Aegis Defense Services, llc/al v. Mathew Martin ( 2020 )

FILED
NOT FOR PUBLICATION
OCT 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AEGIS DEFENSE SERVICES, No. 19-70566
LLC/ALLIED WORLD ASSURANCE
COMPANY, BRB Nos. 18-0122
18-0122A
Petitioner,
v. MEMORANDUM*
MATHEW MARTIN; et al.,
Respondents.
MATHEW MARTIN, Nos. 19-70588
Petitioner,
BRB Nos. 18-0122
v. 18-0122A
AEGIS DEFENSE SERVICES,
LLC/ALLIED WORLD ASSURANCE
COMPANY, Broadspire; et al.,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted October 5, 2020**
Seattle, Washington
Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District
Judge.
These companion cases arise from an order issued by the Benefits Review
Board (BRB) pursuant to the Longshore and Harbor Workers’ Compensation Act
(Longshore Act), 33 U.S.C. §§ 901-950, as extended by the Defense Base Act, 42
U.S.C. §§ 1651-55. In their respective petitions, Aegis Defense Services
LLC/Allied World Assurance Company (Aegis/Allied) and Mathew Martin
contend that the BRB committed certain errors when it denied the subject appeals.
The BRB must accept the ALJ’s findings unless they are “contrary to the
law, irrational, or unsupported by substantial evidence.” Chugach Mgmt. Servs. v.
Jetnil, 863 F.3d 1168, 1173 (9th Cir. 2017); see also 33 U.S.C. § 921(b)(3). We, in
turn, review the BRB’s decision for “errors of law and for adherence to the
substantial evidence standard.” Chugach Mgmt. Servs., 863 F.3d at 1173 (internal
quotation marks omitted). We conclude that the BRB did not err and deny both
petitions.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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1. The BRB did not err by concluding that the ALJ’s failure to address
concurrent permanent partial disability awards was rational and supported by
substantial evidence. Our circuit applies the “last responsible employer/carrier
rule,” which provides that “a single employer may be held liable for the totality of
an injured worker’s disability, even though the disability may be attributable to a
series of injuries that the worker suffered while working for more than one
employer.” Metro. Stevedore Co. v. Crescent Wharf & Warehouse Co., 339 F.3d
1102, 1104 (9th Cir. 2003) (citing Cordero v. Triple A Machine Shop, 580 F.2d
1331 (9th Cir. 1978)); Stevedoring Servs. of Am. v. Dir., Office of Workers’ Comp.
Programs, 297 F.3d 797, 802 (9th Cir. 2002) (explaining that the rule assigns full
liability for occupational injuries to the last responsible insurance carrier as well as
the last responsible employer).
Here, the ALJ’s finding that Martin suffered a permanent disability only
after he began working in Afghanistan under Aegis/Allied’s coverage is supported
by substantial evidence. First, Martin was cleared for duty by his treating
physician prior to leaving for Afghanistan. Record evidence supports the ALJ’s
finding that Martin was able to perform his assigned duties and never missed a day
of work due to neck pain during his deployment. Moreover, Martin extended his
deployment on two occasions. From this evidence, the ALJ reasonably concluded
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that Martin’s condition when he was first deployed was manageable and did not
amount to a disability. Aegis/Allied’s suggestion that some record evidence tends
to show Martin had not fully recovered before arriving in Afghanistan does not
compel a different conclusion. See Glob. Linguist Sols., LLC v. Abdelmeged, 913
F.3d 921, 923 (9th Cir. 2019) (“Although other evidence in the record might
adequately support a different conclusion, that evidence does not negate or nullify
the substantial evidence supporting the ALJ’s conclusion.”). Accordingly, we
affirm the BRB ruling that Aegis/Allied was the last responsible carrier in this
case; the BRB did not err by rejecting Aegis/Allied’s argument for a concurrent
award.
2. The BRB implicitly considered and rejected Aegis/Allied’s argument that
Martin’s wages in Afghanistan were not representative of his wage-earning
capacity because he earned them by “extraordinary effort.” The premise of
Aegis/Allied’s argument is that Martin had suffered a permanent disability—i.e.
excruciating neck pain—prior to arriving in Afghanistan. The BRB rejected this
premise when it affirmed the ALJ’s finding that Martin did not arrive in
Afghanistan with a disability. As we explained, this conclusion was supported by
substantial evidence.
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3. The BRB did not err by denying Martin’s request to be reimbursed for the
costs of refinancing his home. Martin concedes that neither the Longshore Act nor
its implementing regulations expressly authorize reimbursement of this type of
expense for a carrier’s wrongful termination of benefits. Martin also concedes that
the money he borrowed on his home was not used to cover medical costs.
Nevertheless, Martin argues that he is entitled to reimbursement because such
recovery is consistent with the underlying policies of the Longshore Act.
In Foundation Constructors, we held that where the Director of Workers’
Compensation Programs construed the Longshore Act to permit ALJs to award
interest payments for unpaid disability benefits, such an interpretation was
reasonable and consistent with the Longshore Act’s goal of “fully compensating
workers for their valid claims.” Found. Constrs, Inc. v. Dir., Office of Workers
Comp. Programs, 950 F.2d 621, 625 (9th Cir. 1991) (citing Chevron, U.S.A., Inc.
v. Natural Resources Def. Council, Inc., 467 U.S. 837, 843 (1984)). Martin
analogizes his request for reimbursement to the award of post-judgment interest in
Foundation Constructors; he contends that reimbursement is necessary to dissuade
employers from wrongfully terminating or delaying benefits. We disagree.
The interest in Foundation Constructors was necessary to preserve the value
of unpaid awards over time, which directly serves the remedial purpose of the
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Longshore Act. Id. Here, Martin requests something beyond preserving the value
of benefits provided for by the statute. He asks that we hold employers responsible
for incidental financial consequences caused by delayed compensation. We do not
find evidence in the Longshore Act that Congress intended to provide such a
remedy and decline to read one into the text.
PETITIONS DENIED.
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