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                                 BRB No. 98-0551


HERMENEGILDO RODRIGUEZ                  )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
EASTERN TECHNICAL                       )    DATE ISSUED:   01/07/1999
ENTERPRISES                             )
                                        )         
     and                                )
                                        )
MINAMI MACHINE & FABRICATING,           )
INCORPORATED                            )
                                        )
          Employers-Respondents         )    DECISION and ORDER

     Appeal of the Order of Dismissal and Order Denying Motion  to Vacate
     Dismissal of Ralph A. Romano, Administrative Law Judge, United States
     Department of Labor. 

     Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
     York, for claimant.

     John F. Karpousis (Freehill, Hogan & Mahar), New York, New York, for
     employers. 

     Before:  HALL, Chief Administrative Appeals Judge, McGRANERY,
     Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
     Judge.

     PER CURIAM:

     Claimant appeals the Order of Dismissal and Order Denying Motion to Vacate
Dismissal (95-LHC-2789) of Administrative Law Judge Ralph A. Romano 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 allegedly sustained  an injury to his back  while lifting an engine
on a ship.  On April 15, 1996, the case was set for hearing in front of
Administrative Law Judge Romano.  Claimant appeared with his counsel and a paid
interpreter.[1]   No representative appeared for
employer.  The administrative law judge granted claimant's motion to change the
responsible employer from Eastern Technical Enterprises to Minami Machine and
Fabricating, Incorporated.  Hearing Transcript of April 15, 1996 at 8.  On April
17, 1996, claimant again appeared with his attorney  for the hearing.[2]    An attorney appeared for an insurance carrier,
CNA; he stated that claimant was an employee of Minami, a subcontractor, and that
CNA provided coverage to Minami only for injuries covered by state law, not for
injuries covered by the Act. The administrative law judge granted claimant's motion
to restore Eastern Technical as a named employer, in addition to Minami. 

     On May 1, 1996, the administrative law judge entered a show cause order
against the named employers, Minami and Eastern Technical, for  failure to appear
at the duly noticed April 17, 1996 hearing, where claimant was present and prepared
to proceed.  The order provided fifteen days for the employers to show cause why
a default decision awarding benefits should not be entered against them.  ALJX 4.

     On May 14, 1998, Christopher Field of the firm Gallagher and Field entered an
appearance for Minami indicating that employer was unaware until May 10, 1996, that
its carrier, CNA, was denying Longshore  coverage.  ALJX 6.  On May 28, 1996,
Richard Cooper of the firm Fischer Brothers entered an appearance on behalf of
Eastern Technical and its carrier ITT/Hartford.  ALJX 7.  Mr. Cooper stated that
Minami did not have Longshore coverage and was no longer in existence.  On November
19, 1996, Mr. Cooper wrote to Mr. Field, stating that ITT/Hartford did not provide
coverage under the Act to Eastern Technical's Brooklyn facility, and that it was
his position that it could not be held liable under Section 4(a) of the Act, 33
U.S.C. §904(a).  ALJX 10.

     On December 16, 1996, claimant's counsel and Mr. Field, who indicated that he
now represented both named employers, appeared before Judge Romano.  Mr. Field
stated on the record that an agreement had been reached with claimant wherein
Eastern Technical, as a self-insured, would pay claimant temporary total disability
benefits effective December 16, 1995, and continuing at the rate of $285 a week,
and past and future medical benefits, while the  self-insured employer investigated
the claim and had claimant examined.  December 16, 1996 Hearing Transcript at 8. 
It appears that claimant unsuccessfully attempted to embody the parties' agreement
as a settlement pursuant to Section 8(i) of the Act, 33 U.S.C. §908(i).  At
the parties' request, the administrative law judge remanded the case to the
district director.

     Sometime thereafter, employer ceased payment of benefits, and claimant 
requested that the claim be transferred to the Office of Administrative Law Judges
(OALJ) to be scheduled for hearing. On August 25, 1997, John Karpousis of the firm
Freehill, Hogan & Mahar, entered an appearance as substitute counsel for employers,
and he made several futile requests to claimant's counsel in an effort to obtain
medical records and information about the work accident.  Claimant failed to attend
a rehabilitation examination in September 1997 scheduled by employer.   On October
19, 1997, employer's  counsel served claimant with Employer's First Set of
Interrogatories containing sixteen interrogatories, and a Request for Production
of Documents, including claimant's medical records and work visa. 

     On November 5, 1997, employer filed a three part motion, requesting a four
week adjournment until January 2, 1998, so that its rehabilitation specialist could
examine claimant, an order compelling compliance with its outstanding discovery
requests and submission to the rehabilitation examination, and a partial
adjournment of the scheduled hearing to allow live testimony from one of employer's
experts represented to be unavoidably in Greece for three months.  On November 6,
claimant submitted his opposition to employer's motion stating that employer's 
substituted counsel was attempting to duplicate discovery by submitting
interrogatories when employer's previous counsel had deposed claimant, and claimant
opposed adjournment  because claimant was no longer receiving benefits from
employer.

