BRB No. 00-1011
MARIE VAN DYKE )
)
Claimant-Petitioner )
)
v. )
)
MAERSK PACIFIC, LIMITED ) DATE ISSUED: 06/20/2001
2001
)
and )
)
SIGNAL MUTUAL INDEMNITY )
ASSOCIATION )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Denying Additional Benefits of Paul A.
Mapes, Administrative Law Judge, United States Department of Labor.
Thomas J. Pierry, III (Pierry & Moorhead, L.L.P.), Wilmington,
California, for claimant.
William N. Brooks, II (Law Offices of James P. Aleccia), Long Beach,
California, for employer/carrier.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Additional Benefits (99-LHC-2196, 2197) of Administrative Law Judge Paul A. Mapes 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 administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law.
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).
On April 16, 1997, claimant injured her lower back when she fell backwards off
a stool during the course of her employment for employer as a gate clerk. Employer
voluntarily paid compensation for temporary total disability, 33 U.S.C.
§908(b), from April 17 to May 16, 1997, from May 19 to June 8, 1997, and from
July 30 to October 1, 1997. Claimant thereafter returned to work for employer as
a gate clerk until November 21, 1997, when she tripped and fell, injuring her knees
and neck. Employer voluntarily paid compensation for temporary total disability
from December 17, 1997, to May 14, 1998. Employer terminated compensation payments
based on medical evidence that claimant could return to her usual employment as a
gate clerk. Claimant sought additional compensation for temporary total disability
from May 15 to May 26, 1998, when the parties stipulated that claimant's neck
condition reached maximum medical improvement. Claimant sought continuing
compensation for permanent total disability from May 26, 1998. 33 U.S.C.
§908(a).
In his decision, the administrative law judge found that claimant's lower back
condition from her April 16, 1997, injury reached maximum medical improvement on
February 19, 1998. Moreover, the administrative law judge found that claimant's
work injuries permanently aggravated claimant's pre-existing degenerative disc
disease of the cervical and lumbar spine. Finally, the administrative law judge
found that, notwithstanding her neck and back conditions, claimant can return to
her usual employment as a gate clerk as of May 14, 1998. Accordingly, the
administrative law judge denied the claim for additional compensation under the
Act.
On appeal, claimant challenges the administrative law judge's finding that she
is able to return to her usual employment. Employer responds, urging affirmance.
Claimant contends the administrative law judge erred in finding that her job
duties as a gate clerk do not require repetitive overhead reaching, from which she
is permanently restricted by her treating physician, Dr. O'Hara. Specifically,
claimant contends that the administrative law judge erred by addressing only
whether repetitive overhead reaching was necessary to install seals; claimant asserts
that overhead reaching also was required to check seals. It is well-established that claimant bears the burden of
establishing the nature and extent of any disability sustained as a result of a work-related injury. See Anderson
v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v. Lockheed Shipbuilding & Constr. Co., 17
BRBS 56 (1985). In order to establish a prima facie case of total disability, claimant must show that she
is unable to perform her usual work due to her work-related injury by comparing claimant's restrictions with her
usual job duties. See Curit v. Bath Iron Works Corp., 22 BRBS 100 (1988); Carroll v. Hanover
Bridge Marina, 17 BRBS 176 (1985).
In his decision, the administrative law judge initially determined the duties
of a gate clerk. Specifically, he rejected claimant's testimony that she is
required to carry printer paper weighing as much as 30 pounds at least once a day
and to reach overhead approximately 150 times a day to check or install container
seals. The administrative law judge credited the testimony and report of Malcolm
Howard, a vocational consultant, that a gate clerk must reach above shoulder level
to attach seals, but that such reaching is optional or performed 99 percent of the
time by the truck driver transporting the container. Compare Tr. at 239
with EX 15 at 321-322.[1] In support of
his decision to credit Mr. Howard, the administrative law judge noted claimant's
pre-hearing testimony that she usually would not leave her booth when there were
numerous containers arriving. EX 14 at 233. The administrative law judge also
noted claimant's inconsistent hearing testimony that she would sometimes have the
driver place the container seal when the installation site was beyond her reach;
however, she denied on cross-examination having drivers affix container seals.
Compare Tr. at 50 with Tr. at 125-126. The administrative law judge
concluded that claimant failed to establish that she is unable to return to her
usual employment as a gate clerk, crediting, inter alia, the opinions of
Drs. London and Haldeman that claimant is able to work as a gate clerk. Tr. at
179-180; EX 7 at 137a; EX 8 at 153. The administrative law judge rejected the
opinion of Dr. O'Hara, claimant's treating physician, finding Dr. O'Hara's opinion
to be based on claimant's description of her job, which the administrative law
judge rejected.[2] CX 24 at 68-69, 84-87.
Contrary to claimant's contention on appeal, her testimony does not
unequivocally establish that checking and installing seals are distinct activities,
each requiring overhead reaching. In claimant's testimony, that she would look up
to check seal numbers and "Gen Set" numbers located on the front end of the
container, there is no description of these activities as entailing overhead
reaching separate from her reaching to install seals. Tr. at 46, 51-52. In
response to direct questioning as to whether her job required overhead reaching,
claimant testified, "[W]e always had to check for seal numbers and also put on our
own seal." Tr. at 49. In response to claimant's counsel's question regarding what
claimant would do when checking a seal, she testified, "so I had to reach up and
look at their seal . . .[W]e would generally have to put our own seal on there. .
