Brown v. Huntington Ingalls Inc.
| Decision Date | 16 May 2022 |
| Docket Number | BRB 21-0404 |
| Parties | ROBERT L. BROWN Claimant-Respondent v. HUNTINGTON INGALLS, INCORPORATED Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits and the Order Granting Partial Reconsideration of Paul C. Johnson, Jr. Administrative Law Judge, United States Department of Labor.
Ralph Rabinowitz, Norfolk, Virginia, for Claimant.
Benjamin M. Mason (Mason, Mason, Walker & Hedrick, P.C.) Newport News, Virginia, for self-insured Employer.
Ann Marie Scarpino (Seema Nanda, Solicitor of Labor; Barry H Joyner, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals Administrative Law Judge (ALJ) Paul C. Johnson Jr.'s Decision and Order Awarding Benefits and Order Granting Partial Reconsideration (2019-LHC-00280) rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 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).
On June 9, 2017, Claimant injured his left calf while working as a chipper for Employer. He reported the injury and was sent to Employer's shipyard clinic for evaluation where he was initially diagnosed with a left calf strain. He continued to work until August 17, 2017, [1] when he first received treatment from Dr. Arthur W. Wardell, who diagnosed a left calf strain and plantaris rupture, and removed Claimant from work. CX 2. Dr. Wardell cleared Claimant to return to work with restrictions on March 5, 2018, CX 2 at 48, and afterward opined Claimant's calf injury reached maximum medical improvement at some point during the summer of 2018. Id.; EX 13, Dep. at 13. Meanwhile, in April 2018, Employer obtained a labor market survey identifying several jobs which Dr. Wardell approved as suitable for Claimant. Claimant, however, has not returned to work.[2]
On June 4, 2018, Claimant visited Dr. Wardell with complaints of left knee pain. Dr. Wardell diagnosed Claimant with a medial and complex lateral meniscus tear of his left knee, which he opined is "a consequence of the mechanical abnormalities [Claimant] placed on his left leg due to his left calf weakness and resulting limp" after Claimant's June 9, 2017 work accident. EX 13, Dep. at 9, 11. He performed an arthroscopy on Claimant's left knee on February 26, 2019, and removed Claimant from all work. CX 2 at 127, 128. In September 2019, Dr. Wardell stated he anticipated Claimant would reach maximum medical improvement following his February 26, 2019 left knee surgery, most likely in late November or early December 2019. EX 13, Dep. at 13-14. However, he also opined Claimant would need a total left knee replacement, after which "he will be at maximum medical improvement for both surgical and non-surgical care" of his left knee. Id., Dep. at 14, 22. The record indicates Employer authorized the left knee replacement surgery in January 2020, Decision and Order at 2, and Dr. Wardell performed the procedure on Claimant on August 27, 2020. Cl's Br. at 2. Claimant states Dr. Wardell has not yet determined whether his left knee has reached maximum medical improvement following his total knee replacement procedure. Id.
Employer voluntarily paid Claimant temporary total disability benefits from August 18, 2017, through June 10, 2018. Claimant thereafter sought ongoing temporary total disability benefits from June 11, 2018, as well as additional medical benefits, for his left calf injury and alleged consequential work-related left knee injury. Employer authorized payment of additional medical benefits for Dr. Wardell's treatment through September 11, 2018, but contested Claimant's request for additional disability benefits. The case was transferred to the Office of Administrative Law Judges and a formal hearing was held on October 21, 2019, in Newport News, Virginia.
In his decision, the ALJ found Claimant sustained work-related injuries to his left calf and left knee. In terms of Claimant's left calf injury, he found Claimant entitled to, and Employer liable for, temporary total disability benefits from August 18, 2017, through March 4, 2018, and permanent partial disability benefits thereafter pursuant to 33 U.S.C. §908(c)(21) of the Act. As for Claimant's left knee injury, the ALJ found Claimant entitled to, and Employer liable for, an ongoing award of temporary total disability benefits from February 26, 2019. On reconsideration, the ALJ amended his award of benefits to reflect "the award of permanent partial disability compensation shall be suspended for the period during which Claimant is entitled to temporary total disability compensation." Order on Recon. at 3.
