Blackwater Security Consulting, LLC v. Director, Office of Workers Compensation Programs , 503 F. App'x 498 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BLACKWATER SECURITY No. 11-71587
CONSULTING, LLC and
CONTINENTAL INSURANCE BRB No. 10-454
COMPANY, successor to Fidelity
Casualty Company of New York,
MEMORANDUM *
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS
COMPENSATION PROGRAMS; et al.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted December 7, 2012
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
Petitioner Blackwater Security Consulting, LLC, and its insurance carrier,
Continental Insurance Company (together, “Blackwater”), petition for review of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the decision of the Benefits Review Board (“BRB”) partially affirming the decision
of the Administrative Law Judge (“ALJ”) and awarding Daniel Raymond
compensation under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 901 et seq. (“LHWCA”), as extended by the Defense Base Act, 42 U.S.C.
§ 1651 et seq. (“DBA”). Because the facts and procedural history are familiar to
the parties, we do not recite them here, except as necessary to explain our
disposition. We have jurisdiction under 33 U.S.C. § 921(c). We review decisions
of the BRB “for errors of law and adherence to the substantial evidence standard.”
Keenan v. Dir., OWCP, 392 F.3d 1041, 1044 (9th Cir. 2004). We deny
Blackwater’s petition for review.
Blackwater’s contention that the BRB overturned the factual finding of the
ALJ that Raymond planned to cease his overseas employment is incorrect: the
BRB did not dispute the ALJ’s finding, rather it held that the finding was legally
irrelevant. Blackwater’s argument that the ALJ should have been allowed to take
account of Raymond’s plans to return stateside is similarly without merit. We
agree with the BRB that the LHWCA does not permit the result that Blackwater
seeks.
The LHWCA defines disability as “incapacity because of injury to earn the
wages which the employee was receiving at the time of injury in the same or any
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other employment.” 33 U.S.C. § 902(10). Raymond’s circumstances fall within
the plain language of this definition. Nor is it contested that his unscheduled
partial permanent disability brings him within the terms of § 908(c)(21). That
section unambiguously provides that an ALJ shall award two-thirds of the
difference between a claimant’s average weekly wages at the time of injury and his
post-injury wage-earning capacity. 33 U.S.C. § 908(c)(21). Nothing in the
statutory scheme allows for an ALJ to disregard or modify this formula.
We have repeatedly held that the LHWCA does not grant an ALJ any
discretion to re-calibrate a claimant’s average weekly wages at the time of injury
based on future events that would have changed that wage regardless of injury.
See, e.g., Sestich v. Long Beach Container Terminal, 289 F.3d 1157, 1160-61 (9th
Cir. 2002) (assuming that wages would have increased as claimant argued, but
holding that fact legally irrelevant because award properly based solely on
mathematical formula); Keenan, 392 F.3d at 1045-46 (same). The decision of the
BRB was therefore not erroneous.
Finally, Blackwater’s argument that applying the plain language of the
LHWCA to overseas contractors creates “absurd” results misapprehends the role of
the judiciary. The LHWCA and the DBA embody legislative choices that we have
no authority to disregard. See Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S.
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268, 282-84 (1980) (stating that where plain statutory language “produces
incongruities, the federal courts may not avoid them by rewriting or ignoring that
language”). Accordingly, we must interpret and apply the LHWCA and the DBA
as written.
The decision of the BRB was correct.
PETITION DENIED.
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