Michael Sestich v. Long Beach Container Terminal Signal Mutual Indemnity Association Director, Office of Workers' Compensation Programs

Michael Sestich appeals the Benefits Review Board’s (“Board”) decision affirming the Administrative Law Judge’s (“ALJ”) termination of disability benefits under § 908(c)(21) of the Longshore and Harbor Workers’ Compensation Act (“Act”), 33 U.S.C. §§ 901-950 . The Act provides compensation payable “in respect of disability” which “results from an injury,” 33 U.S.C. § 903 (a), and provides benefits equal to two-thirds of the difference between an injured worker’s pre-injury “average weekly wages” and his post-injury “wage-earning capacity.” 33 U.S.C. § 908 (e)(21).

Sestich contends that he has lost “wage-earning capacity,” within the meaning of the Act, to the extent that he cannot earn what he would have been able to earn absent his injury, and that he should be awarded benefits equal to two-thirds of that loss. Thus, Sestich contends, his benefit amount should be equal to two-thirds of the difference between his current actual earnings and the amount he could be earning absent his injury.

The Board rejected Sestich’s contention. It held that his “wage-earning capacity” within the meaning of the Act is equal to his actual post-injury earnings, and that he is entitled to…