Stanley Christie v. Georgia -Pacific Company

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S TANLEY C HRISTIE,
Petitioner,
v.
GEORGIA -P ACIFIC C OMPANY ; ACE
AMERICAN INSURANCE C OMPANY ;
D IRECTOR , O FFICE OF W ORKERS ’
C OMPENSATION P ROGRAM,
Respondents.
No. 17-70853
BRB No.
16-0321
OPINION
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted June 5, 2018
Portland, Oregon
Filed August 2, 2018
Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit
Judges, and Alvin K. Hellerstein,* District Judge.
Opinion by Judge Murguia
* The Honorable Alvin K. Hellerstein, United States District Judge
for the Southern District of New York, sitting by designation.

-- 1 of 15 --

2 C HRISTIE V. G EORGIA -P ACIFIC
SUMMARY**
Longshore and Harbor Workers’ Compensation Act
The panel granted a claimant’s petition for review,
reversed the Benefits Review Board’s decision denying
claimant disability benefits under the Longshore and Harbor
Workers’ Compensation Act, and remanded for a calculation
of the permanent total disability benefits to be awarded to
claimant.
The panel interpreted the language of 33 U.S.C
§ 902(10) defining “disability,” and held that claimant’s
decision to retire early did not prevent him from receiving
permanent total disability benefits. The panel further held
that substantial evidence in the record supported the
administrative law judge’s findings that claimant was
disabled with the meaning of the Act: he attained maximum
medical improvement, he could no longer return to his
previous employment, and the employer failed to establish
that suitable alternative employment existed. The panel
noted that the Board did not question the ALJ’s factual
findings, and remanded for calculation of an award of
benefits.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

-- 2 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 3
COUNSEL
Joshua Thomas Gillelan II (argued), Longshore Claimants’
National Law Center, Washington, D.C.; Richard A. Mann,
Brownstein Rask LLP, Portland, Oregon; Lara D. Merrigan,
San Rafael, California; for Petitioner.
Stephen Verotsky (argued), Sather Byerly & Holloway LLP,
Portland, Oregon, for Respondents.
OPINION
MURGUIA, Circuit Judge:
Stanley Christie, a longtime employee of the Respondent
Georgia-Pacific Company (“Georgia-Pacific”) in Portland,
Oregon, injured his back at work in 1999. He returned to
work following his injury but he eventually required surgery,
which he underwent in 2004. Christie now asks us to decide
if he is entitled to permanent total disability benefits under
the Longshore and Harbor Workers’ Compensation Act,
33 U.S.C. §§ 901–50 (the “Act”), because of his work-
related injury.
The parties do not contest that following his surgery,
Christie faced physical limitations, and Georgia-Pacific
reassigned Christie to less physically demanding safety
inspection work sometime in 2006. In late 2010, Christie
learned that the option to take early retirement would likely
no longer exist beginning in January of 2011. Since Christie
was still years away from reaching the retirement age of 62,
in December of 2010 he decided to retire early and accepted
an 18-percent reduction in monthly pension payments.

-- 3 of 15 --

4 C HRISTIE V. G EORGIA -P ACIFIC
Years after he retired, Christie sought permanent total
disability benefits as permitted by the Act. The
administrative law judge (“ALJ”) who considered Christie’s
claim awarded Christie permanent total disability benefits.
Georgia-Pacific appealed the ALJ’s decision to the United
States Department of Labor’s Benefits Review Board
(“Board”), which reversed the award of benefits. Christie
subsequently appealed to our court.
To determine Christie’s eligibility for benefits, we
interpret the language of 33 U.S.C. § 902(10), which defines
“disability” under the Act. In particular, we consider whether
Christie’s decision to retire early prevents him from
receiving permanent total disability benefits. After
reviewing the plain language of § 902(10), we hold that
Christie’s decision to retire early does not make him
ineligible for benefits. Our conclusion is in accord with a
recent Fourth Circuit decision also interpreting § 902(10).
Accordingly, we grant Christie’s petition, and we reverse
and remand.
I.
A.
In 1986, Christie began working for Georgia-Pacific in
Portland, Oregon. Thirteen years later, Christie injured his
back at work while moving bags of concrete. Although
Christie returned to work following his injury, he eventually
required surgery, which was performed in January of 2004.
It is undisputed that Christie’s back injury is a work-related
injury.
In 2006, Georgia-Pacific assigned Christie to safety
inspection duties in part to accommodate his physical
limitations from his back injury. As safety inspector, Christie

