BRB Nos. 01-0719
SYLVIA E. ELLENBERG )
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Claimant-Petitioner )
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v. )
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UNITED STATES AIR FORCE ) DATE ISSUED: 06/07/2002
2002
ROBINS AIR FORCE BASE, GEORGIA )
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and )
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AIR FORCE INSURANCE FUND )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Denying Modification of Daniel F.
Sutton, Administrative Law Judge, United States Department of Labor.
Sylvia E. Ellenberg, Warner Robins, Georgia, pro se.
Charles L. Brower (Office of Legal Counsel, Air Force Services Agency)
San Antonio, Texas, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order
Denying Modification (97-LHC-1221) of Administrative Law Judge Daniel F. Sutton
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., as
extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171
et seq. (the Act). In an appeal by a claimant without counsel, we will
review the administrative law judge's decision to determine if the findings of fact
and conclusions of law 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); 20 C.F.R.
§§802.211(e), 802.220. If they are, they must be affirmed.
Claimant, whose work for employer entailed management of the breakfast
department and the lunch soup and sandwich line at the Robins Air Force Officers'
Mess, sought benefits under the Act for a work-related low back injury sustained
on January 12, 1996. The pivotal facts with respect to the incident occurring on
January 12, 1996, in which claimant allegedly sustained a back injury, were highly
disputed. Claimant asserted that, in the course of pulling a cart filled with
leftover breakfast items into a walk-in cooler, she slipped and fell on her back.
Employer, while acknowledging the apparent occurrence of an accident on January 12,
1996, maintained that the incident was not accidental but, rather, was staged by
claimant. While there is no record evidence that any individual witnessed
claimant's fall, the record reflects that a crash was heard by claimant's
supervisor, Dorothy Diaz. Immediately following this crash, several individuals
proceeded to the walk-in cooler where they observed claimant lying on the cooler
floor. Claimant was transported to the hospital emergency room, and was diagnosed
with multiple contusions. Thereafter, she received medical treatment for a
contusion of the low back and other back problems which she attributed to her
January 12, 1996 work injury.
A formal hearing was held on May 4, 1999, with claimant represented by Diane
M. Zimmerman. Included in the stipulations signed by Ms. Zimmerman and employer's
attorney was a stipulation that claimant contends that her lower back injury arose
in the course and scope of employment while employer contends that the accident was
staged and, thus, did not arise in the course and scope of employment. At the
hearing, claimant's counsel both conducted direct examination of claimant and
cross-examination of employer's witnesses with respect to their testimony that
claimant did not accidentally slip and fall.[1]
In a Decision and Order - Denying Benefits issued June 28, 2000, the
administrative law judge denied the claim on the basis that claimant did not suffer
an injury arising out of and in the course of her employment, as defined by Section
2(2) of the Act, 33 U.S.C. §902(2). In this regard, the administrative law
judge considered all of the record evidence regarding the alleged January 12, 1996
incident, found claimant not to be a credible witness, credited the contrary
testimony of employer's witnesses, and concluded that claimant did not accidentally
slip and fall, but, rather, staged a fall in order to obtain disability benefits.
The administrative law judge further found that even had he determined that
claimant suffered an injury within the meaning of Section 2(2) of the Act, her
claim would be barred by Section 3(c) of the Act, 33 U.S.C. §903(c), which
precludes an award of compensation if the injury was occasioned by the willful
intention of the employee to injure herself. Having accorded claimant the benefit
of the Section 20(d), 33 U.S.C. §920(d) presumption, the administrative law
judge concluded that employer met its burden of producing substantial evidence that
any injury sustained as a result of the January 12, 1996 incident is directly
attributable to claimant's willful intention to injure herself.
Thereafter, claimant timely requested reconsideration of the administrative
law judge's Decision and Order. This request was denied by the administrative law
judge on August 30, 2000, on the basis that claimant did not cite any evidence in
the record or applicable law that was not thoroughly considered and addressed in
the initial Decision and Order. Subsequently, in an order dated January 31, 2001,
the administrative law judge notified the parties that claimant's pro se
correspondence, dated August 24, 2000, and received by the Office of the
Administrative Law Judges on September 14, 2000, would be treated as a request for
modification pursuant to Section 22 of the Act, 33 U.S.C. §922, of the
administrative law judge's June 28, 2000 Decision and Order - Denying Benefits.[2]
In a Decision and Order Denying Modification issued May 8, 2001, the
administrative law judge denied modification on the basis that claimant did not
demonstrate that there was any mistake in a determination of fact in his June 28,
2000 Decision and Order - Denying Benefits. The administrative law judge further
concluded that the interests of justice would not be served by reopening the record
and conducting a new hearing, as the interest in finality outweighed the need for
reopening the record.
On appeal, claimant, representing herself, challenges the denial of her
petition for modification. Employer responds, urging affirmance.[3]
Section 22 of the Act, 33 U.S.C. §922, provides the only means for changing otherwise final
decisions; modification pursuant to this section is permitted based upon a mistake of fact in the initial decision or
a change in claimant's physical or economic condition. See Metropolitan Stevedore Co. v. Rambo [Rambo
I], 515 U.S. 291, 30 BRBS 1 (CRT) (1995). It is well-established that the party requesting modification bears
the burden of proof. See, e.g., Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121,
31 BRBS 54 (CRT) (1997); Kinlaw v. Stevens Shipping & Terminal Co., 33 BRBS 68 (1999), aff'd
mem., 238 F.3d 414 (4th Cir. 2000)(table). To reopen the record under Section 22, the moving party must
allege a mistake of fact or change in condition and assert that the evidence to be produced or of record would bring
the case within the scope of Section 22. See Kinlaw, 33 BRBS at 73; Duran v. Interport Maintenance
Co., 27 BRBS 8 (1993).
