Brown v. Glob. Integrated Sec., BRB 20-0435
| Decision Date | 24 September 2021 |
| Docket Number | BRB 20-0435 |
| Parties | TODD O. BROWN Claimant-Petitioner v. GLOBAL INTEGRATED SECURITY, INCORPORATED and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, c/o AIG CLAIMS, INCORPORATED Employer/Carrier-Respondents AMERICAN HOME ASSURANCE COMPANY Carrier-Respondent |
| Court | Court of Appeals of Longshore Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Monica Markley, Administrative Law Judge, United States Department of Labor.
Lara D. Merrigan (Merrigan Legal), Sausalito, California, and Jeffrey Winter, San Diego, California, for Claimant.
John F. Karpousis and Matthew J. Pallay (Freehill, Hogan & Mahar, LLP), New York, New York, for Employer/Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and JONES Administrative Appeals Judges.
DECISION AND ORDER
ROLFE ADMINISTRATIVE APPEALS JUDGE
Claimant appeals Administrative Law Judge Monica Markley's Decision and Order (2017-LDA-00592, 00945) rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act (DBA), 42 U.S.C. §1651 et seq. (Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant worked for Employer in Iraq from 2011 until Employer's contract was terminated in April 2015. Tr. at 31-32. He injured his back lifting weights on August 23, 2013. CX 1. Claimant continued in his usual employment and was promoted to Deputy Project Manager in February 2014. Tr. at 46-47; CX 26 at 255. He sought treatment for back pain in June 2014 when on regularly scheduled leave in the United States. CX 10 at 92-94. An MRI showed a herniated disc at L5-S1. CX 11 at 117. On July 8, 2014, Claimant agreed to undergo surgery in August 2014. CX 23 at 177-179. Prior to surgery, however, he received two epidural steroid injections and cancelled the procedure. CX 17 at 153-159.
He returned to work for Employer in December 2014 after passing Employer's redeployment physical examination. CX 19 at 166-167. After his contract ended in April 2015, Claimant applied for work with the Columbia, South Carolina, police department in May 2015, passed their physical, and was employed there when he next sought treatment for back pain in May 2016. CX 10 at 105-107; EXs J, K.
Claimant underwent a left lumbar fusion on October 17, 2016. CXs 13 at 126-128, 29. He filed an LS-201 Notice of Injury on October 14, 2016, for the August 2013 weightlifting injury. CX 1. Employer filed its LS-202 First Report of Injury on October 13, 2016. EX X at 2. On October 27, 2016, Claimant filed an LS-203 Claim for Compensation, which included a cumulative trauma injury with Employer through April 2015.[1] CX 3. Employer controverted the claims. CX 4.
In her decision, the administrative law judge determined the October 2016 claim for the 2013 weightlifting injury was untimely as Claimant had one year to file his claim after July 8, 2014, when he scheduled back surgery.[2] Decision and Order at 24-25. The administrative law judge rejected Claimant's assertion that the claim filing period was tolled pursuant to 33 U.S.C. §930(f). Id. at 25. She determined Claimant's allegation that he provided Employer with oral notice of a work-related injury is not creditable and that his reliance on written notifications were too vague to impute knowledge of a work injury. Id. at 28-29. The administrative law judge rejected Employer's contention that Claimant's back symptoms after he left its employ are due to an intervening injury, and she determined, based on the record as a whole, that Claimant's lower back condition is related to the 2013 weightlifting injury. Because that injury was time-barred, she denied disability compensation but Claimant was awarded medical benefits as these benefits are never time barred.[3] See generally Siler v. Dillingham Ship Repair, 28 BRBS 38 (1994) ().
Regarding the claim for the 2015 cumulative trauma injury, the administrative law judge found Claimant's notice and the claim timely as he filed for this alleged injury within a year from September 21, 2016, when Dr. Brett Gunter completed a short-term disability form stating that Claimant had elected to undergo back surgery. Decision and Order at 29; CXs 1, 3, 18 at 164. She further found Claimant did not establish a prima facie case of a work-related cumulative trauma injury, finding "the evidence generally shows a timeline of Claimant reporting complete relief of symptoms in late 2014, and several normal examinations with no complaints in mid-2015, followed by a return of Claimant's back pain in mid-2016." Id. at 36.
