BRB No. 98-1401
DAVID C. AUFANG )
)
Claimant-Petitioner )
)
v. )
)
TACOMA BOATBUILDING COMPANY ) DATE ISSUED: 07/22/1999
1999
)
and )
)
PACIFIC MARINE INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents )
)
LIBERTY NORTHWEST INSURANCE )
COMPANY )
)
Carrier-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Order of Dismissal on Remand - Order Denying Benefits
on Remand of Edward C. Burch, Administrative Law Judge, United
States Department of Labor.
James R. Walsh, Lynnwood, Washington, for claimant.
Robert H. Madden (Madden & Crockett), Seattle, Washington, for
employer and carrier Liberty Northwest Insurance Company.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Order of Dismissal on Remand - Order Denying
Benefits on Remand (89-LHC-1218, 89-LHC-1219) of Administrative Law Judge
Edward C. Burch 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).
This case, which has a long and complex procedural history, is before
the Board for the third time. To recapitulate, claimant injured his back
in 1982 while working for employer as a welder-fitter, and ultimately
settled his claim for compensation arising out of this injury pursuant to
an approved Section 8(i) settlement. See 33 U.S.C. §908(i).
In 1983, claimant returned to modified duty work for employer. Claimant
sustained additional injuries to his back while performing modified work in
incidents occurring in January 1984, and on January 21, 1985, and May 15,
1985.[1] In July 1985, claimant was
terminated as part of a general reduction-in-force. Upon recalling its
employees in November 1985, employer advised claimant that modified work was
no longer available for him and thus, claimant did not return to work at
that time. Thereafter, on July 1, 1986, claimant returned to work for
employer, although the work to which he was assigned proved to be beyond his
medical restrictions. On his fourth day of work, July 7, 1986, while
carrying a flat bar on his shoulder, claimant experienced sharp back pain.
Claimant immediately sought medical attention at a hospital emergency room
and has not returned to work since that day. Pacific Marine Insurance
Company (Pacific Marine) was employer's insurance company from the date of
claimant's initial 1982 back injury until February 28, 1986.[2] Thereafter, Liberty Northwest Insurance
Company (Liberty Northwest) assumed insurance coverage of employer.
Claimant filed a claim for benefits under the Act, contending that he
became permanently totally disabled as a result of his July 1986 injury,
while Liberty Northwest was on the risk. Claimant additionally raised the
injuries occurring in 1984 and 1985, while Pacific Marine was on the risk.
In his Decision and Order, Administrative Law Judge James J. Butler denied
the claim on the grounds that claimant did not sustain a work-related injury
in July 1986; the administrative law judge declined to address the previous
incidents occurring while Pacific Marine was on the risk.
Claimant thereafter appealed Judge Butler's Decision and Order to the
Board. On January 26, 1994, the Board issued a Decision and Order vacating
Judge Butler's denial of benefits and remanding the case for further
consideration of the issue of whether claimant sustained a work-related
aggravation of his back condition in July 1986. Aufang v. Tacoma
Boatbuilding Co., BRB No. 90-1776 (Jan. 26, 1994)(unpub.).
On remand, Administrative Law Judge Edward C. Burch[3] (the administrative law judge) determined
that claimant suffered a work-related injury on July 7, 1986, but that
claimant is not permanently and totally disabled as a result of that
injury.[4] Accordingly, claimant's claim
for permanent total disability benefits was denied. In addition, the
administrative law judge determined that employer is not liable for any
medical treatment beyond July 16, 1986. Lastly, after calculating
claimant's average annual earnings pursuant to Section 10(c) of the Act, 33
U.S.C. §910(c), the administrative law judge awarded claimant temporary
total disability benefits totaling $373.33 for the period between July 8,
1986 and July 16, 1986.
Thereafter, claimant appealed and employer/carrier Liberty Northwest
cross-appealed the administrative law judge's Decision and Order After
Remand -- Denying Benefits. By Order dated November 19, 1996, the Board
granted claimant's motion to remand the case to the administrative law judge
for adjudication of his claim for disability compensation arising out of the
work incidents which he alleged occurred prior to 1986.[5] In addition, the Board dismissed
claimant's appeal, BRB No. 96-0969, with prejudice based on his
representation that he did not wish to challenge the administrative law
judge's findings with regard to any disability for which carrier Liberty
Northwest may be liable. The Board therefore concluded that the
administrative law judge's finding that carrier Liberty Northwest is liable
only for temporary total disability benefits from July 8, 1986 through July
16, 1986, is final. The Board proceeded to decide carrier Liberty
Northwest's cross-appeal on the merits, and in a Decision and Order issued
February 26, 1997, affirmed the administrative law judge's award of
temporary total disability benefits for the period between July 8, 1986 and
July 16, 1986.
