BRB Nos. 99-0762
and 00-0138
TRACIE A. REYNOLDS-WEBSTER )
)
Claimant-Respondent )
)
v. )
)
NEWPORT NEWS SHIPBUILDING )
AND DRY DOCK COMPANY ) DATE ISSUED: 04/20/2000
)
Self-Insured )
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeals of the Decision and Order and Order Granting Employer's Motion
for Summary Decision of Fletcher E. Campbell, Jr., Administrative Law
Judge, United States Department of Labor.
Robert E. Walsh (Rutter, Walsh, Mills & Rutter, L.L.P.), Norfolk,
Virginia, for claimant.
Lawrence P. Postol (Seyfarth, Shaw, Fairweather & Geraldson),
Washington, D.C., for self-insured employer.
Kristin Dadey (Henry L. Solano, Solicitor of Labor; Carol DeDeo, Associate
Solicitor; Samuel J. Oshinsky, Counsel for Longshore), Washington, D.C., for
the Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order and Order Granting Employer's Motion
for Summary Decision (98-LHC-0904, 0905) of Administrative Law Judge Fletcher E.
Campbell, Jr., rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). We must affirm the findings of fact and conclusions of
law of the administrative law judge which are rational, supported by substantial
evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant, who worked in employer's insulation department, suffered work-related injuries to her wrists on July 21, 1994 and August 30, 1994, and underwent
carpal tunnel releases in October 1994 and February 1996. She stopped working on
October 21, 1997 after being placed on permanent physical restrictions, and it is
uncontested that claimant is unable to return to her usual employment. Employer
voluntarily paid permanent partial disability compensation under the schedule based
on a 10 percent impairment to each of claimant's arms. 33 U.S.C. §908(c)(1).
After applying for state unemployment benefits, claimant was referred to the
Greater Peninsula Council Worker Training and Support Program in early 1998, which
provided funding for claimant to enroll in a business computerized applications
program at Kee Business College. Claimant began this 10-month course on April 20,
1998, and as of the date of the hearing, attended classes from 9:00 a.m. to 1:00
p.m. five days per week. Claimant sought permanent total disability benefits under
the Act from October 21, 1997, including the time she was participating in the Kee
Business College program.
In his Decision and Order, the administrative law judge rejected the labor
market survey of employer's vocational counselor, David Karmolinski, as Mr.
Karmolinski did not take into consideration the time claimant needed to care for
her daughter, who suffers from psychological disorders, and thus found that
employer failed to establish suitable alternate employment. In so finding, the
administrative law judge took judicial notice of the definitions of claimant's
daughter's disorders as contained in The Merck Manual of Diagnosis &
Therapy, and the fact that the medication taken by claimant's daughter requires
regular monitoring, based on the Physician's Desk Reference. The
administrative law judge further found that pursuant to Louisiana Ins. Guaranty
Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994), aff'g 27
BRBS 192 (1993), claimant was entitled to permanent total disability compensation
while participating in the Kee Business College program. Assuming,
arguendo, employer did establish the availability of suitable alternate
employment, the administrative law judge determined that claimant was reasonably
diligent in her attempts to secure a job, and therefore found that claimant
established entitlement to permanent total disability compensation under the Act.
33 U.S.C. §908(a). Next, the administrative law judge gave greater weight to
Dr. McCarthy's 10 percent impairment rating, and thus determined that employer is
not entitled to a credit for the amount of permanent partial disability benefits
it paid in excess of an impairment rating of 5 percent to each of claimant's upper
extremities. Lastly, the administrative law judge denied employer entitlement to
relief under Section 8(f) of the Act, 33 U.S.C. §908(f), finding that
claimant's prior shoulder and hand conditions were not serious or lasting, and
thus, employer failed to demonstrate the presence of a pre-existing permanent
partial disability.
Subsequent to the issuance of the administrative law judge's Decision and
Order, employer filed a petition for modification pursuant to Section 22 of the
Act, 33 U.S.C. §922, requesting that claimant's benefits be terminated as of
May 10, 1999, as claimant had secured full-time employment at Kwik Kopy Printing
on this date. On September 23, 1999, the administrative law judge issued an Order
Granting Employer's Motion for Summary Judgment, wherein he found that employer
established a change in condition with regard to claimant's employability, and
terminated benefits as of August 27, 1999, finding that employer agreed to alter
its modification request during a conference call on this matter to reflect this
termination date.
