Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir. 1982). · Go Syfert
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Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir. 1982). Cases Citing This Book View Copy Cite
64 citation events (3 in the last 25 years) across 9 distinct courts.
Strongest positive: Ssa Terminals and Homeport Ins v. Robert Carrion (ca9, 2016-05-11)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
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Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) Ssa Terminals and Homeport Ins v. Robert Carrion
9th Cir. · 2016 · confidence medium
The Long-shore Act imposes a one-year statute of limitations on disability claims, which begins to run once the employee is, or should be, aware “of the relationship between the injury ,.v and the employment,” 33 U.S.C. § 913 (a). .We have.explained that § 913(a) contemplates an impairment of earning power, and thus an employee only becomes aware of an injury for statutory purposes when he becomes “aware of the full character, extent, and impact of the harm done to him.” Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.1982) (quotations omitted). *1172 Both the ALJ and th…
discussed Cited as authority (rule) Insurance Company Of North America v. U.S. Dept. Of Labor
2d Cir. · 1992 · confidence medium
Circuit in Hastings v. Earth Satellite Corp., 628 F.2d 85, 93 (D.C.Cir.), cert. denied, 449 U.S. 905 , 101 S.Ct. 281 , 66 L.Ed.2d 137 (1980), recognized that extension of the Act's "protection to certain workers engaged in maritime employment who were not previously covered," changed principles of substantive law 2 The Black court cited Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115-17 (D.C.Cir.1982) (manifestation of disease triggered statute of limitations for asbestosis); Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949) (manifestation of disease triggered statu…
discussed Cited as authority (rule) Insurance Co. of North America v. U.S. Dept. of Labor, Office of Workers' Compensation Programs
2d Cir. · 1992 · confidence medium
The Black court cited Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115-17 .(D.C.Cir.1982) (manifestation of disease triggered statute of limitations for asbestosis); Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949) . (manifestation of disease triggered statute of limitations for silicosis); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982) (manifestation of disease triggered statute of limitations for purposes of LHWCA); and Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1158 (6th …
discussed Cited as authority (rule) Container Stevedoring Company v. Director, Office of Workers Compensation Programs Albert Gross (2×)
9th Cir. · 1991 · confidence medium
Long v. Director, OWCP, 767 F.2d 1578, 1582 (9th Cir.1985) (holding that higher wages did represent wage-earning capacity in this case); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 402 (9th Cir.) (holding that higher wages did not represent wage-earning capacity), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); Portland Stevedoring Co. v. Johnson, 442 F.2d 411, 411-12 (9th Cir.1971) (same). 21 The ALJ's determination that Mr. Gross' equivalent or higher post-injury wages do not represent his wage-earning capacity must be upheld if it is supported by substantial evidence.
cited Cited as authority (rule) Daniel C. Abel v. Director, Office of Workers Compensation Programs, Jones Oregon Stevedoring Company
9th Cir. · 1991 · confidence medium
Todd, 666 F.2d at 401. 4 .
discussed Cited as authority (rule) Newport News Shipbuilding and Dry Dock Company v. Parker
4th Cir. · 1991 · confidence medium
See Cooper Stevedoring, Inc. v. Washington, 556 F.2d 268 , 274 (5th Cir.1977); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982) (upholding the Board's application of Stancil ); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984) (1972 amendment changes Pillsbury rule.
discussed Cited as authority (rule) Newport News Shipbuilding & Dry Dock Co. v. Parker
4th Cir. · 1991 · confidence medium
See Cooper Stevedoring, Inc. v. Washington, 556 F.2d 268 , 274 (5th Cir.1977); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982) (upholding the Board’s application of Stancil); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984) (1972 amendment changes Pillsbury rule.
discussed Cited as authority (rule) Johnson v. Director, Office Of Workers Compensation Programs
