PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ITO CORPORATION OF BALTIMORE,
Petitioner,

v.

EDWARD F. GREEN; DIRECTOR, OFFICE
                                                                       No. 98-1972
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(97-1072)

Argued: April 9, 1999

Decided: July 23, 1999

Before WILKINSON, Chief Judge, and
WIDENER and KING, Circuit Judges.

_________________________________________________________________

Petition for review granted and award modified by published opinion.
Judge King wrote the opinion, in which Chief Judge Wilkinson and
Judge Widener joined.

_________________________________________________________________

COUNSEL

ARGUED: Stan Musial Haynes, SEMMES, BOWEN & SEMMES,
Baltimore, Maryland, for Petitioner. Andrew David Auerbach,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director; Bernard Jerome Sevel, SEVEL & SEVEL,
P.A., Baltimore, Maryland, for Respondent Green. ON BRIEF: Mar-
vin Krislov, Deputy Solicitor for National Operations, Carol A. De
Deo, Associate Solicitor for Employee Benefits, Janet R. Dunlop,
Counsel for Longshore, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

OPINION

KING, Circuit Judge:

ITO Corporation of Baltimore petitions for review of the final
Decision and Order of the Benefits Review Board (BRB) awarding
disability benefits to the respondent, Edward F. Green, who was
employed by ITO as a longshore worker.1 The question presented for
our review concerns the proper measure of benefits under Section 8(c)
of the Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. §§ 901-950, where an eligible claimant has
been partially but permanently disabled by each of two injuries sus-
tained to different parts of his or her body.

The combined weekly benefit awarded by the BRB to Green in
compensation for his independently disabling ankle and shoulder inju-
ries exceeded the amount to which he would have been entitled had
he been totally disabled. We agree with ITO that such a result is illog-
ical, especially as a less onerous alternative exists that fairly and fully
compensates Green for the entirety of his injuries. We therefore grant
the petition for review and modify the benefit award as explained
below.
_________________________________________________________________

1 See 33 U.S.C. § 921(c) (providing for review of final orders of the
BRB "in the United States court of appeals for the circuit in which the
injury occurred"). The Director of the Office of Workers' Compensation
Programs for the Department of Labor participates in this appeal as co-
respondent, pursuant to Fed. R. App. P. 15(a)(2)(B).

                   2
I.

On May 14, 1983, Green fell about fifteen feet from a cargo con-
tainer onto the deck of a ship, fracturing his left ankle and left shoul-
der. ITO paid for Green's hospital stay and subsequent recovery, and
it also paid him a weekly benefit for the duration of his temporary
total disability.2

Though recompensed for the transitory effects of the accident,
Green was entitled to additional compensation for the lasting attenua-
tion of his physical abilities. Accordingly, Green filed a claim with
the Department of Labor under Section 8(c) of the LHWCA, seeking
benefits for "disability partial in character but permanent in quality."
33 U.S.C. § 908(c).

ITO timely controverted its liability for the claim, see 20 C.F.R.
§ 702.251, and the matter came on for hearing before an Administra-
tive Law Judge (ALJ). Upon considering the medical and other evi-
dence submitted by the parties, the ALJ concluded that Green had
suffered a 15% permanent disability to his shoulder, and a 25% per-
manent disability to his ankle, "such disability prevent[ing] the
Claimant from returning to his job as a longshoreman." ALJ's Deci-
sion and Order of July 22, 1987.

On a subsequent remand from the BRB, the ALJ clarified that,
even absent the ankle injury, Green would have been foreclosed from
engaging in his former work:

           The Employer argues that the . . . injury to Claimant's
           shoulder does not cause Claimant to be disabled when con-
           sidered alone. However, . . . the evidence of record fails to
           establish that Claimant can return to his previous job on the
_________________________________________________________________
2 See 33 U.S.C. § 907(a) (employer must supply "such medical, surgi-
cal, and other attendance or treatment, nurse and hospital service, medi-
cine, crutches, and apparatus, for such period as the nature of the injury
or the process of recovery may require"); 33 U.S.C. §§ 904(a), 908(b)
(imposing liability on employer to pay compensation for temporary total
disability at a rate of two-thirds the affected employee's average weekly
wage).

                     3
          basis of such a disability. . . . Accordingly, . . . I find that
          Claimant has sustained a partial permanent disability based
          on his shoulder injury.

ALJ's Decision and Order on Remand of May 29, 1991, at 7-8. The
problem remained of how to fairly compensate Green for the partial
loss of function in both his ankle and his shoulder.

