BRB No. 01-0842
JOHN RANCIC )
)
Claimant-Respondent ) DATE ISSUED: 07/29/2002
)
v. )
)
MATSON TERMINALS, )
INCORPORATED )
)
and )
)
COMMERCIAL INSURANCE )
SERVICE )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeals of the Decision and Order Granting Benefits and the Decision and
Order Granting Attorney's Fees of William Dorsey, Administrative Law
Judge, United States Department of Labor.
William Patrick Muldoon (Pranin & Muldoon), Wilmington, California, for
claimant.
William N. Brooks (Aleccia & Brooks), Long Beach, California, for
carrier/employer.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Granting Benefits and the Decision and
Order Granting Attorney's Fees (00-LHC-2515, 00-LHC-2516, 00-LHC-2517) of
Administrative Law Judge William Dorsey 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 will not be set aside unless
shown by the challenging party 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 marine clerk, suffered a traumatic injury during the course of his
employment on February 20, 1996, when he slipped and fell, injuring his shoulder,
neck, right arm, back and head.[1] Although
claimant continued to perform his usual job, he alleged that his continuous and
repetitive work duties aggravated the February 1996 injury, totally disabling him
and causing him to cease work on May 10, 1999. Employer controverted claimant's
subsequent claim for benefits under the Act, asserting that although claimant
sustained a compensable injury arising from his fall on February 20, 1996, that
incident resulted in only a temporary and now fully resolved exacerbation of his
pre-existing and longstanding cervical disc degeneration, claimant is fully
capable of performing his usual and customary job duties as a marine clerk with
employer and, therefore, claimant is not entitled to ongoing disability benefits.
In his Decision and Order, the administrative law judge awarded claimant,
inter alia, compensation for a permanent partial disability based on his
finding that while claimant is unable to perform his usual job duties due to his
work injury, employer has demonstrated the availability of suitable alternate
employment.[2] Subsequent to this decision,
claimant's attorney filed a fee petition seeking a fee of $31,740 for 158.7 hours
of services rendered at $200 per hour; thereafter, claimant filed a supplemental
request seeking an additional 5.3 hours at $200 per hour for a total of $1,060.[3] Claimant additionally sought $4,856.22 in costs.
The administrative law judge addressed the objections raised by employer to these
petitions and awarded claimant's counsel a fee of $32,800, plus $4,856.22 in costs,
for a total of $37,656.22.
On appeal, employer challenges the administrative law judge's award of ongoing
disability compensation to claimant; employer also appeals the administrative law
judge's attorney's fee award, asserting that if it is successful in its primary
appeal, claimant's attorney is not entitled to a fee. Claimant responds, urging
affirmance of both decisions.
Initially, employer avers that the administrative law judge erred in
concluding that claimant's present medical conditions are work-related.
Specifically, employer asserts that the administrative law judge erred as a matter
of law in weighing the medical evidence of record by creating a presumption that
the medical opinion of claimant's treating physician, Dr. London, was correct.
Additionally, employer contends that the administrative law judge erred by
applying regulations promulgated under the Social Security Act when weighing the
medical evidence of record. For the reasons that follow, we reject employer's
contentions of error.
In the instant case, the administrative law judge, after analyzing at length
the medical evidence of record, credited the opinion of Dr. London and testimony
from claimant rather than the opinion of Dr. Miller. Prior to commencing his
analysis of the medical evidence, the administrative law judge stated that,
pursuant to the decision of the United States Court of Appeals for the Ninth
Circuit in 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, 528 U.S. 809 (1999), the opinion of claimant's treating physician
must be carefully considered. See Decision and Order at 20. Next, the administrative
law judge set forth the regulations promulgated under the Social Security Act which
are applicable to the evaluation of physician's opinions regarding disability,
see 20 C.F.R. §404.1527(d)(1) - (6), stating that while those
regulations are not directly applicable to claims arising under the Longshore Act,
they do provide "a valuable framework for assessing the relative weight I ought to
assign to conflicting medical opinions." See Decision and Order at 20-22.
