                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-1698


HUNTINGTON INGALLS INDUSTRIES, INC., f/k/a Northrup Grumman
Shipbuilding, Inc.,

                Petitioner,

           v.

RICKY N. EASON; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(13−0573)


Argued:   March 25, 2015                     Decided:   June 2, 2015


Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition granted by published opinion. Senior Judge Hamilton
wrote the opinion, in which Judge Niemeyer and Judge Floyd
joined.


ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK,
PC, Newport News, Virginia, for Petitioner.   Matthew W. Boyle,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Gregory
Edward Camden, MONTAGNA, KLEIN, CAMDEN, LLP, Norfolk, Virginia,
for Respondents.   ON BRIEF: M. Patricia Smith, Solicitor of
Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter,
Counsel for Longshore, Gary K. Stearman, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Federal Respondent.




                             - 2 -
HAMILTON, Senior Circuit Judge:

     Huntington     Ingalls      Industries,         Inc.    (HI)    petitions     for

review of the May 16, 2014 decision of the Benefits Review Board

(BRB) upholding the August 16, 2013 decision of Administrative

Law Judge (ALJ) Daniel Sarno, Jr. (Judge Sarno) granting the

claim of Ricky Eason (Eason) for temporary partial disability

under the Longshore and Harbor Workers’ Compensation Act (LHWCA

or the Act), 33 U.S.C. §§ 901-950. 1               For the reasons that follow,

we grant the petition for review and remand the case to the BRB

to enter an order dismissing Eason’s claim for temporary partial

disability under the LHWCA.



                                          I

                                          A

     The   LHWCA     establishes      a       federal     worker’s      compensation

system for employees injured, disabled, or killed in the course

of   covered    maritime       employment.          See     generally    id.    § 907

(medical   services      and    supplies      to    treat    injury),     id.    § 908

(compensation      for   disability),         id.    § 909     (compensation      for

     1
        Eason’s filing of his disability claim brought the
Director of the Office of Workers’ Compensation Programs (OWCP),
United States Department of Labor (the Director) into the case
as an interested party. Cf. Ingalls Shipbuilding, Inc. v. Dir.,
OWCP, 519 U.S. 248, 262–70 (1997) (holding that the Director may
appear as respondent in the courts of appeals when review is
sought of a BRB decision).



                                     - 3 -
death).         Like    other         worker’s    “compensation             regimes--limited

liability for employers; certain, prompt recovery for employees-

-the    LHWCA    requires        that    employers          pay    [disability]         benefits

voluntarily,           without         formal      administrative               proceedings.”

Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1354 (2012);

see also 33 U.S.C. § 904 (“Every employer shall be liable for

and     shall    secure      the        payment        to     his      employees         of        the

compensation payable under sections 907, 908, and 909 of this

title.”).

        The   LHWCA     defines        “[d]isability,”            in   pertinent        part,       as

“incapacity      because         of    injury     to    earn       the      wages     which        the

employee was receiving at the time of injury in the same or any

other    employment.”             33     U.S.C.    §     902(10).              Four    different

categories      of     disabilities        are    set       forth      in    the      LHWCA:       (1)

permanent total disability; (2) temporary total disability; (3)

permanent       partial       disability;          and        (4)        temporary       partial

disability.       Id. § 908(a)–(c), (e).

        No standard is set forth in the LHWCA to determine the

degree of a disability (total or partial) or the duration of a

disability (permanent or temporary).                         Because disability under

the LHWCA is an economic concept, see Metro. Stevedore Co. v.

Rambo, 515 U.S. 291, 297 (1995) (“Disability under the LHWCA,

defined in terms of wage-earning capacity . . . , is in essence

an     economic,       not   a    medical,        concept.”),            the    degree        of    a

                                            - 4 -
disability         cannot    be        measured     by     medical         condition     alone,

Nardella      v.    Campbell       Mach.       Inc.,     525    F.2d    46,   49     (9th   Cir.

1975).        Consideration            must    be   given      to    the    claimant’s      age,

education, experience, mentality, ability to work as well as the

extent of the physical injury, and the availability of suitable

alternative employment.                  Fleetwood v. Newport News Shipbuilding

& Dry Dock Co., 776 F.2d 1225, 1227 n.2 (4th Cir. 1985).                                    With

regard    to    duration,          a    claimant       remains       temporarily       disabled

until    he    reaches      “maximum          medical     improvement.”             Stevens   v.

Dir.,    OWCP,      909     F.2d       1256,    1259     (9th    Cir.      1990).      Maximum

medical improvement marks the time where “normal and natural

healing is no longer likely” to occur.                               Pac. Ship Repair &

Fabrication Inc. v. Dir., OWCP [Benge], 687 F.3d 1182, 1185 (9th

Cir.    2012)      (citation        and       internal    quotation         marks    omitted).