On appeal, employer challenges the administrative law judge's Decision and
Order, BRB No. 99-0762, and Order Granting Employer's Motion for Summary Decision,
BRB No. 00-0138.[1] In its appeal of the
administrative law judge's Decision and Order, employer contends that the
administrative law judge abused his discretion by taking judicial notice of facts
regarding claimant's daughter's psychological disorders, and in admitting post-hearing evidence from claimant but not employer. Additionally, employer challenges
the administrative law judge's finding that suitable alternate employment was not
established, advancing several arguments. Employer asserts that claimant's child
care needs should not have been taken into consideration in analyzing this issue,
that the administrative law judge failed to consider claimant's craft business as
a means of establishing suitable alternate employment, and that the administrative
law judge erred in applying Abbott to the instant case. Employer further
contends that the administrative law judge erred in finding that claimant
diligently sought employment subsequent to April 20, 1998, and that the
administrative law judge's analysis of the extent of claimant's disability does not
comply with the requirements of the Administrative Procedure Act (APA), 5 U.S.C.
§557(c)(3)(A). Next, employer contends that the administrative law judge
erred in not finding that it was entitled to a credit for its payments of permanent
partial disability under the schedule. Lastly, employer argues that the
administrative law judge erred in denying it entitlement to Section 8(f) relief.
In its appeal of the Order Granting Employer's Motion for Summary Judgment,
employer maintains that permanent total disability benefits should have been
terminated as of May 10, 1999, not August 27, 1999. Claimant responds, urging
affirmance of the administrative law judge's decisions. In a reply brief, employer
reiterates its contentions raised on appeal. The Director, Office of Workers'
Compensation Programs (the Director), has filed a response brief in the instant
matter, maintaining that upon further examination, claimant's previous right
shoulder injury resulted in a pre-existing permanent partial disability within the
meaning of Section 8(f), and requesting that the Board remand the case for
consideration of the contribution element under Section 8(f).
We first consider employer's contention, raised in its appeal of the
administrative law judge's Decision and Order, BRB No. 99-0762, that the
administrative law judge erred in awarding claimant permanent total disability
compensation. Claimant has the burden of establishing the nature and extent of her
disability. Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56,
59 (1980). In the event of an injury to a scheduled member, a claimant's permanent
partial disability under Section 8(c) is confined to the schedule, and any loss in
wage-earning capacity is irrelevant. Potomac Electric Power Company v. Director,
OWCP, 449 U.S. 268, 14 BRBS 363 (1980). If claimant establishes that she is
permanently or temporarily totally disabled, however, she may receive benefits
under either Section 8(a) or (b) of the Act, 33 U.S.C. §908(a), (b). Where,
as in the instant case, claimant is incapable of resuming her usual employment
duties with her employer, claimant has established a prima facie case of
total disability; the burden thus shifts to employer to establish the availability
of suitable alternate employment which claimant, by virtue of her age, background
and physical restrictions, is capable of performing. See Lentz v. The Cottman
Co, 852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988). If employer makes such a
showing, claimant nevertheless can prevail in her quest to establish total
disability if she demonstrates that she diligently tried and was unable to secure
such employment. See Newport News Shipbuilding & Dry Dock Co. v. Tann, 841
F.2d 540, 21 BRBS 10 (CRT)(4th Cir. 1988); Hooe v. Todd Shipyards Corp., 21
BRBS 258 (1988).
The instant case involves two distinct periods of alleged total disability.
The first period concerns claimant's alleged total disability from October 21, 1997
until April 20, 1998, the period prior to claimant's enrollment in the Kee Business
College vocational program. With regard to this time frame, the administrative law
judge found that employer bore the burden of showing the availability of suitable
alternate employment in light of claimant's "background," which included the unique
family needs that claimant possesses. In this regard, the administrative law judge
credited claimant's testimony that her daughter suffers from bipolar disorder,
attention deficit disorder, and attention deficit hyperactivity disorder,
see Tr. at 39, which requires regular supervision of the daughter's medicine
intake, and that this impacted claimant's ability to work full-time. The
administrative law judge then concluded that the failure of employer's vocational
counselor David Karmolinski to conduct its labor market survey in light of the time
claimant needed to care for her daughter vitiated his entire labor market survey
and rendered his opinion inadequate. Consequently, the administrative law judge
found that employer failed to establish the availability of suitable alternate
employment. On appeal, employer contends that the administrative law judge erred
in finding that it was required to take claimant's child care needs into account
in establishing the availability of suitable alternate employment, and erred in
rejecting its labor market survey.
