Castro v. General Construction Co.

Decision Date13 May 2003
Docket NumberBRB 02-0783
PartiesROBERT CASTRO, Claimant-Respondent v. GENERAL CONSTRUCTION COMPANY and LIBERTY NORTHWEST INSURANCE COMPANY, Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent LONGSHORE CLAIMS ASSOCIATION, Amicus Curiae
CourtCourt of Appeals of Longshore Complaints

Appeal of the Decision and Order of Richard K. Malamphy Administrative Law Judge, United States Department of Labor.

Nicole A. Hanousek (Law Offices of William D. Hochberg), Edmonds Washington, for claimant.

Raymond H. Warns, Jr. (Holmes, Weddle & Barcott) Seattle, Washington, for employer/carrier.

Peter B. Silvain, Jr. (Howard Radzely, Acting Solicitor of Labor; Donald S. Shire, Associate Solicitor; Samuel J. Oshinsky, Senior Attorney), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Roger A. Levy (Laughlin, Falbo, Levy & Moresi, L.L.P.), San Francisco, California, for amicus curiae.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.[1]

DECISION AND ORDER

PER CURIAM:

Employer appeals the Decision and Order (2001-LHC-515) of Administrative Law Judge Richard K. Malamphy 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 Board held oral argument in this case in Seattle, Washington on January 29, 2003, and pursuant to 20 C.F.R. §802.215, we hereby accept the pleadings filed by employer and by the amicus curiae subsequent to the oral argument.

The parties do not dispute the facts of this case. Claimant worked as a pile driver for employer, and on November 20, 1998, he fell, tearing the anterior cruciate ligament in his right knee. After undergoing and recovering from reconstructive surgery on December 30, 1998, and two subsequent surgeries, claimant was released to return to light duty work on August 14, 2000. Claimant attempted to return to work at employer's facility, but the job proved to be too strenuous, and Dr. Mandt determined that the duties were beyond claimant's restrictions. Because employer offered no other light duty work, Dr. Mandt recommended vocational retraining.

Employer hired firms to conduct labor market studies, and those surveys identified jobs the counselors believed claimant could perform with starting wages ranging from $8 to $10 per hour. Cl. Ex. 8; Emp. Ex. 3. The Office of Workers' Compensation Programs (OWCP) referred claimant to a vocational rehabilitation counselor, Ms. Williams, to develop a rehabilitation plan. Based on their collaborative effort, claimant enrolled in a hotel tourism program at a local college and was scheduled to take classes from September 13, 2000, through June 7, 2002. Cl. Ex. 5. Upon completion of the program, claimant was expected to earn approximately $16, 000 per year in an entry-level position and then, with experience, progress up to approximately $27, 580 per year or possibly $30-40, 000 per year if he became an assistant manager or a manager at a larger hotel. Emp. Ex. 5. As of the date of the hearing, June 20, 2001, and the date of the administrative law judge's decision, May 8, 2002, claimant had not completed his schooling. Claimant filed a claim seeking permanent partial disability benefits under the schedule for a 35 percent impairment to his right knee and temporary and permanent total disability benefits while enrolled in the vocational rehabilitation program.[2]

