BRB No. 98-1412
VICTOR E. RODI )
)
Claimant-Respondent )
)
v. )
)
AVONDALE INDUSTRIES, ) DATE ISSUED: 07/02/1999
1999
INCORPORATED )
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits, the Order Granting
Claimant's Motion for Reconsideration, and the Supplemental Decision
and Order Awarding Attorney Fees of Richard D. Mills, Administrative Law
Judge, United States Department of Labor.
Richard S. Vale and Elizabeth D. Bogan (Blue Williams, L.L.P.),
Metairie, Louisiana, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits, the Order Granting
Claimant's Motion for Reconsideration, and the Supplemental Decision and Order
Awarding Attorney Fees of Administrative Law Judge Richard D. Mills (97-LHC-628)
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 if they 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 will not be set aside unless shown by the
challenging party to be arbitrary, capricious, an abuse of discretion or not in
accordance with law. See Muscella v. Sun Shipbuilding & Dry Dock Co., 12
BRBS 272 (1980).
Claimant, who was allegedly exposed to noise while working for employer
between 1960 and October 21, 1982, filed a claim for his work-related hearing loss
in 1995 after undergoing an audiological evaluation. Prior to the formal hearing,
claimant passed away due to causes unrelated to this claim. In his Decision and
Order, the administrative law judge, after crediting the statements made by
claimant to his audiologists prior to his death regarding his exposure to noise
during the course of his employment with employer, found that claimant was entitled
to invocation of the Section 20(a), 33 U.S.C. §920(a), presumption with
regard to causation, and that employer failed to rebut this presumption. Next, the
administrative law judge determined that claimant's average weekly wage for
compensation purposes was $590.32. Accordingly, after accepting the opinion of Dr.
Seidemann regarding the extent of claimant's hearing impairment, the administrative
law judge awarded claimant compensation for a 26.6 percent binaural hearing loss
pursuant to Section 8(c)(13)(B) of the Act, 33 U.S.C. §908(c)(13)(B).
Subsequently, in an Order Granting Claimant's Motion for Reconsideration, the
administrative law judge averaged the two audiometric ratings of record and thus
amended his decision to reflect claimant's entitlement to benefits for a 28.6
percent binaural hearing loss.
Claimant's counsel filed a petition requesting an attorney's fee of $4,539.20,
representing 26.625 hours of attorney services at $150 per hour, and $545.45 in
expenses. In his Supplemental Decision and Order, the administrative law judge,
after specifically finding that employer had not objected to the requested fee,
determined that the requested fee appeared to be reasonable and thus awarded
claimant's counsel the amounts sought.
On appeal, employer argues that the administrative law judge erred in finding
that it failed to rebut the Section 20(a) presumption. Employer also challenges
the administrative law judge's finding regarding the extent of claimant's hearing
loss, and the administrative law judge's calculation of claimant's average weekly
wage. Lastly, employer avers that the administrative law judge erred in
determining that the fee requested by claimant's counsel was reasonable. Claimant
has not filed a response brief.
Causation
In the instant case, the administrative law judge properly invoked the Section
20(a) presumption as he found that claimant suffered a harm and that working
conditions existed which could have contributed to that harm. See generally
Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991). Upon invocation
of the presumption, the burden shifts to employer to present specific and
comprehensive evidence sufficient to sever the causal connection between the injury
and the employment, and therefore, to rebut the presumption with substantial
evidence that claimant's condition was not caused or aggravated by his employment.
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.),
cert. denied, 429 U.S. 820 (1976); Bridier v. Alabama Dry Dock &
Shipbuilding Corp., 29 BRBS 84 (1995); Devine v. Atlantic Container Lines,
G.I.E., 23 BRBS 279 (1990). The opinion of a physician that no relationship
exists between an injury and a claimant's employment is sufficient to rebut the
presumption. See Phillips v. Newport News Shipbuilding & Dry Dock Co., 22
BRBS 94 (1988); Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984). If the
administrative law judge finds that the Section 20(a) presumption is rebutted, the
administrative law judge must weigh all of the evidence contained in the record and
resolve the causation issue based on the record as a whole. See Hughes v.
