In a recent decision, the U.S Court of Appeals for the Ninth Circuit has linked itself with the reasoning of the U.S Court of Appeals for the Fourth Circuit with respect to post-retirement disability claims under the Longshore and Harbor Workers’ Compensation Act (LHWCA). In Christie v. Georgia-Pacific Co., 2018 U.S. App. LEXIS 21447, 2018 WL 3650819 (9th Cir., Aug. 2, 2018), the Ninth Circuit was presented with an a worker who injured his back in 1999. Following surgery in 2004, the worker returned to his employer at a less strenuous position. Following a change in his employer’s retirement benefits scheme, the injured worker took early retirement in December 2010. However, the worker continued to pursue medical care for his back, ultimately pursuing pain management through December 3, 2012, when he was restricted from work by his pain management physician. Thereafter, the injured worker filed a claim for permanent and total disability benefits under the LHWCA.
At hearing in front of the Administrative Law Judge, the worker testified that while part of the reason he retired early was for economic benefit, he also was forced to retire due to his back pain. The employer did not show any presence of suitable alternative employment, arguing the worker’s retirement, not any injury, caused his inability to earn his usual wages. The Administrative Law Judge awarded benefits, which the Benefits Review Board reversed, relying on its reasoning in Moody v. Huntington Ingalls, Inc., 50 Ben Rev. Bd. Serv. 9 (2016), that as the injured worker’s inability to earn wages was due to retirement, and not an injury, he was not entitled to benefits under the LHWCA. Following the Board’s decision, the Fourth Circuit reversed the decision in Moody, determining that retirement does not preclude the existence of a disability under the LHWCA. Moody v. Huntington Ingalls, Inc., 879 F.3d 96 (4th Cir. 2018).
On appeal, the Ninth Circuit in Christie reversed the Board’s decision and awarded benefits. The Court found the reversal of Moody persuasive, while determining that retirement status alone, in and of itself, is not dispositive in determining disability. A strict interpretation of 33 U.S.C. §902(10), which defines disability, does not reference any decision of an employee to retire. As such, retirement alone does not prevent a claim for benefits. Here, the worker showed an inability to return to his usual employment because of his continuing back pain and that his retirement was not based on economic factors alone. The employer could not offer any employment to the injured worker within his 2012 physical limitations, nor could it show any availability of suitable alternative employment. The Court thus awarded permanent and total disability benefits.
At first glance, this decision appears unsettling for employers. However, it is important to note that while employees can file a claim for disability benefits post-retirement, they must still prove that a current disability (and not the unwillingness to return to the labor force), prevents them from returning to his prior employment. If the employee accomplishes that burden, the employer must prove availability of suitable alternative employment. Thereafter, it would appear the employee could have an uphill battle showing a diligent search for employment based on his retirement status. Further, several circuit courts who have a significant history with respect to LHWCA claims, including the Second, Fifth, and Eleventh circuits, have yet to rule on this issue. There is a significant chance for a circuit split on this issue, requiring employers to watch for developments in their jurisdiction. Nevertheless, it is important that all employers with workers who fall under the jurisdiction of the LHWCA, the Outer Continental Shelf Lands Act, and the Defense Base Act understand that there is a trend in at least two circuit courts that retirement in and of itself does not prevent disability claims.