We hold that any error the administrative law judge may have committed in
considering claimant's child care situation in his analysis of the issue of
suitable alternate employment is harmless in light of his finding that claimant
established that she diligently attempted to secure employment from October 21,
1997 to April 17, 1998, but was unable to obtain work. The administrative law
judge credited claimant's testimony that during this period she complied with the
requirements of the Virginia Employment Commission by applying for three jobs per
week, using word-of-mouth sources and job search listings at the Virginia
Employment Commission. Tr. at 22-24. This testimony is supported by the records
of the Virginia Employment Commission. See Cl. Ex. 4(a)-(ii). The
administrative law judge rejected employer's rebuttal evidence, which showed that
four of the 29 prospective employers contacted by claimant did not have an
application on file from claimant, inferring that those employers had lost or
misplaced the applications.[2] Finding that the
jobs claimant inquired about were within the purview of the employment
opportunities identified by employer, the administrative law judge concluded that
claimant demonstrated that she had been diligent in her attempt to secure available
employment during the period at issue, her attempts were unsuccessful, and that
claimant was therefore entitled to permanent total disability commencing on October
21, 1997. As substantial evidence supports the administrative law judge's finding
that claimant diligently sought alternate employment during the period at issue,
we affirm the administrative law judge's award of permanent total disability
benefits from October 21, 1997 through April 20, 1998. See generally DM & IR
Ry. Co. v. Director, OWCP, 151 F.3d 1120, 32 BRBS 188 (CRT)(8th Cir. 1998);
Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(1st Cir. 1991).
Employer next challenges the administrative law judge's finding that claimant
is entitled to permanent total disability compensation during her enrollment in the
Kee Business College rehabilitation program, which she began on April 20, 1998.
Claimant can establish total disability if suitable alternate employment is not
reasonably available due to her participation in a Department of Labor (DOL)-sponsored rehabilitation program. See Abbott, 40 F.3d at 122, 29 BRBS at 22
(CRT). In Abbott, the Board and the United States Court of Appeals for the
Fifth Circuit held that despite the employer's showing of suitable alternate
employment which the claimant was physically capable of performing, the
administrative law judge's award of total disability benefits was nonetheless
appropriate on the facts presented. In so concluding, both bodies noted that in
New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th
Cir. 1981), the United States Court of Appeals for the Fifth Circuit recognized
that the degree of disability is not assessed solely on the basis of physical
condition; it is also based on factors such as age, education, employment history,
rehabilitative potential and the availability of work that claimant can perform.
Abbott, 27 BRBS at 204; 40 F.3d at 127, 29 BRBS at 26 (CRT). Moreover, the
court agreed with the Board that the administrative law judge's award of total
disability benefits to Abbott was appropriate because the jobs identified by
employer were unavailable and could not reasonably be secured while he was enrolled
full-time in the DOL-sponsored rehabilitation program. Abbott, 40 F.3d at
127-128, 29 BRBS at 26 (CRT).
The Board discussed Abbott in three subsequent cases. In Bush v.
I.T.O. Corp., 32 BRBS 213 (1998), the claimant had a college degree prior to
his injury, and the employer established that the claimant had the capacity post-injury to earn greater than the minimum wage. Nevertheless, the Board held the
rationale of Abbott applicable as the alternate jobs were not realistically
available to the claimant during the period of his participation in a full-time
DOL-sponsored nursing program. The Board held that an award of total disability
during this period promoted the goal of rehabilitating the claimant to the fullest
extent possible and in the long term would lower the employer's liability. In
Gregory v. Norfolk Shipbuilding & Dry Dock Co., 32 BRBS 264 (1998), however,
Abbott was held to be inapplicable as the claimant stipulated that she had
obtained part-time employment while enrolled in a DOL-sponsored rehabilitation
program. As alternate employment was realistically available during the
rehabilitation period, the claimant was limited to a recovery under the schedule
for her arm impairment. Gregory, 32 BRBS at 267. In Kee v. Newport News
Shipbuilding & Dry Dock Co., 33 BRBS 221 (2000), the Board held that pursuant
to Abbott, the claimant bears the burden of proving that he is unable to
perform suitable alternate employment due to his participation in a vocational
training program.[3] As there was no evidence
that the claimant diligently sought but was unable to obtain suitable alternate
employment while receiving vocational assistance before his training, during his
training program, and during job placement services after his training, or that the
rehabilitation program prohibited working, the Board affirmed the administrative
law judge's denial of total disability benefits during these periods.