The administrative law judge thereafter proceeded to address the medical opinions
of Drs. London and Miller; ultimately, the administrative law judge found Dr.
London's opinion that claimant's February 20, 1996 work injury and his subsequent
work activities aggravated and worsened his cervical disc disease, causing it to
be more symptomatic and disabling, to be better supported and more direct and
convincing than the opinion of Dr. Miller. Next, the administrative law judge
accepted Dr. London's decision to place physical restrictions on claimant that
prohibited him from prolonged forward flexion or repetitive lateral rotation of his
neck, overhead work, or work involving heavy lifting or carrying, forceful pushing
or pulling with his upper extremities. See EX 10. In rendering this
determination, the administrative law judge specifically found that Dr. London, who
was initially chosen by employer to see claimant, treated claimant approximately
30 times since 1996, that claimant's complaints were consistent with the doctor's
clinical findings, and his conclusions were supported by the record.[4] See Decision and Order at 19-24.
In adjudicating a claim, it is well-established that an administrative law judge is entitled to weigh the medical
evidence and draw his own inferences from it, see Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988),
and he is not bound to accept the opinion or theory of any particular witness. See Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th Cir. 1962). Contrary to employer's argument that the administrative law judge erred in
citing Amos, 164 F.3d 480, 32 BRBS 144(CRT), the administrative law judge did not rely on Amos as
the sole basis for crediting Dr. London's opinion, nor did he use it to create a presumption in favor of the treating physician.
Rather, as this case arises within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, the
administrative law judge properly acknowledged this recent decision from that court, which he interpreted as requiring
careful consideration of the opinion of the treating orthopedist. Nonetheless, the administrative law judge recognized that
the status of the physicians as treating or examining doctors was not determinative, and he did not base his decision to credit
Dr. London on any preference derived from Amos; rather, he analyzed in detail the underlying reasoning and
support for Dr. London's opinion, as well as that of Dr. Miller.
Similarly, we reject employer's contention that the administrative law judge erred
in affirmatively applying the Social Security Act regulations at 20 C.F.R.
§404.1527(d)(1) - (6) to this Longshore case. In its reply brief, employer
concedes that the administrative law judge determined that those regulations
provided only a "valuable framework" for assessing the medical opinions.
Specifically, the regulations led the administrative law judge to discuss factors
such as the qualifications of the experts, length of treatment and underlying
support for their opinions; such general factors are relevant to the analysis of
medical opinions in any context.
The administrative law judge's decision simply does not suggest, as employer
asserts, that his weighing of the evidence was tainted by an initial presumption
that claimant's treating physician's opinion was correct. To the contrary, the
administrative law judge extensively discussed and weighed the medical opinions
of record and provided valid and rational reasons for according Dr. London's
opinion determinative weight and for finding Dr. Miller's less persuasive. The
administrative law judge found, for example, that Dr. London gave a reasoned
explanation for his belief that claimant's use of his neck in work activities
aggravated his condition, whereas Dr. Miller, after initially opining that
claimant's fall "most likely" did aggravate his condition, EX 7 at 88, did not
adequately account for the wear and tear on claimant's neck in the years he worked
after the accident in stating at his deposition that claimant's work did not worsen
his neck condition. As the administrative law judge's conclusions are based on a
full and rational weighing of the evidence, we affirm his decision to give
determinative weight to the opinion of Dr. London.[5] See Brown v. Nat'l Steel & Shipbuilding Co., 34 BRBS 195
(2001). Accordingly, we affirm the administrative law judge's ultimate finding
that claimant's present cervical condition is causally related to his employment
with employer, as the credited opinion of Dr. London constitutes substantial
evidence to support that finding
Employer next challenges the administrative law judge's finding that claimant
is incapable of resuming his usual employment duties with employer as a marine
clerk. It is well-established that claimant bears the initial burden of
establishing that he is incapable of resuming his usual employment duties with
employer. See Thompson v. Northwest Enviro Services, Inc., 26 BRBS 53
(1992). In the instant case, the administrative law judge compared the
restrictions placed upon claimant by Dr. London with the employment duties required
of a marine clerk and determined that claimant was unable to perform either his
usual duties or the modifications proffered by employer to accommodate claimant's
physical restrictions.[6] Accordingly, the
administrative law judge determined that claimant's physical limitations preclude
his returning to work as a marine clerk.[7]
See Decision and Order at 19-26. As we have affirmed the administrative law
judge's decision to credit the opinion of Dr. London, we affirm his finding that
claimant is incapable of resuming his work as a marine gate clerk with employer,
as that determination is supported by substantial evidence, is rational, and is in
accordance with law. O'Keeffe, 380 U.S. 359; Johnson v. Director,
OWCP, 911 F.2d 247, 24 BRBS 3(CRT)(9th Cir. 1990), cert. denied, 499 U.S.