Bethlehem Steel Corp., 17 BRBS 153 (1985); Director, OWCP v. Greenwich Collieries,
512 U.S. 267, 28 BRBS 43 (CRT) (1994).
We affirm the administrative law judge's finding that employer failed to rebut
the Section 20(a) presumption. The administrative law judge's finding is supported
by the record, as he rationally found the opinion of Dr. Seidemann, upon whom
employer relies in support of its contention of error, insufficient to rebut the
presumption since that physician focused his testimony on whether claimant's work-related noise exposure could have caused all of claimant's hearing loss rather than
if that exposure was sufficient to cause any loss of hearing. Although Dr.
Seidemann testified that it was his opinion that claimant's hearing loss was not
caused by his work, see RX 4 at 8, his opinion was based on his belief that
the noise levels to which claimant would have been exposed as an electrician were
not severe enough to cause claimant's loss. However, he also conceded that "in
situations of prolonged short claims, the claim could be related to incidental
noises in the work place coming from other crafts. I just don't know if there is
enough incidental exposure from other crafts to have resulted in this severity of
hearing loss." Id. at 9. As Dr. Seidemann's testimony does not address the
possibility that claimant's employment aggravated, accelerated, or contributed to
claimant's disabling condition, it is insufficient to rebut the Section 20(a)
presumption. See Bath Iron Works Corp. v. Director, OWCP [Shorette}, 109 F3d
53, 31 BRBS 19 (CRT)(1st Cir. 1997); Sam v. Loffland Bros. Co., 19 BRBS 228
(1987). Thus, as the opinion of Dr. Seidemann does not establish that claimant's
working conditions played no role in the onset of claimant's hearing loss, the
administrative law judge's finding that employer did not establish rebuttal of the
Section 20(a) presumption and his consequent conclusion that claimant's hearing
impairment is work- related are affirmed as rational, supported by substantial
evidence, and in accordance with law. See Brown v. Jacksonville
Shipyards, Inc., 893 F.2d 294, 23 BRBS 22 (CRT)(11th Cir. 1990); Clophus v.
Amoco Production Co., 21 BRBS 261 (1988).
Extent of Disability
Alternatively, employer asserts that the administrative law judge erred in
determining the extent of claimant's hearing loss; specifically, employer contends
that the administrative law judge's initial finding that Dr. Seidemann's lower
audiometric rating of 26.6 percent represented claimant's hearing loss was correct
and should be reinstated. Although the administrative law judge, in his decision,
accepted Dr. Seidemann's testimony regarding the extent of claimant's hearing loss
as well-reasoned, he subsequently determined on reconsideration that the percentage
difference between the two audiometric evaluations of record was so small as to
allow those results to be averaged in order to arrive at claimant's hearing loss.[1] Contrary to employer's assertion, an
administrative law judge is not required to credit the lowest audiometric rating
of record. See Norwood v. Ingalls Shipbuilding, Inc., 26 BRBS 66 (1992).
Rather, determinations as to the weight to be assigned evidence fall within the
purview of the trier-of-fact. See Perini Corp. v. Heyde, 306 F. Supp. 1321
(D.R.I. 1969). As the administrative law judge rationally decided to determine the
extent of claimant's hearing impairment by averaging the two audiometric
evaluations of record, both of which were performed approximately thirteen years
after claimant left covered employment, the administrative law judge's award of
benefits for a 28.6 percent binaural hearing impairment is affirmed.
Average Weekly Wage
Employer next challenges the administrative law judge's calculation of
claimant's average weekly wage for compensation purposes; specifically, employer
alleges that the administrative law judge erred in using claimant's total earnings
in the fifty-three weeks of his pre-injury employment, including vacation payments
made to claimant, in his average weekly wage calculation. For the reasons that
follow, we reject employer's contentions of error, and we affirm the administrative
law judge's decision on this issue.
