BRB Nos. 01-0776
and 01-0776A
JUAN ALMANZAR )
)
Claimant-Respondent )
Cross-Petitioner )
)
v. )
)
BRADY MARINE REPAIR COMPANY, ) DATE ISSUED: 06/21/2002
INCORPORATED )
)
and )
)
ACE USA )
)
Employer/Carrier- )
Petitioners )
Cross-Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Respondent ) DECISION and ORDER
Appeals of the Decision and Order-Awarding Benefits and the Supplemental
Decision and Order Granting Attorney's Fees of Joseph E. Kane,
Administrative Law Judge, United States Department of Labor.
Jorden N. Pedersen, Jr. (Baker, Garber, Duffy & Pedersen), Hoboken, New
Jersey, for claimant.
Keith L. Flicker (Flicker, Garelick & Associates), New York, New York,
for employer/carrier.
Whitney R. Given (Eugene Scalia, Solicitor of Labor; John F. Depenbrock,
Jr., Associate Solicitor; Mark A. Reinhalter, Senior Attorney),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals, and claimant cross-appeals, the Decision and Order-Awarding
Benefits (1999-LHC-2277, 2001-LHC-0432) of Administrative Law Judge Joseph E. Kane
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). In addition, employer appeals the administrative law judge's Supplemental
Decision and Order Granting Attorney's Fees. 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). The amount of an attorney's fee determination is discretionary
and may be set aside only if the challenging party shows it to be arbitrary,
capricious, an abuse of discretion, or not in accordance with law. See, e.g.,
Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Claimant worked as a welder for employer. On May 14, 1991, claimant was
struck by a truck while welding at employer's Trumball Street facility, which was
located near Port Elizabeth, New Jersey.[1]
Claimant was hospitalized and treated for injuries to his face, forearm and left
eye area, as well as multiple traumas to his chest, abdomen and back. Cl. Ex. 2.
After claimant's treating physicians could not find an organic explanation for his
continued complaints of pain, he was referred to a psychiatrist, Dr. Moreno, for
evaluation. Dr. Moreno diagnosed claimant as suffering from an adjustment disorder
with mixed emotional features. Claimant has not returned to work since the day of
the work-related accident, and he filed a claim alleging an injury to his head, a
fractured jaw, loss of two teeth, loss of vision in his left eye, and permanent
injuries to his back and shoulder, as well as neurological and neuropsychiatric
complaints. In addition, claimant filed a claim on December 7, 1994, alleging that
he suffers from an occupational pulmonary condition caused by his exposure to dust,
fumes, asbestos, and other deleterious substances while working for employer.
In his Decision and Order, the administrative law judge found that claimant
was injured on a covered situs pursuant to Section 3(a), 33 U.S.C. §903(a),
and that employer conceded that claimant was performing maritime employment at the
time of the accident. Therefore, the administrative law judge found that the
evidence established that the injuries claimant sustained in the work-related
accident were covered under the Act. The administrative law judge also found that
the evidence established invocation of the Section 20(a), 33 U.S.C. §920(a),
presumption that claimant suffers from a work-related pulmonary condition.
However, the administrative law judge found that employer submitted evidence that
rebutted the presumption, and after weighing the evidence as a whole, concluded
that the evidence is insufficient to establish that claimant suffers from pulmonary
disease arising out of his employment.
After reviewing the evidence relevant to the nature and extent of claimant's
disability resulting from his orthopedic injuries, the administrative law judge
found that claimant sustained cervical and lumbar sprains due to the 1991 accident
which aggravated and accelerated claimant's pre-existing osteoarthritic condition
and resulted in a torn right rotator cuff and restricted back, neck and shoulder
movement, and that he has reached maximum medical improvement. The administrative
law judge concluded that claimant is not "totally disabled" from performing his
usual employment due to his orthopedic injuries, but as claimant can no longer
work, his permanent partial disability compensation is to be based on a residual
wage-earning capacity of $0. The administrative law judge also found that claimant
has established that he continues to suffer from depression caused by the injuries
he sustained on May 14, 1991, and that the depression contributes to claimant's
inability to work.
In addition, the administrative law judge denied employer relief from
continuing compensation liability pursuant to Section 8(f), 33 U.S.C. §908(f),
because he found that claimant did not suffer from a pre-existing permanent partial
orthopedic or psychiatric disability prior to the accident. Finally, in a
Supplemental Decision and Order Granting Attorney's Fees, the administrative law
judge awarded claimant's counsel an attorney's fee in the amount of $27,075,
representing 90.25 hour of legal services at the hourly rate of $300, plus expenses
of $4,481.78, for a total of $30,706.78.
