FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STANLEY CHRISTIE,

Petitioner,

v.

GEORGIA-PACIFIC COMPANY; ACE 

AMERICAN INSURANCE COMPANY;

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAM,

Respondents.

No. 17-70853

BRB No.

16-0321

OPINION

On Petition for Review of an Order of the

Benefits Review Board

Argued and Submitted June 5, 2018

Portland, Oregon

Filed August 2, 2018

Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit 

Judges, and Alvin K. Hellerstein,* District Judge.

Opinion by Judge Murguia

 * The Honorable Alvin K. Hellerstein, United States District Judge 

for the Southern District of New York, sitting by designation.
2 CHRISTIE V. GEORGIA-PACIFIC

SUMMARY**

Longshore and Harbor Workers’ Compensation Act

The panel granted a claimant’s petition for review, 

reversed the Benefits Review Board’s decision denying 

claimant disability benefits under the Longshore and Harbor 

Workers’ Compensation Act, and remanded for a calculation 

of the permanent total disability benefits to be awarded to 

claimant.

The panel interpreted the language of 33 U.S.C 

§ 902(10) defining “disability,” and held that claimant’s 

decision to retire early did not prevent him from receiving 

permanent total disability benefits. The panel further held 

that substantial evidence in the record supported the 

administrative law judge’s findings that claimant was 

disabled with the meaning of the Act: he attained maximum 

medical improvement, he could no longer return to his 

previous employment, and the employer failed to establish 

that suitable alternative employment existed. The panel 

noted that the Board did not question the ALJ’s factual 

findings, and remanded for calculation of an award of 

benefits.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CHRISTIE V. GEORGIA-PACIFIC 3

COUNSEL

Joshua Thomas Gillelan II (argued), Longshore Claimants’ 

National Law Center, Washington, D.C.; Richard A. Mann, 

Brownstein Rask LLP, Portland, Oregon; Lara D. Merrigan, 

San Rafael, California; for Petitioner.

Stephen Verotsky (argued), Sather Byerly & Holloway LLP,

Portland, Oregon, for Respondents.

OPINION

MURGUIA, Circuit Judge:

Stanley Christie, a longtime employee of the Respondent 

Georgia-Pacific Company (“Georgia-Pacific”) in Portland, 

Oregon, injured his back at work in 1999. He returned to 

work following his injury but he eventually required surgery, 

which he underwent in 2004. Christie now asks us to decide 

if he is entitled to permanent total disability benefits under 

the Longshore and Harbor Workers’ Compensation Act, 

33 U.S.C. §§ 901–50 (the “Act”), because of his workrelated injury.

The parties do not contest that following his surgery, 

Christie faced physical limitations, and Georgia-Pacific 

reassigned Christie to less physically demanding safety 

inspection work sometime in 2006. In late 2010, Christie 

learned that the option to take early retirement would likely 

no longer exist beginning in January of 2011. Since Christie 

was still years away from reaching the retirement age of 62, 

in December of 2010 he decided to retire early and accepted 

an 18-percent reduction in monthly pension payments.
4 CHRISTIE V. GEORGIA-PACIFIC

Years after he retired, Christie sought permanent total 

disability benefits as permitted by the Act. The 

administrative law judge (“ALJ”) who considered Christie’s 

claim awarded Christie permanent total disability benefits. 

Georgia-Pacific appealed the ALJ’s decision to the United 

States Department of Labor’s Benefits Review Board 

(“Board”), which reversed the award of benefits. Christie 

subsequently appealed to our court.

To determine Christie’s eligibility for benefits, we 

interpret the language of 33 U.S.C. § 902(10), which defines 

“disability” under the Act. In particular, we consider whether 

Christie’s decision to retire early prevents him from 

receiving permanent total disability benefits. After 

reviewing the plain language of § 902(10), we hold that 

Christie’s decision to retire early does not make him 

ineligible for benefits. Our conclusion is in accord with a 

recent Fourth Circuit decision also interpreting § 902(10). 