Thus, the “maximum medical improvement date ‘triggers a change

in the classification of a claimant’s disability from temporary

to permanent.’”             Id. (quoting Haw. Stevedores, Inc. v. Ogawa,

608 F.3d 642, 653 (9th Cir. 2010)).

         Which of the four categories of disability the claimant

falls in dictates the amount of compensation paid to him by his

employer.          A permanently totally disabled employee is entitled

to weekly compensation amounting to two-thirds of his pre-injury

average       weekly      wage     for    as     long    as     he   remains       permanently

totally disabled.            33 U.S.C. § 908(a); Roberts, 132 S. Ct. at

                                               - 5 -
1354.     The compensation payable for a temporary total disability

remains     fixed        at      that     two-thirds          figure,             while     weekly

compensation       for       a   permanent       total       disability            is     annually

adjusted to reflect increases to the national average weekly

wage.   33 U.S.C. § 910(f).

     The        LHWCA       recognizes     two       types     of       permanent          partial

disability.       One, commonly referred to as “unscheduled” or “non-

scheduled” compensation, is based on the employee’s actual loss

of   wage-earning            capacity     and,       like      total         disability,          is

compensated        at       two-thirds     of        the     difference            between       the

employee’s average weekly wage at the time of injury and his

post-injury       wage-earning          capacity.           Id.     §   908(c)(21).              The

other, commonly referred to as “scheduled” compensation, covers

specified       body    parts,     and    pays       a     fixed    number         of    weeks    of

compensation       at       two-thirds    of     the       employee’s         average       weekly

wage.      Id.    § 908(c)(1)-(17),            (20).         These      scheduled          amounts

compensate       for    a    presumed     (not       actual)       loss      of    wage-earning

capacity.        Korineck v. Gen. Dynamics Corp. Elec. Boat Div., 835

F.2d 42, 43-44 (2d Cir. 1987).                   For example, the loss of a leg

under     the     schedule       entitles        a       claimant       to    288        weeks    of

compensation       at       two-thirds    of     his       average      weekly          wage.     33

U.S.C. § 908(c)(2).              For a partial loss of the use of a leg,

which includes knee injuries, the number of weeks is multiplied

by the percentage of loss.                Id. § 908(c)(19).                  Thus, a claimant

                                           - 6 -
with a 50% loss of the use of his leg would receive compensation

for 144 weeks.      Notably, a claimant who is permanently partially

disabled    due    to     a     scheduled       injury     cannot    choose       to   be

compensated for his actual loss of wage-earning capacity under

§ 908(c)(21),      even    though       the    compensation     under     § 908(c)(21)

potentially may be greater than the compensation paid under the

schedule.    See Potomac Electric Power Co. [PEPCO] v. Dir., OWCP,

449 U.S. 268, 270-71 (1980) (holding that a claimant who was

permanently partially disabled due to a scheduled injury could

not choose to be compensated for his actual loss of wage-earning

capacity under § 908(c)(21) rather than being compensated for

his loss as provided by the schedule).

      Compensation        for       temporary    partial    disability       is    “two-

thirds of the difference between the injured employee’s average

weekly wages before the injury and his wage-earning capacity

after the injury in the same or another employment.”                        33 U.S.C.

§ 908(e).         Under       the     LHWCA,    temporary       partial     disability

compensation cannot be paid for a period longer than five years.

Id.

      Once the claimant is classified in a particular disability

category,    he    need    not       necessarily       remain   in   such    category.

Benge, 687 F.3d at 1185.              This is so because permanent/temporary

and total/partial are fluid concepts and not “cast in stone.”

Id.   at   1186.        Reclassification          of   a   disability      requires     a

                                          - 7 -
showing of a “change[] [in] circumstances.”                     Id. at 1185; see

also 33 U.S.C. § 922 (providing that, with certain time limits,

“on the ground of a change in conditions . . . , the deputy

commissioner may . . . , whether or not a compensation order has

been issued . . . , review a compensation case . . . [and] issue

a    new    compensation     order      which      may    terminate,        continue,

reinstate,    increase,      or   decrease       such    compensation,       or   award

compensation”).        For      example,     a    claimant      with    a    permanent

partial disability may become permanently totally disabled or

temporarily totally disabled if his injury worsens and renders

him permanently or temporarily totally disabled.                      See Benge, 687

F.3d   at    1185-87   (holding       that    permanent      partial        disability

claimant became temporarily totally disabled following surgery

to treat injury).        Likewise, a claimant with a permanent total

disability may be reclassified to having a permanent partial

disability if suitable alternative employment becomes available.

See Stevens, 909 F.2d at 1259-60 (holding that a permanent total

disability     changes     to     a   permanent     partial      disability       when

suitable alternative employment becomes available to claimant).

It is also possible that a disability deemed permanent and total

or   permanent   and     partial      may    improve     “due    to    a    remarkable

recovery, advances in medical science, or other reasons” such

that the claimant may be recharacterized as temporarily totally



                                       - 8 -
disabled or temporarily partially disabled.                   Benge, 687 F.3d at

1185.

                                      B

      On September 28, 2008, Eason injured his right knee while

employed as a pipe fitter at Newport News Shipbuilding and Dry

Dock Company (NNS) in Newport News, Virginia. 2                  He went to the

medical clinic at NNS on October 1, 2008, complaining of pain in

his right knee.     The injury, which was diagnosed on October 14,

2008 as a torn meniscus requiring surgery, kept Eason completely

out of work from October 2, 2008 through June 28, 2009.                         As a

result, HI paid Eason temporary total disability benefits for

this period.