On appeal, employer initially contends that the administrative law judge erred
in finding that claimant's 1991 accident occurred on a covered situs. In addition,
employer contends that the administrative law judge erred in finding that claimant
established that he suffers from disabling orthopedic and psychiatric disabilities,
and in denying relief pursuant to Section 8(f). The Director, Office of Workers'
Compensation Programs (the Director), responds, urging the Board to vacate the
administrative law judge's decision to deny relief pursuant to Section 8(f),
contending that the administrative law judge used the wrong legal standard to
determine whether claimant had a pre-existing permanent partial disability.
Employer also appeals the administrative law judge's fee award, contending that the
fee award should be vacated if the award of benefits for orthopedic and psychiatric
injuries is vacated. Claimant responds, urging affirmance of the administrative
law judge's finding that claimant's accident occurred on a covered situs. In
addition, on cross-appeal, claimant contends that the administrative law judge
erred in finding that claimant was not totally disabled due to his orthopedic and
psychiatric injuries. Claimant also asserts that the administrative law judge
erred in finding that claimant does not have a work-related pulmonary disability.
PULMONARY CONDITION
Initially, we will address claimant's contentions regarding his pulmonary
condition, because claimant alleges that he was exposed to deleterious substances,
at least in part, while working aboard ships as well as at employer's Trumball
Street facility, and thus situs is not at issue with regard to the alleged work-related pulmonary condition. Claimant contends that the administrative law judge
erred in relying on the opinion of Dr. Friedman in finding that claimant failed to
establish the existence of a work-related pulmonary condition. Section 20(a), 33
U.S.C. §920(a), provides claimant with a presumption that his injury is
causally related to his employment, if claimant establishes that he has a physical
harm, and that an accident or working conditions occurred that could have caused
the harm. See Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir.1998); see
also U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982).
In the present case, Dr. Eisenstein opined that claimant suffers from chronic
obstructive pulmonary disease, which was caused, at least in part, by claimant's
exposure to noxious fumes and dust, such as welding fumes, dirt, oil mist,
solvents, exhaust fumes, coolants and other irritating chemicals, during his
employment as a welder. Claimant testified that he worked in closed rooms on ships
and was exposed to smoke and fumes. H. Tr. at 35-36. The administrative law judge
found that Dr. Eisenstein's opinion and claimant's testimony are sufficient to
establish invocation of the Section 20(a) presumption that claimant's exposure to
irritants in the course of his employment could have caused his respiratory injury.
Once claimant establishes invocation of the presumption, employer may rebut
the Section 20(a) presumption by producing substantial evidence that claimant's
employment did not cause, accelerate, aggravate or contribute to the injury.
Conoco, Inc. v. Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); American
Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999), cert. denied, 528 U.S.
1187 (2000); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429
U.S. 820 (1976). The record in the instant case contains the report and testimony of
Dr. Friedman, who opined generally that claimant does not suffer from a primary
lung disease (i.e., claimant's respiratory problems are due to non-lung
conditions), and more specifically that he does not have chronic obstructive
pulmonary disease. He opined that claimant's pulmonary condition, as evidenced by
the restrictive impairment measured in the pulmonary function studies, is a result
of his diabetes and dialysis, rather than occupational exposure, due to the lack
of evidence of interstitial fibrosis on his chest x-rays and the fact that
claimant's pulmonary problems did not arise while he was working. We affirm the
administrative law judge's finding that Dr. Friedman's opinion is sufficient to
establish rebuttal of the Section 20(a) presumption as it is supported by
substantial evidence. See generally Bath Iron Works Corp. v. Director, OWCP, 137 F.2d
673, 32 BRBS 45(CRT) (1st Cir. 1998).
When employer produces substantial evidence that claimant's injury is not
work-related, the Section 20(a) presumption drops out of the case, and the
administrative law judge must weigh all of the evidence relevant to the causation
issue, with claimant bearing the burden of proving that his disability is work-related. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119
(CRT)(4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS
43(CRT) (1994). After reviewing the evidence as a whole, the administrative law judge
concluded that Dr. Eisenstein's opinion is insufficient to establish that claimant
suffers from a pulmonary condition arising out of his employment. Decision and
Order at 35-37. The administrative law judge accorded determinative weight to Dr.
Friedman's opinion and found that Dr. Friedman attacked each of the bases for Dr.
Eisenstein's diagnosis of chronic obstructive pulmonary disease in a well-reasoned
and well-documented manner. In addition, he accorded greater weight to Dr.
Friedman's opinion as to the absence of an obstructive impairment and the presence
of a restrictive impairment because he found that Dr. Friedman thoroughly explained
how the pulmonary function test evidence supported his conclusion and Dr.
