Estate of Guess v. Electric Boat Corp.
| Decision Date | 09 August 2018 |
| Docket Number | BRB 17-0589 |
| Court | Court of Appeals of Longshore Complaints |
| Parties | ESTATE of GERALD GUESS Claimant-Petitioner v. ELECTRIC BOAT CORPORATION Self-Insured Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
Appeal of the Decision and Order Granting Modification of Timothy J McGrath, Administrative Law Judge, United States Department of Labor.
Scott N. Roberts (The Law Offices of Scott Roberts, L.L.C.) Groton, Connecticut, for claimant.
Robert J. Quigley, Jr., and Sydney R. Kirsch (McKenney, Quigley & Clarkin, L.L.P.), Providence, Rhode Island, for self-insured employer.
Matthew W. Boyle (Kate S. O'Scannlain, Solicitor of Labor; Maia S. Fisher, 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: BOGGS, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant the estate of the deceased employee (decedent), appeals the Decision and Order Granting Modification (2016-LHC-00595) of Administrative Law Judge Timothy J. McGrath 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 rational, supported by substantial evidence, and in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Decedent sustained injuries to his left and right wrists during the course of his employment, and he filed a claim for benefits.[1] In January 2014, Administrative Law Judge Geraghty awarded decedent continuing temporary total disability benefits from December 19, 2012. JX 1. Employer paid those benefits until August 3, 2015, when it learned decedent had died on July 23, 2015. Decision and Order on Modif. at 2 n.1; JX 3.
On August 4, 2015, employer filed a Motion for Summary Decision and Modification, seeking termination of the temporary total disability award. On June 16, 2016, Administrative Law Judge McGrath (the administrative law judge) received claimant's Motion for Summary Decision asserting decedent's estate's entitlement to scheduled permanent partial disability benefits for decedent's impaired hands, pursuant to Section 8(d) of the Act, 33 U.S.C. §908(d). See Decision and Order on Modif. at 1-2. Employer objected and filed a cross-motion for modification, asserting decedent's condition had become permanent and total as of August 6, 2013, when his left hand condition reached maximum medical improvement. Id. at 7 n.8. Thus, employer asserted that entitlement to all benefits terminated upon decedent's death and that there were no unpaid scheduled benefits due.
Based on doctors' reports generated before decedent died, the parties stipulated that decedent's left hand condition reached maximum medical improvement on August 6, 2013, with a five percent permanent impairment, and decedent's right hand condition reached maximum medical improvement on April 10, 2014, with an eight percent permanent impairment. Decision and Order on Modif. at 3; JXs 4-6. The administrative law judge denied the claim for permanent partial disability benefits pursuant to Section 8(d). He found that the present claim is that of decedent's estate and a decedent's estate is not entitled to benefits pursuant to Section 8(d). He also found that decedent's total disability did not end, and his temporary total disability status was never modified, during his lifetime, such that he never had a vested interest in permanent partial disability benefits.[2]Decision and Order on Modif. at 8-13. The administrative law judge also found that decedent's bilateral hand condition became permanent and total on April 10, 2014, and remained so until his death, warranting an award under Section 8(a), 33 U.S.C. §908(a), from that date until his death on July 23, 2015. Therefore, the administrative law judge modified the prior award of temporary total disability benefits to one for permanent total disability benefits. Decision and Order on Modif. at 14. As a claimant cannot receive concurrent permanent total and permanent partial disability benefits for the same injury, the administrative denied the claim for scheduled benefits. The administrative law judge found that employer is entitled to a credit for any benefits due against its payment of temporary total disability benefits. Id. at 15.
Claimant appeals the denial of permanent partial disability benefits pursuant to Section 8(d). Employer urges the Board to affirm the administrative law judge's decision. The Director, Office of Workers' Compensation Programs (the Director) also responds, asserting that because Section 8(d) of the Act, on which claimant relies, applies only to survivors, and not decedents' estates, remand may be necessary to determine if decedent had any statutory survivors.
Claimant contends decedent was assessed as having underlying permanent impairments of five percent and eight percent to his hands, JXs 4-6, and benefits for those impairments have not been paid. Therefore, claimant contends the administrative law judge should have awarded the estate benefits for those permanent partial disabilities pursuant to Section 8(d)(2) of the Act. 33 U.S.C. §§908(c)(3), 908(d)(2). We reject this contention for the following reasons.
Section 8(d) of the Act provides:
33 U.S.C. §908(d) (emphasis added). Section 8(d) mandates the disbursement of a deceased employee's scheduled permanent partial disability benefits in the event he dies prior to the payment of the full amount of those benefits. If he dies for reasons unrelated to his work injury, leaving statutory survivors as enumerated in Section 8(d)(1), his unpaid scheduled benefits are distributed accordingly; however, if he dies without statutory survivors, his unpaid scheduled benefits are paid to the Special Fund pursuant to Section 8(d)(3). 33 U.S.C. §908(d)(1), (3); Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, 31 n.4, modified in part on other grounds, 28 BRBS 156 (1994).[3] If the employee's death is work-related, Section 8(d)(2) applies to permit distribution of unpaid scheduled benefits to his statutory survivors. 33 U.S.C. §908(d)(2); Henry v. George Hyman Constr. Co., 749 F.2d 65, 17 BRBS 39(CRT) (D.C. Cir. 1984).[4] In order for Section 8(d) to apply, the decedent must have been receiving permanent partial disability benefits under the schedule, [5] and the party claiming entitlement to unpaid benefits must be a statutory survivor or the Special Fund. 33 U.S.C. §908(d); Wood, 28 BRBS 27. In addition, an injured employee has a vested interest in benefits which accrue during his lifetime and, after he dies, his estate is entitled to the accrued benefits, regardless of when an award is entered.[6] Krohn v. Ingalls Shipbuilding, Inc., 29 BRBS 72 (1994) (McGranery, J., dissenting on other grounds); Clemon v. ADDSCO Industries, 28 BRBS 104 (1994); Wood, 28 BRBS 27; see also Hamilton v. Ingalls Shipbuilding, Inc., 28 BRBS 125, 128 (1994) (decision after remand); Hamilton v. Ingalls Shipbuilding, Inc., 26 BRBS 114, 119 (1992), rev'd mem. on other grounds sub nom. Director, OWCP v. Ingalls Shipbuilding, Inc., No. 93-4054 (5th Cir. March 10, 1993)).
Contrary to claimant's assertions, this case does not involve one of the two primary factors necessary for the application of Section 8(d). Specifically, decedent was neither "receiving" nor "entitled to" permanent partial disability benefits at the time of his death. Decedent was receiving temporary total disability benefits. Following his death, employer asserted that decedent's condition had previously changed from temporary total to permanent total, whereas claimant asserted it had changed to permanent partial. The undisputed medical reports and the stipulations of the parties support the administrative law judge's finding that decedent's condition reached maximum medical improvement and became permanent as of April 2014. Mason v. Baltimore Stevedoring Co., 22 BRBS 413 (1989); Jones v. Genco, Inc., 21 BRBS 12 (1988); Miranda v. Excavation Constr., Inc., 13 BRBS 882 (1981). For a disability to change from total to partial in a scheduled injury case, however, there must be evidence that the employee can return to work, i.e., his usual work or suitable alternate employment, and that he has a permanent physical impairment. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir. 1991); Jensen v. Weeks Marine, Inc., 34 BRBS 147, 152 (2000), decision after remand, 35 BRBS 174 (2001), aff'd, ...
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