9th Cir. · 1990 · confidence medium
Martinac Shipbuilding v. Director, O.W.C.P., 900 F.2d 180, 183-84 (9th Cir.1990); Todd Shipyard Corp. v. Black, 717 F.2d 1280, 1287-91 (9th Cir.1983), cert. denied, 466 U.S. 937 , 104 S.Ct. 1910 , 80 L.Ed.2d 459 (1984); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); see also Bechtel Assocs., P.C. v. Sweeney, 834 F.2d 1029, 1033 (D.C.Cir.1987); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984); Stancil v. Massey, 436 F.2d 274, 278 (D.C.Cir.1970).
discussed Cited as authority (rule) Johnson v. Director, Office of Workers Compensation Programs
9th Cir. · 1990 · confidence medium
Martinac Shipbuilding v. Director, O.W.C.P., 900 F.2d 180, 183-84 (9th Cir.1990); Todd Shipyard Corp. v. Black, 717 F.2d 1280, 1287-91 (9th Cir.1983), ce rt. denied, 466 U.S. 937 , 104 S.Ct. 1910 , 80 L.Ed.2d 459 (1984); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); see also Bechtel Assocs., P.C. v. Sweeney, 834 F.2d 1029, 1033 (D.C.Cir.1987); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141 (5th Cir.1984); Standi v. Massey, 436 F.2d 274 , 278 (D.C.Cir.1970).
discussed Cited as authority (rule) J.M. Martinac Shipbuilding Insurance Company of North America v. Director, Office of Workers Compensation Programs Darryl G. Grage
9th Cir. · 1990 · confidence medium
We held in Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982), that this section, which was added in 1972, means that the time for filing does not being to run until the employee is aware that his or her injury has resulted in the impairment of his or her earning power.
cited Cited as authority (rule) Benjamin Brown v. Jacksonville Shipyards Incorporated, Director, Office of Workers' Compensation Programs, United States Department of Labor
11th Cir. · 1990 · confidence medium
Todd Shipyards Corporation v. Allen, supra, at 401.
discussed Cited as authority (rule) Argonaut Insurance v. Patterson
11th Cir. · 1988 · confidence medium
See also Fleetwood v. Newport News Shipbuilding & Dry Dock, 776 F.2d 1225 , 1232 (4th Cir.1985) (it is “accepted proposition that actual post-injury wages do not necessarily reflect wage-earning capacity”); Newport News Shipbuilding, Etc. v. Director, Etc., 681 F.2d 938, 941-42 (4th Cir. 1982) (stating that "[w~e have no disagreement with the principle," id. at 941 , but that it "obviously has no application to one who is already totally disabled by an unrelated cause,". id. at 942 ); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 402 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 ,…
discussed Cited as authority (rule) Argonaut Insurance Company v. Patterson
11th Cir. · 1988 · confidence medium
See also Fleetwood v. Newport News Shipbuilding & Dry Dock, 776 F.2d 1225 , 1232 (4th Cir.1985) (it is "accepted proposition that actual post-injury wages do not necessarily reflect wage-earning capacity"); Newport News Shipbuilding, Etc. v. Director, Etc., 681 F.2d 938, 941-42 (4th Cir.1982) (stating that "[w]e have no disagreement with the principle," id. at 941 , but that it "obviously has no application to one who is already totally disabled by an unrelated cause," id. at 942 ); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 402 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.…
discussed Cited as authority (rule) Bechtel Associates, P.C. And Lumbermens Mutual Casualty Co. v. Sally T. Sweeney and Director, Office of Workers' Compensation Programs, Dol
D.C. Cir. · 1987 · confidence medium
See, e.g., Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141-42 (5th Cir. 1984); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-02 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 60 (1982); see also Stancil v. Massey, 436 F.2d 274, 276 (D.C.Cir.1970).
examined Cited as authority (rule) Matthew Long v. Director, Office of Workers' Compensation Programs Seatrain Lines and Royal Globe Insurance Company (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1985 · signal: cf. · confidence medium
Cf. Todd Shipyards Corp. v. Allan, 666 F.2d at 402 (shipbuilding industry is often cyclical and thus employee’s post-injury earnings may not accu *1583 rately represent future effects of disability on wage-earning capacity).
discussed Cited as authority (rule) Todd Shipyards Corp. v. Black (2×) also: Cited "see, e.g."
9th Cir. · 1983 · confidence medium