-- 4 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 5
was responsible for inspecting three Portland warehouses,
which involved both active and sedentary tasks. Among
other things, Christie created labels for materials in the
warehouses detailing the contents and locations of items and
who last inspected them. He also performed physical
inspections, such as inspecting fire extinguishers, which
sometimes involved lifting them. Due to his physical
limitations, Christie had difficulty performing some of his
job duties.
In late 2010, Christie learned from his labor union’s
director that Georgia-Pacific was likely eliminating early
retirement in 2011. Under the early retirement option
available to Christie in 2010, Christie could choose to retire
after age 55 and accept a penalty reducing his monthly
payments by 18 percent. Christie knew that without the early
retirement option, he was ineligible for retirement income
until age 62. Because Christie, then 56, believed he would
be unable to continue working for another six years due to
his physical limitations, he decided to retire early, effective
December 1, 2010.
After Christie retired, several doctors evaluated him for
multi-level back fusion surgery. Once the doctors
determined that Christie should first pursue other treatment
options before undergoing surgery, he began conservative
pain treatment in May of 2012. By November of 2012, the
doctor providing Christie with pain treatment believed
Christie had reached his maximum medical improvement,
meaning the injury had healed to the fullest extent possible.
See Stevens v. Dir., Office of Workers’ Comp. Programs,
909 F.2d 1256, 1257 (9th Cir. 1990). Christie’s pain doctor
also opined that Christie could not return to his regular job
and was permanently restricted from several physical
activities as of December 3, 2012.

-- 5 of 15 --

6 C HRISTIE V. G EORGIA -P ACIFIC
Eventually, because of his physical limitations and
inability to work, Christie filed a claim seeking permanent
total disability benefits under the Act.
B.
The ALJ held a hearing; heard testimony; reviewed the
evidence presented, including Christie’s medical records;
and concluded that Christie was entitled to permanent total
disability benefits. The ALJ ordered Georgia-Pacific to pay
Christie these benefits from December 3, 2012 onward,
because that was the date on which, according to the ALJ
and based on the medical opinions in the record, Christie
became disabled. In so ordering, the ALJ found that Christie
was not disabled at the time he retired in December of 2010.
However, the ALJ also determined that Christie’s decision
to retire did not bar Christie from receiving permanent total
disability benefits because Christie’s retirement was
involuntary. Distinguishing Christie’s case from other Board
case law, the ALJ found that Christie did not retire “solely”
because the early retirement package that he would receive
was financially beneficial or a “good deal.” Instead, the ALJ
determined that Christie “testified credibly that he retired, at
least in part, because he believed his back problems would
not allow him to work until the full retirement age of 62, and
he feared losing the ability to retire early.”
On administrative appeal, the Board disagreed with the
ALJ’s conclusion. Relying on the Board’s 2016 decision in
Moody v. Huntington Ingalls, Inc., 50 Ben. Rev. Bd. Serv.
(MB) 9 (2016) (“Moody I”) the Board reversed the ALJ’s
decision. The Board issued Moody I on the same day as the
ALJ issued his decision in Christie’s case. In reversing the
ALJ, the Board cited Moody I and two other Board
decisions—Burson v. T. Smith & Son, Inc., 22 Ben. Rev. Bd.
Serv. (MB) 124 (1989), and Hoffman v. Newport News

-- 6 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 7
Shipbuilding & Dry Dock Co., 35 Ben. Rev. Bd. Serv. (MB)
148 (2001)—for the proposition that “an employee is not
entitled to receive a total disability award after he retires for
reasons unrelated to the work injury because there is no loss
of wage-earning capacity due to the injury.” In the Board’s
view “‘[d]isability’ [under the Act] means 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.” In other words, an employee’s injury must be
the cause of the employee’s inability to earn wages. And
because the Board determined that Christie’s loss of wages
was due to his decision to retire early, and not because of his
work-related injury, Christie was not entitled to benefits.
This appeal followed.
II.
We have jurisdiction to review the Board’s decisions
pursuant to 33 U.S.C. § 921(c). “The Board is required to
‘accept the ALJ’s findings unless they are contrary to law,
irrational, or unsupported by substantial evidence.’”
Stevedoring Servs. of Am. v. Dir., Office of Workers’ Comp.
Programs, 297 F.3d 797, 801 (9th Cir. 2002) (quoting Todd
Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir.
1983)). We review the Board’s decisions for “adherence to
the [substantial evidence] standard.” Id. (alteration in
original) (quoting Bumble Bee Seafoods v. Dir., Office of
Workers’ Comp. Programs, 629 F.2d 1327, 1329 (9th Cir.
1980)). We also review the Board’s interpretation of the Act
de novo because such interpretations are questions of law.
Id. Further, “[b]ecause the Board is not a policymaking
agency, its interpretation of [the Act] is not entitled to any
special deference.” Id. (quoting McDonald v. Dir., Office of
Workers’ Comp. Programs, 897 F.2d 1510, 1512 (9th Cir.
1990)).

