Cutietta v. National Steel and Shipbuilding Co.
| Decision Date | 08 July 2015 |
| Docket Number | BRB 14-0335,14-0335A |
| Parties | GIUSEPPE CUTIETTA Claimant-Respondent Cross-Petitioner v. NATIONAL STEEL AND SHIPBUILDING COMPANY Self-Insured Employer-Petitioner Cross-Respondent DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent Cross-Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order and the Order Granting Motion for Reconsideration of Paul C. Johnson, Jr., Administrative Law Judge, United States Department of Labor.
Eric A. Dupree and Paul R. Myers (Dupree Law, APLC), Coronado California, for claimant.
Roy D Axelrod (Law Office of Roy Axelrod), Solana Beach California, for self-insured employer.
Ann Marie Scarpino (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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: HALL, Chief Administrative Appeals Judge, BOGGS and GILLIGAN, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals, and claimant cross-appeals, the Decision and Order and the Order Granting Motion for Reconsideration (2011-LHC-00473) of Administrative Law Judge Paul C. Johnson Jr., 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).
Claimant sustained a cumulative trauma injury to his lower back over the course of his decades-long work for employer as a shipwright through September 29, 2003. Claimant’s treating chiropractor, Dr. Moyer, directed claimant to remain off work until February 20, 2004, while Dr. Close opined, on December 1, 2003, that claimant was temporarily and totally disabled. Subsequently, Drs. Luciano, Previte, Cleary and Adsit all found claimant incapable of returning to his usual work or performing any work involving heavy lifting. These physicians, however, each opined that claimant was capable of light-duty work with varying restrictions.
Claimant never returned to work as a shipwright after September 29, 2003. He testified that he worked with a vocational counselor and participated in real estate and computer applications vocational rehabilitation training programs from July 25, 2005 to April 6, 2006, but did not find gainful employment following the work injury. Claimant stated that he has not searched for work since 2006 and that he is now retired. He added that since April or June 2009, he has been receiving rental income from two apartments he owns. Claimant filed a claim seeking permanent total disability and medical benefits for his lower back injury. Employer controverted claimant’s claim, raising, inter alia, issues pertaining to the extent of claimant’s disability, the applicability of Sections 3(e) and 8(j), 33 U.S.C. §§903(e), 908(j), and its entitlement to Section 8(f) relief, 33 U.S.C. §908(f).
In his decision, the administrative law judge found that claimant’s work-related back injury rendered him incapable of returning to his usual work for employer as of September 30, 2003, and that employer established the availability of suitable alternate employment as of March 1, 2005. The administrative law judge, therefore, found claimant entitled to temporary total disability benefits from September 30, 2003 to November 16, 2004, permanent total disability benefits from November 17, 2004 to February 28, 2005, and from July 25, 2005 to April 6, 2006, and to periods of permanent partial disability benefits from March 1, 2005 up to the present.[1] The administrative law judge, however, found that claimant forfeited his right to compensation from October 13, 2010 to August 27, 2013, pursuant to Section 8(j) as he failed to report his rental earnings. The administrative law judge also found employer entitled to a Section 3(e) credit for payments it made to the California Employment Development Department (EDD) in reimbursement for payments the EDD made to claimant. The administrative law judge denied employer’s request for Section 8(f) relief.
On appeal, employer challenges the administrative law judge’s finding that it is not entitled to Section 8(f) relief. BRB No. 14-0335. The Director, Office of Workers’ Compensation Programs (the Director), responds, urging affirmance of the administrative law judge’s denial of Section 8(f) relief. Employer has filed a reply brief. Claimant, in his cross-appeal, challenges the administrative law judge’s findings that employer established the availability of suitable alternate employment, that he forfeited his right to compensation pursuant to Section 8(j) from October 13, 2010 to April 27, 2013, and that employer is entitled to a Section 3(e) credit for its payments to the EDD. BRB No. 14-0335A. The Director responds in agreement with claimant’s position that the administrative law judge erred in awarding employer a credit under Section 3(e) for payments it made to the EDD. Employer responds, challenging the timeliness of claimant’s appeal but otherwise urging rejection of the issues raised in claimant’s cross-appeal. Claimant has filed a reply brief.