     On November 12, 1997, the administrative law judge entered an order granting
employer's motion to compel answers to interrogatories and production of documents, 
and he granted employer's motion to compel claimant's attendance at the
rehabilitation examination scheduled for November 25, 1997. The administrative law
judge denied employer's adjournment request but stated he would entertain
reasonable requests from employer to leave the record open post-hearing for further
submission of evidence.  Claimant thereafter attempted to answer the
interrogatories, including providing the name of an eyewitness to the accident,
claimant signed the certificate of service indicating that the answers were sent
to employer on November 17, 1997.   Claimant failed to appear for the scheduled
rehabilitation examination.

     On November 25, 1997, employer again filed a motion seeking dismissal of
claimant's claim for his failure to comply with the administrative law judge's
order compelling discovery, or alternatively, an adjournment of the hearing and an
order compelling claimant to comply with the discovery requests and to reimburse
employer for the cost of the canceled rehabilitation evaluation.  Claimant did not
file an opposition to this motion. 

     On December 10, 1997, without citing any precedent,  the administrative law
judge entered an order dismissing the claim based on claimant's failure to comply
with the administrative law judge's November 12, 1997, order compelling discovery
and failure to attend the vocational examination with employer's expert on November
25, 1997.   The administrative law judge denied claimant's subsequent motion to
vacate the dismissal,  concluding that employer established that full response was
not made to the November 12, 1997, discovery order, and that on the face of the
record, claimant and/or counsel had simply ignored the administrative law judge's
November 12, 1997, Order and thereafter failed to oppose employer's motion to
dismiss the case.

     The sole contention raised in claimant's appeal is that the administrative law
judge erred in dismissing his claim.  Employer responds, urging affirmance of the
dismissal.

     An administrative law judge's authority to dismiss a claim with prejudice
stems from 29 C.F.R. §18.29(a), which affords the administrative law judge all
necessary powers to conduct fair and impartial hearings and to take appropriate
action authorized by the Federal Rules of Civil Procedure. Taylor v. B. Frank
Joy Co., 22 BRBS 408, 411 (1989).  In Twigg v. Maryland Shipbuilding & Dry
Dock Co., 23 BRBS 118 (1990), the Board held that, consistent with case law
interpreting Rule 41(b) of the Federal Rules of Civil Procedure, dismissal of a
case filed under the Act is appropriate only where there is a clear record of delay
or contumacious conduct, or where less drastic sanctions have proved unsuccessful. 
Twigg, 23 BRBS at 121.  The Board noted that a clear record of intentional
misconduct must be shown and the factfinder must consider whether lesser sanctions
would serve the interests of justice or have proved unavailing. Id.; see
Harrison v.  Barrett Smith, Inc., 24 BRBS 257 (1991), aff'd mem.  sub nom. 
Harrison v.  Rogers, No.  92-1250 (D.C. Cir.  March 19, 1993); Bogdis v. 
Marine Terminals Corp., 23 BRBS 136 (1989).

     We agree with claimant that the dismissal of his claim cannot be upheld.  The
OALJ regulations, 29 C.F.R. Part 18, apply only to the extent that they are not
inconsistent with the Act or its implementing regulations, 20 C.F.R. Part 702.
See 29 C.F.R. §18.1(a); Adams v. Newport News
Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989).  In Creasy v. J.W. Bateson
Co., 14 BRBS 434 (1981), the Board held that the appropriate action to be taken
where a party refuses to  answer interrogatories or produce documents is a motion
to compel pursuant to Section 27(a) of the Act, 33 U.S.C. §927(a).  If an
order is issued for the production of documents or to compel answer to
interrogatories, and that order is resisted, Section 27(b) of the Act, 33 U.S.C.
§927(b), provides that the facts relating to such disobedience shall be
certified to the appropriate United States District Court for the imposition of
sanctions.  In the instant case, the administrative law judge did not
consider, in accordance with law, the imposition of lesser sanctions available
under Section 27 for claimant's failure to comply with his order compelling
discovery.[3]    See Twigg, 23 BRBS at 121. 
Moreover, he did not consider the reasons for claimant's failure to comply, or  the
existence of any mitigating factors, given the tortuous history of this case,
before taking the drastic sanction of dismissing the claim.[4]   We therefore vacate the administrative law judge's dismissal of 
the claim, and we remand the case for further proceedings.  If the
administrative law judge concludes, after consideration of any mitigating factors,
that sanctions are warranted for claimant's failure to comply with his order
compelling discovery, he must first follow the specific procedures contained in
Section 27(b) of the Act.      

     Accordingly, the administrative law judge's Order of Dismissal and Order
Denying Motion to Vacate Dismissal are vacated, and the case is remanded to the
administrative law judge for further proceedings consistent with this opinion.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge


                                                                   
                         REGINA C. MCGRANERY
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)Claimant apparently does not speak English. Back to Text
2)Counsel had an interpreter on call. Back to Text
3)In his Order Denying Motion to Vacate Dismissal, the administrative law judge stated that employer apparently abandoned its motion to dismiss based on claimant's failure to submit to a rehabilitation examination, as claimant submitted to such an examination on December 17, 1997. Back to Text
4)For example, the administrative law judge did not consider that claimant appeared at scheduled hearings in 1996 when employer's representative was either absent or unwilling to represent it in this proceeding. See generally Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989). Claimant also was deposed prior to the submission of employer's interrogatories, and the administrative law judge did not consider whether employer's request was in any way duplicative of the information already discovered. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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