-- 7 of 15 --

8 C HRISTIE V. G EORGIA -P ACIFIC
III.
A.
Under the Act, employees are entitled to obtain
compensation for a permanent disability arising out of a
work-related injury. See Gen. Constr. Co. v. Castro,
401 F.3d 963, 968–69 (9th Cir. 2005) (citing 33 U.S.C.
§§ 902(2), 902(10), 908). The Act defines disability 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; but such term [disability] shall
mean permanent impairment, determined (to
the extent covered thereby) under the guides
to the evaluation of permanent impairment
promulgated and modified from time to time
by the American Medical Association, in the
case of an individual whose claim is
described in section 910(d)(2) of this title.
33 U.S.C. § 902(10) (emphasis added).1 A disability is
permanent when a claimant has “attained ‘maximum
medical improvement.’” Gen. Constr. Co., 401 F.3d at 968
1 The latter portion of § 902(10), beginning with “but such term,”
concerns “claim[s] based on a death or disability due to an occupational
disease,” see 33 U.S.C. § 910(d)(2), which are different from the
disability claim at issue here. See Gen. Constr. Co., 401 F.3d at 968
(“The [Act’s] compensation scheme distinguishes between injury, which
is a physical impairment, ‘occupational disease[,] or infection,’ and
disability, which the [Act] defines as the ‘incapacity because of injury to
earn the wages which the employee was receiving at the time of injury
in the same or other employment.’” (second alteration in original)
(citations omitted) (quoting 33 U.S.C. § 902)). The latter portion of
§ 902(10) therefore does not apply to the present case.

-- 8 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 9
(quoting Stevens, 909 F.2d at 1258). “Maximum medical
improvement is attained when the injury has healed to the
full extent possible.” Stevens, 909 F.2d at 1257. To obtain
permanent total disability benefits under the Act, an
employee must show: (1) he is disabled within the meaning
of the Act, (2) the work-related injury he suffered that makes
him disabled has healed to the fullest extent possible, and
(3) he cannot return to prior employment. See Gen. Constr.,
401 F.3d at 968–69. In addition, for the employee to obtain
benefits, the employer must fail to establish that alternative
employment, which the employee can perform, is available
to the employee. Id. at 969.
Whether the Board erred in reversing the ALJ’s award of
permanent total disability benefits to Christie turns on the
proper interpretation of “disability” under § 902(10) of the
Act. According to the Board, “[t]he only relevant inquiry [in
determining disability under the Act] is whether claimant’s
work injury caused a loss of earning capacity.” The Board
answered this question by concluding that because Christie
voluntarily retired, he was not disabled within the meaning
of § 902(10).
In its decision reversing the ALJ’s award of benefits, the
Board relied heavily on its decision in Moody I, and stated
that Christie’s case was “not legally distinguishable from
Moody [I].” In Moody I, claimant Russell Moody had sought
temporary total disability benefits. Moody I, 50 Ben. Rev.
Bd. Serv. (MB) at 9–10. There, the ALJ had awarded Moody
temporary total disability benefits because the ALJ found
that Moody’s retirement prior to the time of his surgery was
irrelevant. Id. at 10. In reversing the ALJ’s benefit award,
the Board concluded that the disability inquiry under
§ 902(10) of the Act, which defines disability for purposes
of the Act, “encompasses both physical and economic

-- 9 of 15 --

10 C HRISTIE V. G EORGIA -P ACIFIC
considerations.” Id. The Board reasoned that Moody’s
decision to retire “had already resulted in his complete loss
of earning capacity” and Moody was therefore not disabled
within the meaning of the Act. Id. at 11. In short, the Board
interpreted § 902(10) to mean that retirement necessarily
causes a loss of wage-earning capacity.
However, because the proper interpretation of § 902(10)
is a question of law, the Board’s interpretation of § 902(10)
in Moody is not binding and our review is de novo. See
Stevedoring Servs. of Am., 297 F.3d at 801.
We begin our analysis with the relevant statutory
language. See United States ex rel. Hartpence v. Kinetic
Concepts, Inc., 792 F.3d 1121, 1128 (9th Cir. 2015) (en
banc) (“In construing the provisions of a statute, we begin
by looking at the language of the statute to determine
whether it has a plain meaning.”). In a statute, a legislature
says “what it means and means in a statute what it says
there.” Id. (quoting BedRoc Ltd. v. United States, 451 U.S.
176, 183 (2004)). If a statute’s language is plain and
unambiguous, our inquiry ends. Id. Where statutory
language is ambiguous, however, we may consider
legislative history and other extrinsic materials. See Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005).
The Act specifically defines disability 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). The “injury” must be an
“accidental injury or death arising out of and in the course of
employment.” Id. § 902(2).
The plain language of § 902(10) makes no reference to
retirement or its timing, nor to whether an employee decides