Friedman's diagnosis was supported with a pulse oximetry test. Therefore, the
administrative law judge found that as Dr. Friedman's opinion casts doubt on Dr.
Eisenstein's diagnoses, claimant did not establish that he suffers from chronic
obstructive pulmonary disease arising out of his employment.
We affirm the administrative law judge's finding that the evidence is
insufficient to establish a work-related pulmonary condition. Claimant contends
on appeal that Dr. Friedman cannot explain what caused the restrictive impairment
on the pulmonary function studies and that there is no evidence of pulmonary edema
at the time the tests were given. However, Dr. Friedman testified that while he
was not certain as to the reason for the restrictive impairment, he was certain
that pulmonary fibrosis was not the cause and thus, that it was not work-related.
Moreover, he opined that claimant does not have lung disease, and that his
respiratory condition is related to other health problems. Emp. Ex. 16 at 19-20.
He stated that the presence of wheezing, as found by Dr. Eisenstein but not Dr.
Friedman, increased bronchovascular markings, and an abnormal pulmonary function
test could be signs of chronic obstructive pulmonary disease, Emp. Ex. 16 at 36,
but they are not in this case, Emp. Ex. 16 at 40, and the pulmonary function
studies indicate a restrictive lung condition, rather than obstructive impairment,
Emp. Ex. 16 at 38. The weight to be accorded to evidence of record is for the
administrative law judge as the trier-of-fact. Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963);
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961). The
administrative law judge thoroughly weighed the conflicting medical opinions, and
claimant has raised no reversible error on appeal. Therefore, we affirm the
administrative law judge's finding that claimant has not established the he suffers
from a work-related pulmonary condition as it is rational and supported by
substantial evidence.
SITUS
Employer contends that the administrative law judge erred in finding that
claimant's work-related accident occurred on a covered situs. See Decision
and Order at 29. Section 3(a) provides that compensation shall be payable "if the
disability or death results from an injury occurring upon the navigable waters of
the United States (including any adjoining pier, wharf, dry dock, terminal,
building way, marine railway, or other adjoining area customarily used by an
employer in loading, unloading, repairing, dismantling, or building a vessel)."
33 U.S.C. §903(a). In analyzing whether claimant's injury occurred on an
"adjoining area" under Section 3(a), the administrative law judge cited Brady-Hamilton Stevedore Co. v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978).
In Herron, the United States Court of Appeals for the Ninth Circuit stated
that in order to further the goal of uniform coverage, the phrase "adjoining area"
in Section 3(a) should be read to describe a functional relationship between the
site and navigable water that does not in all cases depend on physical contiguity
with navigable waters. Factors to be considered in determining whether a site is
an adjoining area under Section 3(a) include: the particular suitability of the
site for the maritime uses referred to in the statute; whether adjoining properties
are devoted primarily to uses in maritime commerce; the proximity of the site to
the waterway; and whether the site is as close to the waterway as is feasible given
all of the circumstances. See Herron, 568 F.2d at 141, 7 BRBS at 411; see
also Nelson v. American Dredging Co., 143 F.3d 780, 32 BRBS 115(CRT) (3d Cir. 1998); Arjona v.
Interport Maintenance Co., 31 BRBS 86 (1997)(Arjona I).
In the present case, the administrative law judge applied the Herron
factors, and on appeal, employer agrees that this test is applicable. Employer
argues, however, that the administrative law judge's result is erroneous, asserting
that the instant case is more similar to Arjona v. Interport Maintenance
Co., 34 BRBS 15 (2000)(Arjona II), Gonzalez v. Ocean Voyage Ship
Repair, 26 BRBS 12 (1992), and Lasofsky v. Arthur J. Tickle Engineering
Works, Inc., 20 BRBS 58 (1987), aff'd mem., 853 F.2d 919 (3d Cir. 1988),
in which the Board affirmed administrative law judges' decisions that facilities
located at varying distances from a port were not covered under Section 3(a).
Employer contends that, as in these cases, the only factor supporting a finding of
coverage is that the short driving distance to the port provided an economic
benefit to employer and that this sole consideration is insufficient for a finding
of coverage under Herron.
