BRB No. 01-0845
DAVID HARMON )
)
Claimant-Respondent )
)
v. )
)
McGINNIS, INCORPORATED ) DATE ISSUED: 07/25/2002
2002
)
and )
)
FRANK GATES ACCLAIM )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order - Awarding Benefits and Order Denying
Reconsideration of Thomas F. Phalen, Jr., Administrative Law Judge,
United States Department of Labor.
Steven C. Schletker, Covington, Kentucky, for claimant.
Gregory P. Sujack (Garofalo, Schreiber & Hart, Chartered), Chicago,
Illinois, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order - Awarding Benefits and Order Denying
Reconsideration (1999-LHC-2969) of Administrative Law Judge Thomas F. Phalen, 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). 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 barge laborer/barge cleaner, injured his wrist, head, and low back
when he fell off a barge at work on July 31, 1998. Claimant has not returned to
his usual work but post-injury has held three jobs. Claimant currently works as
a part-time dishwasher. Employer voluntarily paid various periods of temporary
total disability benefits. The administrative law judge awarded claimant various
periods of total disability benefits pursuant to Section 8(a) and (b) of the Act,
33 U.S.C. §908(a), (b), and partial disability benefits pursuant to Section
8(c)(21) of the Act, 33 U.S.C. §908(c)(21). The administrative law judge also
awarded medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907.
Before the administrative law judge issued his decision, claimant's counsel
submitted a fee petition to the administrative law judge requesting an attorney's
fee of $21,655, and costs of $3,635.16. The administrative law judge awarded
claimant's counsel the entire fee requested in the amount of $25,290.16 concurrent
with his award of disability and medical benefits. Subsequent to the
administrative law judge's decision, employer filed a motion for reconsideration
regarding the administrative law judge's award of disability and medical benefits
and enclosed its objections to claimant's counsel's fee request. In response, the
administrative law judge issued an order denying employer's motion for
reconsideration and striking employer's objections to claimant's counsel's fee
request as untimely filed.
On appeal, employer challenges the administrative law judge's award of partial
disability and medical benefits and the award of an attorney's fee. Claimant filed
a response brief in support of the administrative law judge's awards to which
employer replied.
We first address employer's challenges to the administrative law judge's award
of partial disability benefits under Section 8(c)(21). Employer contends that the
administrative law judge erred in finding that claimant could not return to his
usual work, in finding that it did not establish the availability of suitable
alternate employment, and in determining that claimant's current earnings as a
part-time dishwasher fairly and reasonably represent his post-injury wage-earning
capacity. A claimant establishes his prima facie case of total disability
if he is unable to perform his usual employment duties due to his work-related
injury. See Gacki v. Sea-Land Serv., Inc., 33 BRBS 127 (1998). If claimant
succeeds in establishing that he is unable to perform his usual work duties, the
burden shifts to employer to demonstrate the availability of suitable alternate
employment. See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
14 BRBS 156 (5th Cir. 1981). An award of partial disability benefits is based on
the difference between claimant's pre-injury average weekly wage and his post-injury wage-earning capacity. 33 U.S.C. §908(c)(21), (h). Section 8(h) of
the Act, 33 U.S.C. §908(h), provides that claimant's wage-earning capacity
shall be his actual post-injury earnings if these earnings fairly and reasonably
represent his wage-earning capacity. 33 U.S.C. §908(h). The party seeking
to prove that claimant's actual post-injury earnings do not fairly and reasonably
represent his post-injury wage-earning capacity bears the burden of proof. See,
e.g., Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26 BRBS 30(CRT)(5th
Cir. 1992).
