BRB No. 98-1402
OTIS COOPER )
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Claimant-Respondent )
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v. )
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POOL COMPANY ) DATE ISSUED: 07/19/1999
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and )
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SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LTD. )
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Employer/Carrier- )
Petitioner ) DECISION and ORDER
Appeal of the Decision and Order-Awarding Benefits, the Supplemental
Decision and Order Awarding Attorney's Fees, and the Second Supplemental
Decision and Order Awarding Attorney's Fees of Lee J. Romero, Jr.,
Administrative Law Judge, United States Department of Labor.
Arthur J. Brewster, Metarie, Louisiana, for claimant.
S. Daniel Meeks and Jimmy A. Castex, Jr. (Reich, Meeks & Treadway,
L.L.C.), Metarie, Louisiana, for employer/carrier.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order-Awarding Benefits, the Supplemental
Decision and Order Awarding Attorney's Fees, and the Second Supplemental Decision
and Order Awarding Attorney's Fees (97-LHC-1299) of Administrative Law Judge Lee
J. Romero, 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).
Claimant began working as a floor hand for employer in 1979. In 1989, he
slipped while setting up a drilling rig and injured his right knee. As a result
of this injury, he eventually underwent surgery on his right knee, but returned to
his former duties as a floor hand with employer in 1990. On August 20, 1990, he
re-injured his right knee, when he slipped on a muddy floor while pushing drill
collars to the side of the drilling rig. He continued to work that day, but
eventually reported the knee injury to his supervisor. He was authorized to seek
medical attention for his knee, and sought treatment from Dr. Morrison, who
referred him to Dr. Barrett. Based on an MRI, Dr. Barrett recommended, and then
performed, surgery to repair claimant's anterior cruciate ligament (ACL) on
February 24, 1993. Claimant was released from treatment on February 28, 1994, and
received his last compensation payment on April 25, 1994. Claimant was unable to
return to his former duties following his surgery and began working in alternate
employment as a security guard, a position he found through his own efforts, on
September 3, 1994. Claimant continued to seek treatment with Dr. Barrett
complaining of pain and grinding in his knee. Joint Ex. 2. He filed a claim on
February 25, 1995, for benefits under the Act.
Due to the continuing complaints of pain, Dr. Barrett recommended and
performed an arthoscopic procedure on claimant's right knee on January 31, 1997.
He discovered that the earlier ACL repair had dissolved and opined that the ACL
would have to be replaced or rebuilt with a cadaver muscle. Claimant was unable
to work from the date of the arthoscopic procedure, January 31, 1997, to April 10,
1997. Employer authorized the recommended ACL repair, but denied liability for any
further compensation benefits.
Initially, the administrative law judge found that the claim was filed ten
months from the last payment of compensation, and four months from the date
claimant became aware that work-related injury would affect his wage-earning
capacity, and thus rejected employer's contention that the claim was not timely
filed. He noted that the claim was never adjudicated and thus was open and
pending. The administrative law judge found that claimant has not reached maximum
medical improvement as Dr. Barrett recommended further treatment and found that the
previous ACL repairs have dissolved. Thus, the administrative law judge found that
claimant was temporarily totally disabled from February 24, 1994, through September
2, 1994, the date he found a security guard job, from January 31, 1997, to April
9, 1997, the date he was able to return to his security job after the January 1997
arthoscopic procedure, and from the date of his prospective procedure until he
reaches maximum medical improvement therefrom. In a Second Supplemental Decision
and Order Awarding Attorney's Fees, the administrative law judge awarded claimant's
counsel a fee in the amount of $7,627.50, representing 50.85 hours at the hourly
rate of $150, plus $856.60 for expenses for a total of $8,484.10.
On appeal, employer contends that the administrative law judge erred in
finding that the claim was not time-barred. In addition, employer contends that
the administrative law judge erred in finding that claimant was entitled to
temporary total disability benefits from February 28, 1992 to September 2, 1992,
as claimant's counsel withdrew the claim for this period at the hearing.[1] Lastly, employer contests liability for
claimant's counsel's fee. Claimant responds, urging affirmance of the
administrative law judge's decisions.
Initially, employer contends that as there was no viable claim or dispute in
February 1995, and as there are no provisions for protective filings, the form
filed on February 25, 1995, was insufficient to constitute a claim. We disagree.
Section 13(a) of the Act, 33 U.S.C. §913(a), states that the right to
compensation for disability shall be barred unless the claim is filed within one
year from the time the claimant becomes aware, or in the exercise of reasonable
diligence should have been aware of the relationship between the injury or death
and the employment. If voluntary payments have been made, a claim may be filed
within one year of the last payment. The claim form is not required to contain any
particular language so long as claimant's intent to seek compensation can be
inferred from the writing. See McKnight v. Carolina Shipping Co., 32 BRBS
165 (1998), aff'd on recon. en banc, 32 BRBS 251 (1998).
In the instant case, the administrative law judge found that the claim, in the
form of the LS-203, was filed ten months after the last payment of compensation,
and thus was timely. See Joint Ex. 7. As the administrative law judge
found, the form included information regarding when the injury occurred, where it
occurred, what the specific injury was, and noted that claimant continued to suffer
a disability. The administrative law judge thus found it was sufficient to put
employer on notice of a compensation claim. Employer contests this finding,
arguing that there was no viable claim at the time this claim was filed, and thus
it did not constitute a claim for compensation purposes. However, as discussed
infra, claimant had not been fully compensated for his disability at the
time the claim was filed, as he was not compensated for the period from February
28, 1994, to September 2, 1994. Thus, employer's contention that no viable claim
existed at the time the LS-203 was filed is rejected. Moreover, the
administrative law judge properly found that as claimant did not file a written
request with the district director to withdraw his claim, see 20 C.F.R.
