BRB No. 98-1351
THOMAS PODGURSKI )
)
Claimant-Petitioner )
)
v. )
)
MAHER TERMINALS, ) DATE ISSUED: 07/12/1999
INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order Denying Further Compensation of
Ainsworth H. Brown, Administrative Law Judge, United States Department
of Labor.
Thomas R. Uliase (Uliase & Uliase), Haddon Heights, New Jersey, for
claimant.
William M. Broderick and Richard P. Stanton, Jr., New York, New York,
for self-insured employer.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Further Compensation (97-LHC-02271) of Administrative Law Judge Ainsworth H. Brown 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, a heavy equipment mechanic, sustained a work-related injury to his
right shoulder and neck on December 13, 1996, while lifting a chain. Employer
voluntarily paid claimant disability benefits through March 30, 1997, at a weekly
rate of $753.69, and medical benefits in the amount of $4,164.18. At the formal
hearing, the parties stipulated that claimant's average weekly wage at the time of
his injury was $1,347.35, and that claimant was thus entitled to compensation at
the maximum rate allowed under the Act, $801.06. See Transcript at 5-6.
In his Decision and Order, the administrative law judge found that claimant
suffered no work-related disability subsequent to March 30, 1997, the date on which
he reached maximum medical improvement. Accordingly, the administrative law judge
denied claimant's request for additional disability benefits.
On appeal, claimant challenges the administrative law judge's finding that he
is not entitled to disability compensation subsequent to March 30, 1997;
additionally, claimant asserts that the administrative law judge erred in failing
to address his assertion that employer should be held liable for assessments
pursuant to Section 14(e) and (f) of the Act, 33 U.S.C. §914(e), (f), in not
awarding interest, and in neglecting to set forth claimant's proper compensation
rate as stipulated by the parties. Employer responds, urging affirmance of the
administrative law judge's denial of disability benefits.
It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v.
Lockheed Shipbuilding & Const. Co., 17 BRBS 56 (1985). In the instant case,
the administrative law judge, in determining that claimant did not sustain a
compensable impairment subsequent to March 30, 1997, relied upon the opinion of Dr.
Greifinger, who opined that claimant could resume his regular work as a heavy
machinery mechanic, over the contrary opinion of Dr. Cook, who opined that claimant
could not resume his usual employment duties since claimant would be required to
climb ladders.[1]
We hold that the administrative law judge committed no error in crediting the
opinion of Dr. Greifinger, rather than the opinion of Dr. Cook, in concluding that
claimant sustained no compensable impairment subsequent to March 30, 1997. In
declining to rely upon the testimony of Dr. Cook, the administrative law judge
specifically found that the physician acknowledged that claimant exhibited no
objective indications of physical impairment and that most of claimant's
limitations appear to be due to subjective shoulder pain; in this regard, Dr. Cook
recommended that claimant be evaluated by one of his partners who specializes in
shoulder surgery. The administrative law judge found that claimant's failure to
secure such an assessment of his condition casts some doubt on the significance of
claimant's complaints. In contrast, the administrative law judge specifically
credited Dr. Grefinger's conclusion regarding the extent of claimant's disability.
Dr. Greifinger, who examined claimant on January 7, January 31, February 24, and
March 28, 1997, reported normal physical findings regarding claimant's range of
motion and opined that claimant was capable of returning to his regular employment
duties with employer. 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, 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). Thus, as the administrative law judge fully weighed the evidence, as
is within his authority as a factfinder, and as the credited opinion of Dr.
Greifinger constitutes substantial evidence to support his conclusion, we affirm
the administrative law judge's determination that claimant sustained no impairment
subsequent to March 30, 1997. See O'Keeffe, 380 U.S. at 359.
Claimant next asserts that the administrative law judge erred in failing to
find him entitled to weekly disability benefits at the maximum compensation rate
of $801.06 based on the parties' stipulation that his average weekly wage at the
time of injury was $1,347.35, and in failing to assess interest on the amount due.