Circuit has decided that the statute of limitations regarding asbestos-related diseases does not begin to run “until that disease becomes manifest.” Wilson v. Johns-Manville Sales Corp., 684 F.2d at 112 ; see also Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949) (statute of limitations for silicosis does not begin to run until the disease manifests itself, even though the disease is often cumulative); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401 (9th Cir.), cert. denied, — U.S. —, 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982) (upholding BRB finding that worker was not …
discussed Cited as authority (rule) Todd Shipyards Corp. v. Black (2×) also: Cited "see, e.g."
9th Cir. · 1983 · confidence medium
Circuit has decided that the statute of limitations regarding asbestos-related diseases does not begin to run "until that disease becomes manifest." Wilson v. Johns-Manville Sales Corp., 684 F.2d at 112 ; see also Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949) (statute of limitations for silicosis does not begin to run until the disease manifests itself, even though the disease is often cumulative); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401 (9th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982) (upholding BRB finding that worker was not inj…
discussed Cited "see" Barnett & Casbarian, Inc. v. Ortiz (2×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); Shroyer v. Industrial Comm'n, 98 Ariz. 388 , 405 P.2d 875 (1965) (in division); Taylor v. Columbia Falls Aluminum Co., 243 Mont. 464 , 795 P.2d 433 (1990); Ford v. State Accident Ins.
discussed Cited "see" Marathon Oil Company v. Lunsford
5th Cir. · 1984 · signal: see · confidence high
Cooper Stevedoring, Inc. v. Washington, 556 F.2d 268 , 274 (5th Cir.1977); see Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-402 (9th Cir.1982). 9 The fact that Lunsford did not work for three weeks after his fall, for which some compensation was voluntarily paid, does not prevent the application of this rule.
cited Cited "see" Marathon Oil Co. v. Lunsford
5th Cir. · 1984 · signal: see · confidence high
Cooper Stevedoring, Inc. v. Washington, 556 F.2d 268 , 274 (5th Cir.1977); see Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401-402 (9th Cir.1982).
discussed Cited "see, e.g." James W. Barker v. United States Department of Labor
1st Cir. · 1998 · signal: see also · confidence medium
Those sections do not apply, notwithstanding the fact that as a direct result of the injury to an unscheduled portion of the body, use of a leg has been impaired.”); see also Todd Shipyards Corp. v. Allan, 666 F.2d 399, 402 (9th Cir. 1982); Hole v. Miami Shipyards Corp., 640 F.2d 769, 772-73 (5th Cir.1981).
discussed Cited "see, e.g." Newport News Shipbld v. Cole
4th Cir. · 1997 · signal: see also · confidence low
See also Todd Shipyards Corp. v. Allan, 666 F.2d 399 , 401-02 (9th Cir. 1992) ("[O]nce the man has been put on alert (i.e., once he knows or has reason to know) as to likely impairment of earning power, there is an `injury'; before that time, while there may have been an accident, there is as yet no `injury' for claim or filing purposes under this statute."); Stancil v. Massey, 436 F.2d 274, 277 (D.C.
cited Cited "see, e.g." Penrod Drilling Company v. Johnson
5th Cir. · 1990 · signal: see, e.g. · confidence low
See, e.g., Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); Cook v. Seattle Stevedore Co., 21 B.R.B.S. 4, 6 (1988).
cited Cited "see, e.g." Penrod Drilling Co. v. Johnson
5th Cir. · 1990 · signal: see, e.g. · confidence low
See, e.g., Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir.), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982); Cook v. Seattle Stevedore Co., 21 B.R.B.S. 4, 6 (1988).
discussed Cited "see, e.g." Robert E. Randall v. Comfort Control, Inc. And Liberty Mutual Insurance Company
D.C. Cir. · 1984 · signal: see, e.g. · confidence medium
See, e.g., Todd Shipyards Corp. v. Allan, 666 F.2d 399, 402 (9th Cir.) (post-injury wages in excess of prior earnings held not to “fairly represent his wage-earning capacity because his disabilities make it unlikely that he could compete on the open market”), cert. denied, 459 U.S. 1034 , 103 S.Ct. 444 , 74 L.Ed.2d 600 (1982).
Retrieving the full opinion text from the archive…
Todd Shipyards Corporation & the Travelers Insurance Company
v.
Norman C. Allan, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Real Party in Interest
80-7511.
Court of Appeals for the Ninth Circuit.
Jan 22, 1982.
666 F.2d 399
Published