Accordingly, we grant Christie’s petition, and we reverse 

and remand.

I.

A.

In 1986, Christie began working for Georgia-Pacific in 

Portland, Oregon. Thirteen years later, Christie injured his 

back at work while moving bags of concrete. Although 

Christie returned to work following his injury, he eventually 

required surgery, which was performed in January of 2004. 

It is undisputed that Christie’s back injury is a work-related 

injury.

In 2006, Georgia-Pacific assigned Christie to safety 

inspection duties in part to accommodate his physical 

limitations from his back injury. As safety inspector, Christie 
CHRISTIE V. GEORGIA-PACIFIC 5

was responsible for inspecting three Portland warehouses, 

which involved both active and sedentary tasks. Among 

other things, Christie created labels for materials in the 

warehouses detailing the contents and locations of items and 

who last inspected them. He also performed physical 

inspections, such as inspecting fire extinguishers, which

sometimes involved lifting them. Due to his physical 

limitations, Christie had difficulty performing some of his 

job duties.

In late 2010, Christie learned from his labor union’s 

director that Georgia-Pacific was likely eliminating early 

retirement in 2011. Under the early retirement option 

available to Christie in 2010, Christie could choose to retire 

after age 55 and accept a penalty reducing his monthly 

payments by 18 percent. Christie knew that without the early 

retirement option, he was ineligible for retirement income 

until age 62. Because Christie, then 56, believed he would 

be unable to continue working for another six years due to 

his physical limitations, he decided to retire early, effective 

December 1, 2010.

After Christie retired, several doctors evaluated him for 

multi-level back fusion surgery. Once the doctors 

determined that Christie should first pursue other treatment 

options before undergoing surgery, he began conservative 

pain treatment in May of 2012. By November of 2012, the 

doctor providing Christie with pain treatment believed 

Christie had reached his maximum medical improvement, 

meaning the injury had healed to the fullest extent possible. 

See Stevens v. Dir., Office of Workers’ Comp. Programs, 

909 F.2d 1256, 1257 (9th Cir. 1990). Christie’s pain doctor 

also opined that Christie could not return to his regular job 

and was permanently restricted from several physical 

activities as of December 3, 2012.
6 CHRISTIE V. GEORGIA-PACIFIC

Eventually, because of his physical limitations and 

inability to work, Christie filed a claim seeking permanent 

total disability benefits under the Act.

B.

The ALJ held a hearing; heard testimony; reviewed the 

evidence presented, including Christie’s medical records; 

and concluded that Christie was entitled to permanent total 

disability benefits. The ALJ ordered Georgia-Pacific to pay 

Christie these benefits from December 3, 2012 onward, 

because that was the date on which, according to the ALJ 

and based on the medical opinions in the record, Christie 

became disabled. In so ordering, the ALJ found that Christie 

was not disabled at the time he retired in December of 2010. 

However, the ALJ also determined that Christie’s decision 

to retire did not bar Christie from receiving permanent total 

disability benefits because Christie’s retirement was 

involuntary. Distinguishing Christie’s case from other Board 

case law, the ALJ found that Christie did not retire “solely” 

because the early retirement package that he would receive 

was financially beneficial or a “good deal.” Instead, the ALJ 

determined that Christie “testified credibly that he retired, at 

least in part, because he believed his back problems would 

not allow him to work until the full retirement age of 62, and 

he feared losing the ability to retire early.”

On administrative appeal, the Board disagreed with the 

ALJ’s conclusion. Relying on the Board’s 2016 decision in

Moody v. Huntington Ingalls, Inc., 50 Ben. Rev. Bd. Serv. 

(MB) 9 (2016) (“Moody I”) the Board reversed the ALJ’s 

decision. The Board issued Moody I on the same day as the 

ALJ issued his decision in Christie’s case. In reversing the 

ALJ, the Board cited Moody I and two other Board 

decisions—Burson v. T. Smith & Son, Inc., 22 Ben. Rev. Bd. 