We reject employer's contention, as the administrative law judge fully
analyzed the evidence and found coverage based upon a weighing of the relevant
factors. Initially, he found that although the evidence does not indicate that the
facility was particularly suited for maritime uses, it does establish that the
Trumball Street facility's proximity to the port gave employer an economic
advantage over businesses located farther from the port. Specifically, the
administrative law judge found it relevant that 75 percent of employer's work
involved the repair of ship components for ships at Port Elizabeth and that
employer's repair shop was integral to that work. The administrative law judge
found that employees traveled to and from the port to repair vessels at the dock
and to transport parts back to the Trumball Street facility for repair. H.Tr. at
89. Thus, the administrative law judge rejected employer's contention that the
proximity of the facility to the ports was not a factor in its selection,[2] and found this factor favored a finding of a
covered situs. In addition, the administrative law judge found that the maritime
nature of the properties located in the surrounding area, and particularly those
in the area between the facility and the port, weighed in favor of coverage.
Specifically, the administrative law judge found the maritime businesses included,
but were not limited to, trucking companies that transported containers to and from
the port. The administrative law judge thus concluded that a weighing of all
relevant facts and circumstances in this case led to the conclusion that claimant's
injury occurred in an adjoining area customarily used for ship repair.
We cannot say that the administrative law judge erred in reaching this
decision. In each of the cases cited by employer, the administrative law judge
found the factors weighed against coverage, specifically that the surrounding area
was primarily used for non-maritime purposes and that the site was not as close as
feasible to the waterway but was selected based on economic factors, such as
favorable lease terms.[3] In contrast, in the
present case, the administrative law judge weighed the evidence, finding that the
site was used for a maritime purpose, located in a waterfront area with similar
maritime businesses and bore a functional relationship to the port. Employer
essentially asks that the Board reweigh the evidence which we are not empowered to
do. 33 U.S.C. §921(b)(3). An area is an adjoining area within the meaning
of Section 3(a) of the Act if it is in the vicinity of navigable waters, or in a
neighboring area, and it is customarily used for maritime activity.[4] Texports Stevedore Co. v. Winchester, 632
F.2d 504, 12 BRBS 719 (5th Cir. 1980)(en banc), cert. denied, 452
U.S. 905 (1981); Herron, 568 F.2d 137, 7 BRBS 409. As the administrative
law judge in the instant case rationally applied the Herron factors, and as
the site has a functional and geographic nexus with navigable waters, we affirm the
administrative law judge's finding that claimant's injury occurred on a covered
situs as it is supported by substantial evidence.
ORTHOPEDIC DISABILITY
We next address the parties' contentions regarding the injuries sustained in
the accident on May 14, 1991. Initially, employer contends that the administrative
law judge erred in finding that claimant suffers from a disabling orthopedic
condition. Specifically, employer contends that the administrative law judge
erred in relying on the opinion of Dr. Steinway rather than the conflicting opinion
of Dr. Nehmer. On cross-appeal, claimant contends that the administrative law
judge erred in finding that he is not totally disabled due to his orthopedic
condition.
Total disability is defined as a complete incapacity to earn pre-injury wages
in the same work as that performed at the time of injury or in any other
employment. See Eastern S.S. Lines, Inc. v. Monahan, 110 F.2d 840 (1st Cir.
1940); 33 U.S.C. §902(10). Thus, "disability" is an economic as well as a
medical concept. Quick v. Martin, 397 F.2d 644 (D.C. Cir. 1968). In order
to establish a prima facie case of total disability, claimant must prove
that he is unable to perform his usual work due to the injury. See, e.g., Delay
v. Jones Washington Stevedoring Co., 31 BRBS 197 (1998). Even a minor physical
impairment can establish total disability if it prevents the employee from
performing his usual employment. American Stevedores, Inc. v. Salzano, 538
F.2d 933 (2d Cir. 1976). It is irrelevant that a physician terms such an
impairment "partial," Employers Liability Assurance Corp. v. Hughes, 188
F.Supp. 623 (S.D.N.Y. 1959), as disability is not measured by claimant's physical
or mental condition alone. Nardella v. Campbell Machine, Inc., 525 F.2d 46,
3 BRBS 78 (9th Cir. 1975). Claimant's credible complaints of pain alone may be
enough to meet the employee's burden. Thompson v. Northwest Enviro Services,
Inc., 26 BRBS 53 (1992). In order to determine whether claimant has
established a prima facie case of total disability, the administrative law
judge must compare the employee's medical restrictions with the specific
requirements of his usual employment.[5]
Carroll v. Hanover Bridge Marina, 17 BRBS 176 (1985).
In the present case, the administrative law judge did not review the evidence
of claimant's condition and restrictions, if any, to determine whether claimant's
ability to perform his normal duties of a welder was affected by his work-related
injuries. See Delay, 31 BRBS 197; Curit v. Bath Iron Works Corp., 22
BRBS 100 (1988)(administrative law judge must compare claimant's physical
limitations with the requirements of his usual work in order to determine whether
a claimant is disabled). Rather, the administrative law judge found that Dr.
