                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 20 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



VICKI MORGAN, widow of DENNIS                    No. 08-73371
MORGAN, deceased,
                                                 OWCP No. 14-132896
              Petitioner,

  v.                                             MEMORANDUM *

CASCADE GENERAL INC.; et al.,

              Respondents.



CASCADE GENERAL INC. and                         No. 08-73463
LIBERTY NORTHWEST INSURANCE
CORP.,                                           BRB No. 07-0798

              Petitioners,

  v.

VICKI MORGAN, widow of DENNIS
MORGAN, deceased and DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,

              Respondents.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     On Petition for Review of an Order of the
                        Office of Workers Comp Program

                         Argued and Submitted May 7, 2010
                                 Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.




      This case involves claims for disability and death benefits under the

Longshore and Harbor Workers’ Compensation Act (“Longshore Act”), 33 U.S.C.

§ 901 (2007). As the personal representative of her husband’s estate, Vicki

Morgan brings Dennis Morgan’s claim for additional benefits resulting from an on-

the-job knee injury. Vicki Morgan also brings her own claim for death benefits as

Dennis Morgan’s widow, on the theory that Dennis Morgan’s knee injury and

inability to return to his old job led to his depression and excessive drinking and

thus resulted in his drunk driving death two years after his injury. The ALJ and

Benefits Review Board denied both claims. We affirm.

                                           I

      It is undisputed that Dennis Morgan was unable to return to the position he

had with Cascade at the time of his injury (boilermaker foreman). Thus, we

presume that Dennis Morgan was totally and permanently disabled by his knee

injury, unless the employer rebuts that presumption by showing that there were


                                           2
“specific jobs” in the local community that he could have performed given his

limitations, and that there was a “reasonable likelihood, given [his] age, education,

and background, that he would be hired if he diligently sought the job.” Hairston

v. Todd Shipyards Corp., 849 F.2d 1194, 1196 (9th Cir. 1988).

      Substantial evidence in the record supported the ALJ’s determination that

the parking lot cashier jobs provided suitable alternate employment available to

Dennis Morgan, and that he could have been hired if he had diligently applied.

Evidence in the record indicated that Dennis Morgan would not have been

psychologically incapable of performing a low-paying job, and that his alcohol use

did not make him unemployable. See Rhine v. Stevedoring Servs. of Am., 596

F.3d 1161, 1166 (9th Cir. 2010) (holding that a claimant's employment preferences

are irrelevant to the question whether alternative employment is available).

                                          II

      Under 33 U.S.C. § 913(a), “[e]xcept as otherwise provided in this section, the

right to compensation for disability or death under this chapter shall be barred

unless a claim therefore is filed within one year after the injury or death.” Vicki

Morgan filed her claim for death benefits more than one year after Dennis Morgan’s

death, so her claim is barred. We reject Vicki Morgan’s argument that she is

entitled to tolling of the filing deadline under 33 U.S.C. § 913(c) because her grief


                                           3
rendered her mentally incompetent for several months after her husband’s death.

The ALJ weighed the evidence and determined as a factual matter that the lack of

any medical diagnosis or any treatment for mental disorder and the absence of an

appointment of a guardian outweighed the lay testimony supporting Vicki Morgan’s

claim that she was mentally incompetent. She provided no medical evidence of

disability, had obtained counsel within weeks of the death, and had obtained

appointment as administrator of his estate within a short time after Mr. Morgan’s

death in April 2002. The Benefits Review Board reviewed the evidence and

reasonably concluded that at no time during the year was she mentally incompetent.

Because this factual finding was supported by substantial evidence in the record, it

cannot be disturbed on appeal.




      AFFIRMED.




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