Initially, we note that employer does not challenge the administrative law
judge's use of Section 10(c) of the Act, 33 U.S.C. §910(c), in adjudicating
the issue of claimant's applicable average weekly wage. Section 10(c) of the Act
is a catch-all provision to be used by the fact-finder when neither Section 10(a)
nor Section 10(b) of the Act, 33 U.S.C. §910(a), (b), can be reasonably and
fairly applied. See Newby v. Newport News Shipbuilding & Dry Dock Co., 20
BRBS 155 (1988). The object of Section 10(c) is to arrive at a sum which
reasonably represents the claimant's annual earning capacity at the time of his
injury. See Richardson v. Safeway Stores, Inc., 14 BRBS 855 (1982). It is
well-established that the administrative law judge has broad discretion in
determining annual earning capacity under Section 10(c). See generally Empire
United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26 (CRT)(5th Cir. 1991).
Thus, contrary to employer's contention, an administrative law judge, in rendering
an average weekly wage calculation under Section 10(c), is allowed to consider more
than just the year immediately preceding the injury. See New Thoughts Finishing
Co. v. Chilton, 118 F.3d 1028, 31 BRBS 51 (CRT)(5th Cir. 1997). Moreover,
vacation pay earned during the year prior to claimant's injury is properly included
in the calculation of claimant's average weekly wage. See Sproull v. Director,
OWCP, 86 F.3d 895, 30 BRBS 49 (CRT)(9th Cir. 1996). In the instant case, the
administrative law judge divided claimant's total wages, including vacation pay
rendered to claimant, for the fifty-three weeks prior to October 21, 1982, by 53.[2] We hold that the result reached by the
administrative law judge under Section 10(c) is supported by substantial evidence,
since the amount determined by the administrative law judge represents a reasonable
estimate of claimant's annual earning capacity at the time of his injury;
accordingly, the administrative law judge's finding that claimant's average weekly
wage was $590.32 is affirmed. See Gilliam v. Addison Crane Co., 21 BRBS 91
(1988); Hicks v. Pacific Marine & Supply Co., Ltd., 14 BRBS 549
(1981).
Attorney's Fee
Lastly, employer challenges the fee awarded to claimant's counsel by the
administrative law judge. Specifically, employer contends that the administrative
law judge erred in concluding that the number of hours of services rendered, the
hourly rate, and the costs submitted by claimant's counsel were reasonable.
Although employer asserts that a fee was awarded by the administrative law judge
over its "objection," see Employer's brief at 2, our review of the record
reveals, and the administrative law judge specifically found in his Supplemental
Decision and Order, that employer filed no objections to claimant's counsel's fee
petition with the administrative law judge. Therefore, we decline to address
employer's contentions regarding the hourly rate, the number of hours, or the costs
awarded by the administrative law judge, as they are raised for the first time on
appeal. See Boyd v. Ceres Terminals, 30 BRBS 218 (1997); Shaw v. Todd
Pacific Shipyards Corp., 23 BRBS 96, 100 (1989).
Accordingly, the administrative law judge's Decision and Order Awarding
Benefits, Order Granting Claimant's Motion for Reconsideration, and Supplemental
Decision and Order Awarding Attorney Fees are 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)Dr. Bode, based upon an audiological evaluation performed on May 23, 1995, opined that
claimant exhibited a 30.6 percent binaural hearing impairment. See CX-4. In contrast, Dr. Seidemann, based
upon a June 26, 1995, audiological exam, fixed claimant's binaural hearing impairment at 26.6 percent. See
EX-4.
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2)Employer does not challenge the administrative law judge's finding that claimant
earned $31,286.91 during this period of time.
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NOTE: This is an UNPUBLISHED LHCA Document.
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