      On June 29, 2009, Eason returned to work at NNS full-time

as a pipe fitter.      On September 23, 2009, Eason was evaluated at

Tidewater   Physical    Therapy     and    given     a    14%   lower   extremity

permanent   impairment    rating.         Sometime       in   October   2009,    Dr.

David Hoang (Dr. Hoang), Eason’s treating orthopedic surgeon,

“signed off” on the 14% rating, and, thus, Eason reached maximum

medical improvement for purposes of determining his eligibility

for   permanent   partial   disability       compensation.          (J.A.   180).

Based on the 14% lower-extremity permanent impairment rating, HI

      2
       At the time of Eason’s injury, NNS was owned by Northrop
Grumman Shipbuilding, Inc. (NGS).    In 2011, HI purchased NNS
from NGS. For ease of reference, we will refer to NGS as HI.



                                    - 9 -
paid Eason from October 16, 2009 through May 17, 2010, and from

May 19, 2010 through July 25, 2010, 40.28 weeks of scheduled

compensation for permanent partial disability at $992.29 (two-

thirds of his pre-injury average weekly wage of $1,488.43) per

week.       See 33 U.S.C. § 908(c)(2) (loss of leg provides 288 weeks

of   scheduled         compensation);    id.   § (c)(19)     (permanent      partial

loss       “may   be   for   proportionate     loss   or   loss   of   use   of   the

member”). 3       Thus, for approximately seven months, Eason received

scheduled permanent partial disability compensation in addition

to his regular weekly salary for performing his duties as a pipe

fitter at NNS.

        Eason continued to work full-time as a pipe fitter through

May 17, 2010.           On May 18, 2010, Eason met with Dr. Hoang and

reported that “his left knee was acting up on him and his right

knee was getting stiff intermittently, especially after sitting

for awhile.”           (J.A. 180).      Dr. Hoang noted “mild soreness” in

the right knee and “tenderness” in the left knee, (J.A. 83), and

he put Eason on light duty restrictions for both knees.                       These




       3
       HI paid 40.28 weeks of compensation for the scheduled
injury, rather than 40.32 weeks (288 weeks x .14 = 40.32 weeks).
Although the record under review is unclear as to why the
difference exists, it may well be because HI paid an intervening
day (May 18, 2010) of compensation for temporary total
disability. In any event, the .04 difference is not at issue in
this appeal.


                                        - 10 -
light    duty    restrictions      prevented       Eason       from    performing    his

duties as a pipe fitter.

        On his June 3, 2010 visit with Dr. Hoang, Eason reported

that his left knee “still hurts” and that his right knee was

“improving.”       (J.A. 83).       Dr. Hoang advised Eason to “continue

with the same work restrictions.”                   (J.A. 84).          On July, 16,

2010, Eason reported to Dr. Hoang that his right knee was “doing

well” but the left knee was “grinding.”                      (J.A. 84).        Dr. Hoang

directed Eason to “continue with the light duty [restrictions].”

(J.A. 85).       Over the next month, Eason’s condition improved, and

he returned to work full-time as a pipe fitter at NNS on August

10, 2010.

     Between May 19, 2010 and August 9, 2010, NNS did not offer

Eason     light-duty      employment       within       his     restrictions.         In

addition,       during    this    period,       Eason    did    not     seek    suitable

alternative employment within the relevant labor market.

                                            C

     Eason      brought    a     claim    against       HI    for     temporary    total

disability or, alternatively, temporary partial disability for

the May 19, 2010 through August 9, 2010 time period.                       In support

of his claim, Eason argued that during this time period he “was

not at maximum medical improvement.”                     (J.A. 13).        He posited

that he was “undergoing ongoing medical treatment” and “under

temporary [work] restrictions.”                 (J.A. 13).      Because no suitable

                                         - 11 -
alternative employment was available, he argued he was entitled

to   temporary      total    disability        compensation.        Alternatively,

Eason argued that, even if HI’s alternative employment data were

entitled to “any weight,” he was entitled to temporary partial

disability compensation because his pre-injury salary exceeded

the salary of any alternative employment available.                      (J.A. 13).

Eason posited that, even though he received scheduled permanent

partial     disability      compensation        for    his   knee    injury,     such

compensation       did     not   prevent       the    recovery      of   additional

compensation for a temporary partial disability due to a flare

up of that injury.           In response, HI argued that Eason reached

maximum    medical       improvement    in     October   2009.      Because    Eason

reached maximum medical improvement at that time and received

permanent partial disability compensation under the schedule, HI

posited that he was not entitled to any additional temporary

compensation--either total or partial--under the Supreme Court’s

decision     in    PEPCO.        HI     stressed      that   Eason’s      scheduled

compensation for his knee injury presumed his actual loss of

wage-earning capacity for that injury, such that any temporary

compensation (total or partial) sought for a flare up of that

injury    already    was     covered     by    the    payments   made    under   the

schedule.