666 F.2d 399

TODD SHIPYARDS CORPORATION & the Travelers Insurance
Company, Petitioners,
v.
Norman C. ALLAN, Respondent.
and
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Real Party in Interest.

No. 80-7511.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Dec. 7, 1981.
Decided Jan. 22, 1982.

Robert H. Madden, Detels, Draper & Marinkovich, Seattle, Wash., for petitioners.

Robert D. Duggan, Seattle, Wash., argued, William J. Van Natter, Bothell, Wash., Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Seattle, Wash., on brief, for Allan.

Petition for Review of a Decision and Order from the Benefits Review Board, United States Department of Labor.

Before KILKENNY and GOODWIN, Circuit Judges, and TANNER,[*] District Judge.

GOODWIN, Circuit Judge.

[*~399]1

Todd Shipyards appeals from a Benefits Review Board order affirming an award of 25 per cent permanent partial disability pursuant to §§ 8(c)(21) and 8(h) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 908(c)(21) and 908(h).

2

The dispositive issues are: (1) whether the Board erred in reversing the administrative law judge's initial finding that Norman Allan's claim was time-barred, and (2) whether substantial evidence supports the administrative law judge's determination that Allan suffered a 25 per cent permanent partial disability.

3

On December 9, 1971, during the course of his employment, Allan, a shipwright, was injured when a piece of metal fell on his neck and shoulder. Allan experienced pain and dizziness, but continued to work the rest of the day.

4

The next day, his employer, Todd Shipyards, referred him to Dr. Irving Tobin, an orthopedist. Dr. Tobin diagnosed Allan's condition as a "post occipital headache" and "cervical myosis". Dr. Tobin told Allan the X-rays were normal and that Allan had a bad bruise "which would go away in time." Dr. Tobin gave Allan a prescription for pain and released him for work. Allan went back to work but the headaches and neck pain persisted. In April or May 1973, the neck pain got worse and Allan developed pain in his right arm. In July 1973, he went back to see Dr. Tobin who told him again that he had nothing more than a bad bruise.

5

In November 1973, X-rays taken by Dr. Tobin revealed a change between the fifth and sixth vertebrae. Dr. Tobin referred Allan to a neurosurgeon, Dr. John Gibson, who diagnosed his condition as progressive cervical spondylosis initiated by the earlier accident. In January 1974, Allan had an anterior disc removal and fusion. On May 17, 1974, Allan returned to work. Allan filed his claim April 5, 1974.

6

After a hearing, an administrative law judge denied Allan's claim as time-barred under § 13(a) of the Act, 33 U.S.C. § 913(a). The Benefits Review Board reversed this ruling. On remand, the administrative law judge determined that Allan had suffered a 25 per cent permanent partial disability. The Benefits Review Board affirmed. This petition followed.

7

A. Statute of Limitations.

8

Two versions of § 13(a), 33 U.S.C. § 913(a), have been at issue in this case. At the time of Allan's injury, § 13(a) read in material part as follows:

9

"The right to compensation for disability under this Act shall be barred unless a claim therefor is filed within one year after the injury ...."

In 1972, § 13(a) was amended as follows:

10

"Except as otherwise provided in this section, the right to compensation for disability or death under this Chapter shall be barred unless a claim therefor is filed within one year after the injury or death ... The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment. (Amendatory language is underlined.)

[*~400]11

The administrative law judge applied the version of § 13(a) that had been in effect at the time of Allan's accident. The Board applied the amended version of § 13(a) to Allan's claim. The Board adopted the reasoning of Cooper Stevedoring of LA., Inc. v. Washington, 556 F.2d 268, 274 (5th Cir.), reh. denied, 560 F.2d 1023 (1977). In Cooper Stevedoring, the claimant's accident occurred a few months prior to the effective date of the amendment to § 13(a). Nonetheless, the Fifth Circuit found that the claim was covered by the amended version of § 13(a). The amendment was procedural and therefore said to apply to pending claims. The remedial statute was read liberally to "best effectuate" the Congressional purpose. 556 F.2d at 272. See Whirlpool Corp. v. Marshall, 445 U.S. 1, 13, 100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980). We agree that the amended version of § 13(a) applies to Allan's claim. The Board was correct in reversing the administrative law judge. Todd argues that the amendment was directed toward latent injuries and occupational diseases, and thus should have no effect on Allan's "traumatic injury." The plain wording of the statute belies any Congressional intention that the amendment be read so narrowly.