Nehmer characterized claimant's disability due to his orthopedic condition as
partial, and thus, the administrative law judge declined to award total disability
benefits. The administrative law judge found that there are three physicians of
record that discuss the nature and extent of claimant's orthopedic disability. Dr.
Martinez opined that claimant reached maximum medical improvement from an
orthopedic standpoint on November 6, 1995, and that claimant was capable of working
as a welder from an orthopedic standpoint. Emp. Ex. 1. The record also contains
the reports and deposition of Dr. Steinway, who opined that claimant is totally
disabled from working as a welder due to his work-related orthopedic condition.
Cl. Exs. 14, 22. In addition, the record contains the report and deposition of Dr.
Nehmer, who opined that claimant was fully recovered from his orthopedic injuries
and that he required no further treatment. Emp. Ex. 2.
After reviewing the medical evidence, the administrative law judge found that
Dr. Nehmer's opinion was entitled to less weight than that of Dr. Steinway. He
found that Dr. Nehmer examined claimant only once and that his assessment of
claimant's health at this examination did not match claimant's physical state. In
addition, the administrative law judge found that Dr. Nehmer did not document or
explain his findings as well as Dr. Steinway, and that he could not credit Dr.
Nehmer's deposition testimony regarding physical findings at the examination which
were not documented as the physician testified that he did not have an independent
recollection of claimant's exam. Thus, the administrative law judge accorded the
opinion of Dr. Steinway with determinative weight. He found that Dr. Steinway had
examined claimant three times in four years and concluded that Dr. Steinway has a
better basis to determine the accuracy of claimant's effort. Moreover, the
administrative law judge found that Dr. Steinway explained how claimant's work-related injury interacted with his pre-existing osteoarthritis in developing his
current orthopedic condition, and that Dr. Steinway's opinion is supported by the
x-ray evidence showing degenerative arthritic changes. Thus, we reject employer's
contention that the administrative law judge erred in finding, based on Dr.
Steinway's opinion, that claimant continues to suffers from an orthopedic condition
as the administrative law judge thoroughly reviewed the relevant evidence, his
decision to credit Dr. Steinway's opinion is rational, and his conclusion is
supported by substantial evidence. See Calbeck, 306 F.2d 693; John W. McGrath
Corp., 289 F.2d 403.
With regard to the extent of claimant's disability, however, the
administrative law judge found that Dr. Steinway initially opined that claimant's
orthopedic condition was only partially disabling, but without a rational basis
later changed his opinion to state that claimant was totally disabled due to his
orthopedic condition. Thus, the administrative law judge concluded that claimant
failed to establish that the orthopedic injuries he suffered as a result of the
work-related accident rendered him totally disabled from performing his usual
duties as a welder.[6] However, as stated
earlier, it is not dispositive that a physician characterizes an impairment as
"partial." Rather, the administrative law judge must compare claimant's orthopedic
restrictions with his job requirements. Moreover, contrary to the administrative
law judge's finding, Dr. Steinway stated in his first report that claimant was
unable to return to work as a welder because of his "medical problems, psychiatric
problems, residual discomfort in the mandible and the orthopedic dysfunction
noted...," Cl. Ex. 14, and did not state that claimant was only partially disabled
due to any one of the factors. He explained in his deposition that claimant was
unable to return to his former duties as a welder, Cl. Ex. 22, and stated that it
was his understanding that being a welder requires the ability "to reach above and
grab things," "to quickly look from side to side," "to repetitively bend, ...to
work on his knees, to kneel, to squat, to twist his torso from left to right." Cl.
Ex. 22 at 50-51. Dr. Steinway also testified that claimant could perform alternate
work if he "wouldn't have any heavy lifting, he would be able to get up from a
bench type situation ten minutes every hour to walk around and stretch, [and]
wouldn't have to use his right upper extremity repetitively in an overhead manner."
Cl. Ex. 22 at 51-52. Thus, we vacate the administrative law judge's finding that
claimant is not totally disabled, and remand the case for further findings.[7] Curit, 22 BRBS at 103; see also
Gremillion v. Gulf Coast Catering Co., 31 BRBS 163 (1997)(Brown, J.,
concurring). As the administrative law judge credited Dr. Steinway's report, on
remand the administrative law judge must reconsider whether his report is
sufficient to establish that claimant is unable to perform his usual duties as a
welder under the proper standard.[8]
PSYCHIATRIC CONDITION
Employer also contends that the administrative law judge erred in finding that
claimant suffers from a permanent psychiatric disability. Decision and Order at
46. Claimant contends on cross-appeal that the administrative law judge erred in
finding that he was not totally disabled due to his psychiatric condition. The
record contains the reports of six physicians who address claimant's alleged
psychiatric condition. Dr. Castillo diagnosed a prolonged depressive disorder, but
did not relate the condition to the 1991 accident and did not offer an opinion as
to the nature and extent of any disability claimant may have. Cl. Ex. 12. Dr.
