Brown v. Avondale Industries, Inc.
| Decision Date | 27 February 2012 |
| Docket Number | BRB 11-0407 |
| Parties | MICHAEL BROWN Claimant-Petitioner v. AVONDALE INDUSTRIES, INCORPORATED Self-Insured Employer-Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order of Patrick Rosenow, Administrative Law Judge, United States Department of Labor.
Tommy Dulin (Dulin and Dulin, Ltd.), Gulfport, Mississippi, for claimant.
Richard S. Vale and Pamela Noya Molnar (Blue Williams L.L.P.), Metairie, Louisiana, for self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order (2010-LHC-01846) of Administrative Law Judge Patrick Rosenow 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 findings of fact and conclusions of law of the administrative law judge if they 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).
Claimant, a fiberglass laminator for employer, suffered a work-related injury to his lower back on June 10, 1991, which prevented him from continuing in his usual work for employer. Employer voluntarily paid claimant temporary total disability benefits under the Act, 33 U.S.C. §908(b), from June 21, 1991 until March 2, 1993, and from October 25, 1994 until June 26, 1996. Claimant sought additional benefits. This case has a protracted procedural history which is reflected in the Board’s prior decisions and the multiple decisions issued by Administrative Law Judge Mills and Administrative Law Judge Rosenow (the administrative law judge); it is not relevant to the issues raised on appeal. See Brown [Brown II] v. Avondale Industries, Inc., BRB No. 01-0508 (Feb. 22, 2002); Brown [Brown I] v. Avondale Industries, Inc., BRB Nos. 97-1511, 99-1063/A (July 7, 2000). [1]
In his pursuit of this claim, claimant obtained three compensation awards: one, for permanent partial disability for a weekly loss of wage-earning capacity of $59.20 from August 2, 1993 to August 24, 1997, 33 U.S.C. §908(c)(21); another, for temporary total disability from August 25, 1997 to February 24, 2005, 33 U.S.C. §908(b); and a third, for permanent total disability continuing from February 25, 2005, 33 U.S.C. §908(a). Specifically, the permanent partial disability award was directed in Judge Mills’s Decision and Order on Remand dated November 18, 2002; the temporary total disability award was directed in Judge Mills’s Decision and Order on Section 22 Modification dated April 12, 1999, 33 U.S.C. §922, [2] as clarified by an Order issued by Judge Mills on January 22, 2003; and the permanent total disability award was directed in the administrative law judge’s Decision and Order on modification dated April 15, 2008, which is the last resolution on the merits of claimant’s claim.
In July 2008, and again, on December 10, 2008, claimant requested an informal conference to discuss employer’s payments of compensation pursuant to the administrative law judge’s April 2008 decision. In February 2010, the district director issued a memorandum of informal conference addressing whether claimant had been paid correctly under the terms of the administrative law judge’s April 2008 decision; the district director stated that employer should provide a print-out of all compensation paid to date. See Claimant’s Petition for Review at EX C. In a follow-up memorandum dated February 12, 2010, the district director stated his recommendation that employer has paid all sums due under the administrative law judges’ decisions. See Employer’s Motion for Summary Decision at EX E. The case was transferred to the Office of Administrative Law Judges on July 15, 2010, for a hearing on the issue of whether employer was in default of any payments awarded and due.
On October 19, 2010, claimant signed an affidavit based on employer’s print-out of payments alleging that: 1) employer failed to make lump sum payments of $15, 600.60 and $10, 102.66 in 1995; 2) employer did not pay 22 weeks of temporary total disability compensation at $173.33 per week from March 2 to August 1, 1993; 3) employer underpaid claimant the amount of $42.14 bi-weekly for the period from October 17, 1996 to May 1, 1997, when he should have received bi-weekly payments of $92.26; and 4) employer wrongly credited $8, 889.99 against its subsequent bi-weekly payments, after it had paid claimant a lump sum of $38, 305.36 on February 13, 2003. See Claimant’s Opposition to Employer’s Motion for Summary Judgment, EX A. In sum, claimant alleged in the affidavit that he had been underpaid a total of $39, 109.19, plus interest and additional assessments. Claimant thus sought the issuance of a default order and a Section 14(f) assessment. See 33 U.S.C. §§914(f), 918(a); 20 C.F.R. §702.372.
