## Facts

- Kevin Keenan, a longshoreman employed by Eagle Marine Services, injured his right shoulder while working.
- Keenan underwent medical treatment (including surgery), was temporarily totally disabled for a period, and later reached maximum medical improvement with a lasting partial disability and work restrictions.
- His restrictions limited heavy or repetitive overhead work and similar exertion above chest level.
- Keenan returned to longshore work subject to those restrictions and later accepted a clerical job with Eagle that he could perform without restrictions.
- Keenan earned more in the clerical position than he earned pre-injury as a longshoreman.
- Keenan sought compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA), arguing primarily that his shoulder condition should be treated as a scheduled “arm” injury; alternatively, he sought unscheduled permanent partial disability benefits based on reduced wage-earning capacity.
- In the first decision, an administrative law judge (ALJ) ruled that the shoulder injury was not a scheduled arm injury and found no current loss of wage-earning capacity because Keenan’s post-injury wages were higher; the ALJ nonetheless entered a nominal (de minimis) award of $1 per week and awarded medical benefits and attorney’s fees.
- The Benefits Review Board (BRB) affirmed the ALJ’s rulings except it vacated and remanded the nominal-award and attorney’s-fee determinations for reconsideration.
- On remand, Keenan argued he had an economic loss because his shoulder impairment forced him to pass up a higher-paying foreman promotion; the ALJ rejected that theory, denied unscheduled benefits and the renewed request for a nominal award, and declined to reinstate attorney’s fees.
- The BRB affirmed, and Keenan petitioned the Ninth Circuit for review.

## Issues

1. Whether a shoulder impairment may be compensated as a scheduled “arm” disability under 33 U.S.C. § 908(c)(1).
2. Whether Keenan proved a present loss of wage-earning capacity supporting unscheduled permanent partial disability benefits under § 908(c)(21), including based on an asserted inability to accept a higher-paying foreman position.
3. Whether a nominal (de minimis) award under § 908(c)(21) is available when current wages show no loss, but the claimant has a permanent impairment that may cause future wage-loss.

## Decision

- The court agreed the shoulder injury is not a scheduled “arm” injury under § 908(c)(1).
- The court upheld the denial of current unscheduled permanent partial disability benefits, concluding substantial evidence supported the finding that Keenan had no present loss of wage-earning capacity given his higher post-injury earnings and the ALJ’s rejection of the foreman-promotion theory.
- The court held Keenan was entitled to a nominal (de minimis) award because he had a permanent partial disability and showed a real possibility of future wage-loss consequences if his employment situation changed.
- The court granted the petition in part and remanded for entry of a nominal award consistent with its opinion.

## Legal Principles

- The LHWCA schedule in § 908(c)(1)–(20) is limited to the body parts listed; injuries outside the schedule, including shoulder injuries, are compensated (if at all) under § 908(c)(21) based on diminished wage-earning capacity.
- For § 908(c)(21) benefits, the claimant must prove an actual, present reduction in wage-earning capacity; higher post-injury wages generally support a finding of no current economic loss unless the evidence shows those wages do not fairly reflect capacity.
- A claim of economic loss based on a missed promotion must be supported by evidence showing the opportunity and wage difference were real and that the impairment actually prevented the claimant from obtaining the higher-paying work.
- A nominal (de minimis) award may be entered for a worker with a permanent partial disability who currently has no wage loss, when the evidence shows a real possibility that the disability will cause a future loss of wage-earning capacity; the nominal award preserves the ability to seek modification under LHWCA § 22 if future wage loss occurs.
- On review, the Ninth Circuit accepts the ALJ’s factual findings if supported by substantial evidence and corrects legal errors by the BRB regarding the availability and standard for nominal awards.

## Conclusion

Keenan held that a longshore worker’s shoulder impairment is an unscheduled injury under the LHWCA and does not qualify for scheduled arm benefits; although Keenan’s higher post-injury clerical wages supported denial of current wage-loss compensation, the Ninth Circuit required entry of a nominal award because his permanent impairment carried a real possibility of future wage-earning capacity loss, allowing later modification if economic harm occurs.


Keenan v. Director for Benefits Review Board, 392 F.3d 1041 (2004)