Devor v. Department of Army
| Decision Date | 25 July 2007 |
| Docket Number | BRB 06-0872 |
| Parties | CARL E. DEVOR Claimant-Respondent v. DEPARTMENT OF THE ARMY and BROADSPIRE Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order – Awarding Benefits and the Attorney Fee Order of Richard A. Morgan, Administrative Law Judge, United States Department of Labor.
Michael J. Plank (Strokoff & Cowden, P.C.), Harrisburg Pennsylvania, for claimant.
James M. Mesnard (Seyfarth Shaw, L.L.P.), Washington, D.C., for employer/carrier.
Emily Goldberg-Kraft (Jonathan L. Snare, Acting Solicitor of Labor Allen H. Feldman, 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: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order - Awarding Benefits and the Attorney Fee Order (2005-LHC-1547) of Administrative Law Judge Richard A. Morgan 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., as extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 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 will not be set aside unless shown by the challenging party to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Claimant worked as a bartender for employer at its Community Club in Fort Indiantown Gap, Pennsylvania. His primary duties included dispensing beer and mixed drinks and collecting payments. On January 22, 2000, claimant tripped while carrying two cases of beer, and he hit his head and right shoulder against the wall. He was diagnosed with chronic rotator cuff tendonitis/tear and underwent surgery. [1] Claimant’s shoulder was re-injured during physical therapy following surgery. Employer voluntarily paid temporary total disability benefits from January 22, 2000, through August 5, 2004. Emp. Ex. 12. Claimant has not worked since his injury, and he filed a claim for disability benefits.
The administrative law judge found, inter alia, that claimant has a work-related permanent total disability because he cannot return to his usual work and employer did not establish the availability of suitable alternate employment. Decision and Order at 19-24. The administrative law judge noted employer’s failure to raise Section 8(f), 33 U.S.C. §908(f), before the district director but found that the Section 8(f)(3), 33 U.S.C. §908(f)(3), defense was not timely raised by the Director, Office of Workers’ Compensation Programs (the Director); however, he found that employer failed to establish that claimant had a pre-existing permanent partial disability, and therefore denied employer’s request for Section 8(f) relief. Decision and Order at 27-30. Employer appeals the administrative law judge’s findings on these issues, and claimant and the Director respond, urging the Board to affirm the administrative law judge’s decision. In the alternative, the Director requests that the Board remand the case for the administrative law judge to address the Section 8(f)(3) defense. BRB No. 06-0872.
Subsequent to the administrative law judge’s decision, claimant’s attorney filed a petition for an attorney’s fee in the amount of $23, 944.45, representing $21, 367.50 in fees at various rates and $2, 576.95 in expenses. The administrative law judge addressed employer’s objections and awarded a total fee of $21, 216.83 payable by employer; he denied the claim for expenses. Supp. Decision and Order at 1-5. Employer challenges the fee award, arguing that it is not liable for any fee to counsel because the requirements of Section 28(b), 33 U.S.C. §928(b), have not been met. Claimant has not responded to this appeal. BRB No. 07-0412. [2]
Employer initially contends that the administrative law judge’s decision does not comport with the Administrative Procedure Act (APA), as he did not address all of the relevant evidence in rendering his decision. Specifically, employer argues that the administrative law judge failed to address claimant’s being left-hand dominant and whether the surveillance videotapes support claimant’s claim of being in “constant pain.” Employer also argues that it established the availability of suitable alternate employment and that the administrative law judge erred in finding otherwise. Claimant responds, urging affirmance.
In order to establish a prima facie case of total disability, a claimant must demonstrate an inability to return to his usual work as a result of his work injury. Ledet v. Phillips Petroleum Co., 163 F.3d 901, 32 BRBS 212(CRT) (5th Cir. 1998); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). Based on claimant’s testimony regarding his “constant excruciating pain, ” as well as medical evidence which documented the pain, Cl. Exs. 3-6, 9, 21-24; Emp. Exs. 14-15, the administrative law judge found that claimant cannot return to his usual work. Decision and Order at 19-20. Thus, the administrative law judge found that claimant met the initial burden of showing he is totally disabled. A claimant’s credible complaints of pain may alone, be sufficient to establish his inability to return to his usual work. Eller & Co. v. Golden, 620 F.2d 71, 8 BRBS 846 (5th Cir. 1980); Hairston v. Todd Shipyards Corp., 19 BRBS 6 (1986), rev’d on other grounds, 849 F.2d 1149, 21 BRBS 122(CRT) (9th Cir. 1988); Richardson v. Safeway Stores, Inc., 14 BRBS 855 (1982). To the extent that employer’s APA argument relates to the finding that claimant cannot return to his usual work, we reject employer’s assertion. The administrative law judge, as is within his discretion, Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2 d Cir. 1961), credited and relied on claimant’s complaints of pain and found that his complaints were supported by medical documentation. The finding that claimant cannot return to his usual work is thus supported by substantial evidence.
If a claimant establishes a prima facie case of total disability, then he is considered totally disabled unless and until his employer satisfies its burden of establishing the availability of suitable alternate employment. See Rinaldi v. General Dynamics Corp., 25 BRBS 128 (1991) (decision on recon.). For an employer to meet its burden, it must supply evidence sufficient for the administrative law judge to determine that jobs are realistically available to claimant and suitable for him given his age, education, medical restrictions and other relevant factors. See, e.g., Pietrunti v. Director, OWCP, 119 F.3d 1035, 31 BRBS 84(CRT) (2 d Cir. 1997); Fox v. West State, Inc., 31 BRBS 118 (1997).
In this case, the administrative law judge found that the jobs identified by employer took into account claimant’s physical and anatomical restrictions but were not suitable because of claimant’s persistent pain. [3] Claimant testified that he is incapable of working due to his numerous physical problems and most particularly due to the constant pain in his shoulder. The administrative law judge found that medical evidence supports the history of claimant’s pain. See, e.g., Cl. Exs. 3-6, 22-23, 25; Emp. Exs. 14-16; Tr. at 35. Although claimant is left-hand dominant, whereas the injury was to his right shoulder, and the videotapes could support a finding that claimant is not in “constant pain, ” [4] there is substantial evidence of record supporting the administrative law judge’s finding that claimant is totally disabled by his pain. Specifically, the finding is supported by claimant’s testimony, which the administrative law judge credited, and the doctors’ notes and reports recording claimant’s painful reactions to passive and active manipulations of his shoulder and/or complaints of pain. See, e.g., Cl. Exs. 3-6, 22-23, 25; Emp. Exs. 14-16; Tr. at 35. Because the administrative law judge’s finding that claimant is totally disabled is supported by substantial evidence, we affirm the award of permanent total disability benefits. See Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th Cir. 1991) (administrative law judge credited the claimant’s complaints of pain in finding claimant totally disabled over doctors whose opinions did not take into pain into account as a factor in returning to work).
Employer next contends the administrative law judge erred in denying it Section 8(f) relief because he found that claimant did not have a pre-existing permanent partial disability. It argues that claimant had a previous injury to his right shoulder that resulted in two shoulder surgeries and permanent lifting restrictions. Section 8(f) shifts the liability to pay compensation for permanent disability or death after 104 weeks from an employer to the Special Fund established in Section 44 of the Act. 33 U.S.C. §§908(f), 944. An employer may be granted Special Fund relief, in the case of permanent total disability, if it establishes that the claimant had a manifest pre-existing permanent partial disability and that his permanent total disability is not due solely to the...
To continue reading
Request your trial