BRB Nos. 98-1376, 98-1376A
and 98-1407
PARKER JOHNSTON )
)
Claimant-Respondent )
Cross-Petitioner )
)
v. )
)
MATSON TERMINALS ) DATE ISSUED: 07/14/1999
1999
Self-Insured )
Employer-Petitioner )
Cross-Respondent ) DECISION and ORDER
Appeals of the Decision and Order and Order Denying Motion for
Reconsideration of Alfred Lindeman, Administrative Law Judge,
United States Department of Labor, and the Compensation Order-Approval of Attorney Fee Application of Karen P. Staats, District
Director, United States Department of Labor.
Mary Alice Theiler (Theiler, Douglas, Drachler & McKee), Seattle,
Washington, for claimant.
John P. Hayes (Forsberg & Umlauf, P.S.), Seattle, Washington, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH,
Administrative Appeals Judge, and NELSON, Acting Administrative
Appeals Judge.
PER CURIAM:
Employer appeals, and claimant cross-appeals, the Decision and Order and
Order Denying Motion for Reconsideration (97-LHC-1194) of Administrative Law
Judge Alfred Lindeman 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). Employer also appeals the
Compensation Order-Approval of Attorney Fee Application (Case No. 14-114956)
of District Director Karen P. Staats . We must affirm the findings of fact
and the 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, while working as a dock supervisor for employer, suffered a
work-related back injury on November 26, 1993. He was off work until
February 1994. Claimant suffered another episode of low back pain on March
21, 1994, and was again disabled from work. Claimant returned to his job
as a dock supervisor on June 21, 1995, working an average of two or three
days per week, until electing to undergo a laminectomy on February 21, 1996.
In June 1996, Drs. Bradley and Nelson stated that restrictions placed on
claimant in February 1995 were permanent, and that claimant was capable of
returning to work under those restrictions. Claimant did not return to work
after the surgery, opting instead to take his pension and retire. Employer
paid claimant temporary total disability compensation while he was off work,
but ceased its voluntary payments on October 1, 1996, on the basis that
claimant chose to retire instead of returning to work. Claimant sought
disability compensation for the period subsequent to October 1, 1996.
The administrative law judge awarded claimant permanent partial
disability compensation pursuant to Section 8(c)(21) of the Act, 33 U.S.C.
§908(c)(21), determining that claimant was capable of returning to
work after his February 1996 operation in the same capacity in which he was
working prior to the procedure, based upon the opinions of Drs. Bradley and
Nelson. The administrative law judge found that claimant suffered a loss
in wage-earning capacity after his surgery based upon the difference
between claimant's pre-injury average weekly wage and the actual wages he
earned while he was working between June 1995 and February 1996. Employer
was awarded relief pursuant to Section 8(f) of the Act, 33 U.S.C.
§908(f). The administrative law judge affirmed his award of disability
compensation in an Order Denying [Employer's] Motion for Reconsideration.
Subsequent to the administrative law judge's award, the district director
awarded claimant's counsel an attorney's fee of $3,791.78 for work
performed before her in connection with this case.
Employer appeals, contending that the administrative law judge erred in
awarding claimant permanent partial disability compensation and in
calculating claimant's average weekly wage. BRB No. 98-1376. Claimant
cross-appeals, contending that the administrative law judge erred in failing
to award him permanent total disability compensation, and in calculating his
post-injury wage-earning capacity and average weekly wage. BRB No. 98-1376A. Employer also appeals the district director's award of an attorney's
fee. BRB No. 98-1407.
Initially, we reject claimant's contention that the administrative law
judge erred in finding that he was not totally disabled, and was capable of
performing his duties as a dock supervisor, because the administrative law
judge erred in his assessment of the exertional requirements of the job.
