BRB No. 98-1368
ALCADIO GUERRERO )
)
Claimant-Respondent )
)
v. )
)
EAGLE MARINE SERVICES, ) DATE ISSUED: 07/06/1999
1999
LIMITED )
)
Self-Insured )
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Petitioner ) DECISION and ORDER
Appeal of the Decision and Order Approving Settlement, Awarding Benefits
and Attorney Fees of Daniel L. Stewart, Administrative Law Judge, United
States Department of Labor.
Robert H. Madden (Madden & Crockett, LLP), Seattle, Washington, for
self-insured employer.
Andrew D. Auerbach (Henry L. Solano, Solicitor of Labor; Carol A. DeDeo,
Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
The Director, Office of Workers' Compensation Programs (the Director), appeals
the Decision and Order Approving Settlement, Awarding Benefits and Attorney Fees
(98-LHC-703) of Administrative Law Judge Daniel L. Stewart 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 mechanic with employer since 1986, filed a claim for a work-related hearing loss on March 3, 1997. On January 27, 1997, claimant
underwent an audiometric evaluation, the results of which revealed a 15.6
percent binaural hearing impairment. On June 22, 1998, employer and
claimant sought approval of a settlement agreement from the administrative
law judge. The administrative law judge approved the settlement for
$16,834.65, representing a 10 percent binaural impairment, and incorporated
it into his Decision and Order after finding that the settlement is
adequate, was not procured by duress, and substantially conforms with the
requirements of Section 8(i)(1) of the Act, 33 U.S.C. §908(i)(1), and
20 C.F.R. §§702.241-702.243. The administrative law judge also
discharged employer from liability for past and future medical benefits
pursuant to Section 7 of the Act, 33 U.S.C. §907.
On appeal, the Director challenges the administrative law judge's approval of
the parties' settlement agreement. Employer filed a response brief to which the
Director replied. Claimant has not responded to this appeal.
The Director initially contends that the administrative law judge's
approval of the parties' settlement violates Section 15(b) of the Act, 33
U.S.C. §915(b), as well as Section 702.241(g), 20 C.F.R.
§702.241(g), inasmuch as the settlement attempts to settle claims not
yet in existence. The Director relies on the first paragraph of the
settlement in support of his contention which reads:
I, ALCADIO GUERRERO, the claimant in this matter, for and in
consideration of the sum of $16,834.65 my attorneys' fees and costs
in the amount of $1,010.50 when approved by the
Administrative Law Judge, do hereby release, discharge, and forever
acquit . . . the employer, . . . "APL", from any and all loss,
damage, or injury, including but not limited to, claims for
disability compensation arising out of or in any way connected with
any injury, disability, illness and/or disease which I may
have sustained as a result of my employment with APL, up to and
including January 27, 1997, during which employment I worked at the
premises of APL in Seattle as a mechanic and I was exposed to
injurious levels of noise. (emphasis in italics is the
Director's)(Settlement and Release, p.1)
In response, employer asserts that the settlement does not settle
claims not yet in existence and cites in support of its position the
following portions from the settlement:
[T]his full settlement and release covers all loss, damage, injury,
illness or disease whatsoever, whether to my head, ears or any
parts or functioning thereof, including, but not limited to, the
ability to hear, which I have sustained or might sustain as a
result of my exposure to injurious levels of noise through the date
of January 27, 1997 while I was employed by APL . . . .
(emphasis in italics is employer's)(Settlement and Release, page
2, paragraph 0.4)
[T]his Agreement covers and includes, without limitation, all
claims I have made or might be entitled to make, either at this
time or in the future, for any and all types of disability
compensation resulting from my exposure to noise through the
date of January 27, 1997 . . . . (emphasis in italics is
employer's)(Settlement and Release, page 2, paragraph 0.6)
Section 8(I)(3) of the Act, 33 U.S.C. §908(I)(3), states, "A settlement
approved under this section shall discharge the liability of the employer or
carrier, or both." 33 U.S.C. §908(I)(3)(1994). Section 702.241(g) limits the
settlement to the rights of the parties and to claims then in existence. See
Cortner v. Chevron Int'l Oil Co., Inc., 22 BRBS 218 (1989); 20 C.F.R.
