment injury alone, the entire resulting disability is

compensable.” Port of Portland v. Dir., Off. of Workers’ Comp. Programs, 932

F.2d 836, 839 (9th Cir. 1991) (citing Indep. Stevedore Co. v. O’Leary, 357 F.2d

812, 814–15 (9th Cir. 1966)). “This doctrine does not require that the employment

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injury interact with the underlying condition itself to produce some worsening of

the underlying impairment.” Id. (citations omitted). We conclude the ALJ did not

err by declining to apply the aggravation rule when calculating Boudreau’s

impairment rating pursuant to § 908(c)(19). That subsection provides that

“[c]ompensation for permanent partial loss or loss of use of a member may be for

proportionate loss or loss of use of the member.” 33 U.S.C. § 908(c)(19)

(emphasis added). Because Boudreau’s left arm impairment did not increase the

impairment caused by the right arm injury, we conclude the ALJ did not err by

declining to apply the aggravation rule.

However, the ALJ also stated that Boudreau was “not entitled to combine his

right arm work injury and his left arm defect because the schedule does not provide

for bilateral impairment to the upper extremities.” We question whether this

statement of law can be squared with 33 U.S.C. § 908(c)(22), which provides for

consecutive scheduled awards “[i]n any case in which there shall be a loss of, or

loss of use of, more than one member or parts of more than one member set forth

in [the schedule], not amounting to permanent total disability.” Because we

remand for a recalculation of Boudreau’s impairment rating, the ALJ will have an

opportunity to reconsider the applicability of § 908(c)(22) on remand.

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 3. When calculating an impairment rating, “the administrative law judge

is not bound by any particular standard or formula but may consider a variety of

medical opinions and observations in addition to claimant’s description of

symptoms and physical effects of his injury in assessing the extent of claimant’s

disability.” Pimpinella v. Universal Mar. Serv. Inc., 1993 WL 13714765 at *4

(BRB 1993) (per curiam). Here, the ALJ rejected the opinion of Dr. Nimlos in

large part because Dr. Nimlos relied on the 5th Edition Guides to the Evaluation of

Permanent Impairment (5th Edition), rather than the more recent 6th Edition. The

ALJ explained that the 5th Edition does not specifically account for lateral

epicondylitis, and the 6th Edition does.

On the facts of this case, we conclude the decision to use the 6th Edition as a

starting point was error because Boudreau’s diagnosis does not fit within either of

the 6th Edition’s factual predicates. The 6th Edition posits an injured worker with

a “[h]istory of painful injury, residual symptoms without consistent objective

findings,” or an injured worker who has had “surgical release of flexor or extensor

origins with residual symptoms. AMERICAN MEDICAL ASSOCIATION, GUIDES TO

THE EVALUATION OF PERMANENT IMPAIRMENT 399 (Robert D. Rondinelli, M.D., et

al. eds., 6th ed. 2008) (emphasis added). An impairment rating between zero and

two percent is assigned to the first category, id., and a rating between three and

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seven percent is assigned to the second category. Id. The ALJ did not

acknowledge that Boudreau’s injury does not fit into either of these categories

because he has not had surgery and his history (a painful injury with residual

symptoms) is supported by consistent objective findings. Given the facts in

Boudreau’s case, it was an abuse of discretion to rely on the 6th Edition as a

starting point for calculating the impairment rating.

None of Boudreau’s other arguments are persuasive. Accordingly, we grant

Boudreau’s petition to the extent he seeks a recalculation of his impairment rating,

but deny it in all other respects.1

PETITION DENIED IN PART AND GRANTED IN PART.

1
Respondents’ motion for leave to file supplemental excerpts (Dkt. No.
33) is DENIED.
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