it please the court i am joshua go on appearing on behalf of mr christie this morning we believe that the fourth circuit got it exactly right in recently reversing the predicate decision on the basis of the benefits review board on the basis of which the board reversed the l j is award to mr christie there is nothing relevant in statute whatsoever about retirement voluntary or involuntary what there is is a standard for disability that ties the extent of disability to the workers wage earning capacity and as the fourth circuit reason the capacity to earn wages is not cut off by a retirement whether it's voluntary or involuntary the big rb acknowledges in its decision in a footnote near the end of the opinion the compensable it is not affected by the intervening retirement between the on the job incident that leads to the scheduled disability and the appearance and rating of that disability i gather counsel that for your purposes since the four circuit took the approach of but this is just plain statutory analysis the statute says nothing about retirement or and i am talking about retirement in the story that pretty much your argument  that's pretty close yes there are certainly other contexts other aspects of the compensable of the scheme that the board agrees are not affected by retirement  georgia pacific seems to disagree with that they assert that they were able or should have relied on their own prior case law through the board  what's your response to that well the first that the board's prior case law before moody when the a l j addressed the subject was not what the board pretends in muti that it was it was not it was not voluntary or involuntary was not the question it was was the retirement motivated by the employment related condition mr moody's was as the a l j explicitly found he saw that as the critical determinant under the board's previous authorities it was only in muti that the board changed that standard and said the critical factor hundred five was the original injury here the injury does seem to have been aggravated by his continuing work as supervisor agreed everyone knew that the work as limited as it was was still causing adorations of his condition and he retired in two thousand and ten correct twenty five years after he was injured yes and he claims ninety nine is correct i'm sorry yes that's still twenty one years yes and during that entire time he the employer continued to employ him but his duties the duties of which he was capable and therefore which he was assigned became less and less as those years went on to the point where he was doing something that after his retirement an inexperienced attorney performed in one day a week and ten hours a week and whereas he had been paid for forty hours a week doesn't your argument mean that he should be paid at the time he was injured which would be in one thousand nine hundred nine no because he continued to have an earning capacity after that he was able to return to work restricted work and work which became more and more restricted over that period of time but no  there certainly could have been an argument made statute reads incapacity because of injury there are in the wages which the employee was receiving at the time of injury correct yes should that be nine hundred ninety nine yes and the stipulated average weekly wage was the same in one nine hundred ninety nine as it was in two thousand and ten when he retired but that was your argument was a you you want any i don't know how much it was precisely i don't think the record shows but it was reduced by eighteen percent by the fact that he took that retirement six years before he reached the age of sixty two well he got all his retirement and now he's going to be double dipping or both disability and retirement yes yes and that is a commonplace under every worker's compensation statute including the longshore act that does not have a contrary provision on point the disability compensation continues beyond retirement age continues after you've gone on social security all age benefits none of that affects continued in title meant to disability compensation if you've become disabled while you're working it doesn't it doesn't go away except in those few states that have a provision to the contrary and say when you start taking social security old age benefits that acts as a credit against your disability compensation or whatever those provisions are varies in those few states that have it but longer act has nothing like that and it has always been the case that disability compensation continues after retirement and in this case for example i don't think anyone contests that if mr moody had worked for those additional two years and then retired because the he could no longer do even the minimal duties he had been doing in the employer says i we can accommodate you any further than this he took the retirement at that time so you would read the statute as saying capacity in two thousand and twelve because of injury in one nine hundred ninety nine or in the wages which the employee was the l j made a determination that here mr christie was not eligible for a couple of years is that right or for a year there was no it if you can you walk me through that yes  the claim was only for the total disability that commenced when the doctor said well i've given you some conservative treatment here you've been off work you're not getting better this is a permanent condition and here are your employment restrictions which the a l j found no alternative employment within those conditions imposed by the doctor was available to him and so as a result from that point forward in your view what should happen that is when his permanent total disability commenced so he is entitle to compensation for that permanent total disability just as the a l j awarded we request the court to reinstate the decision we don't believe we need to re man or anything else is there a limit on how long he would get the total know all permanent disability benefits other than those covered under the schedule of injuries to particular members all permanent disability benefits continue for life or until something in the physical condition changes and the employment related injury no longer totally disables the worker or in the case the same with a permanent partial loss of earning capacity that continues for life irrespective of other conditions that may arise as time goes on that would also have disabled the claimant if if  the worker is disabled by the employment injury the fact that he may later be also disabled by some other condition does not relieve the employer of liability for that continuing disability so those those awards are for in two thousand and ten he probably would not have had sufficient years on the waterfront to qualify for a say would not have been drawing retirement pay after disability i'm sorry he would not he would not be drawn retirement pay after disability just disability yes that's correct he would have had compensation if they had not taken him back to work after his  spinal fusion surgeries heep might well have been permanently totally disabled at that point the employer was in required to find alternative employment for a disabled person correct they are not required to do so but if they did not then they certainly face liability for the loss and the