Austin v. Weeks Marine, Inc.
| Decision Date | 28 March 2007 |
| Docket Number | BRB 06-0588 |
| Parties | BRIAN R. AUSTIN, Claimant-Petitioner v. WEEKS MARINE, INCORPORATED and LIBERTY MUTUAL INSURANCE COMPANY, Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Ralph A. Romano, Administrative Law Judge, United States Department of Labor.
David C. Barnett (Barnett & Lerner, P.A.), Dania Beach Florida, for claimant.
Christopher P. Boyd and Bonnie J. Murdoch (Taylor, Day Currie, Boyd & Johnson), Jacksonville, Florida, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2004-LDA-00660) of Administrative Law Judge Ralph A. Romano 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). 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 law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant was hired by employer in August 2001 as a project manager. He was assigned in September 2001 to work on a beach renourishment project in Strathmere, New Jersey. After the attacks on the World Trade Center (WTC) on September 11, 2001, claimant asserted that he was transferred by employer at his request to assist in the loading of debris from the WTC site onto barges, and that he returned to the Strathmere project after a couple of weeks. Claimant quit working for employer in January 2002. Claimant alleged that he sustained a psychiatric injury arising from his employment at the WTC site, and that he is entitled to compensation for temporary total disability commencing in April 2002. Tr. at 15. Employer controverted the claim, contending that the alleged injury is not within the Act’s coverage, 33 U.S.C. §§902(3), 903(a), that claimant failed to provide timely notice of the injury or to timely file his claim, 33 U.S.C. §§912, 913, that an employee-employer relationship did not exist at any time claimant may have been in the area of the WTC, and that claimant’s psychological condition is not related to his employment.
In his decision, the administrative law judge noted claimant’s testimony that he began experiencing physical symptoms while working at the WTC, including a runny nose, sinus problems and vomiting, and that, psychologically, he felt like a “machine” without feelings. The administrative law judge found that claimant should have been aware in September 2001 of the relationship between his physical and psychological symptoms and the work he allegedly performed for employer at the WTC. The administrative law judge found that when claimant quit working for employer in January 2002 his psychological condition had deteriorated to the point that he should have been aware his injury would affect his wage-earning capacity. The administrative law judge thus found that claimant was required to give employer notice of his alleged work injury within 30 days of the date he terminated his employment with employer. See 33 U.S.C. §912(a). The administrative law judge therefore found that claimant’s filing formal notice of his claim on February 10, 2003, was untimely, pursuant to Section 12 of the Act. The administrative law judge next found that employer did not have knowledge of claimant’s injury within the filing period, and was prejudiced by claimant’s untimely notice. See 33 U.S.C. §912(d)(1), (2). The administrative law judge found that employer was not adequately able to defend the claim due to its inability to locate and interview witnesses and to have claimant’s psychological injury evaluated in a timely manner. Accordingly, the administrative law judge denied the claim as time-barred pursuant to Section 12.
On appeal, claimant challenges the administrative law judge’s findings that he did not timely notify employer of his injury, and that employer was prejudiced by its not receiving notice until February 10, 2003. Claimant also asserts that the administrative law judge erred by not addressing whether the claim comes within the coverage provisions of the Act, whether claimant’s psychological condition is related to his employment at the WTC site and whether there was an employee-employer relationship at the time of the injury. Employer responds, urging affirmance of the administrative law judge’s denial of the claim.
Claimant contends that the administrative law judge erred in finding that he did not give employer timely notice of his psychological condition pursuant to Section 12(a). Claimant asserts the administrative law judge erred by applying an “ordinary person” standard to find that he should have been aware of the relationship between his injury and his employment in January 2002. Claimant argues that he was first aware of this relationship after he commenced medical treatment for his psychological condition in February 2003.[1]
Section 12(a) of the Act requires that claimant must, in a traumatic injury case, give employer written notice of his injury within 30 days of the injury or of the date claimant is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the injury and his employment.[2] Todd Shipyards Corp. v. Allan, 666 F.2d 399, 14 BRBS 427 (9th Cir.), cert. denied, 459 U.S. 1034 (1982); Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990). In the absence of substantial evidence to the contrary, it is presumed, pursuant to Section 20(b) of the Act, 33 U.S.C. §920(b), that employer has been given sufficient notice of the injury pursuant to Section 12(a). See Lucas v. Louisiana Ins. Guaranty Ass’n, 28 BRBS 1 (1994). “Awareness” for purposes of Section 12 in a traumatic injury case occurs when claimant is aware, or should have been aware, of the relationship between his injury, employment, and disability, and not necessarily on the date of the accident. See, e.g., Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004); see Ceres Gulf, Inc. v. Director, OWCP [Fagan], 111 F.3d 17, 31 BRBS 21(CRT) (5th Cir. 1997); Bath Iron Works Corp. v. Galen, 605 F.2d 583, 10 BRBS 863 (1st Cir. 1979).
The administrative law judge credited claimant’s testimony that he had no physical or emotional health problems prior to September 11, 2001. EX MM at 52. The administrative law judge found that an “ordinary person” in good health would attribute his psychological and pulmonary symptoms and vomiting while working at the WTC site to the harsh and stressful working conditions there. Decision and Order at 4. The administrative law judge further found that a reasonable person would associate claimant’s psychological reaction at the WTC of feeling like “a machine, ” CX P at 15, as a reaction to an extraordinarily tense situation. The administrative law judge found that claimant’s psychological state had deteriorated by January 2002 to the extent that he was unable to leave his home, he was forced to go to the hospital more than once due to his physical symptoms, and he became unable to work. EX LL at 151-157. The administrative law judge found that claimant, therefore, should have been aware by January 2002 of the work-relatedness of a disability due to his psychological condition. Decision and Order at 4-5. The administrative law judge found claimant’s assertion that he was unaware that his condition was work-related until he began treatment in February 2003 contradicted by the deposition testimony of his treating psychiatrist, Dr. Pinto, and his treating psychologist, Dr. Thompson.[3] Based on this evidence, the administrative law judge concluded that claimant was required under Section 12(a) to notify employer of his injury within 30 days after he quit working for employer in January 2002, since claimant should have been aware of the relationship between the injury and his employment at this time. Decision and Order at 5. The administrative law judge found that since claimant did not provide notice of his injury to employer until he filed his claim on February 10, 2003, claimant’s notice was untimely.
We affirm the administrative law judge’s finding that claimant should have been aware of the relationship between his psychiatric injury, his employment, and his disability when he quit working for employer in January 2002 as it is rational and supported by substantial evidence. Claimant’s awareness of the work-relatedness of his injury can arise prior to his being so informed by a physician. Fagan, 111 F.3d 17, 31 BRBS 21(CRT); Wendler v. American National Red Cross, 23 BRBS 408 (1990) (McGranery, J., concurring and dissenting); Pryor v. James McHugh Constr. Co., 18 BRBS 273 (1986); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008 12 BRBS 975 (5th Cir.), cert. denied, 454 U.S. 1080 (1981). In this case, the administrative law judge rationally credited claimant’s testimony and the deposition testimony of Drs. Pinto and Thompson to find that claimant was aware that his psychological injury was related to the employment conditions at the WTC site. Moreover, the administrative law judge rationally credited claimant’s deposition testimony to find that claimant’s psychological state had deteriorated by January 2002 to the extent that he quit working for employer, he was unable to leave his home, and he was forced to go to the hospital more than once due to his physical symptoms. The proper test for determining claimant’s date of awareness is not subjective but objective. Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234 (3 d Cir. 1979). Accordingly, the administrative law judge did not apply an...
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