9th Circuit Agrees With 4th Circuit Retirement Alone Does Not Preclude Recovery of Longshore Benefits
Christie v. Georgia-Pacific Co., 2018 U.S. App. LEXIS 21447, 2018 WL 3650819 (9th Cir., Aug. 2, 2018)
After sustaining an on-the-job injury, which required surgery, the employee returned to work in a position which was less physically demanding. The employer then decided to change its retirement policy and end early retirement. Rather than wait 6 years until he could retire, the employee decided to take early retirement with an 18% reduction in benefits. Years after he retired, he filed a claim to recover permanent total compensation under the Longshore Act.
The Administrative Law Judge found for the employee; on appeal the Benefits Review Board reversed. On appeal to the 9th Circuit Court of Appeals, the panel reversed the Benefits Review Board and held that the employee is entitled to recover permanent total benefits from the employer. In doing so, the panel followed the lead of the U.S. Court of Appeals for the Fourth Circuit which previously held in Moody v. Huntington Ingalls Inc., 879 F.3d 96 (4th Cir. 2018) that "retirement does not preclude the existence of a disability under the Act.” (Christie v. Georgia-Pacific, Co., 2018 U.S. App. LEXIS 21447 at *13.
Both courts interpreted 33 U.S.C. §902(10) strictly. That provision which defines disability does not reference any decision of an employee to retire. Disability and retirement are linked, they are not synonymous.
The employee must, nonetheless, prove a disability that prevents him from returning to his prior employment. The employer then must prove there is suitable alternate employment. Here, the employee proved permanent total disability. However, the employer failed to prove there was suitable alternate employment, and that the employee could continue in his assignment as a safety inspector with suitable accommodations (which the employer did not offer). (2018 U.S. App. LEXIS 21447 at *14-15).