Mendelson opined that claimant's persistent headaches could be a result of
depression or anxiety about returning to work, but noted that secondary gain may
be a factor and concluded that claimant could return to work. Emp. Ex. 7.
Claimant was examined by Dr. Moreno who diagnosed an adjustment disorder and opined
that claimant was in need of psychiatric treatment in the form of psychotherapy and
psychopharmacotherapy in the form of antidepressants. Cl. Ex. 8. Dr. Moreno
later reported symptom magnification and an inability to reconcile claimant's
complaints with his own observations, and concluded that claimant exaggerated his
symptoms for secondary gain. Id. Dr. Filipone evaluated claimant's
condition on August 8, 1993 and concluded that claimant was "faking" his
psychiatric problems and cognitive defects. Emp. Ex. 8. Dr. Ferretti examined
claimant and diagnosed an "adjustment reaction" with features of anxiety,
depression and phobia. He concluded that it was unreasonable for claimant to
return to work as a welder given his subjective complaints and that claimant's
work-related injuries are a substantial cause of his depression. Cl. Ex. 11.
Finally, the record contains the report of Dr. Head, who opined that claimant is
a malingerer and concluded that claimant sustained no permanent psychiatric
condition or disability related to the May 14, 1991 accident. Emp. Ex. 5. Dr.
Head opined that there was no reason to impose psychiatric restrictions on
claimant's ability to work. Id.
The administrative law judge recited this medical evidence, and concluded that
claimant suffers from permanently disabling depression caused by the injuries he
sustained on May 14, 1991. The administrative law judge first found that the diagnosis
of depression is supported by the opinions of Drs. Ferretti, Moreno and Castillo.
Decision and Order at 48. The administrative law judge also found that claimant suffers
from a psychiatric disability, based on Dr. Ferretti's opinion to that effect.
Decision and Order at 49. The administrative law judge further relied on Dr. Ferretti's
opinion, as of the time he last examined claimant on October 17, 2000, to find that
claimant's psychiatric condition was permanent in nature. Id.
We must remand this case for further findings regarding claimant's alleged
psychiatric injury, as the administrative law judge has not provided a rational basis for
his conclusion that claimant has a work-related, disabling, psychiatric
impairment. Contrary to the administrative law judge's finding that the opinions of Drs.
Ferretti, Moreno and Castillo support the finding that claimant has depression, Dr.
Moreno did not make a definitive diagnosis of depression and reported symptom
magnification for purposes of secondary gain. Emp. Ex. 3. In addition, Dr.
Ferretti initially opined that the issue of secondary gain needed to be addressed,
Emp. Ex. 4, but, without explanation, the administrative law judge relied on Dr.
Ferretti's later opinion, which concluded that claimant suffered from disabling
chronic depression and did not raise the issue of secondary gain. Cl. Ex. 11.
Moreover, although Dr. Ferretti stated that claimant has a permanent psychiatric
condition, he also stated that this was due to non-work-related conditions.
Id.
We cannot affirm, moreover, the administrative law judge's rationale for crediting the
opinions of Drs. Ferretti, Moreno and Castillo. The administrative law judge stated only
that two of these physicians were claimant's treating physicians. These would be
Drs. Moreno and Castillo, as the administrative law judge specifically found that Dr.
Ferretti was not a treating physician. Decision and Order at 47. As the
administrative law judge relied most heavily on Dr. Ferretti's opinion, and he is not a
treating physician, the administrative law judge has not provided a valid basis for
crediting Dr. Ferretti's opinion over contrary opinions. As discussed above, the
opinion of Dr. Moreno, who last examined claimant in November 1993, is not
necessarily supportive of the administrative law judge's finding that claimant is disabled
by work-related depression. Furthermore, the administrative law judge's application of
the "treating physicians" is inconsistent in that the administrative law judge did not
accord weight to the opinion of Dr. Mendelson on this basis. Dr. Mendelson, a
neurologist and psychiatrist who treated claimant until 1992, opined that there was
no reason claimant could not return to work and that secondary gain may be a factor
in claimant's continued physical complaints. Emp. Ex. 7.