Employer, in its response brief, contends that the Board’s Order, dated August 21, 2014, concluding that claimant’s cross-appeal, post-marked July 21, 2014, was timely filed is erroneous. Initially, we agree with claimant that employer failed to file a timely motion for reconsideration of the Board’s August 21, 2014 Order. 20 C.F.R. §802.219(i).[2] Nonetheless, employer’s contention of error is without merit.
Section 802.205(b) of the Board’s Rules of Practice and Procedure, 20 C.F.R. §802.205(b), provides that a Notice of Cross-Appeal must be filed within 14 days of the date on which the first Notice of Appeal was filed or within 30 days from the date on which the Decision and Order was filed in the Office of the District Director. Section 802.207(b) provides that if a Notice of Appeal is sent by mail and the fixing of the date of delivery as the date of filing would result in a loss or impairment of appeal rights, the appeal will be considered to have been filed as of the date of mailing.[3] 20 C.F.R. §802.207(b). Moreover, Section 802.221(a) provides that “in computing any period of time” under these Rules, whenever the last day of the filing period falls on a Saturday, Sunday or legal holiday, the time for filing an appeal shall be extended to the next day that is not a Saturday, Sunday or legal holiday. 20 C.F.R. §802.221(a) (emphasis added).
The record establishes that the administrative law judge’s Decision and Order was filed on May 19, 2014, and his Order Granting Motion for Reconsideration was filed on June 19, 2014. The thirtieth day after June 19 was Saturday, July 19, 2014. Applying Sections 802.205(b), 802.207(b) and 802.221(a), the Board determined that the filing period concluded on July 21, 2014, and thus, that filing was required by that date. It therefore accepted claimant’s cross-appeal, dated and post-marked July 21, 2014, as timely filed and accordingly, denied employer’s motion to dismiss claimant’s appeal. As Section 802.221(a) applies to “any period of time, ” it thus operates in conjunction with Sections 802.205 and 802.207 to extend the designated filing period by the weekend/holiday rule, as well as, when appropriate, the date of mailing rule. Both rules applied to the facts in this case, thereby making claimant’s cross-appeal, mailed on July 21, 2014, a timely-filed appeal. Consequently, we again reject employer’s contention that claimant’s cross-appeal was untimely filed.
Claimant contends the administrative law judge erred in finding that employer established the availability of suitable alternate employment as of March 1, 2005, because he did not accurately assess claimant’s ability to perform the jobs identified in terms of the physical requirement that claimant lie down after no more than three to four hours of activity. Claimant also contends the administrative law judge erred by crediting the reports and opinions of employer’s vocational expert, Joyce Gill, over those of his own expert, Tracy Remas, who explicitly stated that it is more probable than not that claimant was unemployable due to his objective medical condition.
Where as in this case, claimant has established a prima faciecase of total disability by demonstrating his inability to return to his usual employment due to his work injury, the burden shifts to employer to demonstrate the availability of suitable alternate employment. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122(CRT) (9th Cir. 1988); Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir. 1980). In order to meet this burden, employer must establish the existence of realistically available job opportunities within the geographic area in which claimant resides, which he is capable of performing, considering his age, education, work experience, and physical restrictions, and which he could realistically secure if he diligently tried. Edwards v. Director, OWCP, 999 F.2d 1374, 1375, 27 BRBS 81, 82(CRT) (9th Cir. 1993), cert. denied, 511 U.S. 1031 (1994); Beumer v. Navy Personnel Command/MWR, 39 BRBS 98 (2005); Wilson v. Crowley Maritime, 30 BRBS 199 (1996). The administrative law judge must compare claimant’s restrictions to the physical requirements of the jobs relied upon by employer in order to determine...
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