NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: HUG, Chief Judge, SCHROEDER and HAWKINS, Circuit Judges.
This case arises out of the claim of Marcel Desrochers for benefits for injuries received in the course of his employment. Desrochers received benefits for permanent total disability attributable to ruptured discs. His last employer, Schlumberger's Ltd., and its insurance carrier, Travelers Insurance, petition for review of the decision of the Benefits Review Board affirming the Administrative Law Judge's decision that the employer-carrier was not entitled to Special Fund relief under 33 U.S.C. §§ 901 et seq.
In order to prevail on their claim for Special Fund relief, the employer-carrier needed to demonstrate in this case that the claimant's third and final injury would not have been disabling had the claimant not suffered prior disabling injuries. The evidence fell short. Diagnostic tests revealed no evidence of disc rupture until after the third injury. Petitioner's own expert offered evidence that appellant's first two injuries were partially disabling, but did not state that claimant's eventual total disability was in part attributable to the earlier injuries.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3