Claimant appeals the administrative law judge's finding that the 2013 claim was untimely filed, that the time for filing was not tolled under Section 30(f), and that he is not entitled the Section 20(a) presumption for a work-related cumulative trauma injury. Employer and its Carrier AIG respond, urging affirmance.[4] Claimant has filed a reply brief.
Claimant avers the administrative law judge erred by placing on him the burden of showing Employer knew of his injury as the Section 20(b) presumption instead imposes on Employer the burden of disproving it knew, or should have known, of Claimant's back injury such that it was not required to file a Section 30(a) report. Claimant also contends he gave Employer notice from which a work-injury could be inferred. In this regard, Claimant relies on his visiting the medical clinic at the American consulate approximately five days after the weightlifting injury, and on his deposition testimony that he missed a day or two from work after the clinic visit because he was given medication, that prohibited him from carrying a firearm. CXs 8, 26 at 257. Claimant contends this is sufficient notice for Employer to have investigated his injury since almost all injuries in a war zone are compensable.
Section 20(b) of the Act, 33 U.S.C. §920(b), provides a presumption a claim is timely filed where a claimant alleges he suffered a harm and working conditions that could have caused or aggravated it. In cases where Section 30(a), 33 U.S.C. §930(a), applies, the employer must preliminarily establish its compliance to overcome the Section 20(b) presumption.[5] Blanding v. Director, OWCP, 186 F.3d 232, 33 BRBS 114(CRT) (2d Cir. 1999). Section 30(f) provides that where the employer has been given notice or has knowledge of any injury and fails to file the Section 30(a) report, the statute of limitations provided in Section 13 does not begin to run until it is filed. 33 U.S.C. §§913, 930(f). See Blanding, 186 F.3d 232, 33 BRBS 114(CRT); Sabanosh v. Navy Exch. Serv. Command, 54 BRBS 5 (2020); 20 C.F.R. §§702.201-702.202.
In order to rebut the Section 20(b) presumption, the employer must prove it never gained knowledge of the injury to require it to file a Section 30(a) report. Blanding, 186 F.3d 232, 33 BRBS 114(CRT). Knowledge of the work-relatedness of an injury may be imputed where the employer has facts that would lead a reasonable person to conclude compensation liability is possible and further investigation is warranted. See Steed v. Container Stevedoring Co., 25 BRBS 210, 218 (1991); Wendler v. Am. Red Cross, 23 BRBS 408 (1990) (McGranery, J., dissenting); Kulick v. Continental Baking Corp., 19 BRBS 115 (1986).
The administrative law judge addressed in great detail Claimant's assertion that Employer did not timely file a Section 30(a) report. Decision and Order at 25-29. She rejected Claimant's reliance on the Incident Report he completed on September 14, 2013, after his visit to the medical clinic.[6] Decision and Order at 25. She found no evidence corroborating Claimant's allegation that Employer's policy was to omit specific medical details from incident reports, which she contrasted with a detailed memorandum Claimant wrote, when he was a manager, for another employee describing a similar weightlifting injury. Id. at 25-26; EX RR. The administrative law judge also found no evidence supporting Claimant's testimony that he notified two program managers of his injury. Decision and Order at 26. She rejected his assertion that his August 2014 email exchanges with Employer's U.S.-based program manager constituted notice as there is no indication the reported back condition was work-related, had occurred in Iraq, or that Employer was previously apprised of the work injury. Decision and Order at 27. Finally, the administrative law judge relied on the report of Claimant's December 21, 2014 medical examination wherein he denied debilitating back pain or back injury and his back examination was normal. Id.; CX 19 at 166-167. The administrative law judge concluded "Employer has established" it did not have notice of a work-related injury prior to October 6, 2016, and that the Section 30(f) tolling provision does not apply. Decision and Order at 29.
We affirm this finding as it is supported by substantial evidence. The administrative law judge properly stated Employer had the burden to show compliance with Section 30(a), and she rationally concluded Employer met its burden to show it did not have knowledge of Claimant's work injury. Decision and Order at 24, 29. The administrative law judge rationally determined the September 2013 incident report was too vague to put Employer on notice of a work injury, as there was no indication of lost time from work. See Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 759-760, 14 BRBS 373, 380 (5th Cir. 1981) cert. denied, 454 U.S. 1163 (1982) (...
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