Siver v. Director, Office of Worker's Compensation Programs

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2024
• Docket: 22-2098
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARVIN SIVER, ON BEHALF OF No. 22-2098 ESTATE OF RUTH SIVER, WIDOW OF Agency No. DAVID SIVER, 21-0426 Petitioner, MEMORANDUM* v.

KAISER STEEL RESOURCES, INC./KAISSER ALUMINUM & CHEMICAL CORPORATION, ET. AL.

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted February 16, 2024** San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

Petitioner, Marvin Siver, seeks review of a Benefits Review Board (“Board”)

order affirming a decision by an Administrative Law Judge (“ALJ”) that Ruth

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Siver’s claims under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”) were barred. The Board held that the ALJ was correct in his

determination that Ruth entered into settlement agreements with third parties without

seeking approval from a covered employer, and thus was barred from seeking

benefits from any employer under the LHWCA. We have jurisdiction under 33

U.S.C. § 921(c), and we deny the petition.

When reviewing decisions of the Board, we must determine whether the

decision contains any errors of law and whether it is based on substantial evidence.

See Cretan v. Bethlehem Steel Corp., 1 F.3d 843, 845 (9th Cir. 1993) (citations and

quotations omitted). If the decision is “reasonable and reflects the underlying policy

of the statute,” then this court will defer to the Board. Alcala v. Director, Off. of

Workers Comp. Programs, 141 F.3d 942, 944 (9th Cir. 1998) (quotations omitted).

Petitioner’s challenge centers on the operation of 33 U.S.C. § 933(g). This

provision of the LHWCA protects employers of workers entitled to compensation

under the Act by ensuring that employees or their successors-in-interest cannot

obtain a double recovery. It gives people entitled to compensation under the Act the

opportunity to sue and settle with third parties who may be at fault for any injuries

or death resulting from the negligence of those parties. See 33 U.S.C. § 933(g). But

if a person entitled to compensation enters into such a settlement, “before the

settlement is executed,” he must obtain approval “from the employer and the

2 employer’s carrier” if he wishes to receive any additional compensation he may be

entitled to under the LHWCA. See id. at § 933(g)(1)–(2). If he does not receive

written approval but still settles, he forfeits his right to additional compensation. See

id.

Petitioner argues that, even though he signed agreements on behalf of himself

and all heirs to settle a wrongful death claim arising out of his father’s death without

obtaining the required approval, his mother Ruth did not. Therefore, he claims, her

estate is still entitled to compensation from her husband’s employers under the

LHWCA. But Ruth signed a durable power of attorney giving Marvin broad

authority to act on her behalf. Ruth was a party to the “survival wrongful death”

action, which Marvin settled on behalf of the “[d]ecedent’s heirs.” Under California

law, Ruth fell within the definition of “heir.” See Cal. Code of Civ. Pro. 377.60.

Petitioner argues, however, that because Ruth executed an undisclosed disclaimer of

all interest in the wrongful death action and because she was not specifically listed

as an heir on certain hold-harmless agreements, Ruth did not enter the settlement,

and therefore § 933(g) does not apply to Ruth or her estate.

The ALJ and the Board’s conclusions that Ruth was a party to the

settlement—both as a named party in the suit and an heir of the decedent—and that

her son was acting as her agent in settling the cases is supported by substantial

evidence. Additionally, the Board’s interpretation of the requirements of the

3 LHWCA is reasonable and fits with the statute’s underlying purpose of preventing

double recovery. Consequently, we affirm the Board’s decision.

PETITION DENIED.