Lloyd Rhine v. Stevedoring Services of Americ

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LLOYD RHINE,  No. 08-73370
Petitioner, Benefits Review
v. Board Nos.
STEVEDORING SERVICES OF AMERICA;  07-0935,
07-0935A
HOMEPORT INSURANCE COMPANY;
and DIRECTOR OF WORKERS’ OWCP-1 No.
COMPENSATION PROGRAMS, 14-126603
Respondents.
 OPINION
On Petition for Review of a Decision and
Order of the Benefits Review Board
Argued and Submitted
October 7, 2009—Portland, Oregon
Filed March 5, 2010
Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge Whyte
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
3501
3504 RHINE v. STEVEDORING SERVICES OF AMERICA
COUNSEL
Charles Rabinowitz, Law Offices of Charles Rabinowitz, of
Portland, Oregon; Joshua T. Gillelan II, Longshore Claim-
ants’ National Law Center, Washington, DC, for the peti-
tioner.
John Randall Dudrey, Williams Frederickson, LLC, of Port-
land, Oregon, for the respondents.
OPINION
WHYTE, District Judge:
Petitioner Lloyd Rhine (“Rhine”) seeks review of a deci-
sion of the Benefits Review Board (“BRB” or “Board”) under
33 U.S.C. § 921(c) of the Longshore and Harbor Workers’
Compensation Act (“LHWCA”). We review the Board’s deci-
sion for “errors of law and for adherence to the statutory stan-
dard governing the Board’s review of the administrative law
judge’s factual determinations.” Todd Shipyards Corp. v.
Black, 717 F.2d 1280, 1284 (9th Cir. 1983) (quoting Bumble
Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1328 (9th
Cir. 1980). “The BRB must accept the ALJ’s findings unless
they are contrary to the law, irrational, or unsupported by sub-
stantial evidence.” Id. We conclude that the BRB and ALJ
made no errors of law and rendered factual determinations
supported by substantial evidence. We therefore affirm.
[1] We first briefly dispatch a concern over jurisdiction.
Stevedoring Services of America and Homeport Insurance
(collectively “SSA”) argue in their Answering Brief that this
court’s jurisdiction “is not free from doubt” because Rhine
did not name the director of the Office of Worker’s Compen-
sation Programs (“OWCP”) as a respondent as required by
Federal Rule of Appellate Procedure 15(a)(2)(B).1 The OWCP
1
The respondents did not assert lack of jurisdiction at oral argument on
the appeal.
RHINE v. STEVEDORING SERVICES OF AMERICA 3505
does not appear in the petition, but it was served and appeared
as a respondent on the day the petition was filed. When SSA
noted in its Answering Brief that the OWCP was not named
as a respondent in the petition, Rhine moved to amend the
caption to add the OWCP as a respondent. Because by that
time the OWCP was already listed on the caption, the court
denied Rhine’s motion to amend as moot. Because petitioner
provided notice to the OWCP and the OWCP subsequently
appeared as a respondent, the court in effect found that Rhine
had complied with Rule 15(a)(2)(B). Therefore, we have
jurisdiction pursuant to 33 U.S.C. § 921(c).
On October 22, 1997, Rhine was injured in the course of
his employment as a B-registered longshoreman. After an ini-
tial hearing before the ALJ and a remand from the BRB, the
ALJ determined in a second hearing that Rhine’s average
weekly wage was $877.96, the average wage in 1997 of all
“B-registered” longshoremen (known as the “Pacific Mari-
time Association Average” or “PMA Average”). Rhine makes
two arguments on appeal. First, he contends that the ALJ
committed both legal and factual errors in calculating his
average weekly wage under 33 U.S.C. § 910(c). Second, he
argues that the BRB committed legal error by reducing his
compensation by the amount he could have earned in non-
longshore work because taking such work could have jeopar-
dized his status as a longshoreman.
