FILED

NOT FOR PUBLICATION

OCT 7 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AEGIS DEFENSE SERVICES, No. 19-70566

LLC/ALLIED WORLD ASSURANCE

COMPANY, BRB Nos. 18-0122 18-0122A Petitioner,

v. MEMORANDUM*

MATHEW MARTIN; et al.,

Respondents.

MATHEW MARTIN, Nos. 19-70588

Petitioner, BRB Nos. 18-0122 v. 18-0122A

AEGIS DEFENSE SERVICES,

LLC/ALLIED WORLD ASSURANCE

COMPANY, Broadspire; et al.,

Respondents.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 5, 2020** Seattle, Washington

Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District Judge.

These companion cases arise from an order issued by the Benefits Review

Board (BRB) pursuant to the Longshore and Harbor Workers’ Compensation Act

(Longshore Act), 33 U.S.C. §§ 901-950, as extended by the Defense Base Act, 42

U.S.C. §§ 1651-55. In their respective petitions, Aegis Defense Services

LLC/Allied World Assurance Company (Aegis/Allied) and Mathew Martin

contend that the BRB committed certain errors when it denied the subject appeals.

The BRB must accept the ALJ’s findings unless they are “contrary to the

law, irrational, or unsupported by substantial evidence.” Chugach Mgmt. Servs. v.

Jetnil, 863 F.3d 1168, 1173 (9th Cir. 2017); see also 33 U.S.C. § 921(b)(3). We, in

turn, review the BRB’s decision for “errors of law and for adherence to the

substantial evidence standard.” Chugach Mgmt. Servs., 863 F.3d at 1173 (internal

quotation marks omitted). We conclude that the BRB did not err and deny both

petitions.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 1. The BRB did not err by concluding that the ALJ’s failure to address

concurrent permanent partial disability awards was rational and supported by

substantial evidence. Our circuit applies the “last responsible employer/carrier

rule,” which provides that “a single employer may be held liable for the totality of

an injured worker’s disability, even though the disability may be attributable to a

series of injuries that the worker suffered while working for more than one

employer.” Metro. Stevedore Co. v. Crescent Wharf & Warehouse Co., 339 F.3d

1102, 1104 (9th Cir. 2003) (citing Cordero v. Triple A Machine Shop, 580 F.2d

1331 (9th Cir. 1978)); Stevedoring Servs. of Am. v. Dir., Office of Workers’ Comp.

Programs, 297 F.3d 797, 802 (9th Cir. 2002) (explaining that the rule assigns full

liability for occupational injuries to the last responsible insurance carrier as well as

the last responsible employer).

Here, the ALJ’s finding that Martin suffered a permanent disability only

after he began working in Afghanistan under Aegis/Allied’s coverage is supported

by substantial evidence. First, Martin was cleared for duty by his treating

physician prior to leaving for Afghanistan. Record evidence supports the ALJ’s

finding that Martin was able to perform his assigned duties and never missed a day

of work due to neck pain during his deployment. Moreover, Martin extended his

deployment on two occasions. From this evidence, the ALJ reasonably concluded

3 that Martin’s condition when he was first deployed was manageable and did not

amount to a disability. Aegis/Allied’s suggestion that some record evidence tends

to show Martin had not fully recovered before arriving in Afghanistan does not

compel a different conclusion. See Glob. Linguist Sols., LLC v. Abdelmeged, 913

F.3d 921, 923 (9th Cir. 2019) (“Although other evidence in the record might

adequately support a different conclusion, that evidence does not negate or nullify

the substantial evidence supporting the ALJ’s conclusion.”). Accordingly, we

affirm the BRB ruling that Aegis/Allied was the last responsible carrier in this

case; the BRB did not err by rejecting Aegis/Allied’s argument for a concurrent

award.

2. The BRB implicitly considered and rejected Aegis/Allied’s argument that

Martin’s wages in Afghanistan were not representative of his wage-earning

capacity because he earned them by “extraordinary effort.” The premise of

Aegis/Allied’s argument is that Martin had suffered a permanent disability—i.e.

excruciating neck pain—prior to arriving in Afghanistan. The BRB rejected this

premise when it affirmed the ALJ’s finding that Martin did not arrive in

Afghanistan with a disability. As we explained, this conclusion was supported by

substantial evidence.

4 3. The BRB did not err by denying Martin’s request to be reimbursed for the

costs of refinancing his home. Martin concedes that neither the Longshore Act nor

its implementing regulations expressly authorize reimbursement of this type of

expense for a carrier’s wrongful termination of benefits. Martin also concedes that

the money he borrowed on his home was not used to cover medical costs.

Nevertheless, Martin argues that he is entitled to reimbursement because such

recovery is consistent with the underlying policies of the Longshore Act.

In Foundation Constructors, we held that where the Director of Workers’

Compensation Programs construed the Longshore Act to permit ALJs to award

interest payments for unpaid disability benefits, such an interpretation was

reasonable and consistent with the Longshore Act’s goal of “fully compensating

workers for their valid claims.” Found. Constrs, Inc. v. Dir., Office of Workers

Comp. Programs, 950 F.2d 621, 625 (9th Cir. 1991) (citing Chevron, U.S.A., Inc.

v. Natural Resources Def. Council, Inc., 467 U.S. 837, 843 (1984)). Martin

analogizes his request for reimbursement to the award of post-judgment interest in

Foundation Constructors; he contends that reimbursement is necessary to dissuade

employers from wrongfully terminating or delaying benefits. We disagree.

The interest in Foundation Constructors was necessary to preserve the value

of unpaid awards over time, which directly serves the remedial purpose of the

5 Longshore Act. Id. Here, Martin requests something beyond preserving the value

of benefits provided for by the statute. He asks that we hold employers responsible

for incidental financial consequences caused by delayed compensation. We do not

find evidence in the Longshore Act that Congress intended to provide such a

remedy and decline to read one into the text.

PETITIONS DENIED.

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