-- 10 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 11
to retire voluntarily or involuntarily. Rather, § 902(10) states
that disability under the Act means an inability, resulting
from an injury suffered at work, to earn the wages an
employee was earning from his employer at the time he was
injured. Nowhere in § 902(10) is an employee’s decision to
retire mentioned.
Indeed, the Board’s reading of § 902(10) assumes that
retirement categorically results in a person’s incapacity to
work. Yet, the language of § 902(10) does not give any
indication that retirement is to be treated in that manner.
Neither is it the case that retirement, in all instances, means
that a retiree is incapable of working. Retirement simply
means that a person is no longer working a particular job. In
short, although retirement and incapacity to work may be
linked, they are not necessarily one and the same. We
conclude that the Board’s reading of § 902(10) is overly
restrictive and unsupported by the plain language of the
statute.
Georgia-Pacific urges that the Board is correct that
§ 902(10) precludes an employee from obtaining disability
benefits after an employee voluntarily retires because the
employee cannot establish a loss of wage-earning capacity
resulting from a work-related injury. Georgia-Pacific cites to
three Board decisions—Burson, Hoffman, and Moody I—to
support its argument, asserting that the “Board’s standard
reasonably interprets § 902(10) of [the Act] and balances the
interests of the injured worker and employer.” Georgia-
Pacific’s arguments are unavailing. As discussed above, the
plain language of § 902(10) belies the purported relevance
of an employee’s decision to retire.
Further, the Fourth Circuit’s reasoning in Moody v.
Huntington Ingalls Inc., 879 F.3d 96 (4th Cir. 2018)
(“Moody II”)—which overruled the Board’s decision in

-- 11 of 15 --

12 C HRISTIE V. G EORGIA -P ACIFIC
Moody I—is persuasive. In Moody II, the Fourth Circuit
interpreted the same statutory language at issue here,
§ 902(10) of the Act. Id. at 101. The Fourth Circuit rejected
the Board’s interpretation of § 902(10). Id. In holding that
voluntary retirement does not preclude the existence of a
disability under the Act, the Moody II court looked to the text
of § 902(10) and concluded that the Board and the employer
in Moody I misconstrued the plain meaning of “incapacity”
and “the real-world significance of retirement.” Id. at 98.
Rejecting the Board’s “interpretation that an employee’s
retirement necessarily makes him incapable of earning any
wages,” the Moody II court noted that “incapacity” means
“inability,” “incompetence,” and “incapability.” Id. at 99.
The Moody II court further explained that retirement is not
inherently debilitating and that the Board and the employer
in Moody I “confuse being unwilling with being unable [to
work]” by focusing on the voluntary nature of Moody’s
retirement. Id.
The Moody II court further held that the Board
“erroneously equate[d] loss of earning capacity with loss of
actual earnings,” concluding that the “law compensates [an
employee’s inability to make the choice to work] when it is
caused by workplace injury.” Id. at 99–100. The Fourth
Circuit also held that “retirement status, standing alone, is
irrelevant to earning capacity and the determination of
‘disability’ under 33 U.S.C. § 902(10).” Id. at 100 (emphasis
added).2 Here, Moody II is particularly persuasive because
2 In addition, the Moody II court discussed the Act’s purpose in
reaching its decision. Acknowledging that the Supreme Court “has
recognized that ‘the [Act] represents a compromise between the
competing interests of disabled laborers and their employers,’” the
Fourth Circuit explained that it gave effect to that compromise by
“applying the plain text” of the Act. Moody II, 879 F.3d at 100 (quoting
Potomac Elec. Power Co. v. Dir., Office of Workers’ Comp. Programs,

