John Rambo, Claimant-Petitioner v. Director, Office of Workers' Compensation Programs Metropolitan Stevedore Company

81 F.3d 840 1996 A.M.C. 1384 , 96 Cal. Daily Op. Serv. 2447 , 96 Daily Journal D.A.R. 4120 John RAMBO, Claimant-Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; Metropolitan Stevedore Company, Respondents. No. 92-70783. United States Court of Appeals, Ninth Circuit. April 10, 1996. On Remand from the United States Supreme Court. Before: REINHARDT and LEAVY, Circuit Judges, and BROWNING, * District Judge. Partial Concurrence and Partial Dissent by Judge REINHARDT. LEAVY, Circuit Judge: INTRODUCTION 1 This appeal is before us on remand from the Supreme Court for our consideration of issues raised originally on appeal but not discussed in our earlier decision. Rambo v. Director, Office of Workers' Compensation Programs, 28 F.3d 86 (9th Cir.), rev'd and remanded sub nom., Metropolitan Stevedore Co. v. Rambo, --- U.S. ----, 115 S.Ct. 2144 , 132 L.Ed.2d 226 (1995). We now reverse the Benefits Review Board's order affirming the termination of Rambo's benefits and remand for entry of a nominal award. FACTS AND PRIOR PROCEEDINGS 2 In 1980, appellant John Rambo (Rambo) injured his back and leg while working as a longshore frontman for Metropolitan Stevedore Company…

Partial Concurrence and Partial Dissent by Judge REINHARDT.

INTRODUCTION

This appeal is before us on remand from the Supreme Court for our consideration of issues raised originally on appeal but not discussed in our earlier decision. Rambo v. Director, Office of Workers’ Compensation Programs, 28 F.3d 86 (9th Cir.), rev’d and remanded sub nom., Metropolitan Stevedore Co. v. Rambo, — U.S.-, 115 S.Ct. 2144 , 132 L.Ed.2d 226 (1995). We now reverse the Benefits Review Board’s order affirming the termination of Rambo’s benefits and remand for entry of a nominal award.

FACTS AND PRIOR PROCEEDINGS

In 1980, appellant John Rambo (Rambo) injured his back and leg while working as a longshore frontman for Metropolitan Stevedore Company (Metropolitan). Rambo filed *842 a claim with the Department of Labor that was submitted to an Administrative Law Judge (ALJ). In 1983 the ALJ awarded Rambo $80.16 per week in worker’s compensation for a permanent partial disability, pursuant to § 8(c)(21) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 908 (c)(21) (1986) (LHWCA). Section 22 of the LHWCA allows for modification of a disability award “on the ground of a change in…

concurring in part, dissenting in part:

I dissent because the issue whether Rambo’s employer is estopped from seeking modification of his $80.16 per week compensation award cannot be decided on the record before us.

Rambo argues that Metropolitan is es-topped from seeking modification pursuant to 33 U.S.C. § 922 because its attorney-representative told Rambo before he agreed to numerous stipulations that the stipulated award of $80.16 would be paid to him “for life.” The majority somehow concludes either that (1) Rambo did not rely on the statements of Metropolitan’s attorney or (2) he did not rely on them to his detriment. I do not think the record is sufficiently developed to permit us to reach either conclusion.

If Rambo relied on a promise by Metropolitan of an agreed-upon payment of $80.16 per week for the rest of his life and if he could have established a greater percentage of disability had he proceeded to trial as opposed to stipulating to a 22^% disability, there would be no question that he relied on Metropolitan’s representation to his detriment. Unfortunately, the record before us sheds little, if any, light on the crucial issues: whether Metropolitan’s counsel…