      A   hearing    was     held     before    ALJ   Richard    Malamphy      (Judge

Malamphy).        In his decision, Judge Malamphy found that Eason

                                        - 12 -
reached maximum medical improvement in October 2009.                               He also

found     that   the    evidence       did     not    support       Eason’s       claim    of

temporary total disability.                  With regard to temporary partial

disability, relying on the Supreme Court’s decision in PEPCO,

Judge Malamphy ruled that Eason’s disability compensation for

his   knee    injury     was    limited       to    the    amount       required    by    the

schedule.        He    explained       that    “[t]he       Act    presumes       that    the

scheduled award fully compensates claimant for any loss in wage-

earning capacity” and, “[t]herefore, any temporary loss of wage

earning      capacity     Claimant       suffered          is     not    compensable      in

addition to the scheduled award.”                    (J.A. 184).         In other words,

Judge     Malamphy      held    that     the       scheduled       compensation       award

compensated Eason for his knee injury and that Eason was not

entitled to additional compensation for any temporary partial

loss of wage-earning capacity for that same injury.

        On appeal, the BRB vacated Judge Malamphy’s decision.                             The

BRB affirmed Judge Malamphy’s finding that Eason reached maximum

medical improvement in October 2009.                       The BRB ruled, however,

that this finding did not preclude the recovery of temporary

partial      disability        compensation          for    Eason’s        knee     injury.

Referring to language in PEPCO that states “that a scheduled

injury can give rise to an award for permanent total disability”

and that “once it is determined that an employee is totally

disabled the schedule becomes irrelevant,” 449 U.S. at 277 n.17,

                                        - 13 -
the BRB found that “the fact that permanent partial disability

benefits were fully paid under the schedule is not determinative

of   a    claimant’s      entitlement       thereafter       to   permanent     total,

temporary        total,   or    temporary     partial    disability       benefits.”

(J.A. 188-89).        Consequently, the BRB remanded the case to the

ALJ to determine whether Eason’s work restrictions from May 19,

2010 through August 19, 2010 prevented him from performing his

usual work.         If they did, the BRB stated, Eason would have

established a prima facie case of temporary total disability.

See Newport News Shipbuilding & Dry Dock Co. v. Dir., OWCP, 315

F.3d 286, 292 (4th Cir. 2002) (noting that an LHWCA “claimant

must     first    establish    a   prima    facie    case    by     demonstrating   an

inability to return to prior employment due to a work-related

injury”).        The burden would then shift to HI to establish the

availability of suitable alternative employment that Eason was

capable     of     performing.        See    id.    (outlining       burden   shift).

According to the BRB, HI could meet its burden by showing that

suitable alternative employment was available to Eason in the

relevant labor market.             See id. at 293 (noting that an employer

meets its burden by demonstrating, inter alia, that suitable

alternative        employment      was   available      in    the    relevant    labor

market).     Thus, on remand, the BRB required the ALJ to determine

if HI met its burden, such that its obligation to pay disability

benefits would be reduced or eliminated.                     See id. (“Under our

                                         - 14 -
precedent, if the employer meets its burden, its obligation to

pay disability benefits is either reduced or eliminated, unless

the       disabled      employee     shows        that    he    diligently       but

unsuccessfully         sought   appropriate       employment.”    (citation       and

internal quotation marks omitted)).

      On remand, the case was reassigned to Judge Sarno.                        Judge

Sarno found that Eason was not able to return to his usual work

from May 19, 2010 through August 9, 2010.                  However, Judge Sarno

found     that    HI   had    established    the    availability    of     suitable

alternative employment for 32 hours per week at $7.25 per hour.

Judge     Sarno    concluded     that     Eason    was    temporarily    partially

disabled from May 19, 2010 through August 20, 2010 and entitled

to    compensation       of     $845.82    per     week    (two-thirds     of    the

difference between $1,488.43 per week, Eason’s average weekly

wage at the time of the injury, and $219.70 per week, Eason’s

residual     wage-earning       capacity    based    on   the   national    average

weekly wage in 2008, the year of Eason’s injury). 4


      4
       Judge Sarno noted that HI had established that Eason had a
wage-earning capacity under § 908(e) of $232.00 per week in
2010. This amount was adjusted downward to $219.70 per week in
order to account for inflation between 2008 and 2010.         See
Walker v. Wash. Metro. Area Transit Auth., 793 F.2d 319, 321 n.2
(D.C. Cir. 1986) (“In order to make a fair comparison between
wages, the Board looks to the amount the post-injury job paid at
the time of the claimant’s injury.     This allows the Board to
compare the wages without worrying about the effect of
inflation.”); Quan v. Marine Power & Equip. Co., 30 BRBS 124,
1996 WL 581786, at *4 (BRBS 1996) (“Sections 8(c)(21) and 8(h)
(Continued)
                                        - 15 -
      HI appealed Judge Sarno’s decision to the BRB, arguing once

again that Eason was precluded from receiving any additional

compensation in addition to that received under the schedule.

The BRB found that it had already rejected that argument in its

earlier decision.          It also affirmed, as unchallenged on appeal,

Judge Sarno’s       findings    that    Eason   was    unable   to   perform     his

usual work from May 19, 2010 through August 20, 2010 and that HI

had   established      suitable        available      alternative     employment.

Consequently, it affirmed Judge Sarno’s award of compensation

for temporary partial disability from May 19 through August 20,

2010. 5    It is from this BRB decision that HI filed its timely

petition for review.