possible that's associated with the injury at that point he could not have taken a carpentry job you know if he'd come to georgia pacific applying for that job he could not have gotten it because he couldn't do all the duties of the carpentry job that he had done so he was given alternative employment they gave him the alternative employment in order to avoid liability for serious partial disability or maybe even total disability the the there was a record show of a causative link between the injury and the doctor for which he was in treatment throughout the whole period that the the condition as it was found by the doctor two years after the retirement was totally disabling that condition that  back condition resulting from the one nine hundred ninety eight injury so it was totally disabling the l j made that explicit factual finding it was not seriously contested well it was it was contested to some extent the georgia pacific put on some vocational evidence that tried to say yes there was some minimum wage or thereabouts maybe part time employment of which he was still capable despite the board did yes you are a bit right yes exactly so i never considered all these other arguments that you are making well the a l j had made those are those fourth circuit decision later reversed in muti on the board's decision later reversed and moody yes yes they changed the legal standard from capable of the from from what was the injury a factor in the retirement decision to was the came claimant able to do what he was doing at the time of retirement not of the time of the injury but at the time of the retirement so should we  allow the board to review the a l j in all its findings well i don't think that the respondent has asked for that i wouldn't have any huge objection to that as long as of course the board's restricted to the arguments that george pacific made on its appeal to the board but otherwise what relief are you seeking here reinstatement of the jays award vacate the board's decision and reinstate the  ys award and so you're asking us to read the civility section of the statute differently than what the board did differently than the board did and to follow the fourth circuit and to agree with the fourth circuit now even if you don't agree fully with the fourth circuit in moody it was clear that the claimant had made the decision to retire before the injury to his shoulder even occurred it was during that six weeks or so between his giving notice that he was going to retire and the time that took effect that he injured the shoulder and the surgery for that shoulder was just  d until after he had retired in this case the decision to retire was not made before the injury and it was this the a l j explicitly found because of the s disability as incapacity because of the injury to earn wages and this definition necessarily requires the finder of fact to ask why someone is not in a position to earn wages at the time of their disability and i think it's pretty clear the statute itself doesn't mention anything about retirement so that leaves that actually that actually hurts you doesn't it well i think that because the statute itself requires the finder of fact in the court to address incapacity because of the injury that necessarily requires a determination that incorporates retirement well that's an interesting argument what's wrong with the four circuits analysis of the statute itself putting aside the factual differences and we recognize there are some factual differences here but the four circuits analysis and moody two it went over very carefully what the statute itself said and made the point that the concept of retirement is simply not discussed it's just irrelevant in terms of what you have to find for disability here wherein did the fourth circuit urry in that case but your honor my reading of moody is they focused almost entirely on the term incapacity and didn't consider incapacity in the context of the entire statute which says because of injury and that's what the benefits review board has done over the past thirty years they ask why someone is not in a position to work at the time the disability occurs and that's when issues like retirement come into play not sure that is my question but the in this particular case i don't think that you're arguing that mr christie decided to retire because he had heard from his i guess it was a steward or somebody that told him that georgia pacific had decided or was about to decide to extend the date when you could have early retirement past a point he thought he could continue to work do you agree with that the testimony from mr christie is that he did hear from his union that georgia pacific was going to change its early retirement and he may not have the option to retire early at the age of sixty two and he admitted that he could continue to work for some period of time but he was not sure how much longer right it was because he had been injured that he was faced with that dilemma right if he'd have been full bodied never injured this would not have ever been an issue right but that was certainly one of his considerations so that when he says he doesn't need don't dispute that he was injured on the job i guess it was moving concrete backs great there's no dispute ok so go ahead and answer the question then so if he if you don't dispute that he was injured on the job he understood that this early retirement was going to go away he knew he wouldn't last the full six years based on how he was feeling so he decided as he was entitled to or do you dispute that he wasn't entitled to take early retirement he was entitle to take ok i am an art with so he did right and later he continues with his life i guess and managing his pain in his injury but it gets to a point apparently in two thousand and twelve i believe based on his doctors that they have done everything they can for him and he is basically incapacitated due to that prior injury that's correct so doesn't that fulfill the playing language meaning of this statute that would then enable him to get the permanent long term disability but your honor what the board considered again this goes back to the to the statute disability or incapacity because of injury in the board determined that looking at the time he chose to take early retirement he was still physically capable of working yes he did have some concerns like we all do about whether or not we can make it to full retirement but the fact of the matter was according to mr christie's own testimony he was still and where is that in the language here that matters your honor my focus is on the because of injury and i think that invites the courts and invited the board to consider why i wise somebody not in a position to earn wages in the board determined that mr christie was not in a position to earn wages when his back condition became disabling because he had taken the early retirement two or three so that in a sense of finding that the capacity in two thousand and twelve was because of injury in one nine hundred ninety nine partially yes but i think the the that  inquiry it does not the benefits review board over the past thirty years has considered that because of injury to be a broader question which requires them to evaluate issues like retirement and they determine that once somebody takes a voluntary retirement in