Serv. (MB) 124 (1989), and Hoffman v. Newport News 
CHRISTIE V. GEORGIA-PACIFIC 7

Shipbuilding & Dry Dock Co., 35 Ben. Rev. Bd. Serv. (MB) 

148 (2001)—for the proposition that “an employee is not 

entitled to receive a total disability award after he retires for 

reasons unrelated to the work injury because there is no loss 

of wage-earning capacity due to the injury.” In the Board’s 

view “‘[d]isability’ [under the Act] means incapacity 

because of injury to earn the wages which the employee was 

receiving at the time of injury in the same or any other 

employment.” In other words, an employee’s injury must be 

the cause of the employee’s inability to earn wages. And 

because the Board determined that Christie’s loss of wages 

was due to his decision to retire early, and not because of his 

work-related injury, Christie was not entitled to benefits. 

This appeal followed.

II.

We have jurisdiction to review the Board’s decisions 

pursuant to 33 U.S.C. § 921(c). “The Board is required to 

‘accept the ALJ’s findings unless they are contrary to law, 

irrational, or unsupported by substantial evidence.’”

Stevedoring Servs. of Am. v. Dir., Office of Workers’ Comp. 

Programs, 297 F.3d 797, 801 (9th Cir. 2002) (quoting Todd 

Shipyards Corp. v. Black, 717 F.2d 1280, 1284 (9th Cir. 

1983)). We review the Board’s decisions for “adherence to 

the [substantial evidence] standard.” Id. (alteration in 

original) (quoting Bumble Bee Seafoods v. Dir., Office of 

Workers’ Comp. Programs, 629 F.2d 1327, 1329 (9th Cir. 

1980)). We also review the Board’s interpretation of the Act 

de novo because such interpretations are questions of law. 

Id. Further, “[b]ecause the Board is not a policymaking 

agency, its interpretation of [the Act] is not entitled to any 

special deference.” Id. (quoting McDonald v. Dir., Office of 

Workers’ Comp. Programs, 897 F.2d 1510, 1512 (9th Cir. 

1990)).
8 CHRISTIE V. GEORGIA-PACIFIC

III.

A.

Under the Act, employees are entitled to obtain 

compensation for a permanent disability arising out of a 

work-related injury. See Gen. Constr. Co. v. Castro, 

401 F.3d 963, 968–69 (9th Cir. 2005) (citing 33 U.S.C. 

§§ 902(2), 902(10), 908). The Act defines disability as:

incapacity because of injury to earn the 

wages which the employee was receiving at 

the time of injury in the same or any other 

employment; but such term [disability] shall 

mean permanent impairment, determined (to 

the extent covered thereby) under the guides 

to the evaluation of permanent impairment 

promulgated and modified from time to time 

by the American Medical Association, in the 

case of an individual whose claim is 

described in section 910(d)(2) of this title.

33 U.S.C. § 902(10) (emphasis added).1 A disability is 

permanent when a claimant has “attained ‘maximum 

medical improvement.’” Gen. Constr. Co., 401 F.3d at 968 

 1 The latter portion of § 902(10), beginning with “but such term,” 

concerns “claim[s] based on a death or disability due to an occupational 

disease,” see 33 U.S.C. § 910(d)(2), which are different from the 

disability claim at issue here. See Gen. Constr. Co., 401 F.3d at 968 

(“The [Act’s] compensation scheme distinguishes between injury, which 

is a physical impairment, ‘occupational disease[,] or infection,’ and 

disability, which the [Act] defines as the ‘incapacity because of injury to 

earn the wages which the employee was receiving at the time of injury 

in the same or other employment.’” (second alteration in original)

(citations omitted) (quoting 33 U.S.C. § 902)). The latter portion of 

§ 902(10) therefore does not apply to the present case.
CHRISTIE V. GEORGIA-PACIFIC 9

(quoting Stevens, 909 F.2d at 1258). “Maximum medical 

improvement is attained when the injury has healed to the 

full extent possible.” Stevens, 909 F.2d at 1257. To obtain 

permanent total disability benefits under the Act, an 

employee must show: (1) he is disabled within the meaning 

of the Act, (2) the work-related injury he suffered that makes 

him disabled has healed to the fullest extent possible, and 

(3) he cannot return to prior employment. See Gen. Constr., 

401 F.3d at 968–69. In addition, for the employee to obtain 

benefits, the employer must fail to establish that alternative 

employment, which the employee can perform, is available 

to the employee. Id. at 969.

