Keenan v. Director for Benefits Review Board

392 F.3d 1041 (2004)

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Keenan v. Director for Benefits Review Board

United States Court of Appeals for the Ninth Circuit
392 F.3d 1041 (2004)

Facts

Kevin Keenan (plaintiff) suffered a shoulder injury while employed as a longshoreman by Eagle Marine Services (Eagle). Keenan experienced a period of temporary total disability, and after reaching maximum medical improvement, Keenan remained permanently partially disabled. Keenan temporarily returned to work as a longshoreman under medical restrictions that required him to refrain from heavy or repetitive overhead work and later accepted a clerical position with Eagle that he could perform without restrictions. Keenan earned more in the clerical job than he did as a longshoreman. Keenan filed a claim for benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (act) for permanent partial disability to his arm. In the alternative, Keenan argued that he was entitled to unscheduled benefits for permanent partial disability as defined by economic loss. The administrative-law judge (ALJ) determined that the shoulder injury was unscheduled but that Keenan was not entitled to unscheduled benefits because he had not suffered a loss in postinjury earning capacity. Instead, the ALJ entered a de minimis or nominal award of one dollar per week, plus medical benefits and attorney’s fees. Both parties appealed, and the benefits review board (board) (defendant) affirmed except for the nominal award and attorney’s fees, which the board remanded for reconsideration. On remand, Keenan argued that he lost earning capacity because his impairment forced him to pass up a promotion to foreman. The ALJ denied the new claim as well as the renewed claim for the nominal award and declined to reinstate the attorney’s-fee award. The board affirmed, and Keenan appealed.

Rule of Law

Issue

Holding and Reasoning (Goodwin, J.)

Concurrence/Dissent (Tallman, J.)

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