Pacific Ship Repair v. OWCP

“[A]n employee who has a permanent partial disability may be reclassified as temporarily totally disabled during a recovery period following surgery.”

Deborah Benge, a former employee of Pacific Ship Repair and Fabrication Inc. (“Pacific”), was injured while working as a ship foreman. Benge’s injury flowed from a pre-existing injury. After four months, Benge resumed employment with Pacific as a clerk. Benge sought compensation for her work-related injury under the Longshore and Harbor Workers’ Compensation Act (the “Longshore Act”). The administrative law judge (“ALJ”) awarded her partial permanent disability, and Pacific was to pay all of the disability payments for two years until 2002. After 2002, the Office of Workers’ Compensation Programs (“OWCP”) took over the payments until 2007, when Benge had surgery to address the injury. Though the doctor believed Benge would be able to return to work, she was unable to do so and became totally disabled. The ALJ, interpreting a “period of healing” as indicating a temporary disability, assigned Pacific liability for Benge’s temporary total disability for her nine months of healing following the surgery. Pacific appealed the reclassification of Benge’s injury. Under the Longshore Act, a disabled worker’s employer is required to pay all compensation, except when a pre-existing injury contributes to post-injury permanent disability. Under § 8f of the Longshore Act, if a pre-existing injury was involved in a post-injury permanent disability, an employer’s liability is limited to two years after which the OWCP undertakes the payments. Pacific argued that Benge’s disability status should remain permanent, because the surgery was not expected to change the disability. However, the ALJ found that the period of healing is characteristic of a temporary disability. The Court held that an earlier finding of a permanent disability does not preclude the possibility that circumstances will change and that the disability will later become temporary. AFFIRMED.