Alston v. George Hyman Construction Co.
| Decision Date | 09 August 2010 |
| Docket Number | BRB 92-724 |
| Parties | NOAH ALSTON, Claimant v. GEORGE HYMAN CONSTRUCTION COMPANY, Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order on Second Motion for Reconsideration of Robert J. Feldman, Administrative Law Judge, United States Department of Labor.
Stewart S. Manela (Arent, Fox, Kintner, Plotkin & Kahn) Washington, D.C., for employer.
Marianne Demetral Smith (Thomas S. Williamson, Jr., Solicitor of Labor; Carol DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: DOLDER, Acting Chief Administrative Appeals Judge, BROWN and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Second Motion for Reconsideration (86-DCW-43) of Administrative Law Judge Robert J. Feldman 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., (1982), as extended by the District of Columbia Workmen's Compensation Act, 36 D.C. Code §§501 502 (1973) (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 applicable law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
This is the second time this case has been before the Board. Claimant worked as a construction laborer and foreman for employer from 1972 until November 1981. On June 27, 1981, claimant injured his low back when he tripped over a piece of scaffolding. After a recuperative absence and a period of light duty work, he returned to full duty. On November 19, 1981, claimant re-injured his back while lowering an overloaded bucket of concrete to the ground; he has not worked since. Claimant then filed a claim for permanent total disability benefits. Tr. at 30-35.
After the original hearing, wherein the nature and extent of claimant's disability and average weekly wage were at issue, the administrative law judge found that claimant is entitled to temporary total disability benefits from November 19, 1981 to June 19, 1985 and to permanent partial disability benefits thereafter, based on an average weekly wage of $480.55. Decision and Order at 6. The administrative law judge denied employer's motion for reconsideration, and both parties appealed the original decision to the Board. The Board affirmed the disability finding but vacated the average weekly wage calculation, remanding the case on that issue alone, ordering the administrative law judge to use Section 10(c), 33 U.S.C. §910(c), in his recalculation.[1] Alston v. George Hyman Construction Co., BRB Nos. 88-1084/A (May 30, 1990) (unpublished).
On remand, the administrative law judge recalculated average weekly wage at $423.30 after determining that $22,011.34 reasonably represented claimant's annual earnings in 1981 at the time of the November injury. Decision and Order on Remand at 2-3. Claimant moved for reconsideration, seeking a calculation of average weekly wage based on the 12-month period prior to the November injury, and employer responded, arguing that average weekly wage should be computed from June 27, 1981, the original date of injury, and not November 19, 1981. Additionally, employer requested Section 8(f), 33 U.S.C. §908(f), relief, by way of a request for modification pursuant to Section 22 of the Act, 33 U.S.C. §922, asserting it did not know prior to the decision on remand of any evidence which would support a second injury finding.[2] The administrative law judge found that employer was aware of two injuries and the issue of permanent disability at the original hearing. Further, he noted his earlier finding that claimant was not temporarily totally disabled until November 19, 1981, and that the Board relied on that finding in reaching its decision. Consequently, the administrative law judge recalculated average weekly wage, as of the year preceding November 1981, and denied employer's request for Section 8(f) relief as untimely under the provisions of Section 8(f)(3), 33 U.S.C. §908(f)(3) (1988). Decision and Order on Recon. at 2-3 (June 4, 1991).
Following the administrative law judge's decision on claimant's motion for reconsideration, employer moved for reconsideration and contended that Section 8(f)(3) does not apply in cases arising under the D.C. Act. Employer also contended that the administrative law judge erred in finding it was aware of two injuries and that there was no compelling reason for its failure to raise Section 8(f) at the original hearing. Decision and Order on Second Recon. at 1-3. The administrative law judge again concluded that employer's application for Section 8(f) relief was untimely; however, he acknowledged the inapplicability of Section 8(f)(3) to cases arising under the D.C. Act.[3]Employer appeals the administrative law judge's findings that its request for Section 8(f) relief is untimely. The Director, Office of Workers' Compensation Programs (the Director), responds, urging affirmance.
