Bunol v. George Engine Company
| Decision Date | 06 June 1997 |
| Docket Number | BRB 92-1573,95-0370A,95-0370,95-0370S |
| Parties | ROBERT BUNOL, Claimant-Respondent v. GEORGE ENGINE COMPANY and LOUISIANA INSURANCE GUARANTY ASSOCIATION, Employer/Carrier-Petitioners ROBERT BUNOL, Claimant-Petitioner Cross-Respondent v. GEORGE ENGINE COMPANY and LOUISIANA INSURANCE GUARANTY ASSOCIATION, Employer/Carrier-Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order Awarding Benefits and the Decision on Motion for Reconsideration of Ben H. Walley Administrative Law Judge, and the Decision and Order Granting Petition to Modify Award and the Second Supplemental Decision and Order Denying Attorney Fee of Quentin P. McColgin Administrative Law Judge, United States Department of Labor.
Joseph J. Weigand, Jr. (Weigand & Weigand), Houma, Louisiana for claimant.
Collins C. Rossi (Bailey, Rossi and Kincade), Metairie, Louisiana, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Awarding Benefits and the Decision on Motion for Reconsideration (90-LHCA-3223) of Administrative Law Judge Ben H. Walley. BRB No. 92-1573. Claimant also appeals, and employer cross-appeals, the Decision and Order Granting Petition to Modify Award of Administrative Law Judge Quentin P. McColgin. BRB Nos 95-0370/A. Lastly, claimant appeals the Second Supplemental Decision and Order Denying Attorney Fee of Judge McColgin. BRB No. 95-0370S. These decisions were 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). The amount of an attorney's fee award is discretionary and may be set aside only if shown by the challenging party to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Claimant, a diesel mechanic, was injured while working for employer on July 31, 1979. He testified that the injury occurred at the back dock of employer's facility in Harvey, Louisiana. 1991 HT at 27-29; LX 30 Cl. depo. at 13-14, 21. Dr. Cracco subsequently diagnosed claimant as having a non-participation of the L4-L5 intervertebral disc and lumbosacral strain. CX 4. Claimant, who thereafter worked intermittently, underwent a discectomy on April 28, 1980. LX 45 at 8, 35, 57. Dr. Cracco released claimant for light duty with restrictions, and claimant returned to work on July 14, 1980. EX 5; LX 30 at 16. Claimant testified that he performed light duty in employer's repair shop, ultimately became an instructor, and resumed full duties six months to a year later. LX 30 Cl. depo. at 12, 15-18, 22; but see 1991 HT at 32-33. Employer voluntarily paid compensation for various periods of time. EX 5.
In March 1988, claimant was laid off when employer went out of business. LX 30 at 8, 23. In September 1988, he was hired by his brother who owned an insurance agency. Claimant worked at the agency until it was sold in August 1990. Id. at 7, 23-25. Claimant's only employment subsequent to August 1990 has been at a small-engine repair company which he incorporated in June 1991. 1992 HT at 19-27.
In his Decision and Order, Judge Walley, after initially finding that claimant was covered under the Act, determined that claimant was entitled to the Section 20(a), 33 U.S.C. §920(a), presumption, which employer failed to rebut. Judge Walley then awarded claimant temporary total disability benefits from July 31, 1979, to December 18, 1980, and permanent partial disability benefits thereafter. Specifically, Judge Walley found that although claimant returned to work with employer, he worked in substantial pain and with extraordinary effort and thus established a prima facie case of permanent total disability. Judge Walley also determined that employer established available suitable alternate employment based on the identified jobs of motor vehicle office trainee and shirt presser; additionally, Judge Walley found that claimant could work as an insurance agent. Judge Walley thereafter awarded claimant benefits based upon a post-injury wage-earning capacity of $240.38 per week, which he subtracted from an average weekly wage of $460.37, which resulted in a $219.99 per week loss of wage-earning capacity. Employer's motion for reconsideration was thereafter denied.