A. Calculation of Average Weekly Wage
As for the ALJ’s purported legal error calculating Rhine’s
average weekly wage, we conclude that the ALJ properly
applied 33 U.S.C. § 910(c). Rhine contends that the ALJ’s use
of the 1997 PMA “B” Average was error and underestimated
his earnings because: (1) it was based on average earnings for
all “B” workers as of December 31, 1997 including some who
had few hours as longshore workers; (2) it included Rhine’s
total earnings for the year even though he was injured the
majority of time that he was a “B” worker; (3) it did not
3506 RHINE v. STEVEDORING SERVICES OF AMERICA
include holiday and vacation pay for some workers; (4) it
excluded pay guarantee income for all workers; and (5) it did
not adjust the “B” earnings for a mid-year contract wage
increase. Rhine argues that using the 1997 PMA “B” average
resulted in an inflexible mathematical calculation that has no
basis in section 910(c) or the cases interpreting it. Petitioner
misconstrues the cases he cites for the proposition that the
components of compensation which he claims were omitted
in determining Rhine’s average weekly wage must be
included in an ALJ’s calculation of an employee’s average
weekly wage under section 910(c). In Palacios v. Campbell
Industries, 633 F.2d 840, 843 (9th Cir. 1980), we held that
earning capacity after the date of injury may, not must, be
considered in the ALJ’s determination of an employee’s
wages. See also Nat’l Steel & Shipbuilding Co. v. Bonner, 600
F.2d 1288, 1293 (9th Cir. 1979) (refusing to hold as a matter
of law that an ALJ must assume that an employee’s earlier,
lower wages would have continued when the employee
started higher paying work shortly before being injured). And
in Sproull v. Director, OWCP, 86 F.3d 895, 899 (9th Cir.
1996), we upheld an ALJ determination that incorporated
vacation pay into a compensation award, but we did not
require that vacation pay be included. Similarly, in Fireman’s
Fund Insurance Co. v. Van Steene, 120 F.2d 548, 550 (9th
Cir. 1941), we upheld an ALJ award that determined a work-
er’s average weekly wage based in part on the wages of other
employees, but set forth no principle that an ALJ could not
consider time off due to temporary injuries when performing
a wage calculation. Finally, in McMennamy v. Young & Co.,
21 BRBS 351, 353-54 (D.O.L. Ben. Rev. Bd. 1988), the BRB
interpreted the meaning of “wages” under 33 U.S.C.
§ 902(13) but did not consider what compensation must factor
into an ALJ’s calculation under section 910(c).
[2] Section 910 provides three alternative methods for cal-
culating an employee’s average annual earning capacity. 33
U.S.C. § 910(a)-(c). In contrast to subsections 910(a) and (b),
subsection 910(c) “applies to intermittent and irregular
RHINE v. STEVEDORING SERVICES OF AMERICA 3507
employment, when application of the mathematical formulas
provided in [subsections 910(a) and (b)] would be unreason-
able or unfair, or when insufficient evidence is presented at
the hearing to permit proper application of [subsections
910(a) or (b)].” Palacios, 633 F.2d at 842. The language of
subsection 910(c) also reflects that analysis under it is not
meant to be strictly mathematical. It merely requires that the
ALJ give regard to evidence of the employee’s annual earning
capacity in determining a reasonable average wage. 33 U.S.C.
§ 910(c). Under subsection 910(c), then, the ALJ has more
flexibility in determining an employee’s reasonable annual
earning capacity than when applying subsections 910(a) and
910(b). Ultimately, under subsection 910(c), the average
annual earnings “shall be such sum as . . . shall reasonably
represent the annual earning capacity of the injured employ-
ee.” Id. If the ALJ’s determination of Rhine’s wage under sec-
tion 910(c) is supported by substantial evidence in the record,
then it must be affirmed. Lockheed Shipbuilding v. Director,
OWCP, 951 F.2d 1143, 1146 (9th Cir. 1991).
The substantial evidence test for upholding factual findings
is “extremely deferential to the factfinder.” Metro. Stevedore
Co. v. Rambo, 521 U.S. 121, 149 (1997). “It means such rele-
vant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. Moreover, “our task is not to
reweigh the evidence, but only to determine if substantial evi-
dence supports the ALJ’s findings.” Lockheed Shipbuilding,
951 F.2d at 1146.
[3] In considering the evidence before him, the ALJ found
Rhine’s own testimony unreliable and self-serving and noted
that other testimony in support of Rhine contradicted the con-
crete earnings data to which the ALJ could refer. The ALJ
also called the PMA Average data “far from perfect,” noting
that its earnings did not match up with Rhine’s injury date and
lacked hours data for the individual included workers.
Although the PMA Average data had flaws, upon consider-
ation of all available evidence, the ALJ concluded that it rep-
3508 RHINE v. STEVEDORING SERVICES OF AMERICA
resented the best estimate of Rhine’s average wages. Given
the evidence before the ALJ, a reasonable mind could have
concluded that the PMA Average adequately represented
Rhine’s annual earning capacity. Therefore, the ALJ properly
found, based on substantial evidence, that $877.96 repre-
sented Rhine’s average weekly wage.
