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Petitt v. Brothers

United States Court of Appeals, Ninth Circuit

September 20, 2013

Joseph Petitt, Petitioner,
v.
Sause Brothers; Seabright Insurance Company; Director, Office of Workers' Compensation Program, Respondents.

Argued and Submitted May 8, 2013 —Portland, Oregon

On Petition for Review of an Order of the Benefits Review Board BRB No. 11-0351

Charles Robinowitz (argued), Portland, Oregon, for Petitioner.

Norman Cole (argued), Sather, Byerly & Holloway, LLP, Portland, Oregon, for Respondents.

Before: Alfred T. Goodwin, Stephen Reinhardt, and Andrew D. Hurwitz, Circuit Judges.

SUMMARY [*]

Longshore and Harbor Workers' Compensation Act

The panel granted a petition for review of a decision of the Benefits Review Board awarding benefits to petitioner under the Longshore and Harbor Workers Compensation Act.

The panel held that under the Longshore Act, scheduled wage increases given by a non-union employer to all employees in a certain class based solely upon seniority were a general increase in wages and did not increase a claimant's wage-earning capacity. The panel concluded that petitioner's quarterly "seniority raises" were more akin to a general wage increase than to a merits-based raise in wages, and therefore should not be calculated into his wage-earning capacity. The panel remanded to the agency to recalculate petitioner's partial disability benefits.

OPINION

HURWITZ, CIRCUIT JUDGE:

The question presented is whether, under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), scheduled wage increases unrelated to the merits of a worker's performance constitute an increase in the worker's wage-earning capacity or merely a general increase in wages. We hold that they are a general increase.

I.

Joseph Petitt injured his back in 2003 while earning $15 per hour as a welder for Sause Brothers ("Sause"). After undergoing two surgeries, Petitt briefly returned to his job, but, physically unable to continue, left Sause at the end of 2004. Sause then began paying Petitt permanent total disability benefits under the LHWCA, 33 U.S.C. §§ 901–950.

Three years later, Petitt began working as an electronics assembler at K&K Sound Systems ("K&K"), earning $7.80 per hour. K&K provides all production and clerical employees, including assemblers, an automatic $0.25 per hour raise every three ...


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