§702.225, and the claim was never adjudicated, it remained open and pending.[2] See Intercounty Construction Co. v.
Walter, 422 U.S. 1, 2 BRBS 3 (1975); Hargrove v. Strachan Shipping Co.,
32 BRBS 11 (1998), aff'd on recon., 32 BRBS 224 (1998). Finally, the
administrative law judge properly distinguished the decision in ITO Corp. of
Va. v. Pettus, 73 F.3d 523, 30 BRBS 6 (CRT)(4th Cir. 1996), cert.
denied, 117 S.Ct. 49 (1996), upon which employer relies, as claimant here
specifically filed an LS-203 with pertinent information, which the district
director served on employer, unlike the vague letters which were relied upon by
claimant in Pettus. Therefore, we affirm the administrative law judge's
finding that the claim was timely filed.[3]
Employer also contends that the administrative law judge erred in awarding
benefits from February 28, 1994 through September 2, 1994, inasmuch as there was
no evidence claimant was unable to return to work on March 1 and 2, 1994.[4] A claimant who suffers an injury to a scheduled
member is not limited to recovery under the schedule, but may recover compensation
for total disability if the facts support such an award. See Sketoe v. Dolphin
Titan Int'l, 28 BRBS 332 (1989)(Smith, J., dissenting on other grounds). If
claimant establishes that he cannot return to his former duties, and employer fails
to establish suitable alternate employment, claimant may be found to be totally
disabled by an injury to a scheduled member. Manigault v. Stevens Shipping
Co., 22 BRBS 332 (1989). In the present case, claimant's treating physician
reported on February 24, 1994, that claimant would not be able to return to his
former duties due to his work-related injury. Joint Ex. 2 at 21. Once claimant
shows an inability to return to usual employment, the burden shifts to employer to
demonstrate the availability of suitable alternate employment. The same standard
applies whether the claim is for permanent or temporary total disability benefits.
Mills v. Marine Repair Serv., 21 BRBS 115 (1988), modified on other
grounds on recon., 22 BRBS 335 (1989). Employer did not submit any evidence
of suitable alternate employment. Rather, claimant began working as a security
guard in September 1994, a position he obtained through his own efforts,
establishing suitable alternate employment as of that date. See Director, OWCP
v. Bethlehem Steel Corp. [Dollins], 949 F.2d 185, 25 BRBS 90 (CRT)(5th Cir.
1991); Rinaldi v. General Dynamics Corp., 25 BRBS 128 (1991)(decision on
reconsideration). Therefore, we affirm the administrative law judge's award of
temporary total disability benefits from February 28, 1994 through September 2,
1994, as it is supported by substantial evidence. See generally Clophus v. Amoco
Prod. Co., 21 BRBS 261 (1988).
Lastly, employer contends that the administrative law judge erred in finding
that employer was liable for claimant's counsel's fee pursuant to Section 28(a) of
the Act, 33 U.S.C. §928(a). We agree. Employer voluntarily paid temporary
total disability benefits from November 24, 1992 through February 28, 1994, and
five percent permanent partial disability benefits for claimant's work-related knee
injury, thereby precluding employer's liability under Section 28(a) of the Act.
Employer, however, is liable for claimant's attorney's fees pursuant to Section
28(b). Employer commenced voluntary payment of temporary total disability benefits
which ended on February 28, 1994. The administrative law judge found that claimant
was entitled to a period of temporary total disability from February 28, 1994
through September 2, 1994, when claimant began alternate employment, from January
31, 1997 to April 9, 1997, while claimant recovered from the arthroscopic
procedure, and from the date of claimant's prospective allograft procedure until
he reaches maximum medical improvement therefrom. Therefore, inasmuch as a
controversy remained after employer voluntarily paid some benefits and claimant was
successful in obtaining additional compensation over that employer initially agreed
to pay, we affirm the administrative law judge's finding that claimant's attorney
is entitled to a fee award but hold that it is to be assessed against employer
pursuant to Section 28(b) of the Act, 33 U.S.C. §928(b). See generally
Rihner v. Boland Marine & Manufacturing Co., 24 BRBS 84 (1990), aff'd,
41 F.3d 997, 29 BRBS 43 (CRT) (5th Cir. 1995).
Accordingly, the Decision and Order-Awarding Benefits, the Supplemental
Decision and Order Awarding Attorney's Fees, and the Second Supplemental Decision
and Order Awarding Attorney's Fees are affirmed.
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) 1Employer's brief contains an error as it lists these
dates as occurring in 1992. However, as the administrative law judge addresses the
same dates in 1994, we will address this contention based on the dates noted by the
administrative law judge.
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2) 2The letter written by a claims examiner after the LS-203
was filed is not an order disposing of the claim. As the administrative law judge
reasonably found, the letter simply notified claimant of employer's assertion that
it had paid all benefits due and stated that if claimant disagreed, additional
information was necessary. The claim thus remained open.
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3) 3The administrative law judge also found that claimant did
not have the requisite awareness until he was advised to quit his job as a security
guard on October 24, 1994. However, employer is correct in noting that claimant
was aware of the effect of his injury on his wage-earning capacity in February
1994, when he was told he could not return to work as a roughneck.
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4) 4Employer also asserts that the administrative law judge
erred in awarding benefits from March 3, 1994 through September 2, 1994, as
claimant's counsel withdrew the claim for benefits for the period from March 3,
1994 through September 2, 1994, at the hearing. We reject this contention as there
is no allegation that the proper procedure was followed to withdraw the claim,
including a determination that the withdrawal is in claimant's best interests and
for a proper purpose. 20 C.F.R. §702.225; Hargrove, 32 BRBS at 14.
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NOTE: This is an UNPUBLISHED LHCA Document.
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