In the instant case, the administrative law judge acted within his discretion in finding that
claimant is unable to return to his usual work based on the opinion of claimant's
treating physician, Dr. Querubin, who is Board-eligible in internal medicine, over
the contrary opinions of Drs. Love and Anthony, who are Board-certified in
orthopedic surgery and neurology, respectively.[1]
See generally 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, 528 U.S. 809 (1999); Decision and Order - Awarding Benefits at
26, 35, 36, 45; Cl. Ex. 24 at 22, 29; Emp. Exs. 1, 2 at 4, 12-13, 15-16, 24, 27-28,
31, 4 at 6, 14-15. Moreover, the administrative law judge rationally found that
employer did not establish the availability of suitable alternate employment. In
this regard, the administrative law judge credited the opinion of claimant's
vocational expert, Ms. Pearson, that claimant could not perform the jobs identified
by employer's vocational expert, Ms. Pride. Moreover, the administrative law judge
rationally rejected the jobs identified by Ms. Pride because it was not clear what
physical and mental limitations Ms. Pride relied upon in identifying prospective
jobs for claimant. See Wilson v. Crowley Maritime, 30 BRBS 199, 204 (1996);
Canty v. S.E.L. Maduro, 26 BRBS 147, 151-152 (1992); Mendez v. Nat'l
Steel & Shipbuilding Co., 21 BRBS 22 (1988); Decision and Order -
Awarding Benefits at 40, 41, 46; Cl. Exs. 23, 25 at 18-19, 40-41, 50; Emp. Ex. 7.
Lastly, the administrative law judge's finding that claimant's current earnings as
a part-time dishwasher fairly and reasonably represent his post-injury wage-earning
capacity is supported by substantial evidence. The administrative law judge
credited the opinions of Dr. Querubin and Ms. Pearson that claimant cannot work
more than 30 hours a week and is functioning at the highest vocational level
possible considering his physical and mental limitations. Decision and Order -
Awarding Benefits at 46-47, 50-52; Cl. Exs. 23, 24 at 22-24, 27, 25 at 12-13, 17;
Tr. at 73. Consequently, we affirm the administrative law judge's award of partial
disability benefits. See generally Louisiana Ins. Guar. Ass'n v. Bunol, 211
F.3d 294, 34 BRBS 29(CRT)(5th Cir. 2000).
We next address employer's challenge to the administrative law judge's award
of medical benefits pursuant to Section 7. Employer contends that the
administrative law judge erred in awarding medical benefits for the diagnosis and
treatment of claimant's Bell's palsy after finding that this condition is not work-related. In order for a medical expense to be assessed against employer, claimant
must establish that the expense is work-related and reasonable and necessary for
the treatment of his work injury. 33 U.S.C. §907; Romeike v. Kaiser
Shipyards, 22 BRBS 57, 60 (1989). In the instant case, claimant sought
reimbursement from employer for medical bills in the amount of $16,452.40.
See Cl. Ex. 21.
The medical bills arise in part from events which occurred in June and July
1999. On June 30, 1999, claimant presented himself to Dr. Querubin for relief from
neck and back pains, headaches, facial numbness, and slurred speech. Cl. Ex. 24
at 62-66. Dr. Querubin hospitalized claimant locally and consulted with a
neurologist, Dr. Bansal. Cl. Ex. 13. Dr. Bansal determined that claimant should
be transferred to the University of Kentucky Medical Center for the investigation
of his symptoms, stating that had it not been for claimant's work accident in which
claimant suffered head trauma, claimant would have been treated locally. Cl. Ex.
14. Claimant was transported by ambulance on July 1, 1999, to the University of
Kentucky Medical Center where he was hospitalized until July 3, 1999, and diagnosed
with and treated for Bell's palsy. Cl. Exs. 13, 15, 16, 21. It is undisputed that
claimant's Bell's palsy is a viral condition and not trauma-related. Emp. Exs. 2
at 25, 3, 4 at 12-13.
The administrative law judge found employer liable for medical expenses
associated with the diagnosis of Bell's palsy, as the doctors thought claimant's
symptoms could be due to the work injury. The administrative law judge stated that
employer is not liable for expenses associated with the treatment of the Bell's
palsy. Decision and Order - Awarding Benefits at 53 n. 6. The administrative law
judge, however, held employer liable for all medical expenses sought because
employer did not establish which bills were related to the diagnosis, and which
were related to the treatment, of the Bell's palsy.