other words they're still physically capable of working at the time of retirement if their injury subsequently becomes disabled they don't have a loss of earning capacity because it's already been subsumed by the earlier retirement but here tell us what the benefits through the war consider i mean we're we have to look at this to novo and look at the plain meaning so i'm like your best argument as to why the plain meaning here supports your position yes you're on i certainly understand the noble aspect of it and there's no deference to the benefits review board however there's also a case from the ninth circuit  in my brief which says that the court has indicated it will respect the board's interpretation if it reads if it's reasonable and reflects the underlying policy of the act and i think the underlying policy indicates a balance of here with respect counsel as i asked before if mr christie had never been injured there simply wouldn't be an issue with there just not at all because you know he would to retire presumably but he was injured and according to the information which i understand that you do not dispute he was motivated to retire because he had been injured he did not believe that he could make it to sixty two and therefore might be deprived of the opportunity to have early retirement that was i believe what the l j found was the motivating if you will cause an agent doesn't that fit neatly within the meaning of the statute that we've been talking about well the motivational aspect i believe the board found was contradicted by the fact that he was still physically capable of working at the time he retired and they reeling to i guess a gauge in the kind of speculative analysis about you know can i work til i'm sixty five or seven like let's just say he's has a high threshold of pain he's the doctors have said he's permanently disabled permanently but he likes to you know make model airplanes and sell them on the street they make some money from that how does that disqualify him like he's making money or earning money or maybe he was maybe he works cutting out news clippings for georgia pacific managers or something like that it doesn't change the fact that in percent of the statute he has incapacity was because of his injury and that occurred in one nine hundred ninety nine but he continued to plague and it got worse and worse and worse and when the time came that he felt he would lose an ability to retire early it motivated him to act how does that not fit within the statute well the thing might have already i don't want to repeat the same argument but i keep coming back to  incapacity because of injury and at least the way the benefits review board has taken that statute they focus on that because of injury element of it and they don't consider it in a vacuum they consider it in the real world where you actually take into account other factors which may have impacted your but we're asking the same thing he was entered that did cause him to want to retire because he'd been injured that's a real world fact right that is correct it least his testimony is that it motivated him to take the early retirement but the benefits review board found that that was counteracted by the fact that he could still physically work at the time he took early retirement and according to the way the board is interpreted the statute you look at the time of retirement and if somebody is physically capable of working and their retirement is voluntary any subsequent disability that arises they determined that they don't really have a capacitor in wages because of the prior retirement when they've drawn this distinction between voluntary and involuntary retirement and the board determined that elegies decision about the voluntary aspect of it they didn't find substantial evidence based primarily on mr christie's own testimony that he was physically capable of working at the time he retired  rrect their reason you didn't do that ok so give me your best as your best argument as to why we should follow the fourth circuit's analysis of this exact  exclusively on the incapacity part of the statute and found that socially everyone has capacity to earn wages regardless of retirement so you can take your retirement and that doesn't necessarily you're not necessarily withdrawing from the workforce but what they didn't do is again go back and put that in the context of its capacity with respect to the injury due to the injury because of injury but they considered it in a vacuum and they specifically said in their decision that they don't need to engage in a real world analysis and from that standpoint and from my reading they consider there the statute in a vacuum which i don't think congress intended i think congress intended a more so you're saying it's ambiguous and so that's why you're going to review intent you're saying it's not playing at that that you disagree with know correct i'm not saying what i'm saying is that the statute in and of itself is ambiguous doesn't it wasn't designed to consider all the alternatives and it requires you to agree there's no reference in here to retirement correct what's your response to your opponent's argument that in the real world when people retire on permanent disability that they frequently get other benefits or they frequently work and has absolutely nothing to do with the statute or the retirement what's your response to that well it is not uncommon for if somebody if somebody is disability forces them into retirement in other words they're not physically capable of complying to work they still get  permanent partial disability benefits centrally till death so that is one alternative but the board again is trying to balance the the act and say ok we're going to draw a distinction between somebody that voluntarily retires versus somebody that in voluntarily read and we respect the fact that the board felt it had the authority to do that but you agree that we have the noble review power just like the fourth circuit did and if we look at the statute and we construe it differently than the board did that's the end of the story right  case correct but i would also say that the benefits review boards analysis of the statute is reasonable reflects the underlying policy of the act and with the ninth circuit's prior president preceden colleagues like you have other things you want i do have one vision of the ninth circuit and johnson versus director nine eleven and second to forty seven held that under the statute it's the time of incapacity that is the injury time not the injury itself thus holding that the difference between a time of injury and a time of disability is not relevant to the finding of total disability are we bound by  manifest as would happen with perhaps a late disease well i think there can however reasonable that is doesn't bind us i think it's an instructor but i think there's also varying periods of incapacity in disability for example mr christie was on temporary disability benefits while he underwent surgery you know there's the act to contemplate various periods of incapacity so you can go from temporary or permanent back to temporary you can have varying degrees of incapacity but again i think that in this case the time of incapacity is whenever he's in two thousand and twelve and by that point he stand in recess for the day