Keenan
Keenan v. Director for Benefits Review Board
Opinion
Lead Opinion
Goodwin, J.
This appeal presents the following questions: (1) whether petitioner’s shoulder impairment should be compensated as a scheduled disability of the arm under 33 U.S.C. § 908 (c)(1); (2) in the alternative, whether he is entitled to unscheduled compensation under 33 U.S.C. § 908 (e)(21) on the ground that his shoulder injury prevented him from accepting a more lucrative foreman’s position; and (3) whether, if neither form of compensation is granted, petitioner is entitled to a de minimis award under 33 U.S.C. § 908 (c)(21). We hold that petitioner is entitled to neither scheduled nor unscheduled recovery, but that he is entitled to a de minimis award to pre serve the possibility of a modified award should his earnings fall below pre-injury levels.
I. FACTS
Kevin Keenan, then employed as a longshoreman for Eagle Marine Services, suffered a right shoulder injury on January 21, 1988. He underwent two surgeries, experiencing a period 17131 of temporary total disability and reaching maximum medical improvement on November 28, 1990. Residual symptoms and partial impairment persist, requiring Keenan to desist from heavy or repetitive overhead work and making it difficult for him to…
Concurrence in Part
Tallman, J.
concurring in part and dissenting in part.
I dissent solely from the court’s reversal of the Benefits Review Board’s (“Board”) appropriate denial of a de minimis award. In granting a de minimis award to Keen *1048 an, the court adopts a standard so low that it is difficult to imagine an applicant who will not qualify for compensation if at some point in his prior employment he sustained an injury which might impair his ability to return to that position in the future. Why stop there? The same logic compels the conclusion, rejected by the entire panel, that Keenan should also be compensated because his shoulder injury precluded him from advancement to a foreman’s position.
Courts review with deference the Board’s decision for “errors of law and adherence to the substantial evidence standard.” Deweert v. Stevedoring Servs. of America, 272 F.3d 1241, 1243 (9th Cir.2001) (internal quotation and citation omitted). The Board “must accept the ALJ’s findings unless they are contrary to the law, irrational, or unsupported by substantial evidence.” Id. (internal quotation and citation omitted). The findings here withstand that deferential standard of review.