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 Bowen’s period of temporary and permanent disability by defining permanent disability as a condition “adjudged.” 33 U.S.C. 908(a). No one disputes the date Bowen was “adjudged” permanently totally disabled, triggering his entitlement to cost-of-living increases. This artificial distinction, however, results in exclusion of the period immediately preceding Bowen’s adjudication as permanently disabled from computations for cost-of-living increases because Bowen was at that point adjudged previously only temporarily disabled.

This result defies common sense. Indeed, the D.C. Circuit noted that a more “sensible” reading of the Act would permit inclusion of periods of “temporary” disability preceding classification as “permanent” in cost-of-living increase computations. Brandt v. Stidham Tire Co., 785 F.2d 329 , 332 n. 4 (D.C.Cir.1986). In the D.C. Circuit’s case, a worker was classified as “temporarily” disabled for eight years while “it was unclear whether his total disability would endure” before, upon adjudication and classification as “permanently” disabled, he became eligible for cost-of-living increases. Id. at 331 . Of course, the worker was as “permanently” disabled at the beginning of his “temporary” eight years’ disability as he was at the end of it. Common sense and fairness would dictate treating both periods alike. Their disparate treatment not only offends common sense and fairness, but also may discourage workers from attempting to return to work because any postponement of “permanent” disability will, as in Bowen’s case, disqualify the interim period from computation in cost-of-living increases.

Of course, Congress must draw lines on compensation entitlements somewhere, and this court must abide those lines. I therefore concur in the majority’s opinion. I would point out, however, that a line drawn at the adjudication of a “permanent” disability which excludes a period immediately preceding it of “temporary” total disability makes no practical sense and fails to serve the beneficent purposes of the Act.