Scott E. Horton v. Specialty Finishes, LLC;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT E. HORTON,
Petitioner,
v.
SPECIALTY FINISHES, LLC; et al.,
Respondents.
No. 17-73335
BRB No. 17-0168
MEMORANDUM*
SPECIALTY FINISHES, LLC; SIGNAL
MUTUAL INDEMNITY ASSOCIATION,
LTD.,
Petitioners,
v.
SCOTT E. HORTON; et al.,
Respondents.
No. 18-70089
BRB No. 17-0168
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted May 13, 2019
Seattle, Washington
Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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These related cases involve the award of benefits under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”). Scott Horton (“Horton”)
petitions for review of the decision of the Benefits Review Board (“BRB”)
affirming the calculation of his average weekly wage and the denial of benefits on
March 31, 2014. Specialty Finishes, LLC (“Specialty”) petitions for review of the
BRB’s decision confirming it, and not Industrial Marine, Inc. (“Industrial
Marine”), as the last responsible employer. We have jurisdiction under 33 U.S.C.
§ 921(c). We grant Horton’s petition in part, ordering benefits for March 31, 2014,
and deny his petition for review as to his average weekly wage. We deny
Specialty’s petition for review.
Substantial evidence supports the calculation of Horton’s average weekly
wage. The substantial evidence test is “extremely deferential” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165 (9th Cir.
2010) (citations omitted). The Administrative Law Judge (“ALJ”) had discretion
to determine that Horton’s yearly earnings from his prior employment were the
“best estimate” of his future earning capacity, given the uncertainty as to the hours
he would have worked had he not been injured. See id. Consequently, the court
denies Horton’s petition for review on this issue.
However, the ALJ should have awarded permanent total disability benefits

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for March 31, 2014 because Horton’s partial disability benefits ended on March
30, 2014. As this appears to have been an inadvertent error, the court grants
Horton’s petition in part and awards permanent total disability benefits for March
31, 2014.
The court finds that the BRB did not err in concluding that Specialty was the
last responsible employer. Once the claimant establishes a prima facie case against
one employer, the burden is on that employer to prove that a different employer is
responsible. Gen. Ship Serv. v. Dir., Office of Workers’ Comp. Programs, 938
F.2d 960, 962 (9th Cir. 1991) (“[T]he purposes of the LHWCA are best served by
assigning liability to the employer who is claimed against.”); Albina Engine &
Mach. v. Dir., Office of Workers’ Comp. Programs, 627 F.3d 1293, 1299 (9th Cir.
2010). Only the claimant, not an employer, can invoke the Section 20(a)
presumption. Lins v. Ingalls Shipbuilding, Inc., 26 Ben. Rev. Bd. Serv. (MB) 62,
1992 WL 213839, at *2 (Aug. 18, 1992).
Substantial evidence supported the determination that Specialty did not rebut
the presumption that it was the last responsible employer. Horton testified that his
injuries were not aggravated following his initial injury, and Specialty presented no
medical evidence to the contrary. Though Horton suffered pain and missed work
during his subsequent employment at Industrial Marine, a “reasonable mind” could
have concluded that the pain was a natural progression of his initial injury, not a

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sign of aggravation. See id. (finding no aggravation where claimant testified there
was no further injury and “employer did not present any evidence to contradict
claimant’s testimony”). Consequently, the court denies Specialty’s petition for
review.
In case no. 17-73335, PETITION GRANTED IN PART, DENIED IN
PART. In case no. 18-70089, PETITION DENIED.
Each party shall bear its own costs on appeal.

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