On remand, the administrative law judge denied the claim for disability
arising out of the alleged incidents occurring prior to 1986, stating as
follows:
The only claim that has ever been before the office of
administrative law judges is a claim for total permanent disability
which culminated with the incident of July 7, 1986. As the Board
stated on page 2 of its unpublished decision of January 26, 1994,
BRB No. 90-1776, which remanded Judge Butler's decision: "Claimant
filed a claim for benefits under the Act, contending he had become
totally disabled as a result of his July 1986 injury." Despite
that only the July 7, 1986 culmination was before the court we are
now directed to consider a 1985 injury. As previously stated there
is some reference in the record to a fall in January of 1985 and
a pulled back muscle in May of 1985. Thus, those incidents have
already been tried. And, as previously stated, claimant lost
little or no time from work as a result of these incidents and
there is no evidence that his condition permanently worsened as a
result of those incidents. In the presentation of the case the
1985 incidents were mentioned, but were considered to have merged
into the greater event of July 7, 1986. That which does not exist
cannot be chronicled. Having considered all evidence relating to
the 1985 incidents, there is no basis to award additional
disability benefits as a result of anything that occurred prior to
July 1986.
Order of Dismissal on Remand at 2-3.
On appeal, claimant contends that the administrative law judge erred by
failing to comply with the Board's remand order to address claimant's
entitlement to benefits as a result of injuries occurring prior to 1986.
Claimant avers that he is permanently totally disabled as a result of his
1984 and 1985 injuries, and that, accordingly, he is entitled to permanent
total disability compensation and medical benefits. Carrier Liberty
Northwest responds that claimant's appeal does not involve Liberty Northwest
or its period of coverage of employer.[6]
The Director has not responded to claimant's appeal.[7]
Initially, we agree with claimant that the administrative law judge
erred in failing to comply with the Board's remand order. Section
802.405(a) of the regulations, 20 C.F.R. §802.405(a), governing the
operation of the Benefits Review Board, provides that "[w]here a case is
remanded, such additional proceedings shall be initiated and such other
action shall be taken as is directed by the Board." Herein, in remanding
the case to the administrative law judge, the Board specifically stated that
the administrative law judge was to consider claimant's entitlement to
compensation for any disability arising out of the incidents occurring prior
to 1986. In failing to consider the evidence regarding claimant's possible
entitlement to either disability or medical benefits under the proper legal
standard, the administrative law judge on remand erred by failing to follow
the Board's directive. See Obert v. John T. Clark and Son of
Maryland, 23 BRBS 157, 159 (1990).
With respect to claimant's possible entitlement to disability
compensation and medical benefits, we note that this case involves both
questions of causation and the nature and extent of disability. Claimant
has alleged that the work-related incidents that occurred in 1984 and 1985
combined with his prior medical condition to result in disability. The
administrative law judge, however, without citing to a single case
addressing the relevant law regarding the issues before him, summarily
denied benefits on the basis of his findings that claimant lost little or
no time from work as a result of those incidents and that there is no
evidence that claimant's condition permanently worsened as a result of the
incidents. We hold that, in denying benefits on this basis, the
administrative law judge did not properly apply the Section 20(a)
presumption of causation, 33 U.S.C. §920(a), the aggravation rule, and
the applicable law regarding the nature and extent of disability. We
therefore must vacate the administrative law judge's denial of disability
benefits and remand the case for the administrative law judge to reconsider
the issues of causation and disability.
In establishing the work-relatedness of his condition, claimant is aided
by the Section 20(a) presumption, which applies generally to the issue of
whether claimant's injury or disability is work-related. See, e.g., Kubin
v. Pro-Football, Inc., 29 BRBS 117 (1995). If claimant establishes that
he suffered some harm or pain and that an accident occurred or working
conditions existed which could have caused the harm or pain, claimant is
entitled to the Section 20(a) presumption that his condition is caused or
aggravated by his employment. See generally Rajotte v. General Dymanics
Corp., 18 BRBS 85 (1986). The burden then shifts to employer to rebut
the presumption by producing substantial evidence that claimant's condition
was not caused by the work accident or that the work accident did not
aggravate claimant's underlying condition. Id.
The aggravation rule provides that where an injury at work aggravates,
accelerates or combines with a prior condition, the entire resultant
disability is compensable. Independent Stevedore Co. v. O'Leary, 357
F.2d 812 (9th Cir. 1966). This rule applies not only where the underlying
condition itself is affected but also where the injury "aggravates the
symptoms of the process." Pittman v. Jeffboat, Inc. 18 BRBS 212, 214
(1986). Whether the circumstances of a claimant's employment combine with
the pre-existing condition so as to increase his symptoms to such a degree
as to incapacitate him for any period of time or whether they actually alter
the underlying process is not significant. See Gooden v. Director,
OWCP, 135 F.3d 1066, 32 BRBS 59 (CRT)(5th Cir. 1998); Gardner v.
Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981), aff'g
11 BRBS 561 (1971). Moreover, the severity of a claimant's injury is not
determinative of whether an aggravation occurred since even a minor incident
can aggravate a pre-existing condition and impair a claimant's ability to
work. See, e.g., Foundation Constructors, Inc. v. Director, OWCP, 950
F.2d 621, 25 BRBS 71 (CRT)(9th Cir. 1991). Thus, in a case such as this one
where claimant asserts that the work accidents aggravated an underlying
condition, it is incumbent upon employer to introduce evidence affirmatively
establishing that the work accidents did not aggravate or accelerate the
underlying condition in order to rebut the Section 20(a) presumption. See
Hensley v. Washington Metropolitan Area Transit Authority, 655 F.2d 264,
13 BRBS 182 (D.C. Cir. 1981), cert. denied, 456 U.S. 905 (1982).
Accordingly, as the administrative law judge failed both to apply the
Section 20(a) presumption and to provide any discussion of the record
evidence relevant to the issue of causation, he must, on remand, provide a
reasoned discussion of the evidence relevant to the cause of claimant's
disability, consistent with the Section 20(a) presumption and the
aggravation rule.
With respect to the issue of disability, we note that claimant is
entitled to disability benefits for any period his work injury causes a
total or partial loss of wage-earning capacity. See generally Shell
Offshore, Inc. v. Director, OWCP, 112 F.3d 321, 31 BRBS 129 (CRT)(5th
Cir. 1997); Johnson v. Newport News Shipbuilding & Dry Dock Co., 25
BRBS 340 (1992). While the administrative law judge found that claimant
lost little or no work time following the work incidents occurring prior to
July 1986, and that claimant's condition did not permanently worsen as a
result of those incidents,[8] the
administrative law judge did not make a finding as to whether claimant had
any period of disability following these incidents. Thus, on remand, the
administrative law judge must consider whether claimant suffered any loss
of wage-earning capacity in the periods following the work-related incidents
in question. We note, in this regard, that any evidence that might support
a finding that claimant, at some point in time, was no longer disabled by
injuries sustained in these work incidents does not establish that claimant
did not suffer any disability in the periods immediately following the
incidents. See generally Cotton v. Newport News Shipbuilding & Dry Dock
Co., 23 BRBS 380, 383 (1990).
Lastly, it is well-established that claimant is entitled to
reimbursement for all reasonable and necessary medical treatment related to
the work injury. 33 U.S.C. §907(a); see, e.g., Kelley v. Bureau of
National Affairs, 20 BRBS 169 (1988). Claimant need not be economically
disabled in order to be entitled to medical benefits. Romeike v. Kaiser
Shipyards, 22 BRBS 57 (1989). On remand, therefore, the administrative
law judge must consider claimant's entitlement to medical benefits for any
reasonable and necessary medical treatment related to the work injuries that
are the subject of the instant claim.
Accordingly, the administrative law judge's Order of Dismissal on Remand
is vacated, and the case is remanded for further consideration consistent
with this decision.
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)Although claimant alleges another injury on October 14, 1984, the medical records
cited in support of this injury reflect that the injury occurred on August 14, 1974. See LXS 24, 25.
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2) 2The parties have advised that both Tacoma Boatbuilding Company and Pacific
Marine Insurance Company are now defunct. We note that Section 18(b) of the Act, 33 U.S.C. §918(b),
states that "[i]n cases where judgment cannot be satisfied by reason of the employer's insolvency or other
circumstances precluding payment," the Secretary of Labor may, in her discretion and to the extent she deems
advisable, make payments from the Special Fund. 33 U.S.C. §918(b); 20 C.F.R. §702.145(f). See
Ricker v. Bath Iron Works Corp., 24 BRBS 201, 206 n.2 (1991); Shaller v. Cramp Shipbuilding & Dry
Dock Co., 23 BRBS 140, 144 n.2 (1989).
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3)The record reflects that the case was reassigned to Judge Burch because of the
retirement of Judge Butler in 1993.
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4)The administrative law judge found that the record supports the proposition that
claimant is no more disabled than he would have been had he never returned to work on July 1, 1986.
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5)The Board specifically remanded the case so that the administrative law judge may
address claimant's contentions that he is disabled as a result of injuries occurring before carrier Liberty Northwest
was on the risk. The Board recognized that claimant had properly raised
these claims before Judge Butler in the initial adjudication, but that they
were not addressed. Moreover, the Board noted that employer's prior
carrier, Pacific Marine, was separately represented and present at the
hearing.
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6) 6The administrative law judge found that carrier Liberty Northwest has no
responsibility in this matter and, accordingly, dismissed Liberty Northwest with prejudice. The administrative
law judge's dismissal of Liberty Northwest is consistent with the Board's previous determination that the
administrative law judge's finding that Liberty Northwest is liable only for benefits for the period from July 8,
1986 through July 16, 1986, is final. As Liberty Northwest has no liability for the incidents that are the subject
of the instant claim, we grant its motion to be dismissed as a party to this action.
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7)By Order of February 9, 1999, the Board ordered the Director to file a response brief.
The Director did not respond, despite the fact that if any benefits are awarded on these injuries, the Director will
be required to determine whether they should be paid by the Special Fund. See n.2, supra.
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8)As the administrative law judge failed to support these findings with citations to record
evidence, they cannot be affirmed. On remand, the administrative law judge must specifically consider all
evidence of record relevant to the duration of any disability resulting from the 1984 and 1985 work incidents.
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NOTE: This is an UNPUBLISHED LHCA Document.
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