Employer appealed Judge Walley's award of benefits to the Board. BRB No. 92-1573. While this appeal was pending, employer sought modification before the administrative law judge, asserting a mistake in fact regarding claimant's average weekly wage and residual wage-earning capacity. Claimant also sought modification, asserting that the opinions of Drs. Cracco and Russo established that his condition had worsened. On June 26, 1992, the Board dismissed employer's appeal and remanded the case for modification proceedings. On modification, Judge McColgin found no change in claimant's physical condition. Judge McColgin determined, however, that claimant was entitled to have the fusion surgery recommended by both Drs. Cracco and Russo. He thus ordered employer to authorize and pay for that surgery pursuant to Section 7 of the Act, 33 U.S.C. §907, should claimant elect to undergo the procedure. Regarding employer's request for modification, Judge McColgin found that Judge Walley's decision contained mistakes in fact. Judge McColgin then modified that decision to reflect an average weekly wage of $452.13, and claimant's entitlement to temporary total disability benefits from August 1, 1979to September 4, 1979 and April 28, 1980 to July 9, 1980, when claimant did not work. With regard to the award of permanent partial disability benefits, Judge McColgin noted claimant's post-injury work for employer until 1988, but emphatically found that claimant did not resume his former work with employer; rather, he performed modified duties, outside his restrictions, in great pain and discomfort which led to a deterioration of his condition. He thus specifically reaffirmed Judge Walley's findings that claimant worked for employer post-injury in great pain and discomfort and that this work exceeded claimant's restrictions.
Next, Judge McColgin awarded claimant permanent total disability benefits from March 2, 1988 to August 31, 1988, at which time claimant was hired by his brother's insurance agency. Judge McColgin awarded no benefits, however, for the period from July 1980through March 1988 during which time claimant worked for employer, despite his finding that claimant worked in pain in a modified job which was outside his restrictions.
Judge McColgin further awarded permanent partial disability benefits, at varying rates of compensation, from September 1, 1988 to August 1, 1990, from August 2, 1990 to August 31, 1993, and from September 1, 1993 and continuing. Judge McColgin thereafter denied claimant's counsel's request for a fee payable by employer. Claimant now appeals, and employer cross-appeals, Judge McColgin's decision on modification.[1]
Employer initially appeals Judge Walley's finding that claimant's injury occurred on a covered situs. In order to be covered under the Act, claimant must satisfy both the "status" requirement of Section 2(3) of the Act, 33 U.S.C. §902(3), and the "situs" requirement of Section 3(a) of the Act, 33 U.S.C. §903(a). See P.C Pfeiffer Co., Inc. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northwest Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977). Section 3(a) provides that:
Compensation shall be payable under this Act . . . only if the disability or death results from an injury occurring on the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).
33 U.S.C. §903(a)(1988) (emphasis added). In Texports Stevedore Co. v. Winchester, 632 F.2d 504, 12 BRBS 719 (5th Cir. 1980), cert. denied, 452 U.S. 905 (1981), the United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, concluded that a determination of whether an "adjoining area" is covered by the Act should focus on the functional relationship or nexus between the "adjoining area" and maritime activity on navigable waters. See also Motoviloff v. Director, OWCP, 692 F.2d 87, 14 BRBS 526 (9th Cir. 1982); Melerine v. Harbor Const. Co., 26 BRBS 97 (1992). In this regard, it is well-established that coverage under Section 3(a) is determined by the nature of the place of work at the moment of injury. Alford v. MP Industries of Florida, 16 BRBS 261 (1984).
In the instant case, Judge Walley, after acknowledging that the accident report completed by employer indicates that claimant's injury occurred on a job site in Baton Rouge credited claimant's testimony that the accident occurred at employer's dock on the Harvey Canal in Harvey, Louisiana, while he was unloading a tool from his truck. In crediting claimant's testimony, Judge Walley noted that employer offered no testimony to show that the accident occurred somewhere other than at employer's dock in Harvey. It is well-established that, in arriving at his decision, the administrative law judge is entitled to evaluate the credibility of all witnesses and to draw his own inferences and conclusions from the evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. ...
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