                                         II

      We   review    the    BRB’s   decision    for    errors   of   law   and    to

ascertain whether the BRB adhered to its statutorily-mandated

standard for reviewing the ALJ’s factual findings.                   Gilchrist v.

Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th




require that a claimant’s post-injury wage earning capacity be
adjusted to account for inflation to represent the wages that
the post-injury job paid at the time of claimant’s injury.”).
      5
       Because he returned to work on August 10, 2010, Eason
concedes that Judge Sarno (and the BRB) erroneously awarded
temporary partial disability compensation from August 10, 2010
through August 20, 2010.


                                       - 16 -
Cir. 1998).       As to the BRB’s interpretation of the LHWCA, our

review is de novo because the BRB is not a policy-making agency

and, thus, its statutory interpretation is not entitled to any

special      deference    from       us.      Id.         However,       the    Director’s

reasonable      interpretation        of     the    LHWCA       is    entitled       to   some

deference.       See Norfolk Shipbuilding & Drydock Corp. v. Hord,

193 F.3d 797, 801 (4th Cir. 1999) (“We note that this is the

result      advocated    by   the     Director       of    the       Office    of    Workers’

Compensation Programs, to whose reasonable interpretation of the

LHWCA we accord some deference.”).

      In its petition for review, HI challenges Judge Sarno’s

award of temporary partial disability benefits from May 19, 2010

through August 20, 2010.             HI argues that a claimant, like Eason,

who   receives    scheduled         compensation          for    a    permanent       partial

disability      cannot    subsequently          receive          additional         temporary

partial disability compensation because the receipt of scheduled

permanent partial disability compensation for an injury includes

any   temporary    partial       disability         compensation.             Moreover,     HI

reads the LHWCA and PEPCO as precluding a claimant, like Eason,

with a scheduled injury from receiving any additional temporary

disability compensation--either total or partial--for the same

injury. 6     Eason counters by arguing that receipt of scheduled


      6
        HI concedes           that    a     claimant       who       receives       scheduled
(Continued)
                                           - 17 -
permanent partial disability compensation for an injury is not

determinative   of    entitlement    to    temporary     partial    disability

compensation for the same injury.           According to Eason, PEPCO is

not particularly helpful to HI because it only dealt with a

permanent partial disability claim and not a claim, as here, for

temporary partial disability.         He suggests that his claim for

temporary partial disability is viable because his knee injury

flared up, preventing him from working as a pipe fitter from May

19, 2010 through August 9, 2010, though he apparently concedes

that suitable alternative employment was available during that

time.   He also posits that his argument is supported by PEPCO

because the Court there recognized the availability of total

disability compensation for a scheduled injury.

     The Director, while agreeing with the result urged by HI,

takes a middle course.        He agrees with HI that a scheduled

permanent partial disability claimant cannot receive additional

temporary   partial     disability        compensation    for      the   injury

underlying the permanent partial disability compensation because

such temporary compensation essentially is duplicative to the




permanent partial disability compensation is not precluded from
subsequently receiving permanent total disability compensation.
See Petitioner’s Reply Br. at 2-3 (noting that scheduled
compensation is “exclusive to all other forms of compensation,
except for permanent total disability under 33 U.S.C. § 908(a)
of the Act”).


                                - 18 -
scheduled compensation.               He also agrees with HI that a claimant

who receives scheduled permanent partial disability compensation

is   not    precluded     from       subsequently        receiving         permanent     total

disability compensation.                However, the Director disagrees with

HI   that    a    claimant      who    receives        scheduled         permanent    partial

disability        compensation         for      an     injury       is     precluded        from

receiving temporary total disability compensation for the same

injury.          According      to    the    Director,        the        LHWCA’s   statutory

framework supports his construction of the Act and nothing in

PEPCO      precludes      reclassification             of     a    scheduled         permanent

partial disability to a temporary total disability.                                   However,

because Eason’s injury has remained permanent and partial, the

Director      posits     that    reclassification             of    his     injury     is   not

warranted, and, thus, Eason is precluded from recovering any

additional disability compensation for his knee injury.

      We agree with the position espoused by the Director, which

we   accord       some   deference.            Hord,    193       F.3d    at   801.     Eason

suffered      a    scheduled         injury.         Thus,    his        permanent    partial

disability compensation is set by the schedule.                            PEPCO, 449 U.S.

at 270-71.          Such scheduled compensation is presumed to cover

Eason’s actual partial loss of wage-earning capacity due to that

partial disability.             See ITO Corp. of Balt. v. Green, 185 F.3d

239, 242 n.3 (4th Cir. 1999) (“The presumed effect of scheduled

disabilities on a claimant’s wage-earning capacity has been set

                                            - 19 -
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.”); Bethlehem Steel Co. v. Cardillo, 229

F.2d 735, 736 (2d Cir. 1956) (noting that, “as to any schedule

loss, there is a conclusive presumption of loss or reduction of

wage-earning     capacity”).              Once     Eason’s           permanent       partial

disability compensation is set under the schedule, he is not

entitled to receive additional disability compensation for the

same    scheduled      injury      unless    the     circumstances             warrant      a

reclassification       of    that    disability           to     permanent       total     or

temporary     total.        See,    e.g.,        Benge,        687    F.3d    at     1185-87

(permitting claimant, who received unscheduled permanent partial

disability compensation, to receive temporary total disability

compensation because subsequent surgery rendered her temporarily

totally disabled); Hord, 193 F.3d at 801-02 (allowing claimant,

who was paid permanent partial disability compensation under the

schedule to recover temporary total disability compensation); DM

& IR Ry. Co. v. Dir., OWCP, 151 F.3d 1120, 1122-23 (8th Cir.