Relying upon the opinions of Drs. Bradley and Nelson, the administrative law
judge concluded that claimant was capable of performing the dock supervisor
position.[1] The administrative law judge
acknowledged claimant's testimony that his job would not allow him to
change positions intermittently every 15 minutes, but chose instead to
credit the testimony of Clay Edwards, a superintendent, who testified that
the dock supervisor job allowed claimant to stand or sit at will. Tr. at
147, 151, 152. The administrative law judge also credited the opinion of
employer's vocational witness, Paul Tomita, that the job allowed claimant
to change positions. The administrative law judge was persuaded by a
videotape placed in evidence, which showed workers performing the job
changing positions frequently. EX-29. Claimant asserts that the
administrative law judge failed to consider that the dock supervisor duties
required a stint as a gate keeper, which involved bending while climbing on
refrigeration cars, which was beyond the physical restrictions listed by
Drs. Bradley and Nelson. However, contrary to claimant's contention, the
administrative law judge considered the exertional requirements of the gate
keeper position, and chose to credit the testimony of Mr. Edwards that the
job did not involve climbing or bending. Tr. at 153, 174-175. Inasmuch as
the administrative law judge is afforded great latitude in assessing the
credibility of the evidence, and as claimant has not established that the
administrative law judge's weighing of the conflicting evidence is
irrational, we reject claimant's contentions of error with regard to the
exertional requirements of his position. Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th Cir. 1962).
Furthermore, we reject claimant's challenge to the administrative law
judge's weighing of the medical evidence. Claimant contends that the
administrative law judge erred in drawing an adverse inference against the
opinion of Dr. Jackson, who concluded that claimant was incapable of working
after his February 1996 operation, because Dr. Jackson was not deposed and
thus was not subjected to cross-examination. EX-16; Decision and Order at
5 - 6. The administrative law judge, however, provided a number of valid
reasons for crediting the opinions of Drs. Nelson and Bradley over that of
Dr. Jackson, and he did not rely solely on the adverse inference.
Specifically, he found that Drs. Nelson and Bradley had a more complete
knowledge of the history of claimant's condition, as they had examined
claimant both before and after his operation, and a better comprehension of
the duties of claimant's job than did Dr. Jackson based on their viewing Mr.
Tomita's videotape. In addition, he relied on the fact that claimant's
primary treating physician, Dr. Perkins, concurred with their 1995 opinion
that claimant could return to work within restrictions. EX-17; Decision and
Order at 5-6. The administrative law judge's reasons for crediting the
opinion of Drs. Nelson and Bradley are rational and constitute valid
exercises of the administrative law judge's discretion as trier-of-fact.
See, e.g., Goldsmith v. Director, OWCP, 838 F.2d 1079, 21 BRBS 30 (CRT) (9th Cir.
1988). Consequently, since claimant has failed to identify reversible error
in the administrative law judge's evaluation of the conflicting medical
evidence, his finding that claimant is not totally disabled is affirmed.
Employer contends that the administrative law judge erred in awarding
claimant permanent partial disability compensation asserting that claimant
has not demonstrated any loss in wage-earning capacity due to the injury.
Specifically, employer asserts that the evidence fails to support the
administrative law judge's finding that claimant is incapable of working
more than two or three days per week as a result of the work-related injury
and that claimant voluntarily limited his work schedule.
We reject employer's contention, as the administrative law judge
addressed employer's argument in his Order Denying Motion for
Reconsideration and there is substantial evidence to support the award. The
administrative law judge found that claimant's post-surgical wage-earning
capacity should be based on the wages claimant earned from June 1995 to
February 1996, when claimant worked two to three days per week as a dock
supervisor. The administrative law judge recognized that claimant's
physicians did not limit his work to fewer than five days per week and that
claimant did not seek an award for reduced earning capacity during the June
1995-February 1996 period. Order at 1. Nonetheless, the administrative law
judge rationally credited claimant's testimony concerning his reduced work
schedule. Id. Claimant testified that his back pain required that
he take pain medication at work, Tr. at 50, and he kept a calendar of the
days he did not work due to pain. CX-29. Moreover, there is
contemporaneous medical evidence documenting claimant's pain and limitations
during this period. See, e.g., CX-5 at 130-144. We, therefore,
affirm the administrative law judge's finding that the wages claimant earned
in the period from June 1995 - February 1996 represent claimant's wage-earning capacity following his clearance to return to work in October
1996.[2] See generally Ezell v.