-- 12 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 13
the Board relied on Moody I to overturn the ALJ’s award of
benefits to Christie.3
Accordingly, a plain reading of § 902(10) reveals that the
Board committed legal error in reversing the ALJ’s award of
benefits to Christie. We therefore join the Fourth Circuit in
rejecting the Board’s interpretation of § 902(10).
B.
To obtain permanent total disability benefits, Christie
must show that he is disabled within the meaning of the Act
and that he has attained maximum medical improvement,
meaning his injury has healed to the fullest extent possible.
See 33 U.S.C. §§ 902(10), 908; see also Gen. Constr. Co.,
401 F.3d at 968; Stevens, 909 F.2d at 1257. Christie must
also show that he cannot return to prior employment, and
Georgia-Pacific must fail to establish that there is suitable
alternative employment available to Christie. Gen. Constr.
Co., 401 F.3d at 968–69.
Here, the ALJ granted Christie permanent total disability
benefits, payable from December 3, 2012, onward. The
449 U.S. 268, 281–82 (1980)). We agree that the plain language of
§ 902(10) realizes the statute’s purpose.
3 The Board’s reliance on Burson and Hoffman also does not change
the outcome of this case. Both Burson and Hoffman erroneously relied
on the voluntary retirement of the respective employees in those cases as
the factual predicate for each employee’s inability to establish their loss
of wage-earning capacity. But, as discussed above, because the plain
language of § 902(10) reflects that an employee’s retirement is not
dispositive to determining disability under the Act, Burson and Hoffman
do not compel us to reach a different conclusion than the one we reach
today. 33 U.S.C.§ 902(10); see Hoffman, 35 Ben. Rev. Bd. Serv. (MB)
at 150; Burson, 22 Ben. Rev. Bd. Serv. (MB) at 127.

-- 13 of 15 --

14 C HRISTIE V. G EORGIA -P ACIFIC
Board was required to accept the ALJ’s factual findings
“unless they [were] contrary to law, irrational, or
unsupported by substantial evidence.” Stevedoring Servs. of
Am., 297 F.3d at 801 (quoting Todd Shipyards Corp.,
717 F.2d at 1284). We review the Board’s decision for
adherence to the substantial evidence standard. See id.
The ALJ’s determination that Christie was disabled as of
December 3, 2012, was based on numerous doctors’
opinions. Most notably, Christie’s back pain doctor
concluded on December 3, 2012, that Christie could not
return to work. The Board did not disagree with this factual
finding. Nor did the Board disturb the ALJ’s other factual
findings. Therefore, the ALJ’s factual findings must be
upheld since they are not “contrary to law, irrational, or
unsupported by substantial evidence.” See id (quoting Todd
Shipyards Corp., 717 F.2d at 1284).
Georgia-Pacific failed to establish that suitable
alternative employment was available to Christie. Although
the Board and Georgia-Pacific highlight that Christie was
capable of working as a safety inspector at Georgia-Pacific
with suitable accommodations at the time he retired,
substantial evidence supports the ALJ’s finding that
Georgia-Pacific never actually offered these
accommodations to Christie. Indeed, the ALJ concluded that
no one at Georgia-Pacific told Christie that Christie could
ask for help with conducting the physical inspections of the
warehouses that were part of Christie’s work tasks. In
addition, the ALJ found that Georgia-Pacific had not
documented any accommodations the company made for
Christie. Georgia-Pacific therefore “fail[ed] to establish the
availability of suitable alternative employment” because it
failed to offer Christie a job that accounts for his physical
limitations. See Gen. Constr. Co., 401 F.3d at 968–69

-- 14 of 15 --

C HRISTIE V. G EORGIA -P ACIFIC 15
(explaining that an employer fails to establish the availability
of suitable alternative employment by, among other things,
failing to identify a job that an employee can perform
considering his or her limitations).
Substantial evidence in the record therefore supports the
ALJ’s findings that Christie is disabled within the meaning
of the Act: he attained maximum medical improvement, he
can no longer return to his previous employment, and
Georgia-Pacific has failed to establish that suitable
alternative employment exists. Accordingly, the Board erred
in reversing the ALJ’s decision awarding benefits. See
Stevedoring Servs. of Am., 297 F.3d at 801.
IV.
In sum, we hold that retirement status alone, in and of
itself, is not dispositive to determining disability under the
Act. In reversing the ALJ’s award of permanent total
disability benefits to Christie, the Board erred in relying on
Moody I, which misinterprets § 902(10). Further, the Board
did not question the ALJ’s factual findings and substantial
evidence supports the ALJ’s award of benefits. We therefore
grant Christie’s petition, reverse the Board’s decision
denying Christie benefits, and remand for a calculation of
the permanent total disability benefits to be awarded to
Christie.
PETITION GRANTED; REVERSED AND
REMANDED.

-- 15 of 15 --