Whether the Board erred in reversing the ALJ’s award of 

permanent total disability benefits to Christie turns on the 

proper interpretation of “disability” under § 902(10) of the 

Act. According to the Board, “[t]he only relevant inquiry [in 

determining disability under the Act] is whether claimant’s 

work injury caused a loss of earning capacity.” The Board 

answered this question by concluding that because Christie 

voluntarily retired, he was not disabled within the meaning 

of § 902(10).

In its decision reversing the ALJ’s award of benefits, the 

Board relied heavily on its decision in Moody I, and stated 

that Christie’s case was “not legally distinguishable from 

Moody [I].” In Moody I, claimant Russell Moody had sought 

temporary total disability benefits. Moody I, 50 Ben. Rev. 

Bd. Serv. (MB) at 9–10. There, the ALJ had awarded Moody 

temporary total disability benefits because the ALJ found 

that Moody’s retirement prior to the time of his surgery was 

irrelevant. Id. at 10. In reversing the ALJ’s benefit award, 

the Board concluded that the disability inquiry under 

§ 902(10) of the Act, which defines disability for purposes 

of the Act, “encompasses both physical and economic 
10 CHRISTIE V. GEORGIA-PACIFIC

considerations.” Id. The Board reasoned that Moody’s 

decision to retire “had already resulted in his complete loss 

of earning capacity” and Moody was therefore not disabled 

within the meaning of the Act. Id. at 11. In short, the Board 

interpreted § 902(10) to mean that retirement necessarily 

causes a loss of wage-earning capacity.

However, because the proper interpretation of § 902(10) 

is a question of law, the Board’s interpretation of § 902(10) 

in Moody is not binding and our review is de novo. See 

Stevedoring Servs. of Am., 297 F.3d at 801.

We begin our analysis with the relevant statutory

language. See United States ex rel. Hartpence v. Kinetic 

Concepts, Inc., 792 F.3d 1121, 1128 (9th Cir. 2015) (en 

banc) (“In construing the provisions of a statute, we begin 

by looking at the language of the statute to determine 

whether it has a plain meaning.”). In a statute, a legislature 

says “what it means and means in a statute what it says 

there.” Id. (quoting BedRoc Ltd. v. United States, 451 U.S. 

176, 183 (2004)). If a statute’s language is plain and 

unambiguous, our inquiry ends. Id. Where statutory 

language is ambiguous, however, we may consider 

legislative history and other extrinsic materials. See Exxon 

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 

(2005).

The Act specifically defines disability as “incapacity 

because of injury to earn the wages which the employee was 

receiving at the time of injury in the same or any other 

employment.” 33 U.S.C. § 902(10). The “injury” must be an 

“accidental injury or death arising out of and in the course of 

employment.” Id. § 902(2).

The plain language of § 902(10) makes no reference to 

retirement or its timing, nor to whether an employee decides 
CHRISTIE V. GEORGIA-PACIFIC 11

to retire voluntarily or involuntarily. Rather, § 902(10) states 

that disability under the Act means an inability, resulting 

from an injury suffered at work, to earn the wages an 

employee was earning from his employer at the time he was 

injured. Nowhere in § 902(10) is an employee’s decision to 

retire mentioned.

Indeed, the Board’s reading of § 902(10) assumes that 

retirement categorically results in a person’s incapacity to 

work. Yet, the language of § 902(10) does not give any 

indication that retirement is to be treated in that manner. 

Neither is it the case that retirement, in all instances, means 

that a retiree is incapable of working. Retirement simply 

means that a person is no longer working a particular job. In 

short, although retirement and incapacity to work may be 

linked, they are not necessarily one and the same. We 

conclude that the Board’s reading of § 902(10) is overly 

restrictive and unsupported by the plain language of the 

statute.