II.

A.

Section 8(c) of the LHWCA contains a schedule of benefits pay-
able for the permanent physical deprivation of specific parts or attri-
butes of the body. See 33 U.S.C. § 908(c)(1)-(12) (pertaining to the
loss of arms and legs, the lesser appendages, and eyes), (c)(13) (relat-
ing to the loss of hearing in one or both ears); see also § 908(c)(18)
(providing that "[c]ompensation for permanent total loss of use of a
member shall be the same as for loss of the member"). The compensa-
tion for the particular disability is expressed in terms of payment for
a fixed number of weeks at a rate of two-thirds the claimant's average
weekly wage at the time of the injury.

The complete loss (or loss of use) of a foot, for example, entitles
the claimant to receive the prescribed rate for a 205-week period.
§ 908(c)(4). Where the loss is incomplete, however, the duration of
the award is proportionately reduced. § 908(c)(19). The parties do not
dispute that, in Green's case, the 25% permanent disability to his
ankle requires ITO to pay him two-thirds of his average wage for
51.25 weeks. Inasmuch as Green was earning $599 per week at the
time of his injury, the weekly benefit is approximately $400.

Calculating the compensation due Green solely as the result of his
shoulder disability is only slightly more complex. Section 908(c)(21)
is the "catch-all" provision pertaining to disabilities not included
within the schedule:

          In all other cases in the class of disability, the compensation
          shall be 66-2/3 per centum of the difference between the

                     4
          average weekly wages of the employee and the employee's
          wage-earning capacity thereafter in the same employment or
          otherwise, payable during the continuance of partial disabil-
          ity.

Green's post-injury wage-earning capacity was determined to be $305
per week. ALJ's Decision and Order on Remand of May 29, 1991, at
6-7. As this figure represents a decrease of nearly $300 from Green's
average weekly wage at the time of his injury, the proper compensa-
tion for Green's shoulder disability is just short of $200 per week.3
_________________________________________________________________
3 Although the ankle disability appears at first to be "worth" more than
the shoulder disability, the discrepancy evaporates with the passage of
time. The duration of the award for the ankle is finite, resulting in benefit
payments totaling about $20,000 (51.25 weeks x $400/week). By con-
trast, the compensation for Green's shoulder injury is, by the terms of
§ 908(c)(21), "payable during the continuance of partial disability." At an
approximate weekly rate of $200, the total benefits received by Green for
his shoulder disability will exceed those for his ankle disability to the
extent that the payments for the former continue in excess of two years.

This odd result is, of course, attributable to the apples-and-oranges
approach taken by the statute depending on whether a particular disabil-
ity is one within the schedule or is instead "non-scheduled." The pre-
sumed effect of scheduled disabilities on a claimant's wage-earning
capacity has been set by Congress within a fairly narrow range. Benefits
are payable for a specific duration regardless of the actual impact of the
disability on the claimant's prospects of returning to longshore (or any
other) work. Thus, a claimant is entitled to compensation for anywhere
from 15 weeks (for losing a ring finger) to 312 weeks (for losing an
entire arm), without having to prove the deleterious effect, if any, of the
injury on his or her potential to earn income.

Conversely, when the disability is to the shoulder, back, or other non-
scheduled area, the claimant is required by § 908(c)(21) to show a dimin-
ished capacity to earn wages. Metropolitan Stevedore Co. v. Rambo, 515
U.S. 291, 297 (1995) ("For these nonscheduled injuries . . . loss of wage-
earning capacity is an element of the claimant's case, for without the
statutory presumption that accompanies scheduled injuries, a claimant is
not `disabled' unless he proves `incapacity because of injury to earn the
wages.'") (citations omitted). Once the claimant has satisfied this burden,
however, the extra difficulty incurred in proving the claim is rewarded
by the conferment of benefits payable for an indefinite period.

                     5
B.

The BRB, considering the matter for the third time, finally con-
cluded that Green was entitled to concurrent payments for his ankle
and shoulder disabilities, i.e., $600 per week for 51.25 weeks and
$200 per week thereafter. Green v. I.T.O. Corp. of Baltimore, 32
BRBS 67, 70 (1998).4 Under this payment scheme, the benefits dis-
bursed by ITO during the first year would be roughly equivalent to
Green's earnings at the time of his accident.