. ." Tr. at 49-50. Moreover, the testimony of Mr. Howard addresses overhead
reaching solely as a function of installing seals. Tr. at 239, 248-249. Inasmuch
as the credited testimony of Mr. Howard states that claimant is required to reach
overhead only to install seals and claimant's testimony in this regard does not
unequivocally establish that checking seals is a separate duty requiring overhead
reaching, we hold that the administrative law judge rationally found that claimant
failed to establish that her job duties as a gate clerk include repetitive overhead
reaching. See generally Director, OWCP v. Jaffe New York Decorating, 25 F.3d
1080, 28 BRBS 30(CRT) (D.C. Cir. 1994).
Claimant next contends that the administrative law judge erred in relying on
hearsay evidence to find that claimant's job duties as a gate clerk do not require
repetitive, overhead reaching. Specifically, claimant contends that the
administrative law judge erred by crediting Mr. Howard's testimony regarding the
job duties because Mr. Howard did not personally observe the job duties of a gate
clerk but instead relied on the job description provided by employer's Safety
Manager, Mr. Blackman. Moreover, claimant contends that she was denied due process
because she was not afforded an opportunity to cross-examine Mr. Blackman in this
regard.
The Board will not interfere with credibility determinations unless they are
"inherently incredible or patently unreasonable." Cordero v. Triple A Machine
Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th Cir. 1978). The administrative
law judge has great discretion concerning the admission of evidence, and he is not
bound by any formal rules in making evidentiary determinations. See 33
U.S.C. §923; 20 C.F.R. §702.339. Hearsay evidence is generally admissible
and may be credited by the administrative law judge if it is considered reliable.
See Richardson v. Perales, 402 U.S. 389 (1971); Powell v. Nacirema
Operating Co., Inc., 19 BRBS 124 (1986). Inasmuch as hearings before the
administrative law judge follow relaxed standards of admissibility, the
admissibility and credibility of evidence depends only on whether it is such
evidence as a reasonable mind might accept as probative. Universal Camera Corp.
v. NLRB, 340 U.S. 474 (1951); Young & Co. v. Shea, 397 F.2d 185 (5th
Cir. 1968); Compton v. Avondale Industries, Inc., 33 BRBS 174 (1999). The
relaxed admissibility standard for hearsay evidence does not dispense with the
right of cross-examination. Southern Stevedoring Co. v. Voris, 190 F.2d 275
(1951).
It is well-established that the administrative law judge has the discretion
to credit the opinion of a vocational expert which is based in part on interviews
and information gathered from third parties. See, e.g., Lacy v.
Raley's Emergency Road Service, 23 BRBS 432 (1990), aff'd mem., 946 F.2d
1565 (D.C. Cir. 1991). Moreover, the record establishes that Mr. Blackman was
present at the formal hearing. Tr. at 69-73. Claimant moved that Mr. Blackman be
excluded from the hearing room, whereupon employer stated that he would not be
called as a witness, preferring to have him remain in the hearing room to offer
counsel assistance. Tr. at 70, 73. Claimant did not object to employer's decision
or request that Mr. Blackman testify, thereby foregoing any opportunity to cross-examine Mr. Blackman at the hearing and waiving her right to object on appeal. We
therefore reject claimant's contention that she did not have an opportunity to
question Mr. Blackman as to his description of her job duties as a gate clerk.[3] See Vonthronsohnhaus v. Ingalls Shipbuilding,
Inc., 24 BRBS 154 (1990); Longo v. Bethlehem Steel Corp., 11 BRBS 654
(1979). Accordingly, the administrative law judge acted within his discretion in
crediting the testimony and report of Mr. Howard, based in part on information
obtained from Mr. Blackman.
Finally, we reject claimant's challenge to the administrative law judge's
reliance on the opinions of Drs. London and Haldeman. Both physicians stated that
claimant is capable of performing her usual work as a gate clerk, Tr. at 180, EX
7 at 137, and Dr. Haldeman stated his opinion in this regard after considering Mr.
Howard's description of the gate clerk position. EX 8 at 155. Contrary to
claimant's contention, the administrative law judge is not required to credit the
opinion of her treating physician, Dr. O'Hara, having found the basis for his
opinion to be claimant's inaccurate description of her job duties. Thus, we affirm
the administrative law judge's weighing of the medical evidence as it is rational,
Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963);
Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962), and his conclusion that claimant
is able to return to her usual employment as a gate clerk as it is supported by
substantial evidence. Accordingly, the administrative law judge's Decision and Order Denying Additional Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Specifically, the administrative law judge credited Mr. Howard's testimony that the truck
driver attaches the seal "99 percent of the time." Tr. at 239. The administrative law judge also credited Mr. Howard's
report that a gate clerk may be required to reach above shoulder level up to approximately 65 times per shift to install seals.
EX 15 at 321-322. Any error in the administrative law judge's characterization of the report as stating that claimant must
reach overhead 65 times per hour is harmless, as the mistake does not lead to the conclusion that the administrative law
judge erred in concluding that claimant is able to return to her usual employment.
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2)The administrative law judge also stated there is "strong circumstantial evidence" that
claimant would have stopped working at the end of December 1997, even if she had not been injured. Claimant's husband
had decided to retire, and they were to move to a house they owned three and one-half hours away from Long Beach.
Decision and Order at 4, 13.
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3)Moreover, during claimant's cross-examination of Mr. Howard at the formal hearing, claimant
had ample opportunity to question Mr. Howard as to his reliance on Mr. Blackman's description of the job duties of a gate
clerk. See Tr. at 252.
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NOTE: This is an UNPUBLISHED LHCA Document. To Top of Document
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