Direct Labor, Inc., 33 BRBS 19, 26-27 (1999).
Next, we address claimant's contention that the administrative law judge
erred in failing to adjust his post-injury wage-earning capacity to the wage
levels paid at the time of injury in order to neutralize the effects of
inflation. The administrative law judge stated that no such adjustment was
required in this case because there is no basis in the record for finding
that claimant's union contract provided for a wage increase during the
relevant period. Decision and Order at 7 n.6.
We must remand this case to the administrative law judge to reconsider
this issue. The Board has held that it is necessary to adjust the
claimant's post-injury wage-earning capacity to the wages paid at the time
of injury in order to insure that the post-injury earning capacity is
considered on an equal footing with the claimant's average weekly wage.
See, e.g., Quan v. Marine Power & Equip. Co., 30 BRBS 124 (1996).
If the record does not contain evidence concerning the wages paid in the
post-injury job at the time of injury, the Board has held that the
administrative law judge should use the percentage change in the National
Average Weekly Wage to account for inflation. Richard v. General Dynamics
Corp., 28 BRBS 327 (1990). If claimant has not had any contractual wage
increases since his injury in 1993, then such an adjustment is all the more
necessary as the value of the wage rate claimant received in 1993 is not the
same as its value in 1996. On remand, the administrative law judge should
discuss fully claimant's contentions in this regard.[3]
We next address the parties' contentions that the administrative law judge
erred in calculating claimant's average weekly wage. The administrative law judge
found that claimant earned $98,543.04 in the year prior to his 1993 injury, working
252 days. The administrative law judge determined that, because claimant had
worked intermittently as both a five day worker and as a six day worker in the
year preceding the injury, he was unable to calculate claimant's average weekly
wage under either Section 10(a) or 10(b) of the Act. Thus, utilizing Section
10(c), the administrative law judge divided claimant's annual salary in the year
preceding the injury by 52 weeks, finding his average weekly wage to be $1,895.06.
We reject the parties' contentions that the administrative law judge was
mandated to calculate claimant's average weekly wage under Section 10(a), and we
affirm the administrative law judge's calculation of claimant's average weekly wage
given the facts in this case. A claimant's average weekly wage is determined at
the time of injury by utilizing one of three methods set forth in Section 10 of the
Act, 33 U.S.C. §910. See 33 U.S.C. §910(a)-(c). Section 10(a)
applies when claimant has worked in the same or comparable employment for
substantially the whole of the year immediately preceding the injury and provides
a specific formula for calculating annual earnings. Section 10(c) provides a
general method for determining annual earning capacity where Section 10(a) or (b)
cannot fairly or reasonably be applied to calculate claimant's average weekly wage
at the time of injury.[4] Empire United
Stevedores v. Gatlin, 936 F.3d 819, 25 BRBS 26 (CRT)(5th Cir. 1991);
Palacios v. Campbell Industries, 633 F.2d 840, 12 BRBS 806 (9th Cir. 1980);
Lobus v. I.T.O. Corp. of Baltimore, Inc., 24 BRBS 137 (1991).
In this case, the administrative law judge rationally concluded that the
evidence is insufficient to apply the specific formula contained at Section 10(a),
because, although it is uncontested that claimant worked substantially the whole
of the year preceding the injury for employer and the number of days claimant
worked is known, he could not determine from the wage records whether claimant was
a five day or six day worker as he had worked intermittently as both a five day and
six day worker in the year at issue.[5] See
CX-1. Thus, the administrative law judge's conclusion that claimant was
neither a five day nor a six day worker is rational and supported by substantial
evidence.[6] We, therefore, affirm the
administrative law judge's use of Section 10(c) to calculate claimant's average
weekly wage. Furthermore, we hold that the administrative law judge's method of
calculating claimant's average weekly wage by dividing total earnings in the year
preceding claimant's injury by 52 was a fair and reasonable approximation of a claimant's wage-earning
capacity at the time of his injury under Section 10(c); consequently, his determination is affirmed.[7] Browder v. Dillingham Ship Repair, 24
BRBS 216, aff'd on recon., 25 BRBS 88 (1991); Bonner v. National Steel
& Shipbuilding Co., 5 BRBS 290 (1977), aff'd in pert. part, 600 F.2d
1288 (9th Cir. 1979).
