Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Charles Robinowitz, Esq., Portland, OR, for Petitioner.
U.S. Department of Labor, Office of the Solicitor, Carol A. Dedeo, Esq., U.S. Department of Labor, Associate Solicitor, Thomas Shepard, Benefit Review Board Clerk of the Benefit Review Board, Michael Niss, Office of Workers' Compensation Programs, U.S. Department of Labor, Washington, DC, John R. Dudrey, Esq., Williams, Fredrickson & Stark, P.C., Portland, OR, for Respondents.
On Petition for Review of an Order of the Benefits Review Board. BRB No. 03-0302.
Before: BRUNETTI, T.G. NELSON, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Bruce Christensen petitions for review of the Benefits Review Board's affirmance of the Administrative Law Judge's (ALJ) calculation of his disability awards for two separate injuries. We have jurisdiction pursuant to 33 U.S.C. § 921(c). We grant the petition, reverse and remand.
After the ALJ issued his decision, a panel of this court held in Stevedoring Services of America v. Price that 33 U.S.C. § 906(b)(1) sets forth the maximum for each disability award individually, not for the combined awards. Because Christensen's awards individually do not exceed the statutory maximum, Price requires us to reverse the Benefits Review Board's decision. Upon remand, Christensen is entitled to receive each award in full.
382 F.3d 878 (9th Cir.2004); cert. denied, 544 U.S. 960, ----, 125 S.Ct. 1724, 1725, 161 L.Ed.2d 601 (2005).
Id. at 889.
Id. at 883 (reviewing de novo the Benefits Review Board's interpretation of 33 U.S.C. § 906).
We decline to address Stevedoring Services of America's (SSA) argument regarding the ALJ's calculation of Christensen's permanent total disability award because it is not properly before us. The argument does not provide an alternative ground for supporting the ALJ's decision; instead, it attacks that decision. Furthermore, there is no justification for SSA's failure to cross-appeal the issue to this court.
See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-82, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999).
Id. at 479; see Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1107 (9th Cir.2001).
See Lee, 245 F.3d at 1107-08.
Page 163.
The petition for review is GRANTED; the decision is REVERSED and the matter REMANDED with instructions to calculate Christensen's award in light of Price.