In the instant case, claimant received funding from the Greater Peninsula
Council Worker Training and Support Program in early 1998 to enroll in a business
computerized applications program at Kee Business College. Claimant began this 10-month course on April 20, 1998, and, as of the date of the hearing, attended
classes from 9:00 a.m. to 1:00 p.m. five days per week. Claimant testified that
the program required one to two hours a day of homework. Tr. at 28. She further
testified that her daughter was diagnosed with several psychological disorders in
October 1997, and that although she made some attempts to look for part-time
employment during the program, she stopped because she had to care for her
daughter. Tr. at 39, 41-42. The program was monitored by a DOL vocational
counselor; in addition, the DOL approved claimant for some financial assistance,
approximately $25 per week, agreed to provide job placement counseling, and
required that claimant maintain average progress and complete the program.
See Tr. 29-31; Cl. Exs. 1-3.
After finding that claimant was diligent in attempting to complete the
vocational program, that employer had knowledge of it, see Cl. Ex. 3, and
that it would likely increase her wage-earning capacity, the administrative law
judge found that the Abbott rule entitled claimant to permanent total
disability benefits from the time she began the program on April 20, 1998, and
continuing. Employer first argues that the Abbott rule should not apply in
the instant case because the Kee Business College program was not a DOL-sponsored
program. We reject this contention. The regulations clearly indicate that DOL-sponsored vocational programs include other public or private vocational programs
a claimant is referred to by the DOL. See 20 C.F.R. §§702.502-505.
In the instant case, while claimant's vocational program was being funded by the
Greater Peninsula Council Worker Training and Support Program, the evidence
reflects that the DOL was monitoring the program and providing some financial
assistance. See Cl. Exs. 1-3. Thus, we hold that claimant's enrollment in
the Kee Business College vocational program, which in light of the hours claimant
attended, 9:00 a.m. to 1:00 p.m., and the hours she needed to complete her
homework, constitutes a full-time DOL-sponsored program.
Employer further argues that claimant was capable of part-time employment
during the vocational program, and that Mr. Karmolinski testified that four of the
jobs in his labor market survey were part-time jobs. Tr. at 84-85. Referencing
claimant's activities in furtherance of her craft business while enrolled at Kee
Business College, employer ultimately argues that claimant failed to establish that
the identified suitable alternate jobs were realistically unavailable to her while
she was in the vocational program. We disagree that the administrative law judge
erred in this regard. The administrative law judge credited claimant's testimony
that she made attempts to look for part-time employment during her enrollment at
Kee Business College, but had to stop due to the demands placed on her by caring
for her daughter, who returned home every day at 4:45 p.m. Given his findings
regarding the hours of class room attendance and homework, the administrative law judge
rationally found claimant's enrollment precluded her obtaining employment. The
administrative law judge also found claimant's 3.78 grade point average demonstrates her
diligence in completing the program and that it would substantially increase her
wage-earning capacity. These findings are supported by the record. Regarding
claimant's home craft business, the administrative law judge credited claimant's
testimony that while she owns the business, her husband does most of the work, her
role is limited to performing accounting tasks and attending craft shows with her
husband, and lastly, that this business does not make a profit. See Tr. at
36-37; Decision and Order at 11 n.14. As the administrative law judge rationally
credited claimant's testimony, we affirm his finding that claimant met her burden
of establishing that suitable alternate jobs during the program were not
realistically available.[4] Accordingly, we
affirm the administrative law judge's application of the Abbott doctrine to
claimant's enrollment at the Kee Business College vocational program, and affirm
his determination that claimant is entitled to permanent total disability
compensation during her enrollment at Kee Business College.
