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Christie v. Georgia-Pacific Co.

United States Court of Appeals, Ninth Circuit

August 2, 2018

Stanley Christie, Petitioner,
v.
Georgia-Pacific Company; Ace American Insurance Company; Director, Office of Workers' Compensation Program, Respondents.

          Argued and Submitted June 5, 2018 Portland, Oregon

          On Petition for Review of an Order of the Benefits Review Board BRB No. 16-0321

          Joshua Thomas Gillelan II (argued), Longshore Claimants' National Law Center, Washington, D.C.; Richard A. Mann, Brownstein Rask LLP, Portland, Oregon; Lara D. Merrigan, San Rafael, California; for Petitioner.

          Stephen Verotsky (argued), Sather Byerly & Holloway LLP, Portland, Oregon, for Respondents.

          Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit Judges, and Alvin K. Hellerstein, [*] District Judge.

         SUMMARY[**]

         Longshore and Harbor Workers' Compensation Act

         The panel granted a claimant's petition for review, reversed the Benefits Review Board's decision denying claimant disability benefits under the Longshore and Harbor Workers' Compensation Act, and remanded for a calculation of the permanent total disability benefits to be awarded to claimant.

         The panel interpreted the language of 33 U.S.C § 902(10) defining "disability," and held that claimant's decision to retire early did not prevent him from receiving permanent total disability benefits. The panel further held that substantial evidence in the record supported the administrative law judge's findings that claimant was disabled with the meaning of the Act: he attained maximum medical improvement, he could no longer return to his previous employment, and the employer failed to establish that suitable alternative employment existed. The panel noted that the Board did not question the ALJ's factual findings, and remanded for calculation of an award of benefits.

          OPINION

          MURGUIA, CIRCUIT JUDGE

         Stanley Christie, a longtime employee of the Respondent Georgia-Pacific Company ("Georgia-Pacific") in Portland, Oregon, injured his back at work in 1999. He returned to work following his injury but he eventually required surgery, which he underwent in 2004. Christie now asks us to decide if he is entitled to permanent total disability benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-50 (the "Act"), because of his work-related injury.

         The parties do not contest that following his surgery, Christie faced physical limitations, and Georgia-Pacific reassigned Christie to less physically demanding safety inspection work sometime in 2006. In late 2010, Christie learned that the option to take early retirement would likely no longer exist beginning in January of 2011. Since Christie was still years away from reaching the retirement age of 62, in December of 2010 he decided to retire early and accepted an 18-percent reduction in monthly pension payments.

         Years after he retired, Christie sought permanent total disability benefits as permitted by the Act. The administrative law judge ("ALJ") who considered Christie's claim awarded Christie permanent total disability benefits. Georgia-Pacific appealed the ALJ's decision to the United States Department of Labor's Benefits Review Board ("Board"), which reversed the award of benefits. Christie subsequently appealed to our court.

         To determine Christie's eligibility for benefits, we interpret the language of 33 U.S.C. § 902(10), which defines "disability" under the Act. In particular, we consider whether Christie's decision to retire early prevents him from receiving permanent total disability benefits. After reviewing the plain language of § 902(10), we hold that Christie's decision to retire early does not make him ineligible for benefits. Our conclusion is in accord with a recent Fourth Circuit decision also interpreting § 902(10). Accordingly, we grant Christie's petition, and we reverse and remand.

         I.

         A.

         In 1986, Christie began working for Georgia-Pacific in Portland, Oregon. Thirteen years later, Christie injured his back at work while moving bags of concrete. Although Christie returned to work following his injury, he eventually required surgery, which was performed in January of ...


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