Cruz v. CB Tech Services, Inc.

Decision Date27 January 2005
Docket NumberBRB 04-0437
PartiesLINTON DE LA CRUZ Claimant-Respondent v. CB TECH SERVICES, INCORPORATED and HAWAII INSURANCE GUARANTY ASSOCIATION Employer/Carrier- Petitioners BAY HARBOR COMPANY and HAWAII EMPLOYERS’ MUTUAL INSURANCE COMPANY and WAUSAU INSURANCE COMPANY Employer/Carriers- Respondents
CourtLongshore Complaints Court of Appeals

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits of Anne Beytin Torkington, Administrative Law Judge, United States Department of Labor.

Steven M. Birnbaum, San Francisco, California, for claimant.

Scott G. Leong and Normand R. Lezy (Leong, Kunihiro, Leong &amp Lezy), Honolulu, Hawaii, for CB Tech Services, Incorporated.

Robert C. Kessner and Sylvia K. Higashi (Kessner Duca Umbeyashi Bain & Matsunaga), Honolulu, Hawaii, for Bay Harbor Company.

Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Employer CB Tech Services, Incorporated, (CB) appeals the Decision and Order Awarding Benefits (2002-LHC-2330 2002-LHC-2331 and 2002-LHC-2332) of Administrative Law Judge Anne Beytin Torkington on claims filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, 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).

Claimant initially injured his back while working for Bay Harbor Company (Bay Harbor) as a laborer on April 8, 1997. He was diagnosed with an acute severe lumbosacral muscle strain and placed on off-work status. Claimant subsequently returned to his usual work with Bay Harbor, and shortly thereafter was promoted to a supervisory position which eliminated the majority of the heavy labor previously required in his position of laborer. Claimant continued to seek treatment for his back condition and an MRI dated October 3, 1997, revealed degenerative disc disease at L4-5 and L5-S1 levels, which prompted claimant’s chiropractor, Dr. Yoza, and an examining physician, Dr. Kimura, to each opine that claimant may have intermittent recurrences and aggravations due to the condition of his back. On April 20, 1999, claimant, while moving heavy buckets for Bay Harbor, sustained, as diagnosed by Dr. Fryberg, an “exacerbation of low back pain with past history of L5-S1 herniation, ” Bay Harbor Exhibit 9 at 425, thus prompting claimant to file a claim against Bay Harbor on August 4, 1999. On November 18, 1999, Dr. Hannon opined that claimant reached maximum medical improvement with regard to his back condition with permanent work restrictions including no lifting or carrying over 25 pounds.

A reduction of pay following the 1999 injury led claimant, on January 17, 2000, to leave Bay Harbor to work for CB. Claimant informed CB of his pre-existing back condition, but testified that his employment was more strenuous than he expected and beyond his work restrictions. [1] On March 24, 2000, claimant reported continued back and leg pain and numbness in both legs to examining physician Dr. Hannon. On April 17, 2000, claimant was laid off by CB due to a lack of work; claimant’s last day of work with CB was April 14, 2000. On May 16, 2001, claimant filed a claim under the Act against CB.

On March 12, 2001, claimant was hired by Terminix as a pest control specialist. While at home following a day’s work for Terminix on June 24, 2002, claimant collapsed after one of his legs gave out. HT at 79. The next day, Dr. Lee took claimant out of work, and advised him to avoid excessive bending, twisting of the neck and back and to do no lifting. An MRI performed on August 30, 2002, revealed disc protrusions at L4-5 and L5-S1 with chronic, presently incapacitating left lumbosciatic pain. Claimant has not worked since his collapse.

In his decision, the administrative law judge found that claimant established a prima facie case that his work for CB aggravated his pre-existing back condition under Section 20(a), 33 U.S.C. §920(a), and that CB established rebuttal by showing that claimant may have subsequently aggravated his back condition while employed at Terminix. Considering the evidence as a whole, the administrative law judge found that claimant did not sustain any subsequent aggravating injury while employed at Terminix, and thus concluded that CB, as the responsible employer, is liable for claimant’s compensation and medical benefits. 33 U.S.C. §907; Decision and Order at 18-19. The administrative law judge next found timely claimant’s notice of injury and claim for a back injury against CB. 33 U.S.C. §§912(a), 913(a). Consequently, the administrative law judge awarded claimant compensation for periods of temporary total, temporary partial and permanent partial disability as well as medical benefits from April 15, 2000, and found CB liable for payment.