Georgia-Pacific urges that the Board is correct that 

§ 902(10) precludes an employee from obtaining disability 

benefits after an employee voluntarily retires because the 

employee cannot establish a loss of wage-earning capacity 

resulting from a work-related injury. Georgia-Pacific cites to 

three Board decisions—Burson, Hoffman, and Moody I—to 

support its argument, asserting that the “Board’s standard 

reasonably interprets § 902(10) of [the Act] and balances the 

interests of the injured worker and employer.” GeorgiaPacific’s arguments are unavailing. As discussed above, the 

plain language of § 902(10) belies the purported relevance 

of an employee’s decision to retire.

Further, the Fourth Circuit’s reasoning in Moody v. 

Huntington Ingalls Inc., 879 F.3d 96 (4th Cir. 2018) 

(“Moody II”)—which overruled the Board’s decision in 
12 CHRISTIE V. GEORGIA-PACIFIC

Moody I—is persuasive. In Moody II, the Fourth Circuit 

interpreted the same statutory language at issue here, 

§ 902(10) of the Act. Id. at 101. The Fourth Circuit rejected 

the Board’s interpretation of § 902(10). Id. In holding that 

voluntary retirement does not preclude the existence of a 

disability under the Act, the Moody II court looked to the text 

of § 902(10) and concluded that the Board and the employer 

in Moody I misconstrued the plain meaning of “incapacity” 

and “the real-world significance of retirement.” Id. at 98. 

Rejecting the Board’s “interpretation that an employee’s 

retirement necessarily makes him incapable of earning any 

wages,” the Moody II court noted that “incapacity” means 

“inability,” “incompetence,” and “incapability.” Id. at 99. 

The Moody II court further explained that retirement is not 

inherently debilitating and that the Board and the employer 

in Moody I “confuse being unwilling with being unable [to 

work]” by focusing on the voluntary nature of Moody’s 

retirement. Id.

The Moody II court further held that the Board 

“erroneously equate[d] loss of earning capacity with loss of 

actual earnings,” concluding that the “law compensates [an 

employee’s inability to make the choice to work] when it is 

caused by workplace injury.” Id. at 99–100. The Fourth 

Circuit also held that “retirement status, standing alone, is 

irrelevant to earning capacity and the determination of 

‘disability’ under 33 U.S.C. § 902(10).” Id. at 100 (emphasis 

added).2 Here, Moody II is particularly persuasive because 

 2 In addition, the Moody II court discussed the Act’s purpose in 

reaching its decision. Acknowledging that the Supreme Court “has 

recognized that ‘the [Act] represents a compromise between the 

competing interests of disabled laborers and their employers,’” the 

Fourth Circuit explained that it gave effect to that compromise by 

“applying the plain text” of the Act. Moody II, 879 F.3d at 100 (quoting 

Potomac Elec. Power Co. v. Dir., Office of Workers’ Comp. Programs, 
CHRISTIE V. GEORGIA-PACIFIC 13

the Board relied on Moody I to overturn the ALJ’s award of 

benefits to Christie.3

Accordingly, a plain reading of § 902(10) reveals that the 

Board committed legal error in reversing the ALJ’s award of 

benefits to Christie. We therefore join the Fourth Circuit in 

rejecting the Board’s interpretation of § 902(10).

B.

To obtain permanent total disability benefits, Christie 

must show that he is disabled within the meaning of the Act 

and that he has attained maximum medical improvement, 

meaning his injury has healed to the fullest extent possible. 

See 33 U.S.C. §§ 902(10), 908; see also Gen. Constr. Co., 

401 F.3d at 968; Stevens, 909 F.2d at 1257. Christie must 

also show that he cannot return to prior employment, and 

Georgia-Pacific must fail to establish that there is suitable 

alternative employment available to Christie. Gen. Constr. 

Co., 401 F.3d at 968–69.