959 (1991); Thompson, 26 BRBS 53.
Finally, employer appeals the administrative law judge's award of an
attorney's fee to claimant's counsel. Employer's sole contention on appeal is that
claimant's counsel would not be entitled to a fee if employer is successful in its
primary appeal. As we affirm the administrative law judge's decision and order,
and employer has raised no specific objection to the fee awarded, it follows that
employer's appeal of the attorney's fee must also be rejected. Accordingly, the
administrative law judge's attorney's fee award to claimant's counsel is affirmed.
Accordingly, the administrative law judge's Decision and Order Awarding
Benefits and the Decision and Order Awarding Attorney's Fees are affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
To Top of Document
Footnotes.
1)The parties stipulated that a fall on February 29, 1996, which
resulted in similar injuries to claimant, was directly attributable to the February
20, 1996, incident.
Back to Text
2)In addition to awarding appropriate medical benefits, the
administrative law judge found employer entitled to relief under Section 8(f) of
the Act, 33 U.S.C. §908(f).
Back to Text
3)Claimant actually requested an additional $1,070, which the
administrative law judge determined to be an inaccurate calculation. See
Decision and Order Granting Attorney's Fees at 9 n.7.
Back to Text
4)The administrative law judge additionally found that Dr. London
arrived at his conclusion that claimant was unable to work only after treating
claimant over a period of time. It was during the course of this continued period
of treatment, the administrative law judge found, that Dr. London had the
opportunity to learn whether of not to accept claimant's complaints, which he in
fact did. See Decision and Order at 21.
Back to Text
5)Although the administrative law judge did not analyze the
causation issue in terms of the Section 20(a), 33 U.S.C. §920(a), presumption,
any error in this regard is harmless inasmuch as claimant established the existence
of a harm, and working conditions which could have caused or aggravated that
condition, and the administrative law judge properly weighed the relevant medical
evidence in determining that claimant's cervical condition is causally related to
his employment. See Bass v. Broadway Maintenance, 28 BRBS 11 (1994);
Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991).
Back to Text
6)The usual job duties of a marine clerk required that the
individual manage two work stations, one for each side of the booth, scan bar codes
on gate passes, obtain identification and cargo information, survey containers and
chasses for damage, input information into the computers, and print release forms,
requiring the clerk to reach across trucks, turn his head in a lateral rotation,
and exit the booth to inspect, test, and measure cargo. See Scognamillo
depo. The administrative law judge determined that claimant's job required him to
continuously move his head and flex his neck to speak with truckers, view
paperwork, read the video monitor and use the computer keyboard. See
Decision and Order at 11. Moreover, Dr. London did not believe that the
modifications to the job suggested by employer, specifically that a claimant use
a hand mirror to read container letters or numbers to reduce the extension of the
head and neck and to limit all neck movements while working with the truck drivers,
would enable claimant to perform the work.
Back to Text
7)The administrative law judge, however, further determined that
employer had established the availability of suitable alternate employment within
the relevant community and that claimant, therefore, was only partially disabled.
As no party challenges this finding, it is affirmed.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document