In his Order Cancelling Hearing issued on January 5, 2011, the administrative law judge stated that the issues before him were whether, under Section 18(a) of the Act, 33 U.S.C. §918(a), employer failed to make compensation payments as alleged by claimant and whether employer had fully complied with the previously issued compensation orders. Recognizing that claimant may file for enforcement of final compensation orders in federal district court pursuant to Section 21(d), 33 U.S.C. §921(d), the administrative law judge informed the parties that he was inclined to remand the case on jurisdictional grounds. On January 19, 2011, employer filed with the administrative law judge a motion for summary decision on the basis that claimant’s claim of default of allegedly past-due compensation was untimely under Section 18(a).
In his Decision and Order, the administrative law judge found that Section 18(a) is inapplicable as the most recent alleged default took place on February 13, 2003. The administrative law judge found that claimant first sought relief for employer’s alleged underpayment of compensation on December 10, 2008, when claimant requested an informal conference regarding employer’s payment of compensation pursuant to the orders issued by Judge Mills. The administrative law judge found that there is no genuine issue of material fact that claimant failed to seek enforcement within one year of Judge Mills’s compensation orders becoming final. The administrative law judge concluded that Section 18(a) is inapplicable, and he dismissed the claim because the only remedy available to claimant was to seek enforcement of Judge Mills’s orders in federal district court pursuant to Section 21(d).
Claimant appeals the administrative law judge’s dismissal of his claim that employer is in default of awarded compensation. Employer responds, urging affirmance. Claimant filed a reply brief.
In determining whether to grant a party’s motion for summary decision, the administrative law judge must determine, after viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the moving party is entitled to summary decision as a matter of law. Honaker v. Mar Com, Inc., 44 BRBS 5 (2010); Morgan v. Cascade General, Inc., 40 BRBS 9 (2006); see also O’Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir. 2002); Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991); Buck v. General Dynamics Corp., 37 BRBS 53 (2003); 29 C.F.R. §§18.40(c), (d), 18.41(a). In this case, the administrative law judge determined that there are no issues of material fact concerning the applicability of Section 18(a). The administrative law judge also found employer entitled to a decision in its favor as a matter of law because Section 21(d), and not Section 18(a), applies to claimant’s claim of default. We have jurisdiction to rule on the administrative law judge’s dismissal of claimant’s claim. See generally Bray v. Director, OWCP, 664 F.2d 1045, 14 BRBS 341 (5 th Cir. 1981).
The Act has two provisions by which a claimant may seek to enforce compensation orders. 33 U.S.C. §921(e); see also 33 U.S.C. §§918(a), 921(d). First, under Section 18(a), [3] claimant may, within one year of an alleged default, apply to the district director for a supplemental order declaring default. After obtaining a supplemental default order from the district director, claimant may obtain its enforcement in federal district court. 33 U.S.C. §918(a); 20 C.F.R. §702.372. The law is clear that compensation is due and payable when a compensation order is filed in the office of the district director. 33 U.S.C. §921(a); 20 C.F.R. §§702.350, 802.205; see generally Tidelands Marine Service v. Patterson, 719 F.2d 126, 16 BRBS 10(CRT) (5 th Cir. 1983). An employer is in default, for purposes of Section 18(a), if payment has not occurred within thirty days of the award’s effective date, the date of filing with the district director. Kinder v. Coleman & Yates Coal Co., 974 F.Supp. 868 (W.D. Va. 1997).
The second statutory provision for enforcement of compensation orders is contained in Section 21(d), [4] which authorizes the claimant to apply to the district court for enforcement of a compensation order that has become final. See, e.g. Williams v. Jones, 11 F.3d 247, 27 BRBS 142(CRT) (1st Cir. 1993). If the district court determines that the order was made and served in accordance with law and that employer has failed to comply with it, the statute requires the district court to enforce the order. [5] 33 U.S.C. §921(d). A compensation order becomes final thirty days after it is filed in the office of the district director, or, in the event a party appeals the order to the Board or Court of Appeals, when the...
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