984 F.2d 278 (9th Cir. 1992), 91-70335, Smiley v. Director, Office of Workers Compensation Programs

Docket Nº:91-70335.
Citation:984 F.2d 278
Party Name:Shirley A. SMILEY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Navy Resale and Services Support Office, Respondents.
Case Date:August 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 278

984 F.2d 278 (9th Cir. 1992)

Shirley A. SMILEY, Petitioner,



Resale and Services Support Office, Respondents.

No. 91-70335.

United States Court of Appeals, Ninth Circuit

August 31, 1992

Submitted May 15, 1992 *

Opinion Withdrawn Jan. 21, 1993.

Decided Jan. 21, 1993.

Page 279

Shirley A. Smiley, pro se.

Thomas R. Ungleich, Navy Exchange Service, Staten Island, NY, for respondent Navy Resale and Service Support Office.

Petition to Review a Decision of the Benefits Review Board.

Before FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges.


The opinion filed August 31, 1992, 973 F.2d 1463, is withdrawn. A new opinion will be filed.


FERGUSON, Circuit Judge:

This case arises from denial of a claim for benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1988) ("the Longshore Act"). An administrative law judge (ALJ) denied Shirley A. Smiley's claim for permanent total disability benefits as compensation for a back injury and psychological injury suffered while employed by the Navy. The United States Department of Labor Benefits Review Board affirmed the ALJ's decision. We reverse.


In 1983 Shirley A. Smiley ("Smiley") worked as a security and loss prevention manager for a Navy Exchange at the LeMoore Naval Air Station in California. She claims that her disabling back problems

Page 280

developed after a fall at work on October 31, 1983. Earlier in 1983, she investigated her supervisor for various fiscal irregularities. Smiley claims that her psychological problems are the result of harassment in retaliation for these whistle-blowing activities.

Smiley transferred to another Naval Exchange at Mare Island in 1984 but had trouble performing her new job. She took a disability leave due to physical and psychological problems. In June 1985, while on leave, she was terminated for poor job performance.

In June 1985 Smiley filed a claim for disability, claiming that job stress made it impossible to return to her work as a security manager. She applied for and received temporary benefits on the stress claim from June 1985 until October 1985 and again from June 1986 through June 1988, when the Navy ceased paying, claiming Smiley was not totally disabled from her back injury and that her stress resulted from a legitimate personnel action which was therefore not compensable.

By 1986, Smiley had retained an attorney, Sanford Killip ("Killip"), to represent her. At some point, Gates, McDonald & Co. ("Gates, McDonald") also became a client of Killip's. Gates, McDonald was the Navy's insurance plan administrator and a named defendant in the proceeding before the ALJ. In fact, the record contains a letter in which Killip acknowledges that Gates, McDonald was a defendant. A Navy attorney handled the hearing before the ALJ and the negotiations involved in Smiley's case.

The ALJ conducted a hearing on June 23, 1988, and issued its opinion on November 23, 1988. Killip represented Smiley at the hearing. The ALJ found that Smiley's orthopedic problems were not permanently disabling. He found that her testimony regarding her psychological complaints was not credible, and that her stress resulted from a non-compensable legitimate personnel action. He denied her claim of permanent physical and psychological injury.

Killip died in 1989 after filing a notice of appeal with the United States Department of Labor Benefits Review Board ("BRB"). The BRB delayed action to give Smiley time to retain new counsel, which she was unable to secure. The BRB affirmed the ALJ's decision on March 27, 1991.

In addition to appealing the BRB's decision denying her benefits, Smiley claims her attorney was incompetent and had a conflict of interest because he also represented the Navy's insurance plan administrator...

To continue reading