We agree. Claimant and employer stipulated at the formal hearing, and employer
acknowledges in its response brief, that claimant's average weekly wage entitled
him to disability benefits from December 14, 1996 through March 30, 1997, at an
increased rate of $801.06 per week. See Transcript at 5-6; Employer's brief
at 1. Accordingly, we modify the administrative law judge's decision to reflect
claimant's entitlement to disability compensation from December 14, 1996 through
March 30, 1997, at a weekly rate of $801.06. Moreover, as an award of interest is
mandatory under the Act, see Jones v. U.S. Steel Corp., 25 BRBS 355 (1992),
we additionally modify the administrative law judge's decision to reflect
claimant's entitlement to interest, payable by employer, on those benefits owed to
claimant by employer. See generally Bingham v. General Dynamics Corp., 20
BRBS 198 (1988).
Lastly, claimant contends that he is entitled to assessments pursuant to
Sections 14(e) and (f) of the Act, 33 U.S.C. §914(e), (f).[2] Section 14(e) provides that if an employer fails
to pay any installment of compensation voluntarily within 14 days after it becomes
due, the employer is liable for an additional ten percent of such installment,
unless it files a timely notice of controversion pursuant to Section 14(d) of the
Act, 33 U.S.C. §914(d), or the failure to pay is excused by the district
director. See Maes v. Berrett & Hilp, 27 BRBS 128 (1993). An employer's
good faith in voluntarily paying compensation at a rate that it believes to be
proper is not relevant to Section 14(e). See Browder v. Dillingham Ship
Repair, 24 BRBS 216, aff'd on recon., 25 BRBS 88 (1991). Moreover, an
assessment under Section 14(e) of the Act is mandatory. See Canty v. S.E.L.
Maduro, 26 BRBS 147 (1992).
In the instant case, the administrative law judge did not address this issue,
which was raised in claimant's brief before him; specifically, claimant asserted
below that employer failed to pay benefits at the proper compensation rate and did
not file a notice of controversion. It is uncontroverted that employer made
voluntary payments of benefits to claimant at a rate lower than that to which
claimant was ultimately entitled; it is unclear, however, at what point in time a
controversy arose over the payment of additional compensation to claimant. In
addition, we note that employer, on April 4,1997, filed a notice of suspension of
payment which may be equivalent to a notice of controversion and preclude an
assessment pursuant to Section 14(e) after that date. See Caudill v. Sea Tac
Alaska Shipbuilding, 22 BRBS 10 (1988), aff'd mem. sub nom. Sea Tac Alaska
Shipbuilding v. Director, OWCP, 8 F.3d 29 (1993). Thus, as the administrative
law judge did not address this issue, we must remand the case for the
administrative law judge, as factfinder, to determine whether employer is liable
for a Section 14(e) penalty.[3] See generally
Bingham, 20 BRBS at 198.
Accordingly, the administrative law judge's Decision and Order is modified to
reflect claimant's entitlement to compensation from December 14, 1996 through March
30, 1997, at the weekly rate of $801.06, and interest; in all other respects, the
administrative law judge's Decision and Order is affirmed. The case is remanded
for the administrative law judge to consider employer's liability for an assessment
pursuant to Section 14(e) of the Act.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Dr. Greifinger examined claimant on January 7, January 31,
February 24, and March 28, 1997, and noted that on the last occasion, he found
claimant had a good range of motion in his right shoulder and that claimant's
subjective complaints of pain were inconsistent with the doctor's objective
findings. Dr. Cook is primarily a spinal specialist, but does basic shoulder
surgery. He opined that claimant had a work-related mild impingement of the
rotator cuff that precluded claimant's return to his previous work because it
required climbing ladders. Dr. Cook testified on deposition that he based his
opinion on the objective evidence of pre-existing arthritis and the subjective
complaints of pain.
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2)As no compensation award was entered by the administrative law
judge, Section 14(f) is inapplicable to the instant case. See 33 U.S.C.
§914(f).
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3)Interest is not to be imposed, however, on Section 14(e)
assessments. See Cox v. Army Times Publishing Co., 19 BRBS 195 (1987).
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NOTE: This is an UNPUBLISHED LHCA Document.
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