Here, the ALJ granted Christie permanent total disability 

benefits, payable from December 3, 2012, onward. The 

 449 U.S. 268, 281–82 (1980)). We agree that the plain language of 

§ 902(10) realizes the statute’s purpose.

3 The Board’s reliance on Burson and Hoffman also does not change 

the outcome of this case. Both Burson and Hoffman erroneously relied 

on the voluntary retirement of the respective employees in those cases as

the factual predicate for each employee’s inability to establish their loss 

of wage-earning capacity. But, as discussed above, because the plain 

language of § 902(10) reflects that an employee’s retirement is not 

dispositive to determining disability under the Act, Burson and Hoffman

do not compel us to reach a different conclusion than the one we reach 

today. 33 U.S.C.§ 902(10); see Hoffman, 35 Ben. Rev. Bd. Serv. (MB)

at 150; Burson, 22 Ben. Rev. Bd. Serv. (MB) at 127.
14 CHRISTIE V. GEORGIA-PACIFIC

Board was required to accept the ALJ’s factual findings 

“unless they [were] contrary to law, irrational, or 

unsupported by substantial evidence.” Stevedoring Servs. of 

Am., 297 F.3d at 801 (quoting Todd Shipyards Corp., 

717 F.2d at 1284). We review the Board’s decision for 

adherence to the substantial evidence standard. See id.

The ALJ’s determination that Christie was disabled as of 

December 3, 2012, was based on numerous doctors’ 

opinions. Most notably, Christie’s back pain doctor 

concluded on December 3, 2012, that Christie could not 

return to work. The Board did not disagree with this factual 

finding. Nor did the Board disturb the ALJ’s other factual 

findings. Therefore, the ALJ’s factual findings must be 

upheld since they are not “contrary to law, irrational, or 

unsupported by substantial evidence.” See id (quoting Todd 

Shipyards Corp., 717 F.2d at 1284).

Georgia-Pacific failed to establish that suitable 

alternative employment was available to Christie. Although 

the Board and Georgia-Pacific highlight that Christie was 

capable of working as a safety inspector at Georgia-Pacific 

with suitable accommodations at the time he retired, 

substantial evidence supports the ALJ’s finding that 

Georgia-Pacific never actually offered these 

accommodations to Christie. Indeed, the ALJ concluded that 

no one at Georgia-Pacific told Christie that Christie could 

ask for help with conducting the physical inspections of the 

warehouses that were part of Christie’s work tasks. In 

addition, the ALJ found that Georgia-Pacific had not 

documented any accommodations the company made for 

Christie. Georgia-Pacific therefore “fail[ed] to establish the 

availability of suitable alternative employment” because it 

failed to offer Christie a job that accounts for his physical 

limitations. See Gen. Constr. Co., 401 F.3d at 968–69 
CHRISTIE V. GEORGIA-PACIFIC 15

(explaining that an employer fails to establish the availability 

of suitable alternative employment by, among other things, 

failing to identify a job that an employee can perform 

considering his or her limitations).

Substantial evidence in the record therefore supports the 

ALJ’s findings that Christie is disabled within the meaning 

of the Act: he attained maximum medical improvement, he 

can no longer return to his previous employment, and 

Georgia-Pacific has failed to establish that suitable 

alternative employment exists. Accordingly, the Board erred 

in reversing the ALJ’s decision awarding benefits. See 

Stevedoring Servs. of Am., 297 F.3d at 801.

IV.

In sum, we hold that retirement status alone, in and of 

itself, is not dispositive to determining disability under the 

Act. In reversing the ALJ’s award of permanent total 

disability benefits to Christie, the Board erred in relying on 

Moody I, which misinterprets § 902(10). Further, the Board 

did not question the ALJ’s factual findings and substantial 

evidence supports the ALJ’s award of benefits. We therefore 

grant Christie’s petition, reverse the Board’s decision 

denying Christie benefits, and remand for a calculation of 

the permanent total disability benefits to be awarded to 

Christie.

PETITION GRANTED; REVERSED AND 

REMANDED.