We agree with employer that the administrative law judge erroneously held it
liable for medical expenses for the diagnosis and treatment of claimant's Bell's
palsy. See Decision and Order - Awarding Benefits at 53 n. 6. It is
claimant's burden, not employer's, to establish that medical treatment is necessary
for and related to his work injury. See, e.g., Schoen v. U.S. Chamber of
Commerce, 30 BRBS 112 (1996); Pardee v. Army & Air Force Exchange
Service, 13 BRBS 1130 (1981). Thus, the lack of information concerning which
bills were associated with diagnosis and which with treatment cannot result in
employer's being held liable for all expenses. Id. Moreover, we hold that
the administrative law judge erred in finding employer liable for the expenses
associated with the diagnosis of claimant's Bell's palsy. Although the physicians
opined that claimant's symptoms could have been due to the work injury, claimant
ultimately was diagnosed with Bell's palsy, which is not related to the work
injury. Employer cannot be held liable for these non work-related medical expenses
regardless of the reasonableness of the course of diagnosis and treatment. Thus,
we reverse the administrative law judge's finding that employer is liable for the
expenses incurred for the diagnosis and treatment of Bell's palsy. However, we
remand this case to the administrative law judge for further consideration of
claimant's entitlement to medical benefits because there may be work-related
medical bills included in the requested amount of $16,452.40, as it appears some
medical expenses were incurred prior to the onset of the Bell's palsy symptoms.
See Cl. Ex. 21.
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 awarding the attorney's fee concurrent with his awards of disability and medical
benefits and in striking its objections as untimely filed when it was not aware
that it would be held liable for an award of disability and medical benefits. An
administrative law judge may issue his fee award concurrent with his compensation
award. See Luna v. Todd Shipyards Corp., 12 BRBS 70 (1980). Although the Act and
the fee regulations governing fee awards by administrative law judges, 33 U.S.C. §928; 20 C.F.R. §702.132,
do not specify a time period for the filing of either a fee petition or objections thereto, the Board has upheld an
administrative law judge's decision not to consider employer's objections after finding that employer did not timely reply
in accordance with the regulations at 29 C.F.R. §§18.4(c), 18.6(a), (b), which together provide a party opposing
a motion to respond within 15 days. See Harmon v. Sea-Land Svc., Inc., 31 BRBS 45 (1997). Due process
requires only that the fee request be served on employer and that it be given a
reasonable time to respond. Id., 20 C.F.R. §702.132.
In the instant case, the administrative law judge did not set a time limit for
the filing of employer's objections upon receipt of claimant's counsel's fee
request on November 3, 2000, which was served upon employer. The administrative
law judge awarded the entire fee requested concurrent with his award of disability
and medical benefits, in May 2001. Employer first objected to claimant's
counsel's fee request in its motion for reconsideration. We hold that the
administrative law judge committed no abuse of discretion in striking employer's
objections as untimely filed, and we affirm this finding. See Harmon, 31
BRBS 45; 29 C.F.R. §§18.4(c), 18.6(a), (b).
However, we cannot affirm the administrative law judge's fee award because
claimant's success on remand will be less than his initial success based on our
disposition of employer's appeal of the medical benefits. Consequently, on remand,
the administrative law judge should reconsider the amount of the fee to be awarded
based on claimant's reduced success on remand. See Hensley v. Eckerhart, 461
U.S. 424 (1983); Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991
F.2d 163, 27 BRBS 14(CRT)(5th Cir. 1993); George Hyman Constr. Co. v.
Brooks, 963 F.2d 1532, 25 BRBS 161(CRT)(D.C. Cir. 1992); Stratton v. Weedon
Eng'g Co., 35 BRBS 1 (2001)(en banc).
Claimant's counsel has filed a petition for an attorney's fee for work
performed before the Board, requesting a total fee of $2,620.47, representing 14.7
hours of work at an hourly rate of $175, and costs of $47.97. Employer has not
objected to the fee petition. We award counsel the fee as requested as it is
reasonable for his work defending his award of partial disability benefits against
employer's appeal. See McKnight v. Carolina Shipping Co., 32 BRBS 251
(1998)(decision on reconsideration en banc); 33 U.S.C. §928; 20 C.F.R.
§802.203.
Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits and Order Denying Reconsideration are vacated with respect to the
administrative law judge's awards of medical benefits and attorney's fee, and the
case is remanded to the administrative law judge for further consideration
consistent with this opinion. In all other respects, the administrative law
judge's decisions are affirmed. Claimant's counsel is entitled to an attorney's fee
of $2,620.47 for work performed before the Board to be paid directly to claimant's
counsel by employer. 33 U.S.C. §928; 20 C.F.R. §802.203.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant's usual work required lifting of over 75 pounds whereas Dr. Querubin
limited claimant to lifting 10 pounds post-injury. Cl. Exs. 24 at 22, 26; Tr. at 39.
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NOTE: This is an UNPUBLISHED LHCA Document.
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