The Director maintains that the BRB's approach to compensating
Green for his permanent partial disabilities cannot be logically recon-
ciled with the LHWCA's limitation of payments for permanent total
disability to two-thirds of the claimant's average weekly wage. See 33
U.S.C. § 908(a). By the terms of the statute, had Green been totally
disabled by the injuries he sustained in the fall, he could never have
_________________________________________________________________

Depending on one's point of view, this approach could reasonably be
seen as either tending to overcompensate claimants with non-scheduled
disabilities, or as under compensating those receiving payments pursuant
to the schedule. Nonetheless, despite its inevitable inequities and the
unwieldiness of its application, this aspect of the system apparently func-
tions in the manner intended by Congress, as evidenced by its being left
essentially undisturbed since its enactment in 1927.
4 The BRB in Green vacated the ALJ's Decision and Order on Second
Remand insofar as it had reduced the award for Green's shoulder disabil-
ity by half -- to $100 per week -- on the theory that Green's ankle dis-
ability contributed equally to his loss of wage-earning capacity. As the
BRB pointed out, the reasoning of the ALJ (the second one to have con-
sidered the claim) was flawed in light of his predecessor's earlier finding
that either disability standing alone would have prevented Green from
returning to his former employment: "There is no danger of double
recovery . . . if claimant's shoulder injury alone could cause the entire
loss in wage-earning capacity." Green, 32 BRBS at 70.

Certainly, ITO is not permitted to avoid compensating Green fully for
his shoulder disability merely because he also happened to suffer a debil-
itating ankle injury. Green's award for his shoulder disability cannot be
reduced in the face of a finding that he would be no better off financially
had he never injured his ankle.

                    6
received more than $400 in compensation in any single week. It
makes little sense, the Director contends, to compel ITO to pay com-
pensation at a greater rate for a less serious occurrence.

We are persuaded by the Director's argument. In no case should
the rate of compensation for a partial disability, or combination of
partial disabilities, exceed that payable to the claimant in the event of
total disability. To hold otherwise would be to conclude that the
whole may be less than the sum of its parts, and we are fairly certain
that -- although our authority extends to a myriad of matters -- we
are without jurisdiction to repeal the laws of mathematics.5

One solution to the problem, suggested by the Director, is to run
the awards consecutively. Under this approach, Green would receive
his maximum weekly benefit of $400 for the first 51.25 weeks of the
award period, and $200 per week thereafter. Indeed, in cases where
a claimant has sustained more than one injury listed in the schedule,
the LHWCA specifies that the awards are to run consecutively.
See § 908(c)(22) (stating the general rule of consecutive awards, but
excepting situations involving permanent total disability or otherwise
covered by § 908(c)(17), see note 5, supra).

The Director's proposed solution is imperfect, however, insofar as
it fails to pay anything to Green in compensation for the disability to
his shoulder during the first year of the award period. Green has dem-
onstrated his entitlement to benefits for his shoulder, and there is
nothing in the LHWCA that authorizes us to permanently deprive him
of a year's worth of those payments. In fact, as we have noted above,
§ 908(c)(21) specifically states that benefits for non-scheduled inju-
ries are "payable during the continuance of partial disability." We can
only construe the words "during the continuance" to mean that Green
must be paid compensation for the disability to his shoulder from the
beginning of the award period.
_________________________________________________________________

5 A useful analogue may be found in § 908(c)(17), which provides that
"[c]ompensation for loss of two or more digits, or one or more phalanges
of two or more digits, of a hand or foot may be proportioned to the loss
of use of the hand or foot occasioned thereby, but shall not exceed the
compensation for loss of a hand or foot" (emphasis added).

                     7
Because Green is entitled to approximately $200 per week in com-
pensation for his shoulder disability from the commencement of the
award period, and because his total weekly benefit cannot exceed
$400, it follows that he may be paid a maximum of $200 per week
in compensation for his ankle disability -- half the rate specified by
the BRB. Consequently, in order to ensure that the benefit for the
ankle disability is paid in full, the payment period for this disability
must be doubled from 51.25 weeks to 102.5 weeks. This approach
fairly compensates Green for both of his injuries, and is consistent
with the letter and intent of the applicable law.

III.

The petition for review is granted, and the award of benefits is
modified to reflect the foregoing discussion. Green shall be paid one-
third of his average weekly wage for 102.5 weeks in compensation for
his ankle disability, and two-thirds of the diminution in his wage-
earning capacity in compensation for his shoulder disability, for the
continuance of that disability.

PETITION FOR REVIEW GRANTED AND AWARD MODIFIED

                     8