1998)    (allowing     a    claimant       who     received          permanent       partial

disability     compensation         to     subsequently          recover       disability

compensation    for    permanent         total    disability);          cf.    PEPCO,      449

U.S. at 277 n.17 (“Indeed, since the § 8(c) schedule applies

only    in   cases   of     permanent      partial    disability,             once    it   is

                                         - 20 -
determined that an employee is totally disabled the schedule

becomes irrelevant.”).                 This is so because, once a disability

becomes total, it makes no sense to apply a presumption designed

to   approximate         a        claimant’s      permanent         partial     disability

compensation.            A        permanent     or    temporary       total     disability

presumes     the     loss         of   all     wage-earning         capacity,     while     a

permanent partial disability involves only a partial loss.                                See

Benge,   687     F.3d        at    1187    (noting      that    any    total    disability

presupposes the loss of all wage-earning capacity).                               Thus, an

increase    in     the   disability           compensation      for    the     change   from

permanent partial to either permanent total or temporary total

is warranted to account for the additional actual loss in wage-

earning capacity.              Such a conclusion comports with the basic

purpose of the LHWCA, which is to provide compensation for the

actual loss of wage-earning capacity.                      See Korineck, 835 F.2d at

44 (noting that the purpose of the LHWCA is “to provide work

benefits for lost earning capacity”).

      In contrast, in the case of a scheduled permanent partial

disability       that     allegedly           changes      to   a     temporary    partial

disability because the claimant’s injury flared up, there is no

additional loss of wage-earning capacity.                           The claimant’s loss

of   wage-earning        capacity         already     is   accounted     for    under     the

schedule.      In other words, the scheduled compensation accounts

for all the lost wages due the claimant under the LHWCA.                                   To

                                             - 21 -
hold otherwise would allow for an impermissible double recovery.

Cf. id. (“Denying additional [scheduled] benefits to one already

receiving     benefits     for     total    permanent         disability         serves    to

avoid   double    recoveries.”).            Like    the       claimant      in   Korineck,

whose    scheduled       compensation        claim         was       subsumed      by     the

compensation     he      already      was   receiving          for     permanent        total

disability,      Eason’s       temporary         partial      disability         claim     is

subsumed by the compensation he received under the schedule.

Id. at 43-44.

       To be sure, in the case before us, there is no record

evidence supporting a reclassification of Eason’s disability to

a permanent total or temporary total disability.                         His disability

has remained permanent and partial since September 2008.                                  His

scheduled compensation is presumed to cover his actual loss of

wage-earning capacity for any flare up of his knee injury that

did    not   prevent     him   from    working      in     some      type   of    suitable

alternative employment.             Green, 185 F.3d at 242 n.3.                         Since

Eason does not allege that the flare up rendered him permanently

or    temporarily     totally      disabled,       he    is    not    entitled      to    any

additional disability compensation for his knee injury.

       Eason’s argument that the LHWCA permits the recovery of

additional temporary partial disability compensation under the

circumstances       of    this     case     is     unpersuasive.             First,       his

argument, if accepted, permits an impermissible double recovery.

                                        - 22 -
He was compensated for his actual loss of wage-earning capacity

due to his injury under the schedule and now he is seeking

additional compensation for the same injury.                We see nothing in

LHWCA that permits such a double recovery.                See Port of Portland

v. Dir., OWCP, 932 F.2d 836, 839 n.1 (9th Cir. 1991) (noting

that, under the LHWCA, “an employee may not obtain a double

recovery for a disability for which compensation has already

been paid”); cf. Strachan Shipping Co. v. Nash, 782 F.2d 513,

515 (5th Cir. 1986) (en banc) (noting that the “credit doctrine,

created by the BRB for the singular purpose of avoiding double

recoveries,    provides   that     an    employer   is    not    liable    for   any

portion of an employee’s disability for which the employee has

actually    received    compensation       under    the    LHWCA”).        Second,

Eason’s    construction   of     the    LHWCA   defeats    the    intent    of   the

schedule in the Act.       The schedule is designed to provide quick

compensation    for    certain    permanent      partial    disabilities         and,

simultaneously, to fix the employer’s liability exposure.                        See

PEPCO, 449 U.S. at 282 (“The use of a schedule of fixed benefits

as an exclusive remedy in certain cases is consistent with the

employees’ interest in receiving a prompt and certain recovery

for their industrial injuries as well as with the employers’

interest in having their contingent liabilities identified as

precisely and as early as possible.”); see also Travelers Ins.

