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Maritime worker's long-time knee injury not deemed temporary disability


A maritime worker who injured his knee nearly 30 years ago can't be classified as temporarily disabled despite the prospect of surgery, the 9th U.S. Circuit Court of Appeals in San Francisco has ruled.

Robert Carrion sustained a knee injury while working for Honolulu-based shipping company Matson Terminals Inc. in January 1987, court records show. Matson continued paying for Mr. Carrion's knee treatments after Seattle-based Marine terminal operator SSA Marine took over the company in 1999.

Mr. Carrion continued working there until he took early retirement in February 2002 due to his knee pain, according to records. When Matson ceased paying for treatment in 2008, he filed claims against Matson and SSA seeking disability benefits under the Longshore and Harbor Workers' Compensation Act, the workers comp system that covers certain maritime workers.

He listed his retirement date as the date of his cumulative knee injury, 2002, records show. His treating physician said he would need a total knee replacement when his symptoms worsened.

A physician hired by Matson in September 2008 also said Mr. Carrion required total knee replacement surgery, diagnosing his condition as a result of a “natural progression of (his) degenerative arthritis and also (the) cumulative trauma,” according to records. A physician hired by SSA one year later came to a similar conclusion, but found that Mr. Carrion's condition was solely due to the “natural progression” of his 1987 injury.

Following an administrative hearing in 2009, a judge determined that Mr. Carrion didn't learn of the causal connection between his work for SSA and his cumulative trauma injury until 2008, so he was within the one-year statute of limitations when he filed his claims, records show. The judge concluded that Mr. Carrion would be considered temporarily disabled if he goes through with the surgery, but that he would be considered permanently disabled if he chooses to live with the knee pain.

The Benefits Review Board affirmed the judge's ruling.

On appeal, a unanimous three-judge panel of the 9th Circuit ruled Wednesday that, while the statute of limitations was correctly applied, “the prospect of a hypothetical future surgery and its anticipated benefits (cannot) transform an otherwise permanent disability into a temporary one for purposes of the Longshore Act.”

In its ruling, the court said a disability is temporary “so long as there is a possibility or likelihood of improvement through normal and natural healing.” It added that a disability may become permanent “at the point which 'the injury has healed to the full extent possible' and normal and natural healing is no longer likely.”

Noting that treatment may never come to pass if an injured worker develops a heart condition or dies, for example, “evaluating an individual's condition based on the presumed effect of a theoretical future treatment makes scant sense,” the ruling states. “Accordingly, the appropriate question to ask is not whether a future surgery would ameliorate Carrion's knee condition, but whether there was actual or expected improvement to his knee after a normal and natural healing period … We hold that it cannot.”

The ruling states that the impact of a future knee replacement should be assessed after the surgery.

“The question of whether Carrion was permanently disabled did not spring up on appeal,” according to the ruling.