Employer contends the administrative law judge erred in concluding its application for Section 8(f) relief was untimely. Employer argues it did not apply for relief from the Special Fund earlier because it believed the date of injury was June 27, 1981, and it was not aware the November 19, 1981 incident constituted a "second injury." Further, it maintains that the administrative law judge's mistake in fact which allowed it to move for Section 8(f) relief through a Section 22 modification request was his failure to correct employer's date of injury misconception. Thus, employer contends there is a compelling reason for excusing its failure to raise Section 8(f) as an issue at the original hearing. In support of its contentions, employer cites Mason v. Bender Welding & Machine Co., 16 BRBS 307 (1984), and Tibbetts v. Bath Iron Works Corp., 10 BRBS 245 (1979). The Director responds to employer's challenges, arguing that employer failed to establish a basis for Section 22 modification, and that even if employer did, its application for Section 8(f) relief was untimely as the issue was not raised at the first hearing where the permanency of claimant's disability was at issue.
A request for Section 8(f) relief must be raised in the same proceeding wherein permanent disability is at issue, absent a showing of special circumstances which, in the interests of justice, outweigh the need for finality in judicial proceedings. Verderane v. Jacksonville Shipyards, Inc., 729 F.2d 726, 17 BRBS 154 (CRT) (11th Cir. 1985); American Bridge Div., U.S. Steel Corp. v. Director, OWCP, 679 F.2d 81, 83, 14 BRBS 923, 925 (5th Cir. 1982), aff'g Carroll v. American Bridge Div., U.S. Steel Corp., 13 BRBS 759 (1981); Avallone v. Todd Shipyards Corp., 13 BRBS 348 (1981), review denied, 672 F.2d 901 (2d Cir. 1981); Wilson v. Old Dominion Stevedoring Corp., 10 BRBS 943 (1979); Egger v. Willamette Iron & Steel Co., 9 BRBS 897 (1979). Once a compensation order becomes final, the only means of reopening the claim is to petition for modification pursuant to Section 22 of the Act, and the party seeking modification must establish that there has been a change in the claimant's condition or a mistake in a determination of fact. See Director, OWCP v. Edward Minte Co., Inc., 803 F.2d 731, 735 19 BRBS 27, 31 (CRT) (D.C. Cir. 1986), aff'g Dixon v. Edward Minte Co., Inc., 16 BRBS 315 (1984); 33 U.S.C. §922; 20 C.F.R. §702.350. A claim for Section 8(f) relief may be raised for the first time through a petition for Section 22 modification if the employer shows there are special circumstances which warrant such action. Edward Minte Co., 803 F.2d at 731, 19 BRBS at 27 (CRT). However, parties are not permitted to invoke Section 22 to correct errors or misjudgments, nor may they use Section 22 to circumvent the rule that Section 8(f) relief is waived if not properly raised at the first possible opportunity. General Dynamics Corp. v. Director, OWCP, 673 F.2d 23, 26, 14 BRBS 636, 640 (1st Cir. 1982), aff'g Woodberry v. General Dynamics Corp., 14 BRBS 431 (1981); Dykes v. Jacksonville Shipyards, Inc., 13 BRBS 75, 76 (1981).
In this case, the administrative law judge noted that Section 8(f) must be raised at the first hearing where permanency is at issue. He then relied on statements made in claimant's pre-hearing statement, claimant's deposition, claimant's post-hearing brief, the medical evidence and at the hearing to support his finding that employer knew the November 1981 incident was a second injury and not a natural progression of claimant's June 1981 injury, and he distinguished this case from the facts in Mason, 16 BRBS 307, and Tibbetts, 10 BRBS 245.[4] Based on this evidence and law, the administrative law judge concluded that employer was aware of both injuries and did not show a compelling reason for not raising Section 8(f) at the original hearing. For the reasons set forth below, we affirm the administrative law judge's finding that employer failed to timely raise Section 8(f) as an issue.
Initially we note that claimant filed a claim for permanent total disability benefits, and both employer and claimant, in their pre-hearing statements, listed the "extent of permanent disability" as an issue for trial. Additionally, employer listed Section 8(f) as a disputed issue, but it failed to raise that issue at the hearing. Finally, the administrative law judge awarded temporary total disability benefits from November 19, 1981 to June 19, 1985, and...
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