On Petition for Review of an Order of the Benefits Review Board
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Argued and Submitted March 13, 2012-San Francisco, California
Before: M. Margaret McKeown and Milan D. Smith, Jr., Circuit Judges, and Barbara Jacobs Rothstein, Senior District Judge.*fn1
The meaning of "permanent" appears, at first blush, to be clear. But just as a museum's permanent collection does not mean the works will stay in the collection for posterity and a permanent hair wave does not last a lifetime, neither does the term permanent necessarily mean forever. The word permanent takes on meaning in context and, in this case, within a statutory framework.
In the context of maritime employment, we consider an issue of first impression in this circuit: whether a partial "permanent" disability may be re-characterized as "temporary" during a period of recuperation. The label we affix does not affect whether the disabled employee is entitled to disability benefits; instead, it determines who pays the benefits-either the employer or the special workers' compensation fund. We affirm the decision of the Department of Labor's Benefits Review Board (the "Board") that an employee who has a permanent partial disability may be reclassified as temporarily totally disabled during a recovery period following surgery.
Deborah Benge, a former employee of Pacific Ship Repair and Fabrication Inc. ("Pacific"), suffered neck and back injuries while working as a foreman on a ship in June 1999. Four months later, she returned to work for Pacific as a clerk.
Benge filed a disability claim under the Longshore and Harbor Workers' Compensation Act (the "Longshore Act"), 33 U.S.C. § 901 et seq., seeking compensation from Pacific for her work-related injury. The administrative law judge ("ALJ") found that Benge's disability resulted from the overlay of her 1999 injury on her pre-existing back and neck injuries. The parties stipulated that because Benge's condition had reached "maximum medical improvement," she was incapable of returning to her previous position as a foreman; however, Benge retained residual wage-earning capacity in her lower-paying clerk position. The parties also stipulated, and the ALJ agreed, that because Benge still could work in some capacity, her disability at the time was partial (and not total), and that because her condition was not expected to improve, her disability at the time was permanent (and not temporary).
The ALJ ordered Pacific to pay all disability compensation due for the first two years of Benge's partial permanent disability; thereafter, beginning January 2002, the Office of Workers' Compensation Programs ("OWCP"), was ordered to make the payments. The Board affirmed the OWCP's appeal of the ALJ's decision.
The OWCP made partial permanent disability payments to Benge for the next five years. Benge's condition continued to deteriorate, and in 2007 she underwent a three-level discectomy and fusion of her cervical spine. Although her doctor anticipated that she would return to light-duty work after recuperating, Benge was unable to return ...