In 1987, Robert Carrion sustained a severe knee injury while working as a chassis mechanic for Matson Terminals, Inc.. Although Carrion returned to his physically demanding job and worked for the next fifteen years, his knee continued to deteriorate. He took early retirement in 2002, when his pain became so great that he could walk only with difficulty. After Carrion’s former employer ceased paying for treatment, he filed for disability under the Longshore and Harbor Workers’ Compensation Act.
By the time he filed his claims in 2008, Carrion had endured decades of persistent pain without any actual or expected improvement. His doctors unanimously concluded that he eventually would require total knee replacement surgery. Even though no surgery was on the horizon, his employer classified the injury as a temporary disability.
The Administrative Law Judge determined that “[a]t first blush, it seems [Carrion’s] injury is permanent,” and acknowledging that Carrion’s “condition has lasted for a long period of time,” the ALJ nevertheless concluded that Carrion’s disability was temporary. The ALJ reasoned that Carrion was contemplating knee replacement surgery, which his doctors agreed would likely alleviate his symptoms, and thus “medical improvement through the knee replacement was available” once “his pain became too much.” The ALJ noted, however, that if Carrion decided against surgery and opted to “live with the knee pain indefinitely, he would be found permanently disabled.”
The employer appealed the ALJ’s timeliness determination to the Benefits Review Board (“BRB” or “the Board”), and Carrion cross-appealed the ALJ’s finding that his disability was temporary. The BRB affirmed the ALJ on both issues. The 9th Circuit Court of Appeal granted the cross-appeal and found Carrion to be permanently disabled in the published case of SSA Terminals and Homeport Insurance Co. v Carrion.
One of the questions addressed by the 9th Circuit Court of Appeals is whether, after such a protracted period of disability, the prospect of a hypothetical future surgery and its anticipated benefits can transform an otherwise permanent disability into a temporary one for purposes of the Longshore Act.
The Longshore Act creates “two independent areas of analysis,” one assessing the nature, or duration, (temporary versus permanent) and the other the degree of the disability (partial versus total).Four separate disability categories stem from this framework: permanent total disability; temporary total disability; permanent partial disability; and temporary partial disability.Two of these qualifiers, permanent and temporary, “go to the nature of the disability.” The Longshore Act does not define “temporary” or “permanent,” although the classification issue arises on a continuing basis.
Courts have held that “[a] disability is temporary ‘so long as there [is] a possibility or likelihood of improvement through normal and natural healing.” Castro, 401 F.3d at 968 (quoting Stevens, 909 F.2d at 1259) (second alteration in original). A disability may become permanent if (1) a claimant reaches “maximum medical improvement” – the point at which “the injury has healed to the full extent possible” and normal and natural healing is no longer likely, Stevens, 909 F.2d at 1257 (citing Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir. 1968)); or (2) the condition has “continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period.” Watson, 400 F.2d at 654. The Watson test clarifies that “permanent” is not tantamount to “eternal” or “everlasting” and “does not foreclose the possibility that [the] condition may change.”
The 9th Circuit concluded that evaluating an individual’s condition based on the presumed effect of a theoretical future treatment makes scant sense – particularly in light of the “vicissitudes of the individual’s responsiveness to medical treatment.”