B. Alternative Employment
[4] Rhine’s second argument is that the ALJ committed
legal error by reducing his average wage by the amount he
could have earned in alternative non-longshore employment.
SSA asserts initially that Rhine has not preserved this argu-
ment for appellate review because the BRB only considered
the issue in its first decision. SSA is incorrect. The BRB’s
first decision remanded the case to the ALJ for further factual
determinations and therefore was not a final, appealable order.
Bish v. Brady-Hamilton Stevedore Co., 880 F.2d 1135, 1137
(9th Cir. 1989). In National Steel & Shipbuilding Co. v.
Director, OWCP, 626 F.2d 106, 107-08 (9th Cir. 1980), we
dismissed as premature an appeal from an order of the Bene-
fits Review Board of the Department of Labor affirming in
part and remanding in part a disability benefits award made
under Longshoremen’s and Harbor Workers’ Compensation
Act because the award was not an appealable “final order”
within the meaning of the section of the Act governing which
board orders are appealable. Other circuits have concluded
that under the LHWCA and the Administrative Procedure
Act, previous non-final orders of the BRB are properly before
us only when the final BRB order is appealed. Burns v. Direc-
tor, OWCP, 41 F.3d 1555, 1561-62 (D.C. Cir. 1994); Mijan-
gos v. Avondale Shipyards, Inc., 948 F.2d 941, 943-44 (5th
Cir. 1991). We adopt this rule today. Accordingly, the BRB’s
first decision is properly before us in this case.
[5] Under the LHWCA, harbor workers are compensated
according to the impact of a work-related injury on their earn-
ing capacity. Bumble Bee Seafoods, 629 F.2d at 1328. In this
RHINE v. STEVEDORING SERVICES OF AMERICA 3509
case, the ALJ concluded on the basis of a vocational survey
that alternative employment was available to Rhine as a
parking-lot cashier and security guard.2 Rhine argues that the
ALJ should not have concluded that suitable alternative
employment was available because if Rhine had taken one of
the alternative jobs he might have lost his valuable longshore
registration.
[6] Rhine cites no case or rule which holds that Rhine’s
possible loss of his longshoreman status rendered the substi-
tute employment inadequate. To the contrary, our case law
reflects that the availability of alternative employment is
determined by reference to two criteria: the claimant’s physi-
cal abilities and the economic availability of particular jobs in
the market. See Bumble Bee Seafoods, 629 F.2d at 1330. Fur-
thermore, the statute is clear that permanent partial disability,
when it does not fall within a set of enumerated injuries, is
compensable at 66 % of “the difference between the average
weekly wages of the employee and the employee’s wage-
earning capacity thereafter in the same employment or other-
wise, payable during the continuance of partial disability.” 33
U.S.C. § 908(b)(21) (emphasis added). Under the statute and
our case law, a claimant’s preferences, or the possible
employment consequences of taking an available job, are not
relevant.
[7] In Berezin v. Cascade Gen., Inc., 2000 WL 35364100
(D.O.L. Ben. Rev. Bd. Nov. 14, 2000), the BRB considered
2
SSA seeks judicial notice of a declaration filed in another pending
case, apparently contesting the BRB’s conclusion that SSA had deprived
Rhine of suitable alternate employment at its facility. This is a factual
determination that the SSA did not cross-appeal after it was decided by the
BRB. SSA additionally does not argue that the BRB’s ruling was incor-
rect, or that substantial evidence could not support a finding that SSA
withdrew Rhine’s employment at its facility. That factual dispute is not
relevant to the legal issue raised by Rhine. Whether the SSA so withdrew
Rhine’s employment is therefore not before this court. SSA’s request for
judicial notice is denied. Rhine’s motion to strike is denied as moot.
3510 RHINE v. STEVEDORING SERVICES OF AMERICA
a claimant’s similar argument that, because he wished to
return to longshore work, he need not diligently seek alterna-
tive employment. The BRB rejected that argument, writing
that “[c]laimant may not retain entitlement to total disability
benefits merely by alleging that he did not seek work because
he was unsure if he would be hired, or because he preferred
another type of work to that identified by the employer.” Id.
at *5. Similarly, Rhine cannot retain total disability benefits
here because of an unrelated — though unfortunate — possi-
ble consequence of accepting alternative work.
AFFIRMED.