12

Todd also argues that even if the amended version of § 13(a) applies to Allan, the claim is still untimely. The amended portion of § 13(a) states that the statute runs when the employee knows or should know "of the relationship between the injury or death and the employment." 33 U.S.C. § 913(a). Todd argues that there is substantial evidence in the record to support the administrative law judge's finding that because Allan continued to suffer headaches and pain during the period between the accident and the surgery, Allan knew, or should have known, that the pain was caused by the accident.

13

The Board correctly overturned that decision. Allan was told several times by Dr. Tobin that his injury was only a bad bruise. Even though he had recurrent pain and dizziness, he tried to keep working. He was not aware that he suffered a compensable injury until a second set of X-rays revealed degenerated cervical discs in November 1973. Following Stancil v. Massey, 436 F.2d 274, 277 (D.C.Cir.1970), the Board found that Allan was not "injured" for purposes of the statute of limitations until "he became aware of the full character, extent, and impact of the harm done to him." Allan worked until his surgery in January 1974. Only in November 1973 did Allan know that there was an injury in the sense contemplated by § 13(a)-an impairment of earning power. Under this standard, the statute of limitations did not begin to run until November 1973. Allan filed in April 1974. The claim was not time-barred.

14

B. Partial Permanent Disability.

15

Under §§ 8(c)(21) and 8(h), 33 U.S.C. §§ 908(c)(21) and 908(h), the administrative law judge on remand found that Allan had suffered a 25 per cent partial permanent disability.

16

Allan's claim falls under § 8(c)(21), 33 U.S.C. § 908(c)(21) because such injuries are unscheduled injuries. Section 8(c)(21) provides:

17

"(21) Other cases: In all other cases in this class of disability the compensation shall be 662/3 per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the deputy commissioner on his own motion or upon application of any party in interest."

[*~401]18

Section 8(h), 33 U.S.C. § 908(h), indicates how wage-earning capacity in cases of partial disability is determined:

19

"(h) The wage-earning capacity of an injured employee in cases of partial disability under subdivision (c)(21) of this section or under subdivision (e) of this section shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future."

20

After recovery from surgery, Allan returned to his job as quarterman. He had been promoted to this position in November 1973 after the accident but before the surgery. His actual wages were higher than before the accident. The administrative law judge must determine that actual wages do not fairly represent wage-earning capacity before inquiring into other § 8(h) factors.

21

The administrative law judge found that Allan was still disabled after the surgery. Uncontradicted testimony by Dr. Burrell indicated that Allan sustained a 25 per cent loss of function in each arm and 25 per cent whole body standard. He could not lift more than 25 pounds. A vocational expert testified that with this disability Allan could not perform his previous jobs. He could work only at jobs that could be performed by a worker with his disability.

22

The administrative law judge then determined that Allan's post-injury earnings do not fairly represent his wage-earning capacity because his disabilities make it unlikely that he could compete on the open market. The shipbuilding industry often is "cyclical," and it is conceivable that Allan might be demoted into a job requiring more physical work than his present job. As a result of his injury Allan would not be able to perform jobs that require greater tool use and more physical activity. Section 8(h) allows the administrative law judge to consider the future effects of a disability. Hole v. Miami Shipyards Corp., 640 F.2d 769, 772 (5th Cir. 1981); Lumber Mutual Casualty Insurance Co. v. O'Keeffe, 217 F.2d 720, 723 (2d Cir. 1954); Hughes v. Litton Systems, Inc., 6 Benefits Review Board Service 301 (BRB 1977). Higher post-injury wages do not preclude compensation if the claimant actually suffered a loss of wage-earning capacity. Portland Stevedoring Co. v. Johnson, 442 F.2d 411 (9th Cir. 1971); Collins v. Todd Shipyards, 9 Benefits Review Board Service 1015 (BRB 1979).

CONCLUSION

23

Allan's claim was not time-barred under the 1972 amendment to § 13(a), 33 U.S.C. § 913(a). The decision of the Board reversing the administrative law judge on that point is affirmed. Substantial evidence supports the second administrative law judge's finding that Allan suffered a 25 per cent permanent partial disability under §§ 8(c)(21) and 8(h) of the Act, 33 U.S.C. §§ 908(c) (21) and 908(h).

[*~402]24

Affirmed.

*

The Honorable Jack E. Tanner, United States District Judge for the Western District of Washington, sitting by designation