The administrative law judge awarded claimant permanent partial disability benefits for a period of 48.96 weeks (17% of 288) pursuant to Section 8(c)(2), (19), 33 U.S.C. §908(c)(2), (19). Decision and Order at 10. On the issue of total disability benefits, the administrative law judge determined that claimant demonstrated an inability to return to his usual work and that employer established the availability of suitable alternate employment. Decision and Order at 4, 11. He found that the jobs identified by Messrs. Ewald and Shafer, experts hired by employer, and affirmed by Mr. Owings, who inherited claimant's case after Ms. Williams retired, constituted suitable alternate employment. Cl. Ex. 8; Emp. Exs. 3, 5. Nevertheless, because claimant was enrolled in a vocational rehabilitation program, the administrative law judge awarded claimant total disability benefits for the duration of the program pursuant to Abbott v. Louisiana Insurance Guaranty Ass'n., 27 BRBS 192 (1993), aff'd, 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994). Decision and Order at 11. Although the administrative law judge acknowledged that Abbott does not apply in every case where the claimant is enrolled in vocational rehabilitation, he applied it to this case because he found claimant demonstrated that enrollment in the program precluded employment in light of claimant's commuting time, class time, and study time, and that participation in the program would give claimant the best long-term earning potential. Decision and Order at 11-13. Accordingly, he awarded claimant temporary total disability benefits from July 14, 1999, until August 13, 2000, when claimant's condition reached maximum medical improvement, and permanent total disability benefits thereafter until June 7, 2002, the projected date of completion of the program. Decision and Order at 1 n.1, 13, 15. Finally, the administrative law judge rejected employer's assertion that claimant's average weekly wage should be calculated using Section 10(c), 33 U.S.C. §910(c), accepted claimant's argument that use of Section 10(a), 33 U.S.C. §910(a), is proper pursuant to Matulic v. Director, OWCP, 154 F.3d 1052, 32 BRBS 148(CRT) (9th Cir. 1998), and awarded benefits based on an average weekly wage of $1, 004.37. Decision and Order at 14. The administrative law judge subsequently denied claimant's motion for reconsideration. Employer appeals the administrative law judge's Decision and Order. The Longshore Claims Association (LCA) filed an amicus curiae brief in support of employer's position. Claimant and the Director, Office of Workers' Compensation Programs (the Director), respond, urging affirmance of the administrative law judge's decision.

Total Disability Benefits During Vocational Rehabilitation

Employer contends the administrative law judge erred in awarding claimant total disability benefits during his retraining period. Its arguments are three-fold. First, employer argues that the decision in Abbott, issued by the United States Court of Appeals for the Fifth Circuit, runs afoul of the Act and should not be followed in this case arising within the jurisdiction of the United States Court of Appeals for the Ninth Circuit. Next, employer argues that if Abbott is good law, it does not apply to the facts of this case. Finally, it asserts it was denied due process because of the district director's failure to transfer the case to the Office of Administrative Law Judges (OALJ) for a hearing on whether claimant was entitled to vocational rehabilitation, as it objected to the program from the outset. The LCA also argues that Abbott is not good law and should not be followed. Claimant disagrees, and he argues that Abbott comports with the provisions and the intent of the Act, that neither the Act nor any other statute or constitutional right is violated, and that the evidence of record supports the administrative law judge's award of total disability benefits during the rehabilitation program. The Director agrees with claimant's position.

Applicability of Abbott

Employer first argues that the Fifth Circuit's decision in Abbott should be rejected as being contrary to the Act. The LCA agrees, citing legislative history which it asserts shows that Congress did not intend for the award of total disability benefits during rehabilitation where suitable employment is otherwise available. Claimant asserts that application of the principles espoused in Abbott accord with the policy for awarding total disability benefits established in New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981), and with the Act's goal of promoting the rehabilitation of injured employees. See also Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS 89(CRT) (9th Cir. 1990), cert. denied 498 U.S. 1073 (1991); Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122(CRT) (9th Cir. 1988). The Director argues that Abbott is good law and should be followed and that his interpretation of the Act and the regulations is due deference, as it is reasonable and has been followed consistently by the Board and the two courts that have addressed the issue.

In Abbott, the claimant injured his back on January 11 1983. Ultimately, his doctor recommended vocational retraining. In the fall of 1985, Abbott began a four-year college program. The Department of Labor (DOL) paid his tuition and contractually required him to attend school full-time throughout the year and to maintain a certain minimum grade point average. Abbott completed the program, plus a one-year internship, in July 1990, and he began work as a medical technician at a public hospital. From the date of Abbott's injury until its carrier became insolvent on September 15, 1986, the employer voluntarily paid compensation to the claimant and did not object to his rehabilitation program. When the employer sought payment of claimant's compensation from Louisiana Insurance Guaranty Association (LIGA), LIGA objected to the payment of total disability benefits while Abbott was enrolled in a retraining program, asserting that the availability of suitable alternate employment had been...

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