Co. v. Cardillo, 225 F.2d 137, 144 (2d Cir. 1955) (noting that

                                       - 23 -
schedule “conclusively establishe[s]” the loss of wage-earning

capacity and “its extent”).               Yet, under Eason’s construction of

the LHWCA, the employer’s liability exposure is anything but

fixed.          Rather, the liability exposure is subject to increase

essentially any time a scheduled claimant is placed on temporary

work       restrictions.      Such    a     construction    of    the    LHWCA     makes

little sense. 7

       We also note that the Director understandably rejects HI’s

interpretation of the LHWCA because it forecloses the receipt of

temporary total disability compensation following the receipt of

scheduled disability compensation.                   HI’s interpretation of the

LHWCA has two flaws.           First, it is inconsistent with Benge and

Hord, where the permanent partial claimants were permitted to

receive         temporary   total    disability      compensation       after     proper

reclassification of their respective disabilities.                        Benge, 687

F.3d       at    1185-87;   Hord,     193     F.3d    at   802.         Second,     HI’s

interpretation runs counter to the language of the LHWCA, which

says that permanent partial disability compensation (scheduled

or unscheduled) shall be paid “in addition to” the compensation

       7
       Of course, nothing prevents a claimant who is receiving
scheduled permanent partial disability compensation from seeking
additional compensation to reflect a higher percentage of
permanent loss of the relevant body part due to the aggravation
of the injury that gave rise to the scheduled compensation. See
New Haven Terminal Corp. v. Lake, 337 F.3d 261, 268-69 (2d Cir.
2003) (discussing the interplay of the aggravation rule and the
credit doctrine).


                                          - 24 -
paid for a “temporary total disability.”                         33 U.S.C. § 908(c).

This    language       contains    no    temporal        limitation.           Thus,    such

additional temporary total disability compensation can be paid

before     the     permanent      partial        disability          compensation        (for

example,     as    in    this     case,     Eason       received       temporary        total

disability        compensation       for        his     injury        before     receiving

scheduled    compensation         for     the     same       injury)    or     after     (for

example,    as    in    Benge,    where     the       claimant       received    temporary

total    disability      compensation       for       her    injury     after    receiving

unscheduled compensation for the same injury).                           The receipt of

such additional temporary total disability compensation ensures

that the claimant is compensated for his actual loss in wage-

earning     capacity      (including       the        loss     not    presumed     by     the

schedule) and, thus, fulfills the basic purpose of the LHWCA.

See Korineck, 835 F.2d at 44 (noting that the purpose of the

LHWCA is “to provide work benefits for lost earning capacity”).

Therefore, HI’s construction of the LHWCA is inconsistent with

the case law and thwarts the basic purpose of the LHWCA.

       We realize that the schedule created by Congress allows for

overcompensation         in   some      instances        and    undercompensation          in

others.     For example, a claimant with a scheduled injury may be

compensated even though he never misses a day of work and, thus,

incurs no actual wage loss whatsoever.                         At the same time, the

schedule    may     undercompensate         a    claimant       whose    loss     of    wage

                                          - 25 -
earning capacity may be greater than that compensated under the

schedule.    If a claimant who loses a hand only earns 50% of his

pre-injury    salary   after   reaching      maximum    medical     improvement,

the claimant would not, after 9.4 years, be compensated under

the schedule as much as he would have been for an unscheduled

injury.      As   recognized   by   the   Supreme      Court   in   PEPCO,   such

inequities simply are a manifestation of the system created by

Congress which we are not at liberty to disturb.                    See 449 U.S.

at 282-83 (noting that “requiring resort to the schedule may

produce certain incongruous results” because, on the one hand,

“even though a scheduled injury may have no actual effect on an

employee’s capacity to perform a particular job or to maintain a

prior level of income, compensation in the schedule amount must

be paid,” while on the other hand, “the schedule may seriously

undercompensate some employees”); id. at 284 (noting that the

fact that the schedule “leads to seemingly unjust results in

particular cases does not give judges a license to disregard it”

where   Congress    employed   “compelling      statutory      language”);    see

also Green, 185 F.3d at 242 n.3 (“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

                                    - 26 -
apparently        functions     in   the    manner       intended    by   Congress,   as

evidenced by its being left essentially undisturbed since its

enactment in 1927.”). 8

       Finally, we reject both Eason’s and HI’s interpretation of

PEPCO. 9        Eason interprets PEPCO as supporting his argument that a

claimant who is receiving scheduled compensation for a permanent

partial         disability     may   receive        additional      compensation      for

temporary        partial     disability     due     to    the   same   injury.     HI’s

interpretation of PEPCO is quite different.                         It interprets the

case       as    foreclosing    a    claimant       who    is   receiving    scheduled

compensation for an injury from ever receiving temporary (total

or partial) disability compensation for that injury.

       In PEPCO, the Supreme Court addressed whether a claimant

who was permanently partially disabled due to a scheduled injury

could choose to be compensated for his actual loss of wage-

       8
       Of course, Eason is on the overcompensation end of the
equation.   He was awarded actual partial wage loss for the May
19 through August 20, 2010 time period at a compensation rate of
$845.82 per week (two thirds of the difference between his
average weekly wage of $1,488.43 and his residual wage-earning
capacity of $219.70 per week).       Thus, Eason would receive
$11,237.22 in actual partial wage loss compensation.          By
contrast, Eason’s scheduled award entitled him to $40,009.13 in
compensation (40.32 weeks x $992.29 per week).        Thus, his
scheduled award paid him $28,771.91 more for a presumed loss of
wage-earning capacity than he would have been entitled to for
his actual loss.
       9
       The BRB’s interpretation of PEPCO is in line with Eason’s
interpretation of that case.