With regard to the above holdings, we reject employer's contention that the
administrative law judge committed reversible error by taking judicial notice of
facts regarding claimant's daughter's psychological disorders without providing
employer an opportunity to submit rebuttal evidence in accordance with Rule 201 of
the Federal Rules of Evidence, FED. R. EVID. 201. Under Section 23(a) of the Act,
33 U.S.C. §923(a), and Section 702.339 of the implementing regulations
governing the administration of the Act, administrative law judges are not bound
by statutory rules of evidence, "but may make such investigation or inquiry or
conduct such hearing in such a manner as to best ascertain the rights of the
parties." 33 U.S.C. §923(a); 20 C.F.R. §702.339. Accordingly, we hold
that the administrative law judge committed no error in relying on medical manuals
in describing the nature of the psychological disorders suffered by claimant's
daughter, Decision and Order at 7 n.9, particularly as the record contained no
evidence describing these conditions.
We further reject employer's contention that the administrative law judge
erred in excluding employer's post-hearing evidence. An administrative law judge
has great discretion concerning the admission of evidence and any decisions
regarding the admission or exclusion of evidence are reversible only if arbitrary,
capricious, or an abuse of discretion. See, e.g., Raimer v. Willamette Iron &
Steel Co., 21 BRBS 98 (1988). At the hearing, the administrative law judge
granted claimant permission to submit records from the Virginia Employment
Commission regarding claimant's search for employment. The administrative law
judge allowed employer the opportunity to submit a rebuttal report from Mr.
Karmolinski for the specific purpose of rebutting claimant's evidence regarding her
job search in accordance with the requirements of the state employment commission.
See Tr. 116-118. In his Decision and Order, the administrative law judge
excluded those portions of Mr. Karmolinski's report describing his inquiries with
prospective employers about part-time work for claimant as being outside the scope
of his permission. See Decision and Order at 2 n.2. Thus, as the exclusion
of portions of Mr. Karmolinski's reports is not arbitrary, capricious or an abuse
of discretion, employer has not met its burden in this regard.[5] See Cooper v. Offshore Pipelines Int'l,
Inc., 33 BRBS 46 (1999); Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999);
Ion v. Duluth, Missabe & Iron Range Ry. Co., 32 BRBS 268 (1998). Lastly,
employer's argument that the administrative law judge's analysis does not comport
with the APA is without merit.[6] Having set
forth the evidence, the administrative law judge weighed the evidence with regard
to each of his findings and provided reasons for his findings based on the
evidence. As employer has not established reversible error in the administrative
law judge's weighing of the conflicting evidence, we reject employer's contention
that the administrative law judge's decision does not comport with the APA.
We next consider employer's contention that the administrative law judge erred
in failing to award it a credit for an alleged overpayment of permanent partial
disability compensation. In the instant case, employer voluntarily paid claimant
permanent partial disability compensation under the schedule for a 10 percent
impairment rating for each of claimant's arms, 33 U.S.C. §908(c)(1), based on
the June 26, 1996, opinion of Dr. McCarthy. Emp. Ex. 14. At the hearing, employer
requested a credit for an overpayment of permanent partial disability benefits,
see 33 U.S.C. §914(j), relying on the September 5, 1997, report of Dr.
Gwathmey, in which the physician opined that claimant suffered from a five percent
impairment to each upper extremity. Emp. Ex. 18. In his Decision and Order, the
administrative law judge denied employer's request, finding that Dr. McCarthy's
opinion was better reasoned than Dr. Gwathmey's.[7]
In so finding, the administrative law judge gave no weight to Dr. McCarthy's
subsequent deference to Dr. Gwathmey's impairment rating, see Emp. Ex. 29,
as no basis for Dr. McCarthy's change of opinion was provided; the administrative
law judge concluded that Dr. McCarthy's deference, which consisted of a signature
on a form prepared by employer, was merely an expression of professional
courtesy.[8] Decision and Order at 13. On
appeal, employer contends that the administrative law judge erred in giving greater
weight to Dr. McCarthy's 1996 opinion, arguing that as Dr. Gwathmey was an
independent examiner and subsequently became claimant's treating physician, his
opinion was entitled to greater weight.
Employer, on appeal, essentially asks that the Board reverse the
administrative law judge's weighing of the evidence with regard to the impairment
rating to claimant's upper extremity. We decline to do so. In adjudicating a
claim, it is well-established that an administrative law judge is entitled to
evaluate the credibility of witnesses, including doctors, and is not bound to
accept the opinion or theory of any particular medical examiner; rather, the
administrative law judge may draw his own inferences and conclusions from the
evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes,
289 F.2d 403 (2d Cir. 1961). As the administrative law judge's decision to credit
the opinion of Dr. McCarthy over that of Dr. Gwathmey is within his authority as
fact finder, we affirm the administrative law judge's determination that employer
is not entitled to a credit pursuant to Section 14(j) of the Act.
