Albert C. Bowen v. Director, Office of Workers Compensation Programs Alaska Interstate Company Aetna Casualty and Surety Company

This case requires us to consider whether, under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA” or “Act”), a claimant who was classified as temporarily totally disabled and later placed on permanent total disability is entitled to the cost-of-living increases that occurred during the period of his temporary disability. Petitioner Albert C. Bowen appeals a Benefits Review Board (“BRB” or “Board”) order denying him such cost-of-living adjustments. We affirm.

I. FACTS

On October 1, 1973, Bowen, a pile driver foreman for the Alaska Interstate Company, sustained a disabling injury when struck by a clump of clay dropped 20 to 30 feet from a crane. Bowen sought compensation for his disability under the LHWCA. Deputy Commissioner Reginald Johnson investigated the claim and determined that Bowen was temporarily totally disabled from October 30, 1973 to April 30, 1975 and from November 30, 1977 to April 26, 1979, and permanently totally disabled thereafter. Johnson found that the employer/carrier had voluntarily paid Bowen compensation in the amount of $210.54 per week for the periods of temporary total disability, the maximum compensation rate in…

concurring:

I write separately because the result in this case, though legally compelled, departs from a disabled worker’s reality.

Under the Longshore and Harbor Workers’ Compensation Act, workers suffering from permanent total disability receive cost-of-living increases to their benefits, while those suffering from temporary total disability do not. This scheme makes sense if a disability remains temporary, since *352 benefits for temporary, limited durations should not require cost-of-living increases. A “temporary” total disability, however, may eventually become “permanent” because of a worker’s failure to heal as once predicted. While by the terms of the Act, a “temporary” disability thus becomes “permanent,” realistically the disability was always permanent, and is only recently diagnosed or adjudicated as permanent.

In this case, Bowen suffered a period of “temporary” total disability which eventually became “permanent.” Of course, realistically, there was no difference in Bowen’s condition or abilities between the time he was “temporarily” disabled and the time he was “permanently” disabled. Nonetheless, the Act seems to compel this artificial distinction between…

912 F.2d 348 Albert C. BOWEN, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Alaska Interstate Company; Aetna Casualty and Surety Company, Respondents. No. 89-70143. United States Court of Appeals, Ninth Circuit. Submitted Jan. 9, 1990. * Decided Aug. 24, 1990. Robert K. Udziela, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, Or., for petitioner. Nathaniel I. Spiller, Sr. Appellate Atty., U.S. Dept. of Labor, Washington, D.C., for respondents. Appeal from the Benefits Review Board United States Department of Labor. Before WRIGHT, TANG and CANBY, Circuit Judges. CANBY, Circuit Judge: 1 This case requires us to consider whether, under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq. ("LHWCA" or "Act"), a claimant who was classified as temporarily totally disabled and later placed on permanent total disability is entitled to the cost-of-living increases that occurred during the period of his temporary disability. Petitioner Albert C. Bowen appeals a Benefits Review Board ("BRB" or "Board") order denying him such cost-of-living adjustments. We affirm. I. FACTS 2 On October 1, 1973, Bowen, a pile driver foreman for the Alaska…