                                           - 27 -
earning       capacity         under     § 908(c)(21),         rather         than        being

compensated for his presumed loss as provided by the schedule.

449    U.S.   at    270. 10      The   Court    held    that      the   LHWCA        did    not

authorize      such       an    election,      and,    therefore,         a     claimant’s

recovery      for    a    scheduled      injury       “must    be    limited         by     the

statutory schedule.”             Id. at 271.           The Court focused on the

language of § 908(c)(21), which calls for the payment of actual

loss    of    wage-earning        capacity     “‘[i]n       all     other     cases’”       of

permanent partial disability.                  Id. at 274 (quoting 33 U.S.C.

§ 908(c)(21)).           The Court interpreted this language to mean all

permanent partial disability cases not specifically enumerated

in the schedule, namely § 908(c)(1) to (20).                            Id.     Thus, the

Court held that injuries or disabilities covered by the schedule

must be compensated according to the schedule, whereas permanent

partial disabilities not covered by the schedule are subject to

compensation based on the actual loss of wage-earning capacity.

Id. at 278-82.

       The Supreme Court in PEPCO rejected the argument that its

construction        of    the    LHWCA    would       not     fulfill     the    remedial


       10
         As   noted  earlier,  unscheduled  permanent  partial
disability awards are based on the actual loss of wage-earning
capacity. 33 U.S.C. § 908(c)(21). The claimant in PEPCO sought
wage-loss compensation under § 908(c)(21) because his loss of
wage-earning capacity was over 40% and § 908(c)(21) would have
provided far more compensation than the schedule otherwise
allowed. 449 U.S. at 271.


                                          - 28 -
purposes of the Act and that it would produce anomalous results

that Congress probably did not intend.                 Id. at 280-84.         The

Supreme Court pointed out that the LHWCA represents a compromise

between the interests of employers and employees.                  Id. at 282.

The Court stated that the use of fixed scheduled benefits as an

exclusive remedy “is consistent with the employees’ interest in

receiving a prompt and certain recovery for their industrial

injuries as well as with the employers’ interest in having their

contingent liabilities identified as precisely and as early as

possible.”    Id.     As noted above, the Court also recognized the

incongruous results which the schedule could produce by over or

undercompensating      an   employee     for   his   actual     loss   in   wage-

earning capacity.       Id. at 282-84.         The Court stated, however,

that   this   fact    did   not   give    it   license     to   disregard    the

“compelling statutory language” and that it was up to Congress

to reexamine the statute if anomalies were occurring frequently.

Id. at 284.

       Eason’s interpretation of PEPCO is flawed.                  The Supreme

Court in PEPCO did not imply, as he posits, that a claimant who

is   receiving   scheduled     compensation      for   a   permanent     partial

disability    can    receive   additional      compensation     for    temporary

partial disability due to the same injury.                  The Court merely

said that a scheduled injury does not preclude an award of total

disability.      Id. at 277 n.17.        This is not surprising since a

                                   - 29 -
total disability increases the claimant’s actual loss in wage-

earning capacity.           In any event, just because the Court cited

with    approval      the   receipt        of   total     disability        compensation

following a scheduled injury, it does not follow that the Court

would countenance the duplicative recovery that occurs when a

claimant receives temporary partial disability compensation for

an     injury    that    the     claimant       already      has    received    (or    is

receiving) scheduled compensation.                  As we noted above, the LHWCA

does    not     permit    such    duplicative       recoveries.           See   Port   of

Portland, 932 F.2d at 839 n.1 (noting that the LHWCA is designed

to avoid double recoveries for the same injuries).

       HI’s interpretation of PEPCO also is flawed.                       The Court in

PEPCO    did    not     hold,    as   HI    posits,     that    a   claimant     who   is

receiving       scheduled      compensation      for    an    injury   is     foreclosed

from     receiving        temporary        (total       or     partial)      disability

compensation for that injury.               Rather, as noted above, the Court

simply held that a permanent partial disability claimant could

not choose between the schedule and § 908(c)(21).                           449 U.S. at

278-82.       Thus, the Court did not address whether the receipt of

scheduled       compensation       forecloses       the      receipt   of    additional

temporary disability compensation, and we read nothing in PEPCO

lending support for HI’s interpretation of the case.

       In sum, the PEPCO decision is not outcome determinative for

either Eason or HI.              The case addressed a discrete issue, and

                                           - 30 -
the reasons advanced by Eason and HI for an expansive reading of

the decision are not compelling.           Cf. Korineck, 835 F.2d at 44

(noting the “narrow issue” decided by the PEPCO Court).



                                     III

     For the reasons stated herein, we grant the petition for

review   and   remand   the   case   to    the   BRB   to   enter   an   order

dismissing Eason’s claim for temporary partial disability under

the LHWCA.

                                                            PETITION GRANTED




                                 - 31 -