Employer also argues that the administrative law judge erred in failing to
award it Section 8(f) relief. Section 8(f) of the Act shifts the liability to pay
compensation for a permanent total disability after 104 weeks from the employer to
the Special Fund established in Section 44 of the Act, 33 U.S.C. §944. An
employer may be granted Special Fund relief, in a case where a claimant is
permanently totally disabled, if employer establishes that the claimant had a
manifest pre-existing permanent partial disability, and that her current permanent
total disability is not due solely to the subsequent work injury. 33 U.S.C.
§908(f)(1); Director, OWCP v. Luccitelli, 964 F.2d 1303, 26 BRBS 1
(CRT)(2d Cir. 1992). In finding that employer failed to establish the existence
of a serious and lasting pre-existing permanent partial disability, the
administrative law judge relied on the January 1993 report of Dr. McCarthy, which
stated that claimant had no neurological problems, mild subdeltoid bursitis and
triceps muscle soreness, noting that no objective diagnosis could be made with
regard to intermittent numbness and pain in claimant's right shoulder. Emp. Ex.
12. The administrative law judge rejected Dr. Reid's 1997 opinion that claimant
suffered from a permanent pre-existing chronic bilateral arm disability as being
unreasoned. As the administrative law judge found that employer failed to
establish a pre-existing permanent partial disability, he did not consider the
other elements for Section 8(f) relief.
On appeal, employer contends that the administrative law judge's finding is
irrational in this regard. The Director has filed a response brief agreeing with
employer's position. The Director concedes that employer has established a pre-existing permanent partial disability based on claimant's pre-existing shoulder
condition, and requests that the Board remand the case for the administrative law
judge to determine whether employer has established the contribution element for
Section 8(f) relief. We hold that remand of the case is not necessary. Pursuant
to the administrative law judge's Decision and Order, permanent total disability
benefits commenced on October 21, 1997. In his Order Granting Employer's Motion
for Summary Relief, the administrative law judge terminated benefits as of August
27, 1999. See infra. As employer's liability for claimant's permanent total
disability benefits is for fewer than 104 weeks, Section 8(f) does not apply to the
instant case. See Hansen v. Container Stevedoring Co., 31 BRBS 155 (1997).
Lastly, we consider employer's appeal of the administrative law judge's
Order Granting Employer's Motion for Summary Decision, BRB No. 00-0138. Subsequent
to the initial Decision and Order, employer filed a motion for modification
pursuant to Section 22 of the Act, 33 U.S.C. §922, alleging a change in
condition based on the fact that claimant had obtained full-time employment.
Employer thereafter filed a motion for summary judgment in support of its
modification request, arguing that claimant's permanent total disability benefits
should cease as of May 10, 1999. In his Order Granting Employer's Motion for
Summary Decision, the administrative law judge indicated that claimant conceded
that since May 10, 1999, she has been working at Kwik Copy Printing and that this
position is medically and vocationally appropriate for her. The administrative law
judge further stated that in a conference call over which he presided, employer
amended its modification petition, requesting that permanent total disability
benefits should cease as of August 27, 1999. Based on the pleadings and
representations of the parties, the administrative law judge granted employer's
motions for modification and summary judgment, and terminated benefits as of August
27, 1999.
On appeal, employer contends that the administrative law judge erred in not
terminating benefits as of May 10, 1999. At the outset, it is noted that employer,
in its motion for modification, requested that claimant's permanent total
disability benefits be terminated as of May 10, 1999, or in the alternative, as of
June 4, 1999 or August 27, 1999. These dates correspond to the DOL's agreement to
stagger its reimbursement to Kwik Kopy for the wages paid to claimant; 100 percent
for the first four weeks, 75 percent for the next four weeks, 50 percent for the
next four weeks, and 25 percent for the last four weeks. The reimbursement period
ended as of August 27, 1999. On appeal, employer asserts that to allow claimant
to receive permanent total disability compensation while earning wages amounts to
a double recovery, and therefore, benefits should have been terminated as of May
10, 1999.[9] Employer, however, makes no
assertion which contradicts the administrative law judge's statement that it
amended its modification request to reflect that August 27, 1999 should be the date
on which benefits should terminate. We therefore hold that the administrative law
judge acted within his discretion in holding employer bound to its agreement, and
affirm the administrative law judge's Order Granting Employer's Motion for Summary
Decision. See, e.g., Simonds v. Pittman Mechanical Contractors, Inc., 27
BRBS 120 (1993), aff'd sub nom. Pittman Mechanical Contractors, Inc. v.
