NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 28 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT E. HORTON, No. 17-73335

Petitioner, BRB No. 17-0168

v.

MEMORANDUM*

SPECIALTY FINISHES, LLC; et al.,

Respondents.

SPECIALTY FINISHES, LLC; SIGNAL No. 18-70089

MUTUAL INDEMNITY ASSOCIATION,

LTD., BRB No. 17-0168

Petitioners,

v.

SCOTT E. HORTON; et al.,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Argued and Submitted May 13, 2019 Seattle, Washington

Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. These related cases involve the award of benefits under the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”). Scott Horton (“Horton”)

petitions for review of the decision of the Benefits Review Board (“BRB”)

affirming the calculation of his average weekly wage and the denial of benefits on

March 31, 2014. Specialty Finishes, LLC (“Specialty”) petitions for review of the

BRB’s decision confirming it, and not Industrial Marine, Inc. (“Industrial

Marine”), as the last responsible employer. We have jurisdiction under 33 U.S.C.

§ 921(c). We grant Horton’s petition in part, ordering benefits for March 31, 2014,

and deny his petition for review as to his average weekly wage. We deny

Specialty’s petition for review.

Substantial evidence supports the calculation of Horton’s average weekly

wage. The substantial evidence test is “extremely deferential” and “means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165 (9th Cir.

2010) (citations omitted). The Administrative Law Judge (“ALJ”) had discretion

to determine that Horton’s yearly earnings from his prior employment were the

“best estimate” of his future earning capacity, given the uncertainty as to the hours

he would have worked had he not been injured. See id. Consequently, the court

denies Horton’s petition for review on this issue.

However, the ALJ should have awarded permanent total disability benefits

2 for March 31, 2014 because Horton’s partial disability benefits ended on March

30, 2014. As this appears to have been an inadvertent error, the court grants

Horton’s petition in part and awards permanent total disability benefits for March

31, 2014.

The court finds that the BRB did not err in concluding that Specialty was the

last responsible employer. Once the claimant establishes a prima facie case against

one employer, the burden is on that employer to prove that a different employer is

responsible. Gen. Ship Serv. v. Dir., Office of Workers’ Comp. Programs, 938

F.2d 960, 962 (9th Cir. 1991) (“[T]he purposes of the LHWCA are best served by

assigning liability to the employer who is claimed against.”); Albina Engine &

Mach. v. Dir., Office of Workers’ Comp. Programs, 627 F.3d 1293, 1299 (9th Cir.

2010). Only the claimant, not an employer, can invoke the Section 20(a)

presumption. Lins v. Ingalls Shipbuilding, Inc., 26 Ben. Rev. Bd. Serv. (MB) 62,

1992 WL 213839, at *2 (Aug. 18, 1992).

Substantial evidence supported the determination that Specialty did not rebut

the presumption that it was the last responsible employer. Horton testified that his

injuries were not aggravated following his initial injury, and Specialty presented no

medical evidence to the contrary. Though Horton suffered pain and missed work

during his subsequent employment at Industrial Marine, a “reasonable mind” could

have concluded that the pain was a natural progression of his initial injury, not a

3 sign of aggravation. See id. (finding no aggravation where claimant testified there

was no further injury and “employer did not present any evidence to contradict

claimant’s testimony”). Consequently, the court denies Specialty’s petition for

review.

In case no. 17-73335, PETITION GRANTED IN PART, DENIED IN

PART. In case no. 18-70089, PETITION DENIED.

Each party shall bear its own costs on appeal.

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