Given the conflicting evidence in this record and the fact that the administrative
law judge did not provide valid reasons for relying on the opinions he credited, it
is difficult to conclude whether the administrative law judge "reasonably failed
to credit" significant probative evidence. Barren Creek Coal Co. v. Witmer,
111 F.3d 352, 356 (3d Cir. 1997). Because the administrative law judge must in
the first instance resolve the conflicts in the evidence and explain what evidence
he credited and why, consistent with the requirements of the Administrative
Procedure Act (APA), 5 U.S.C. §557, see Gremillion, 31 BRBS at 168, and
because the Board cannot render more specific findings to supplement the
administrative law judge's findings, see Volpe v. Northeast Marine Terminals, 671 F.2d 697,
14 BRBS 538 (2d Cir. 1982), we vacate the administrative law judge's findings with respect
to claimant's psychiatric condition. On remand, the administrative law judge must
determine whether claimant has a work-related psychiatric injury, applying the
Section 20(a) presumption to this issue. See generally Cotton v. Newport News
Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990). The administrative law judge
also must determine whether claimant is capable of performing his usual duties as
a welder notwithstanding the limitations, if any, imposed by any psychiatric
condition, consistent with law, as discussed, supra. Finally, the
administrative law judge must provide a rational basis for determining which
medical experts he credits on the issues concerning claimant's alleged psychiatric
injury.
SECTION 8(f)
Lastly, employer contends that the administrative law judge erred in finding
that it is not entitled to relief from continuing compensation liability pursuant
to Section 8(f), 33 U.S.C. §908(f). The Director responds, urging the Board
to vacate the denial of Section 8(f) relief and to remand the case to the
administrative law judge for further findings consistent with the APA. Section
8(f) of the Act provides that the Special Fund will assume responsibility for
permanent disability payments after 104 weeks where an employee suffers from a
manifest, pre-existing, permanent partial disability. 33 U.S.C. §908(f)(1);
Two "R" Drilling Co. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34(CRT) (5th Cir. 1990); Director, OWCP
v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th Cir. 1982), cert. denied, 459 U.S. 1104 (1983);
C & P Telephone Co. v. Director, OWCP, 564 F.2d 503, 6 BRBS 399 (D.C. Cir.
1977). In the case of total disability, employer also must establish that
claimant's disability is not due solely to the subsequent injury. Pennsylvania
Tidewater Dock Co. v. Director, OWCP [Lewis], 202 F.3d 656, 34 BRBS 55(CRT) (3d
Cir. 2000). In the case of partial disability, employer must establish that
claimant's disability is not due solely to the subsequent injury, and that it is
materially and substantially greater due to the contribution of the pre-existing
disability than if would be due to the work injury alone. See Louis Dreyfus
Corp. v. Director, OWCP, 125 F.3d 884, 31 BRBS 141(CRT)(5th Cir. 1997). A
medical condition need not be economically disabling in order to constitute a pre-existing permanent partial disability within the meaning of Section 8(f). Atlantic
& Gulf Stevedores, Inc. v. Director, OWCP, 542 F.2d 602, 4 BRBS 79 (3d Cir. 1976). In order to
constitute a pre-existing permanent partial disability for Section 8(f) purposes,
claimant must have a serious, lasting physical condition which pre-existed the work
injury. See, e.g., Director, OWCP v. General Dynamics Corp. [Bergeron], 982 F.2d 790, 26 BRBS
139(CRT) (2d Cir. 1992).
In the present case, the administrative law judge found that "because
[employer] has not established that [claimant] suffered from a pre-existing
permanent partial orthopedic or psychiatric disability prior to the May 14, 1991
accident, I find [employer] is not entitled to Section 8(f) relief." Decision and
Order at 50. However, there is no requirement that claimant's pre-existing
permanent partial disability be of the same type as the disability for which he is
awarded benefits under the Act.[9] See
Lewis, 202 F.3d 656, 34 BRBS 55(CRT); Director, OWCP v. Universal Terminal
& Stevedoring Corp., 575 F.2d 452, 8 BRBS 498 (3d Cir. 1978)(Section 8(f) relief granted
where claimant suffered from "pre-existing physical infirmities of heart disease and diabetes mellitus"). Moreover,
employer submitted evidence of a prior injury to claimant's back and buttocks which resulted in a settlement of a claim for
compensation under the New Jersey Division of Workers' Compensation, and the administrative law judge did not discuss
this evidence. Emp. Ex. 9. As the administrative law judge did not apply the correct legal standard regarding the pre-existing permanent partial disability element of Section 8(f), we vacate the administrative law judge's
finding that employer is not entitled to Section 8(f) relief, and remand the case for further consideration of this issue and
to render findings consistent with law. Gremillion, 31 BRBS 163.
