BRB No. 01-0795
ERNEST AXSON )
)
Claimant-Respondent )
)
v. )
)
ELECTRIC BOAT CORPORATION ) DATE ISSUED: 07/02/2002 2002
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits, Decision on Motion
for Reconsideration, and Supplemental Decision and Order Granting
Attorney Fee of David W. Di Nardi, Administrative Law Judge, United
States Department of Labor.
Mark W. Oberlatz (Murphy and Beane), New London, Connecticut, for self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits, Decision on Motion for Reconsideration,
and Supplemental Decision and Order Granting Attorney Fee (2000-LHC-1924) of Administrative Law Judge
David W. Di Nardi 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). The amount of an attorney's fee award is
discretionary and may be set aside only if the challenging party shows it to be arbitrary, capricious, an abuse of discretion,
or not in accordance with law. See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS
272 (1980).
Claimant, a welder, suffers from hand/arm vibration syndrome arising from the use of vibratory tools at work.
Claimant last worked for employer in 1996. Employer voluntarily paid claimant benefits for a five percent permanent
impairment to his right hand and a four percent permanent impairment to his left hand based on Dr. Wainwright's
opinion. The administrative law judge awarded claimant benefits for a 15 percent permanent impairment to the right
hand and 20 percent permanent impairment to the left hand pursuant to Section 8(c)(3) of the Act, 33 U.S.C.
§908(c)(3), crediting Dr. Browning's opinion over the opinions of Drs. Wainwright and Jones. The administrative
law judge summarily denied employer's motion for reconsideration.
Claimant's counsel subsequently submitted a fee petition to the administrative law judge, requesting an attorney's
fee of $7,991.44, representing 37.58 hours of attorney services performed at $200 per hour and 1.5 hours of legal assistant
time at $55 per hour, plus costs of $392.94. The administrative law judge awarded claimant's counsel a fee of $8,191.44,
representing 39.58 hours at $200 per hour for attorney services, which included two additional hours for claimant's
counsel's defense of his fee petition, 1.5 hours of legal assistant time at $55 per hour, and costs of $392.94.
On appeal, employer challenges the administrative law judge's awards of
benefits based on Dr. Browning's opinion and the award of an attorney's fee.
Claimant has not responded to this appeal.
We first address employer's challenge to the administrative law judge's award
of permanent partial disability benefits. Employer contends that the
administrative law judge erred in crediting Dr. Browning's opinion over the
opinions of Drs. Wainwright and Jones on the basis that Dr. Browning is claimant's
treating physician. Dr. Browning assessed claimant's condition as a 15 percent
impairment to the right hand and a 20 percent impairment to the left hand. CX 2.
Dr. Wainwright assessed ratings of five percent to the right hand and 4 percent to
the left hand. EX 6. Dr. Jones, who reviewed claimant's medical records, opined
that claimant has a 4 percent impairment of the left upper extremity, but no
ratable impairment to the right hand or arm. EX 8.
An administrative law judge may accord determinative weight to the opinion of
claimant's treating physician. See Pietrunti v. Director, OWCP, 119 F.3d
1035, 31 BRBS 84(CRT)(2d Cir. 1997); see also Amos v. Director, OWCP, 153
F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480, 32 BRBS 144(CRT)(9th Cir.
1999), cert. denied, 120 S.Ct. 40 (1999). In this case, however, the
administrative law judge erred in crediting Dr. Browning's opinion on this basis,
as there is no evidence to support the administrative law judge's finding that Dr.
Browning is claimant's treating physician. Dr. Browning saw claimant on only two
occasions, the first at the behest of claimant's attorney for evaluation purposes,
and the second to rate claimant's impairment based on the objective studies
performed by Dr. Alessi, a neurologist. Decision and Order Awarding Benefits at
4-6; Emp. Ex. 5; Cl. Exs. 2, 6 at 4, 15-16. Dr. Browning did not provide
continuing treatment for claimant. Cl. Ex. 6 at 6, 15, 21; Tr. at 33, 35. Thus,
the administrative law judge erred in according greater weight to Dr. Browning's
opinion on the basis that he is claimant's treating physician as both Drs.
Wainwright and Browning saw claimant only for the purpose of assigning him
impairment ratings.[1]
Employer contends that the administrative law judge also erred in relying on Dr. Browning's ratings of 15 and
20 percent impairment to the right and left hands, respectively, because they take into account claimant's daily chronic
pain and limitations; employer avers that Dr. Browning's opinion does not reflect the existence of these factors and that
there is no evidence to establish that claimant has daily chronic pain or has any limitations except to avoid the use of
air powered tools. An administrative law judge may rely on a physician's impairment rating based on subjective factors,
such as pain, to assess the extent of claimant's disability. See Cotton v. Army Air Force Exch. Serv., 34
BRBS 88 (2000).
Employer correctly contends that the administrative law judge's reasoning is not consistent with Dr. Browning's
actual findings. Dr. Browning stated that he based his ratings primarily, if not exclusively, on Dr. Alessi's interpretation
of the electromyography (EMG) results, and not on claimant's complaints of pain or inability to perform his usual work.