On appeal, CB challenges the administrative law judge’s findings regarding claimant’s timely notice of his injury and its designation as the responsible employer. Bay Harbor responds, agreeing with the administrative law judge’s determination that it is not the responsible employer in this case. Claimant responds, urging affirmance of the administrative law judge’s decision.

CB asserts that administrative law judge erred in concluding that claimant gave timely notice to CB of his cumulative trauma injury pursuant to Section 12(a). In particular, CB avers that the cases relied upon by the administrative law judge, Smith v. Aerojet-General Shipyards, Inc., 647 F.2d 518, 13 BRBS 391 (5th Cir. 1981), and Osmundsen v. Todd Pacific Shipyard, 18 BRBS 112 (1986), were improperly applied to the instant case inasmuch as those cases involved occupational diseases and not, as in the instant case, a traumatic injury. Additionally, CB argues that the record establishes that claimant knew, or should have known, of the relationship between his aggravated back injury and his employment with CB during his actual period of employment, and thus, that he should have provided CB notice, at the very least, within 30-days after he left CB’s employ, on April 17, 2000.

Under Section 12(a), an employee in a traumatic injury case is required to notify the employer of his work-related injury within 30 days after the date of injury or the time when the employee was aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment and the disability. See Bechtel v. Associates, P.C. v. Sweeney, 834 F.2d 1029, 20 BRBS 49(CRT) (D.C.Cir. 1987); 20 C.F.R. §702.212(a). Under this standard, it has been held that an employee is not injured for the purposes of the statute of limitations until he knows or should know “the true nature of his condition, i.e., that it interferes with his employment by impairing his capacity to work, and its causal relationship with his employment.” Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 1141, 16 BRBS 100, 101(CRT) (5th Cir. 1984). [2] Thus, claimant need not give notice of his injury until he is aware that his work-related injury is impairing his earning capacity. See Love v. Owens-Corning Fiberglass Co., 27 BRBS 148 (1993); see also Abel v. Director, OWCP, 932 F.2d 819, 24 BRBS 130(CRT) (9th Cir. 1991); J.M. Martinac Shipbuilding v. Director, OWCP, 900 F.2d 180, 183, 23 BRBS 127, 129(CRT) (9th Cir. 1990); Bath Iron Works Corp. v. Galen, 605 F.2d 583, 10 BRBS 863 (1st Cir. 1979). In the absence of evidence to the contrary, it is presumed, pursuant to Section 20(b) of the Act, 33 U.S.C. §920(b), that employer has been given sufficient notice under Section 12. See Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989).

In the instant case, the administrative law judge put forth alternative grounds for determining that while claimant did not provide notice to CB within 30 days of April 14, 2000, i.e., the last day upon which claimant could have sustained cumulative trauma at CB, his notice to CB was nevertheless timely as he did not become aware of the relationship between his disabling injury and his employment with CB until well after that date. First, the administrative law judge found, based, in part, upon the decision of the United States Court of Appeals for the Fifth Circuit in Smith, 647 F.2d 518, 13 BRBS 391, that the 30-day time limit of Section 12(a) did not commence until claimant became aware that CB “might be liable under the last responsible employer rule, ” Decision and Order at 20, which, in the instant case, did not occur until after claimant’s previous employer, Bay Harbor, was “exculpated” from liability as of the issuance of the instant decision. Decision and Order at 20. Thus, the administrative law judge concluded that it was not possible for CB to be liable as a matter of law until Bay Harbor was relieved of potential liability.

Second the administrative law judge found that the medical evidence of record establishes that claimant “had no impairment of which he could be aware until the progression of his condition, caused by the cumulative trauma injury of 2000, became apparent.” Decision and Order at 21. The administrative law judge found that no physician identified cumulative trauma until Dr. Hager’s diagnosis based on an examination on February 9, 2002. Claimant’s Exhibit 3. In his corresponding report, Dr. Hager opined that claimant’s back condition was caused by the 1997 injury sustained while claimant worked for Bay Harbor, but it was permanently aggravated by claimant’s work at CB. HT at 157. The administrative law judge further found that claimant’s inability to find work after leaving...

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