Brown v. I.T.T./Continental Baking Co. and Ins. Co. of North America

• Decision Date: 11 December 1990
• Docket Number: No. 89-1592,89-1592
• Citation: 921 F.2d 289
• Parties: John E. BROWN, Petitioner, v. I.T.T./CONTINENTAL BAKING COMPANY AND INSURANCE COMPANY OF NORTH AMERICA and Lawrence W. Rodgers, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 289

921 F.2d 289

287 U.S.App.D.C. 249

John E. BROWN, Petitioner, v.I.T.T./CONTINENTAL BAKING COMPANY AND INSURANCE COMPANY OF NORTH AMERICA and Lawrence W. Rodgers, DirectorOffice of Workers' Compensation Programs, U.S. Department of Labor, Respondents.

No. 89-1592.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 17, 1990.

Decided Dec. 11, 1990.

Michael V. Kowalski, Washington, D.C., for petitioner.

Elizabeth Haegelin Hall, Washington, D.C., for respondentsITT/Continental Baking Co. and Ins. Company of North America.

Marianne Demetral Smith, Atty., Dept. of Labor, Washington, D.C., for respondentOffice of Workers' Compensation Programs.Carol A. DeDeo and Karen B. Kracov, Washington, D.C., were on the brief for respondentOffice of Workers' Compensation Programs.John Jeffrey Ross, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for respondentOffice of Workers' Compensation Programs.

Before WILLIAMS, D.H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

In this action, we review the ruling of the Benefits Review Board of the Department of Labor(Board) affirming the denial by the Administrative Law Judge (ALJ) of the petitioner's claim for temporary total disability benefits under the Longshore and Harbor Workers' Compensation Act(the Act), 33 U.S.C. Secs. 901 et seq., as extended to the District of Columbia by 36 D.C.Code Secs. 501 et seq.Our review of the record leads us to conclude that, with respect to the first of the petitioner's claims, the Board exceeded its authority when it affirmed the ALJ's ruling based on a ground the ALJ had not reached in his decision.With respect to the petitioner's second claim, we hold that the ALJ failed to analyze the evidence on the question of causation within the framework of the Act's presumption in favor of the claimant.In light of these conclusions, we reverse the Board's decision and remand the cause for further action consistent with the discussion that follows.

I.

The claimant/petitioner, John Brown, suffered two separate accidents involving his right arm that are relevant to this action.On June 8, 1981, at his job as a sanitation worker at respondentContinental Baking Company in Washington, DC, ¹ Brown hurt his right elbow while breaking down boxes for trash removal.J.A. 15-16, 170.He sought medical attention at the Northeast Industrial Clinic (Clinic) and, after taking x-rays of his elbow, a doctor there informed Brown he had suffered a "slight sprain" of his elbow.J.A. 16.The doctor interpreted the x-rays as "show[ing] evidence of degenerative changes, otherwise negative."J.A. 94.Brown sought further treatment for his elbow in August 1981, and again in January 1982, but, during that time, he filed no claim for compensation under the Act.J.A. 16-18.

Brown's second accident occurred on May 10, 1982, when he ran his hand into a bread cooler while attempting to sweep under it.J.A. 19, 171.At that time, Brown fractured his right thumb and, he claims, reinjured his right elbow.He again went to the Clinic for treatment and doctors there placed his hand in a cast that extended from his fingers to just below his elbow.J.A. 19.Brown filed a claim for compensation in connection with the May 1982 accident on September 28, 1982.This claim stated that he had sustained injuries to both the hand and the elbow of his right arm.J.A. 56.

After the cast was removed, Brown continued to experience pain and swelling in his hand and, in November 1982, he began seeing Dr. Moskovitz, an orthopedic surgeon, for his condition.In December 1982, Moskovitz surgically removed a bone spike that had been causing the discomfort in Brown's hand.In January 1983, Moskovitz saw Brown for the last time in connection with the hand injury.At that time, Moskovitz determined that, unless new problems developed, it was unnecessary for Brown to return for further treatment.Eleven months later, in December 1983, Brown returned to Moskovitz, complaining of pain in his elbow.J.A. 22.Although Moskovitz testified in his deposition that Brown had complained of elbow pain during earlier visits, no mention of the condition appears in Moskovitz's notes until the December 1983 visit.J.A. 111-113.During this December visit, Moskovitz took x-rays of Brown's elbow and they revealed "post-traumatic osteoarthritis with multiple loose bodies."J.A. 73.It was only after this examination of his elbow that Brown, on December 9, 1983, filed a claim for the 1981 accident.