On appeal, Employer challenges aspects of the ALJ's award. Claimant and the Director, Office of Workers' Compensation Programs (Director), also respond. Claimant urges affirmance. The Director agrees with Employer regarding benefits improperly awarded under Section 8(c)(21) and urges the Board to vacate the award and remand the case for further consideration. Claimant filed a reply to the Director's brief.
Employer contends that because Claimant sustained work-related injuries to his left calf and left knee arising out of the same June 9, 2017 incident, his recovery for permanent partial disability benefits relating to both injuries should be limited to the schedule at Section 8(c)(2). Citing Potomac Elec. Power Co. v. Director, OWCP [PEPCO], 449 U.S. 268 (1980), it maintains the Act's schedule is the exclusive remedy for permanent partial disability sustained to body parts listed there, because benefits paid pursuant to the schedule fully compensate claimants for their permanent partial disabilities. Employer therefore contends the ALJ erred by awarding Claimant permanent partial disability benefits for his left calf injury under Section 8(c)(21), rather than Section 8(c)(2). Employer further contends the ALJ improperly separated Claimant's left lower extremity injury into two aspects and erroneously awarded permanent partial disability for one of them but then temporary total disability for the other. Moreover, Employer asserts that because Claimant retired from employment in September 2018, case law establishes he is no longer entitled to disability benefits once he is found capable of returning to light duty work. In his response brief, Claimant states the ALJ's Order Granting Partial
Reconsideration is in accordance with the law and should therefore be affirmed.
The Director asserts the ALJ applied an incorrect statutory provision when determining Claimant's permanent partial disability award for his left calf. Because of this error, he urges the Board to vacate the award of unscheduled benefits and remand the case for further consideration. He states the Board should instruct the ALJ to reopen the record on remand to allow the parties to submit additional evidence on Claimant's permanent impairment relating to his left calf injury, and then calculate his award in accordance with Sections 8(c)(2) and (19) of the Act. In reply to the Director's brief, Claimant states Employer's appeal solely pertained to the ALJ's Order Granting Partial Reconsideration and did not challenge the ALJ's award of permanent partial disability benefits for his left calf injury under Section 8(c)(21). He therefore states it is inappropriate for the Board to address this issue on appeal.
The ALJ found Claimant's left calf injury became permanent on March 5, 2018, but his left knee injury, which he found is awaiting a normal healing period, remained temporary. He next found: Claimant's left calf injury rendered him incapable of returning to his usual work as of August 18, 2017; Employer established the availability of suitable alternate employment as of March 5, 2018; and Claimant did not undertake a diligent job search, thereby entitling Claimant to temporary total disability benefits for this injury from August 18, 2017, through March 4, 2018. Decision and Order at 6-9. Addressing Claimant's entitlement to an ongoing award of permanent partial disability benefits for his left calf injury, the ALJ rejected Employer's position that Claimant should be limited to a scheduled award for loss of use of his left leg because "Employer has not provided any evidence, such as a permanent partial disability rating" from which to fashion such an award. Instead finding Section 8(c)(21) "is the appropriate provision to apply," the ALJ calculated the permanent partial disability award for Claimant's left calf injury by subtracting his residual wage-earning capacity of $456.70[3] from his stipulated average weekly wage of $1, 526.09. He next found Claimant incapable of performing any work from February 26, 2019, because of his work-related left knee injury, thereby entitling Claimant to ongoing temporary total disability benefits from that date.
On reconsideration, the ALJ denied Employer's motion to alter Claimant's permanent partial disability benefits for his left calf injury to reflect a scheduled award under Section 8(c)(2) and again found Claimant entitled to benefits under Section 8(c)(21). In reaching this conclusion, he rejected Employer's contention that PEPCO, 449...
To continue reading
Request your trial