ATTORNEY'S FEE
In a supplemental appeal, employer urges the Board to vacate the
administrative law judge's award of an attorney's fee if the Board agrees that
claimant is not entitled to benefits under the Act. Employer has made no other
objection to the amount of the fee award. Because we have partially vacated the
decision on the merits and remanded the case for further consideration of
claimant's entitlement to benefits, claimant's degree of success is not yet
ascertainable. On remand, the administrative law judge may reconsider the amount
of the fee award commensurate with the benefits awarded on remand. Hensley v.
Eckerhart, 461 U.S. 424, 440 (1983); Barbera v. Director, OWCP, 245 F.3d
282, 35 BRBS 27(CRT) (3d Cir. 2001). If claimant again succeeds in obtaining an
award of total disability benefits, then claimant is entitled to the attorney's fee
as awarded by the administrative law judge, as employer has not challenged the
award on any other ground.
Accordingly, the administrative law judge's finding that claimant does not
suffer from a work-related pulmonary condition is affirmed. In addition, the
administrative law judge's findings that claimant's work-related accident occurred
on a situs covered under the Act and that claimant suffers from a work-related
orthopedic condition are affirmed. However, the administrative law judge's finding
regarding the extent of claimant's disability due to his orthopedic condition is
vacated, and the case is remanded for further consideration. Moreover, the
administrative law judge's findings that claimant suffers from a psychiatric
condition and that employer is not entitled to relief from continuing compensation
liability pursuant to Section 8(f) are vacated and the administrative law judge is instructed to reconsider these issues on remand. If the administrative law
judge determines on remand that claimant is entitled to less than that awarded in
the original Decision and Order, the administrative law judge may reconsider the
amount of the award of an attorney's fee.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) 1After the accident, employer moved its ship repair
facility to a different location due to construction on the New Jersey turnpike.
H. Tr. at 85.
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2) 2The administrative law judge considered whether the site
was as close to the waterway as possible, given all of the circumstances, but found
that neither party was able to establish the motivation of the prior owner, now
deceased, in choosing the site. Thus, he could not determine whether its selection
was as close as was feasible to the port.
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3) 3In Lasofsky, the evidence demonstrated that the
site was selected based on a favorable lease, and employer's witness testified that
no effort was made to locate as close to the waterfront as feasible because the
cost of transporting containers was the same whether they were transported 100
yards or two miles. In Gonzalez, employer had specifically declined to
lease a closer location. In Arjona, the site was selected based on the low
per-acre cost of the rent. This evidence demonstrates the lack of a relationship
between the site and the waterfront, and such evidence is absent in the present
case.
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4) 4Claimant testified that the distance to the port was 1
3/4 miles and employer's representative stated that the distance by road was 4 1/2
miles, but one mile by air. The map submitted by employer, Emp. Ex. 17, shows that
the site is in the waterfront area bordering Newark Bay, which Port Elizabeth
adjoins. It appears that the gate to the port may be a greater distance from the
site. In any event, there is a clear functional and geographic nexus with Newark
Bay and the port, regardless of the distance to the entrance to the port.
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5) 5If the employee meets his burden, the burden shifts to
employer establish the existence of realistically available job opportunities
within the geographical area where the employee resides, which he is capable of
performing, considering his age, education, work experience, and physical
restrictions, and which he could secure if he diligently tried. See
generally New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
14 BRBS 156 (5th Cir. 1981). If employer meets its burden, then the employee's
disability is at most partial. See 33 U.S.C. §908(c).
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6) 6The administrative law judge found that claimant was not
totally disabled but awarded him permanent partial disability benefits based on a
residual wage-earning capacity of $0, which, in fact, indicates that the
administrative law judge found that claimant is totally disabled.
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7) 8As employer presented no evidence of suitable alternate
employment, if the administrative law judge finds on remand that claimant is unable
to return to his former duties due to his work-related injuries alone, claimant
will be entitled to an award of permanent total disability compensation as a matter
of law. See generally Pietrunti v. Director, OWCP, 119 F.3d 1035, 31 BRBS 84(CRT) (2d Cir.
1997).
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8) 7However, contrary to claimant's contention, it is not
relevant that the administrative law judge did not consider the fact that claimant
was found to be totally disabled by the Social Security Administration, as that
finding was made in another forum on a different record. Jones v. Midwest
Machinery Movers, 15 BRBS 70 (1982).
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9) 8Cf. Director, OWCP v. Bath Iron Works Corp.
[Johnson], 129 F.2d 45, 31 BRBS 155(CRT) (1st Cir. 1997); Adams v. Newport
News Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989)(in the case of a retiree
compensated under Section 8(c)(23), pre-existing disabilities must be of the type
that contribute to the compensable disability).
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NOTE: This is an UNPUBLISHED LHCA Document.
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