Cl. Ex. 6 at 36. Dr. Browning testified by deposition that his ratings were based on claimant's occupational use of air
powered tools as well as on Table 16 of the American Medical Association Guides to the Evaluation of Permanent
Impairment (4th ed. 1993)(AMA Guides) and Dr. Alessi's interpretation of his EMG
testing that claimant has a mild right median mononeuropathy and a moderately severe left median mononeuropathy.[2] Cl. Ex. 6 at 32-36. Dr. Browning reported claimant's primary problem
as numbness in his hands but did not report that claimant has daily chronic pain. Cl. Ex. 6 at 5.
Moreover, the evidence of record does not establish that claimant is in daily chronic pain. Rather, claimant's
testimony as well as the medical opinions of Drs. Browning and Wainwright and Ms. Leindecker establish that
claimant's hands would get cold, would sometimes get numb, and would get a tingling sensation and
be stiff in the morning, and that claimant suffers from a decreased grip strength
and cold sensitivity.[3] Emp. Exs. 6, 9, 12 at
6; Cl. Ex. 6 at 5; Tr. at 29-31. The only pain referred to in the record is that
claimant's wrists would get sore if he carried more than a bundle of newspapers in
his newspaper delivery job which he held for six or seven months and does not
currently perform. Cl. Ex. 2; Tr. at 27, 31.
Although Dr. Browning restricted claimant from using air powered tools, he did
not otherwise restrict claimant's work activities or state how the injury affects
claimant's ability to work. Cl. Exs. 2, 6 at 21. In any event, the fact that
claimant cannot perform his usual work is not dispositive where, as here,
compensation is awarded under the schedule, which provides compensation based on
the degree of medical impairment and not on a loss in wage-earning capacity.
See Gilchrist v. Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 32
BRBS 15(CRT)(4th Cir. 1998); Cotton, 34 BRBS 88; 33 U.S.C. §908(c).
Thus, the administrative law judge erred in assigning determinative weight to Dr.
Browning's rating for the reasons that it takes into account claimant's daily
chronic pain and inability to perform his usual work. See generally Pimpinella
v. Universal Maritime Serv., Inc., 27 BRBS 154 (1993). Because the
administrative law judge provided invalid reasons for crediting Dr. Browning's
opinion, we must vacate the administrative law judge's award of benefits and remand
the case for reconsideration. On remand, the administrative law judge must reweigh
the medical evidence of record and provide valid explanations for the weight
assigned to the evidence in discerning the extent of claimant's permanent
impairment.
We next address employer's challenge to the administrative law judge's award
of an attorney's fee. Employer contends that the administrative law judge erred
in approving the fee request in its entirety without requiring claimant's counsel
to provide additional information regarding the services performed on August 8,
September 14, November 20, 2000, and January 22, 2001, as multiple tasks were
performed on those dates. Pursuant to 20 C.F.R. §702.132, any fee approved
must be reasonably commensurate with the necessary work done and take into account
the quality of the representation, the complexity of the legal issues involved, and
the amount of benefits awarded. 20 C.F.R. §702.132.
In the instant case, the administrative law judge stated he considered
employer's objections, but agreed with claimant's counsel's explanation in reply,
and rejected employer's contention that the fee should be significantly reduced.
Supplemental Decision and Order Granting Attorney Fee at 1. The administrative law
judge noted that the claim was vigorously defended by employer and was successfully
prosecuted with a most reasonable number of hours; further, he applied the
regulatory criteria at 20 C.F.R. §702.132. Supplemental Decision and Order
Granting Attorney Fee at 1-2. Given the administrative law judge's consideration
and rejection of employer's objections, as well as his application of the pertinent
regulation, we hold that employer's contention is insufficient to meet its burden
of proving that the administrative law judge abused his discretion in this regard.
See Moyer v. Director, OWCP, 124 F.3d 1378, 31 BRBS 134(CRT)(10th Cir. 1997);
Pozos v. Army & Air Force Exch. Serv., 31 BRBS 173 (1997); Supplemental Decision
and Order Granting Attorney Fee at 1-2. Thus, the administrative law judge's award of an
attorney's fee is affirmed, subject to claimant's success on the merits of the case
on remand.
Accordingly, the administrative law judge's Decision and Order Awarding
Benefits and Decision on Motion for Reconsideration are vacated, and the case is remanded to the administrative
law judge for further findings consistent with this opinion. The administrative law judge's Supplemental Decision and
Order Granting Attorney Fee is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)Apparently, claimant does not have a treating physician for his hand condition, as claimant
testified at the hearing that he has not seen any other doctor for his hands except Drs. Browning, Wainwright, and
Alessi. Tr. at 37.
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2)Table 16 of the AMA Guides provides ratings for upper extremity impairment due
to entrapment neuropathy. AMA Guides at 3/57.
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3)Dr. Wainwright reported that claimant had numbness in his hands at night, morning
stiffness, paresthesia, decreased grip strength, and cold sensitivity. Emp. Exs. 6, 12 at 6, 11. Drs. Alessi and Jones
did not record claimant's symptoms. Emp. Exs. 8, 15; Cl. Ex. 4. An occupational therapy evaluation performed by
Ms. Leindecker recorded a four year history of numbness and a pins and needles sensation in both hands occurring
primarily at night and with certain positions of the arms such as overhead. Emp. Ex. 9. Contrary to the administrative
law judge's statement that claimant's daily chronic pain affects his daily living, Ms. Leindecker stated that claimant's
symptoms do not interfere with his activities of daily living except that he cannot use vibrating tools. Decision and
Order Awarding Benefits at 23; Emp. Ex. 9.
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NOTE: This is an UNPUBLISHED LHCA Document.
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