§702.241(g). Section 15(b) of the Act prohibits an employee from waiving his
right to compensation and invalidates any attempts to do so, unless the parties
have complied with Section 8(I) of the Act. See Oceanic Butler, Inc. v.
Nordahl, 842 F.2d 773, 21 BRBS 33 (CRT)(5th Cir. 1988), aff'g 20 BRBS
18 (1987); Gutierrez v. Metropolitan Stevedore Co., 18 BRBS 62 (1986); 33
U.S.C. §915(b).
We affirm the administrative law judge's approval of the parties'
settlement as the settlement as a whole indicates the parties' intention to
settle only the claim for the hearing loss in existence at the time of the
settlement. Paragraphs 0.4 and 0.6, cited by employer and set forth above,
state that the settlement covers all claims which claimant sustained or
might sustain as a result of injurious noise exposure through January 27,
1997. In addition, paragraph 0.7.2 identifies the settled claim in the case
as dated March 3, 1997. Paragraph 0.7.6 (0.7.6.1-0.7.6.2) summarizes
claimant's medical condition regarding an audiogram administered on January
27, 1997, and details the results of the audiogram. Paragraph 0.7.7
compromises claimant's hearing loss as a 10 percent binaural hearing
impairment, the equivalent of 20 weeks of compensation. Thus, the
administrative law judge's approval of the settlement is limited to the
hearing loss claim before him. See Dickinson v. Alabama Dry Dock &
Shipbuilding Corp., 28 BRBS 84, 88 (1993); see also Kelly v. Ingalls
Shipbuilding, Inc., 27 BRBS 117, 120 (1993); Poole v. Ingalls
Shipbuilding, Inc., 27 BRBS 230, 235 (1993). Assuming, arguendo,
as the Director contends, that the settlement could be construed as
attempting to settle claims not yet in existence, employer has made it clear
in its response brief that the intent of the settlement is to settle only
claimant's claim for hearing loss allegedly caused by noise exposure while
working for employer up to the time of the filing audiogram on January 27,
1997.[1] See Emp. Br. at 4-5. As
the approved settlement is so limited, we affirm the administrative law
judge's decision.
The Director next contends that the administrative law judge erred by
discharging employer from liability for future medical benefits as it is
contrary to the parties' settlement, which provides in relevant part at page
3, paragraph 0.8, "APL will remain responsible for claimant's reasonable and
necessary future medical expenses arising out of this injury to the extent
it may be liable for such expenses under the Act."[2] Employer agrees with the Director's challenge to the
administrative law judge's order discharging it from future medical benefits
and has no objection to the Board modifying the administrative law judge's
order to reflect that employer is responsible for future medical expenses.
Consequently, we modify the administrative law judge's order to hold
employer responsible for the payment of claimant's reasonable and necessary
future medical expenses in accordance with the parties' settlement
agreement.
Accordingly, the administrative law judge's Decision and Order Approving
Settlement, Awarding Benefits and Attorney Fees is modified to reflect that
employer remains responsible for the payment of claimant's future medical benefits.
In all other respects, the administrative law judge's Decision and Order is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1) 1Employer states that this agreement does not settle any past or future potential
claims for injuries other than hearing loss nor does it settle any future claims for hearing loss aggravation that may
be based on noise exposure while working for employer after January 27, 1997. Emp. Br. at 4-5. Moreover, to
the extent that the parties' agreement may have attempted to settle a claim not yet in existence, we note that this
agreement could not preclude claimant from pursuing such a claim.
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2) 2In his Decision and Order, the administrative law judge incorrectly stated that the
parties' settlement indicated an agreement to resolve claimant's claim for past and future compensation and medical
benefits. Decision and Order at 2. The administrative law judge then ordered employer to pay claimant a lump sum of
$16,834.65, in settlement of all past and future disability compensation and medical care, see Decision and Order
at 2, n. 1, and stated that payment of the sum shall discharge employer of all liability for past and future compensation,
medical care and treatment, and attorney's fees and costs.
Id. at 3, n. 3.
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NOTE: This is an UNPUBLISHED LHCA Document.
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