Price v. Stevedoring Services of America, Inc.

Opinion by Judge N.R. SMITH; Concurrence by Judge O’SCANNLAIN.

OPINION

Interest on past due disability payments under the Long-shore and Harbor Workers’ Compensation Act (“LHWCA” or “Act”), 33 U.S.C. § 901 et seq., is properly calculated as simple interest at the rate defined in 28 U.S.C. § 1961 (a).

We have jurisdiction under 33 U.S.C. § 921 (c), and we affirm the decision of the Department of Labor Benefits Review Board (“BRB” or “Board”).

I. FACTUAL AND PROCEDURAL HISTORY

Arel Price (“Price”) was injured by a falling ship-lashing-chain on October 2, 1991, while employed by Stevedoring Services of America, Inc. (“Stevedoring”). Price had surgery for his injury on April 22, 1992, and returned to work on November 24, 1992. Price worked from that day until July 2, 1998, when he stopped working on the advice of a physician.

Though Price’s claims for his injury had not yet been formally adjudicated, Stevedoring paid Price temporary total disability workers’ compensation payments of $676.89 per week from the date he was injured until January 4, 1992. Later, in *1147 1997, Stevedoring also reimbursed Price’s disability insurance carrier $21,206.00 for compensation due Price for…

concurring specially:

I concur in the court’s opinion, which faithfully applies our precedents extending deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), to the Director of the Office of Workers’ Compensation Programs’ litigating positions interpreting the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq. See, e.g., Gilliland v. E.J. Barbells Co., 270 F.3d 1259, 1262 (9th Cir.2001). In my view, however, our rule mandating deference to the Director’s reasonable litigating positions cannot be reconciled with Supreme Court precedent.

One of our earliest cases — if not our very first — to state that Chevron deference “extends not only to regulations articulating the Director’s interpretation, but also to litigating positions asserted by the Director in the course of administrative adjudications” was Mallott & Peterson v. Director, Office of Workers’ Compensation Programs, 98 F.3d 1170, 1172 (9th Cir.1996). As support for its extension of Chevron deference to the Director’s litigating positions, Mallott & Peterson cited the Supreme Court’s decision in Martin v.…

I. FACTUAL AND PROCEDURAL HISTORY

Arel Price (“Price”) was injured by a falling ship-lashing- chain on October 2, 1991, while employed by Stevedoring Services of America, Inc. (“Stevedoring”). Price had surgery for his injury on April 22, 1992, and returned to work on November 24, 1992. Price worked from that day until July 2, 1998, when he stopped working on the advice of a physician. PRICE v. STEVEDORING SERVICES OF AMERICA 20119 Though Price’s claims for his injury had not yet been for- mally adjudicated, Stevedoring paid Price temporary total dis- ability workers’ compensation payments of $676.89 per week from the date he was injured until January 4, 1992. Later, in 1997, Stevedoring also reimbursed Price’s disability insur- ance carrier $21,206.00 for compensation due Price for his injury during the time period from January 4, 1992, until November 23, 1992.

Notwithstanding these payments, the parties disagreed con- cerning the proper amount of disability benefits. The Com- missioner therefore referred the case to an Administrative Law Judge (“ALJ”). The ALJ subsequently determined Price’s average weekly wage at the time of injury to be $333.87. Upon…