Almanzar v. Brady Marine Repair Company, Incorp.
| Decision Date | 21 June 2002 |
| Docket Number | 01-0776A,BRB 01-0776 |
| Parties | JUAN ALMANZAR, Claimant-Respondent Cross-Petitioner v. BRADY MARINE REPAIR COMPANY, INCORPORATED and ACE USA, Employer/Carrier-Petitioners Cross-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
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.
DECISION and ORDER
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.
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...
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