Director, OWCP, 35 F.3d 122, 28 BRBS 89 (CRT)(4th Cir. 1994).
Accordingly, the Decision and Order and Order Granting Employer's Motion for
Summary Decision of the administrative law judge are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)By Order dated July 16, 1999, the Board dismissed employer's
appeal in BRB No. 99-0762, and remanded the case for modification proceedings.
After the Board received employer's appeal of the administrative law judge's Order
Granting Employer's Motion for Summary Decision, BRB No. 00-0138, the Board, by
Order dated October 19, 1999, granted employer's request to reinstate its previous
appeal, BRB No. 99-0762, and consolidated the two appeals for decision.
Back to Text
2)Several employers noted that their files concerning the
relevant time frame had been purged. Emp. Ex. 42.
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3)The Board reasoned that this result is consistent with well-established case law placing the burden of proof on a claimant to show he was
unable to obtain alternate employment despite a diligent effort in order to be
entitled to total disability benefits, notwithstanding a showing by employer of
suitable alternate employment. See, e.g., Palombo, 937 F.2d at 70, 25 BRBS
at 1 (CRT).
Back to Text
4)We reject employer's contention that the Abbott
doctrine finds no support in the Act, as it is consistent with case precedent
regarding suitable alternate employment. Moreover, the Fifth Circuit in
Abbott affirmed the Board's decision, reasoning that courts should not
frustrate the DOL's rehabilitative efforts when they are reasonable and result in
lower total compensation liability for the employer in the long run. Abbott,
40 F.3d at 128, 29 BRBS at 26-27 (CRT).
Back to Text
5)As the administrative law judge found, employer's reliance on
Ramirez v. Southern Stevedores, 25 BRBS 260 (1992), is misplaced. In
Ramirez, the administrative law judge held the record open for the claimant
to depose his treating physician, who imposed new physical restrictions, but denied
employer the right to depose its vocational counselor post-hearing with regard to
the availability of suitable alternate employment based on the new physical
restrictions. The Board ruled that the administrative law judge abused his
discretion in this regard. By contrast, in the instant case, the administrative
law judge allowed employer the opportunity to rebut claimant's post-hearing
evidence, but excluded portions of this evidence that went beyond the scope of his
permission.
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6)The Administrative Procedure Act requires that every
adjudicatory decision be accompanied by a statement of "findings and conclusions,
and the reasons or basis therefor, on all the material issues of fact, law or
discretion presented on the record." 5 U.S.C. §557(c)(3)(A). An
administrative law judge must independently analyze and discuss the evidence, and
must adequately detail the rationale behind his decision and specify the evidence
upon which he relied. Ballesteros v. Willamette W. Corp., 20 BRBS 184
(1988); Williams v. Newport News Shipbuilding & Dry Dock Co., 17 BRBS 61
(1985).
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7)Dr. Gwathmey stated that as a general rule, for symptomatic
carpal tunnel syndrome patients following surgery, he rates the impairment to the
upper extremity as five percent. Emp. Ex. 18. The administrative law judge found
that since Dr. Gwathmey's impairment rating was based on a general rule and not
claimant's specific circumstances, his opinion was entitled to less weight.
Decision and Order at 13.
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8)The administrative law judge noted that the text of employer's
letter required Dr. McCarthy to provide a full explanation if he disagreed with Dr.
Gwathmey's assessment, but asked only for a signature if he agreed. See
Decision and Order at 13 n.16; Emp. Ex. 29.
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9)Claimant responds, arguing that her position with Kwik Kopy
Printing was part of the DOL-sponsored rehabilitation training program, which falls
within the parameters of the Abbott doctrine until August 27, 1999, when the
position became permanent and the DOL no longer reimbursed Kwik Kopy for claimant's
wages. Claimant did not address the question of whether employer had agreed at the
conference call that August 27, 1999 should be the date benefits terminated.
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NOTE: This is an UNPUBLISHED LHCA Document.
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