Wilborn Stevens v. Director, Office of Workers' Compensation Programs Lockheed Shipbuilding Co.

This case raises a question of interpretation under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 , et seq.: When does an employee’s disability that was total become partial for purposes of compensation under 33 U.S.C. § 908 ? The Benefits Review Board held that when an employer makes a showing that there was suitable alternative employment reasonably available to a disabled employee, total disability becomes partial and the change of status is retroactive to the date of maximum medical improvement. We reverse, rejecting Berkstresser v. Washington Metropolitan Area Transit Authority, 16 BRBS 231 (1984). We agree that disability becomes partial when suitable alternative employment is or was realistically available to the employee, which must be demonstrated by the employer, but we reject the retroactive aspect of the Board’s holding. Until there is a job that the injured worker can perform, his injury is totally disabling.

STANDARD OF REVIEW

We scrutinize Board decisions for errors of law and for adherence to the statutory standard governing the Board’s review of the administrative law judge’s factual determinations. “[T]he Board may not substitute its views…