M. Cutter Company v. Owcp ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M. CUTTER COMPANY, INC., and 
LIBERTY NORTHWEST INSURANCE
COMPANY,
No. 04-73937
Petitioners,
OWCP Nos.
v.
 BRB-03-0189
LARRY G. CARROLL and DIRECTOR, 2001-LHC-00385
OFFICE OF WORKERS’ COMPENSATION
OPINION
PROGRAMS, THE UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted
July 28, 2006—Portland, Oregon
Filed August 15, 2006
Before: Alfred T. Goodwin, A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
9709
M. CUTTER COMPANY v. CARROLL 9711
COUNSEL
John R. Dudrey, Williams Fredrickson, LLC, Portland, Ore-
gon, for the petitioners.
Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland,
Oregon; Matthew W. Boyle, Appellate Attorney, U.S. Depart-
ment of Labor, Washington, D.C., for the respondents.
OPINION
GRABER, Circuit Judge:
Claimant Larry G. Carroll sustained a disabling injury
while working for Employer M. Cutter Company, Inc.
Employer seeks review of the en banc decision of the Benefits
Review Board (“Board”) holding it liable for 24-hour atten-
dant care for Claimant under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-
950. We deny the petition.
On December 4, 1998, in the course of his employment
with Employer, Claimant fell 30 feet from a crane boom
walkway to the deck of a barge after his safety harness and
lanyard failed. He suffered a closed head injury and concus-
sion; fractures of his skull, left eye socket, and cheekbone;
fractures of his left forearm and wrist; strains of his left knee
and shoulder; lacerations of his right forearm and his scalp; a
ruptured and avulsed spleen; traumatic anemia; left-sided
hearing loss; cognitive impairment, especially with short term
memory; and headaches. His treating physician, Dr. Carter,
prescribed 24-hour attendant care.
Claimant filed a claim for 24-hour attendant care under the
LHWCA. A formal hearing was held before an administrative
law judge (“ALJ”) in which the parties stipulated that Claim-
9712 M. CUTTER COMPANY v. CARROLL
ant is permanently and totally disabled and that his injury
arose out of and in the course of employment.
The ALJ found that Claimant is in need of 24-hour care.
Indeed, that fact was acknowledged by Employer and agreed
upon by both parties’ life care planning expert witnesses. The
ALJ then proceeded to inquire “who is to administer and pay
for that care.” He treated that question as an issue of fact.
Crediting the testimony of Employer’s expert, the ALJ con-
cluded that Employer should be required to pay only for part-
time attendant care for Claimant. He determined that Claim-
ant’s wife could meet Claimant’s remaining care needs “with-
out substantial disruption to her quality of life.”
Claimant appealed the ALJ’s Order to the Board, and the
Board reversed the ALJ’s denial of 24-hour paid supervision.
Citing Gilliam v. Western Union Telegraph Co., 8 BRBS 278
(1978), and Timmons v. Jacksonville Shipyards, Inc., 2 BRBS
125 (1975), the Board held:
It is axiomatic that employer is responsible for
reasonable and necessary medical care related to the
work injury. 33 U.S.C. § 907(a). As stated previ-
ously, this medical care may include attendant and
domestic services. In this case, it is undisputed that
all the doctors, including claimant’s treating physi-
cian, advised 24-hour supervision of claimant. While
the administrative law judge rationally found, based
on [one expert’s] report, that claimant does not need
24-hour paid licensed attendant care, it is neverthe-
less undisputed that claimant cannot be left alone. As
all doctors agree that claimant must be supervised 24
hours per day, it was improper for the administrative
law judge to hold employer liable for less than 24-
hour per day supervision. Moreover, he erred in
determining the compensability of required services
based on claimant’s wife’s needs for respite rather
M. CUTTER COMPANY v. CARROLL 9713
than on the uncontradicted evidence regarding the
care necessary for claimant’s condition.
(Citations omitted.)
Employer filed a motion for reconsideration en banc. The
en banc Board granted the motion but affirmed the Board’s
decision, holding that,
[b]y ignoring his own finding that claimant’s need
for 24-hour care is not in dispute and then holding
employer liable for a lesser number of hours, the
administrative law judge departed from the mandate
of Section 7(a), which bases the extent of liability
exclusively on a determination of the care necessi-
tated by the injury.
Employer then filed this timely petition for review.
We review a decision of the Board for “errors of law” and
for compliance with the substantial evidence standard. Taylor
v. Dir., OWCP, 201 F.3d 1234, 1238 (9th Cir. 2000). The
Board’s interpretation of the LHWCA is a question of law
that we review de novo. Force v. Dir., OWCP, 938 F.2d 981,
983 (9th Cir. 1991). Although we grant no “special defer-
ence” to the Board’s construction of the LHWCA, we “must
. . . respect the Board’s interpretation of the statute where
such interpretation is reasonable and reflects the policy under-
lying the statute.” McDonald v. Dir., OWCP, 897 F.2d 1510,
1512 (9th Cir. 1990). Here, the Board’s interpretation is a rea-
sonable reading of the text of the statute, in keeping with its
purpose.
[1] The en banc Board correctly identified and resolved the
issue in this case as a matter of law. Claimant filed a claim
for employer-provided attendant care under the LHWCA.
Section 7(a) of the LHWCA provides, in pertinent part: “The
employer shall furnish such medical, surgical, and other
9714 M. CUTTER COMPANY v. CARROLL
attendance or treatment, nurse and hospital service, medicine,
crutches, and apparatus, for such period as the nature of the
injury or the process of recovery may require.” 33 U.S.C.
§ 907(a) (emphasis added). Board precedent has held that the
term “other attendance,” as used in this section, encompasses
reasonable and necessary attendant care related to a claim-
ant’s work injury. Gilliam, 8 BRBS at 280; Timmons, 2 BRBS
at 130. Therefore, the only questions of fact properly before
the ALJ under § 907(a) were whether Claimant needed atten-
dant care and, if so, how much.
[2] The ALJ found as an undisputed fact that “Claimant is
in need of 24-hour attendant care.” Section 7(a) answers the
question of who pays for that care as a matter of law, not leav-
ing any additional relevant questions of fact for decision. Sec-
tion 7(a) expressly mandates that the employer furnish the
required care.
Petition DENIED.