We are only three days into 2018, and the Fourth Circuit may have just published the most important Longshore case of the year. The case is Moody v. Huntington Ingalls, and it addresses the concept of “retirement” as it relates to the Longshore’s definition of “disability.”
Factual Background:
Mr. Moody began working for Huntington Ingalls when he was 20 years old. He continued working for Huntington for 45 years. In June 2011, Huntington told Mr. Moody that he was assigned to a new shift. Unhappy with the shift, Mr. Moody gave Huntington the requisite 90-day notice of retirement, effective October 31, 2011.
But then, on September 19, 2011, Mr. Moody injured his shoulder while working at the shipyard. He tore his rotator cuff. Still, Mr. Moody continued working at the shipyard until he retired on October 31st.
Six weeks later, on December 13, 2011, Mr. Moody underwent shoulder surgery. Mr. Moody’s doctor said that he needed to remain “out of work” under February 16, 2012.
Huntington agreed to pay for the costs of Mr. Moody’s surgery, but refused to pay temporary total disability benefits for the recovery period between December 13, 2011 and February 16, 2012. Huntington argued that Mr. Moody had already voluntarily retired by the time Mr. Moody underwent surgery. In Huntington’s view, Mr. Moody’s prior retirement precluded the payment of any weekly compensation.
Procedural History:
In a Decision and Order dated April 22, 2015, the administrative law judge awarded compensation to Mr. Moody. Specifically, he awarded benefits paid at the rate of $562.39 between December 13, 2011 and February 16, 2012. Although it is not mentioned in the Decision and Order, the grand total of benefits owed was $5,302.78.
The Benefits Review Board reversed the ALJ in a Decision and Order dated March 10, 2016. The BRB determined that the retirement issue was central to the resolution of the case. It focused on the phrase “because of injury” in the statutory definition of “disability.” See 33 U.S.C. 902. Then, the BRB determined that Mr. Moody did not establish disability because he did not establish a loss of wage-earning capacity because of an injury. Instead, his retirement “had already resulted in his complete loss of earning capacity at the time of his shoulder surgery.”
The Fourth Circuit’s Decision:
In a published opinion, the Fourth Circuit reversed the BRBs decision. In doing so, the Fourth Circuit knew that Moody would have far-reaching consequences–as evidenced by the sole footnote:
Following oral argument in this case, Huntington Ingalls opted to pay Moody the benefits for the two-month recovery period and moved to dismiss the case as moot. Moody opposed the motion. We deny that motion and proceed with the merits because Huntington Ingalls has not shown that the challenged conduct is not likely to recur, particularly given the BRB’s several decisions erroneously interpreting “disability” under the LHWCA. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see, e.g., Christie v. Georgia-Pacific Co., BRB No. 16-0321, 2017 WL 2572359, at *2 (Mar. 7, 2017); Eason v. Huntington Ingalls Inc., BRB No. 16-0082, 2016 WL 8315589, at *3 (Sept. 20, 2016).
The Fourth Circuit started its opinion with the statutory language. Under the Longshore Act, ” ‘[d]isability’ 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.” See 33 U.S.C. 902(10). The court noted the absence of retirement or the timing of retirement. The only time reference was the time of injury, not the time of retirement. In the court’s opinion, Huntington “would insert a new requirement into the statute by misconstruing the plain meaning of ‘incapacity’ and the real-world significance of retirement.”
Indeed, Huntington ignored what the word “incapacity” really means. It means “inability,” “incompetence,” in “incapability.” But, retirement “is not inherently debilitating.” Huntington confused “being unwilling with being unable.”
Moreover, Huntington confused “loss of earning capacity” with “loss of actual earnings.” There’s a big difference between the two. To be sure, there are cases that “characterize ‘disability’ as an ‘economic harm.'” Yet, there are also cases that “specifically define ‘economic harm’ as lost capacity to earn wages, not actual economic loss.”
While Mr. Moody may not have lost any income during his recuperation, he was deprived of the ability to work. And “actual wage loss does not fully capture the loss of capacity caused by Moody’s shoulder injury.” What if Mr. Moody decided to work after retirement? He could not have done so during the period of recuperation following his surgery. During that time, Mr. Moody did not have the capacity to earn wages because of his work injury at Huntington Ingalls. Quite simply, “voluntary retirement is not a form of total incapacity.”
Conclusion:
Moody is important. Very important. The concepts of retirement and “incapacity” are litigated every day. The fact that the Fourth Circuit named some decisions which it felt were incorrectly decided–Christie and Eason–show that Moody has far reaching consequences. It is the first domino.
Moody v. Huntington Ingalls, Inc., No. 16-1773, — F.3d —-, 2018 WL 264932 (4th Cir. 2018).
