Jones Stevedoring Co. v. Steven Popovich

FILED
NOT FOR PUBLICATION
DEC 4 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONES STEVEDORING ) No. 16-70549
COMPANY, )
) BRB No. 2015-0182
Petitioner, )
) MEMORANDUM*
v. )
)
STEVEN POPOVICH; DIRECTOR, )
OFFICE OF WORKERS’ )
COMPENSATION PROGRAM, )
)
Respondents. )
)

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

Submitted November 6, 2017**
Portland, Oregon

Before: FERNANDEZ and W. FLETCHER, Circuit Judges, and TIGAR,***
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Jon S. Tigar, United States District Judge for the Northern
District of California, sitting by designation.
Jones Stevedoring Company petitions for review of the decision of the

United States Department of Labor Benefits Review Board (BRB) which affirmed

the decision of the Administrative Law Judge (ALJ) that denied Jones

Stevedoring’s application for relief under 33 U.S.C. § 908(f) (commonly and

hereinafter referred to as “§ 8(f) relief”1). We affirm.

Steven Popovich suffered a severe shoulder injury while working for Jones

Stevedoring, which, as the BRB held,2 rendered him permanently, totally disabled.

Jones Stevedoring does not dispute the disability determination. What it does

assert, however, is that the BRB erred when it determined that Jones Stevedoring

was not entitled to § 8(f) relief. We disagree. We have reviewed the record and

are satisfied that the decisions of the ALJ and the BRB are supported by substantial

evidence and do not bespeak errors of law. See E.P. Paup Co. v. Dir., Office of

Workers Comp. Programs, U.S. Dep’t of Labor, 999 F.2d 1341, 1347, 1352–54

(9th Cir. 1993); see also Fenske v. Serv. Emps. Int’l, Inc., 835 F.3d 978, 980 (9th

1
See Longshoremen’s and Harbor Workers’ Compensation Act, ch. 509,
§ 8(f), 44 Stat. 1424, 1429 (1927).
2
The BRB “is required to ‘accept the ALJ’s findings unless they are contrary
to law, irrational, or unsupported by substantial evidence.’” Stevedoring Servs. of
Am. v. Dir., Office of Workers’ Comp. Programs, 297 F.3d 797, 801 (9th Cir.
2002) (citation omitted).

2
Cir. 2016) (indicating that this court owes some deference to the position of the

Director, Office of Workers’ Compensation Programs, as presented in her brief

before us); Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 832 (9th Cir.

2012) (en banc) (same).

Here, Jones Stevedoring did not show that Popovich’s “‘current disability is

not due solely to the most recent injury.’” E.P. Paup, 999 F.2d at 1352 (citation

omitted). Substantial evidence supports the BRB’s determination that Popovich’s

shoulder injury was sufficient by itself to render him totally, permanently disabled,

and, at most, his other “ailments [just] create a greater disability than would” the

shoulder injury alone. FMC Corp. v. Dir., Office of Workers Comp. Programs,

886 F.2d 1185, 1187 (9th Cir. 1989); see also E.P. Paup, 999 F.2d at 1353. The

evidence supports the determination that the shoulder injury disabled Popovich

from supporting himself if he started to fall, and the danger of falling was endemic

to his job. That alone made his disability substantial and permanent, while the

other injuries merely increased the risk that he would fall. Thus, Jones Stevedoring

did not meet the § 8(f) standard.3

AFFIRMED.

3
We do note that Popovich had some degenerative changes in his shoulder
before this injury took place, and those may have contributed to the injury itself.
However, they were not manifest to Jones Stevedoring at the time of the injury
and, therefore, do not help its case. See E.P. Paup, 999 F.2d at 1352; Bunge Corp.
v. Dir., Office of Workers Comp., 951 F.2d 1109, 1111 (9th Cir. 1991).