Finally, we address employer's appeal of the district director's fee award. In
this regard, employer contends merely that it is not liable for an
attorney's fee if claimant is not entitled to the additional permanent
partial disability benefits awarded by the administrative law judge. As we
have affirmed the administrative law judge's award, the fee award is
likewise affirmed. See generally Matulic v. Director, OWCP, 154 F.3d 1052, 32 BRBS
148 (CRT) (9th Cir. 1998); 33 U.S.C. §928(b).
Consequently, the administrative law judge's finding that he need not
adjust claimant's post-injury wage-earning capacity for inflation is
vacated, and the case is remanded for further consideration consistent with
this decision. In all other respects, the administrative law judge's Decision
and Order and Order Denying Motion for Reconsideration are affirmed. The district
director's fee award is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)On February 22, 1995, Drs. Bradley and Nelson found that
claimant is limited to lifting 10 to 15 pounds occasionally, should avoid
repetitive bending, and should have the ability to change positions from sitting
to standing to walking approximately every 15 minutes. EX-22. The physicians
reiterated these restrictions in June 1996, finding them at that time to be
permanent. EX-23.
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2)We reject employer's contention that claimant should not
receive permanent partial disability compensation because he is a voluntary
retiree. Since this is not an occupational disease case, the issue of claimant's
retirement type and its affect on his disability status is not relevant. The sole
relevant inquiry in this case is whether claimant has a loss in wage-earning
capacity in the job he was, or was capable of, performing in his injured capacity.
See Harmon v. Sea-Land Service, Inc., 31 BRBS 45 (1997).
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3)The administrative law judge, however, properly denied an
inflation adjustment to claimant's average weekly wage, as absent exceptional
circumstances, which are not alleged to be present here, average weekly wage is to be
calculated by the earnings of the claimant or comparable co-workers in the
relevant period prior to the injury. See generally Walker v. Washington Metropolitan
Area Transit Authority, 793 F.2d 319, 18 BRBS 100 (CRT) (D.C. Cir.), cert. denied, 479 U.S. 1094
(1986).
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4)No party contends that Section 10(b) should be applied
here.
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5)Employer concedes that the wage records indicate that
claimant worked 32 percent of the year (17 weeks) as a six day worker during
the year in question, and as a five day worker for the other portions of
that year. CX-1; Employer's Brief at 30.
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6)We note that the recent decision of the United States Court of Appeals for the Ninth Circuit
in Matulic v. Director, OWCP, 154 F.3d 1052, 32 BRBS 148 (CRT) (9th Cir. 1998), does not compel a different
result. The court held that Section 10(a) must be applied if the claimant worked in 75 percent of the work days of the
applicable year preceding the injury, which the claimant herein arguably did. The court in Matulic, however, did
not discuss the scenario presented in this case where the claimant worked both five-day and six-day weeks during the period
prior to injury.
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7)Employer asserts that the administrative law judge erred in
failing to consider vacation days in determining that claimant worked 252 days in
the year preceding his injury. This argument is moot given the affirmance of the
administrative law judge's calculation under Section 10(c); inasmuch as the
administrative law judge did not utilize his finding that claimant worked 252 days
in calculating claimant's average weekly wage, we decline to address employer's
arguments in this regard. But see Wooley v. Ingalls Shipbuilding, Inc.,
BRBS , BRB No. 98-501 (June 22, 1999).
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NOTE: This is an UNPUBLISHED LHCA Document.
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