Where modification based on a mistake of fact is sought, the decision
as to whether to reopen a case under Section 22 is discretionary, and is
contingent upon the administrative law judge's balancing the need to render
justice against the need for finality in decision making. See Kinlaw,
33 BRBS at 72-73; see also General Dynamics Corp. v. Director, OWCP
[Woodberry], 673 F.2d 23, 14 BRBS 636 (1st Cir. 1982); McCord v.
Cephas, 532 F.2d 1377, 3 BRBS 371 (D.C. Cir. 1976); Lombardi v.
Universal Maritime Service Corp., 32 BRBS 83 (1998). The Board will
review the administrative law judge's findings in this regard under the
abuse of discretion standard. Kinlaw, 33 BRBS at 73; see also
Delay v. Jones Washington Stevedoring Co., 31 BRBS 197 (1998); Duran,
27 BRBS at 14; Dobson v. Todd Pacific Shipyards Corp., 21 BRBS 174 (1988).
In the present case, claimant's request for modification alleges a mistake in
fact in the administrative law judge's June 28, 2000 Decision and Order - Denying
Benefits; specifically, claimant disputes the administrative law judge's
determination that she did not sustain an accidental injury but, rather, staged the
incident occurring on January 12, 1996. Claimant alleges that, for a variety of
reasons, employer's evidence was not credible and that she has reason to believe
there are three people who could corroborate her testimony.[4] After consideration of the record in this case, including the
hearing transcript and all evidence submitted at the May 4, 1999 hearing, the
administrative law judge's Decision and Order - Denying Benefits and Decision and
Order Denying Motion for Reconsideration, all of the correspondence and evidence
submitted by claimant in support of the allegations of mistake in fact raised in
her request for modification, and the administrative law judge's Decision and Order
Denying Modification, we affirm the administrative law judge's denial of
modification. The administrative law judge thoroughly considered the competing
equities to determine whether reopening the case would render justice. See
Kinlaw, 33 BRBS at 72-73. In this regard, the administrative law judge stated
that in seeking to reopen the claim, claimant challenges the credibility of
employer's evidence and witnesses and alleges that her testimony could be
corroborated by other employees at the club. The administrative law judge
observed, however, that claimant was represented at the formal hearing by counsel,
who had a full opportunity to cross-examine employer's witnesses. The
administrative law judge further determined that claimant has not demonstrated that
her attorney was prevented from calling additional witnesses or offering additional
documentary evidence at the hearing to corroborate her testimony that she suffered
an accidental injury on January 12, 1996. The administrative law judge found that
the record would have to be reopened and a new hearing conducted in order to
consider and weigh the additional evidence offered by claimant, as well as any
responsive evidence proffered by employer. Having found that there are no unusual
circumstances present in the instant case which justify relitigating the claim, the
administrative law judge concluded that the need for finality outweighed claimant's
interests in reopening the claim.
It is well-established that Section 22 is intended to prevent injustice
resulting from a mistake in fact by the administrative law judge. Thus, an
administrative law judge has broad discretion to correct mistakes of fact, whether
demonstrated by wholly new evidence, cumulative evidence or merely further
reflection on the evidence initially submitted. O'Keeffe v. Aerojet-General
Shipyards, Inc., 404 U.S. 254 (1971). Reopening a claim based on a mistake in
fact is not, however, a means for a party to revise their litigation strategy, and
it is not intended to shield litigants from the consequences of their counsel's
judgments at trial. See Verderane v. Jacksonville Shipyards, Inc., 772 F.2d
775, 17 BRBS 155(CRT)(11th Cir. 1985); Woodberry, 673 F.2d 23, 14 BRBS 636;
McCord v. Cephas, 523 F.2d 1377, 3 BRBS 371 (D.C. Cir. 1976); Kinlaw,
33 BRBS at 73. In the present case, the administrative law judge rationally found
that claimant was attempting to obtain modification based on evidence which could
have been developed at the time of the initial proceeding. Under these
circumstances, we cannot say that the administrative law judge abused his authority
in declining to reopen the claim. See Kinlaw, 33 BRBS at 74-75. We
therefore affirm the administrative law judge's denial of modification on the facts
presented as a proper exercise of his discretionary authority.
Accordingly, the administrative law judge's Decision and Order Denying
Modification is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant's counsel additionally conducted cross-examination of
employer's witness, Mattie R. Howard, in a post-hearing deposition regarding
claimant's alleged work accident. RX 20. In a post-hearing brief, claimant's
counsel addressed the merits of employer's defense that claimant's accident was
staged.
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2)By Order dated February 8, 2001, the administrative law judge
marked for identification all correspondence and evidence submitted by claimant in
support of her modification request, CMX 1 and Attachments A-S and CMX 2 and
Attachments A-P, served the identified documents on employer, and allowed employer
15 days to respond to claimant's modification request. Employer filed a response
dated February 20, 2001, urging that modification be denied.
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3)Employer's contentions that claimant has not filed a proper
appeal and that her brief is inadequate are without merit in light of claimant's
pro se appearance in this case. See 20 C.F.R.
§§802.207(a)(2); 802.211(e).
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4)The relevant portion of claimant's January 18, 2001 letter is
set forth verbatin in the administrative law judge's Decision and Order Denying
Modification at 3-4.
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NOTE: This is an UNPUBLISHED LHCA Document.
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