In 1984, Brown sought treatment for his elbow pain from Dr. Moskovitz seven times.During April of that year, Moskovitz diagnosed damage to a nerve running along the inside of Brown's elbow.In his deposition, Moskovitz testified that the scar tissue from the sprain, as it constricted, began to tighten around the nerve, causing pain in the fingers and weakness in the grip.J.A. 118.In March 1984, Brown lost his job at Continental Baking because of his poor attendance record.In February 1985, shortly before the administrative hearing in this case, Moskovitz operated on Brown's elbow to relieve pressure on the nerve.

After a hearing on Brown's claims, the ALJ held that the 1983 claim for the 1981 accident was time-barred.Finding first that Brown was "immediately aware" his 1981 accident was job-related, the ALJ concluded that the claim was subject to the Act's limitations provision.²J.A. 172.The ALJ also concluded that Brown could not recover for his elbow condition by way of his timely claim for the 1982 accident.In reaching this decision, the ALJ pointed to the lapse of nineteen months between the second accident and Brown's request for treatment for his elbow and to the deposition of Dr. Epps who testified, after reviewing Dr. Moskovitz's records, that Brown would have suffered arthritic degeneration in his elbow regardless of the accident.Based on this evidence, the ALJ held that the 1982 accident neither contributed to nor aggravated Brown's elbow condition.J.A. 173.In sum, the ALJ held that Brown's claim for the 1981 accident was untimely and that Brown had failed to establish the requisite causal link between his elbow condition and the 1982 accident.Brown appealed to the Board.

The Board did not address the question of whether Brown's 1983 claim for the 1981 accident was time-barred.J.A. 177.Instead, it affirmed the ALJ's denial of benefits on the ground that Brown had failed to establish either of his accidents had caused his elbow condition.³Id.This petition for review followed.

II.

As a preliminary matter, we briefly consider the standard of review this court applies to a petition for review of a Benefits Review Board ruling.By the terms of the Act, the Board treats the ALJ's findings as "conclusive if supported by substantial evidence in the record considered as a whole."33 U.S.C. Sec. 921(b)(3).While the Act does not prescribe the limits of our authority when reviewing the Board, this court and others have held that a court of appeals may reverse a Board ruling only for errors of law or when the Board has exceeded the scope of its authority in its review of the ALJ.Stark v. Washington Star Co., 833 F.2d 1025, 1027(D.C.Cir.1987);Stevenson v. Linens of the Week, 688 F.2d 93, 96-97(D.C.Cir.1982);Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237(3d Cir.1979)."In order to decide whether the Board has properly adhered to its scope of review, however, we must conduct an independent review of the record to determine whether the ALJ's findings are supported by substantial evidence."Stark, 833 F.2d at 1027.

III.

We turn now to the first portion of the ruling before us--that dealing with Brown's 1983 claim for the harm he sustained as a result of the 1981 accident.A comparison of the ALJ's decision denying the claim and the Board's decision affirming the ALJ reveals that the Board exceeded its authority in reviewing the ALJ and we therefore reverse.

In his analysis of Brown's claim, the ALJ applied section 13(a) of the Act:

Except as otherwise provided in this section, the right to compensation for disability or death under this chapter shall be barred unless a claim therefore [sic] is filed within one year after the injury or death....The time for filing a claim shall not begin to run until the employee or beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury or death and the employment.

33 U.S.C. Sec. 913(a).He held that, because Brown was "immediately aware" his injury was job-related, the Act required the claim therefor be filed within one year of the date of the injury.J.A. 172.While the ALJ determined that the medical evidence failed to support the conclusion that the second accident caused Brown's elbow condition, he reached no such conclusion with respect to the first accident.J.A. 173.Indeed, after addressing the issues raised by the 1982 accident, the ALJ returned to the first accident and explicitly premised his decision on the limitations provision in the Act: "As has already been mentioned herein, a claim founded upon that incident is time-barred despite Claimant's attempt to characterize his injury as latent."J.A. 173-74(emphasis added).Although respondent employer argues that the ALJ found in the alternative that Brown's 1981 accident was not causally related to his elbow condition, this is simply not the case; the decision on the 1981 accident rests entirely on the Act's limitations provision.

In its review of the ALJ, the Board declined to address the Act's limitations provision.Instead, the Board affirmed the ALJ's denial of the claim on the causation ground: "We need not address claimant's argument that the administrative law judge erred in finding the claim for the 1981 injury barred by the statute of limitations because we affirm...