Ezell v. Direct Labor, Inc.
| Decision Date | 08 March 1999 |
| Docket Number | 98-0826A,98-0826B,BRB 98-0826 |
| Parties | ROOSEVELT EZELL, Claimant-Petitioner, Cross-Respondent, v. DIRECT LABOR, INCORPORATED and THE GRAY INSURANCE COMPANY, Employer/Carrier-Respondents, Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order Awarding Benefits, Order Denying Claimant's Motion to File Certified Record and Motion to Supplement Evidence, Order Denying Claimant's Motion to File Post-Hearing Exhibits and Motion for Reconsideration Order Granting Claimant's Motion to Amend, and Supplemental Decision and Order Awarding Attorney's Fees of Clement J. Kennington, Administrative Law Judge, United States Department of Labor.
H. Edward Sherman Law Offices of H. Edward Sherman, New Orleans Louisiana, for claimant.
Robert S. Reich and Lawrence R. Plunkett, Jr. Reich, Meeks & Treadway, L.L.C., Metairie, Louisiana, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order Awarding Benefits, Order Denying Claimant's Motion to File Certified Record and Motion to Supplement Evidence and Order Denying Claimant's Motion to File Post Hearing Exhibits and Motion for Reconsideration; Order Granting Claimant's Motion to Amend, employer cross-appeals the Decision and Order Awarding Benefits, and claimant appeals, and employer cross-appeals, the Supplemental Decision and Order Awarding Attorney's Fees (95-LHC-2763) of Administrative Law Judge Clement J. Kennington 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 findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3). The amount of an attorney's fee award is discretionary and may be set aside only if the challenging party shows it to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. See e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Employer was a company that supplied labor for Chet Morrison Contractors. Claimant was assigned to work as a rigger on an inshore oil production facility near Gibson, Louisiana, which was surrounded by water and marsh and accessible only by boat via various canals. Claimant suffered a work-related back injury on August 10, 1994, when, while riding on a boat returning from the Gibson job site, the boat took a sharp turn and claimant struck his back against the side of the boat. After being treated at a hospital, claimant returned to light duty work the following day at his usual wage. Employer referred claimant to an orthopedist, Dr. Walker, who diagnosed claimant as suffering from a lumbar spine contusion and recommended that claimant be limited to light duty activities with no lifting or handling objects weighing more than 30 to 40 pounds and occasional bending, stooping and twisting.
Claimant's light duty position with employer was supervised by Cindy Matherne, employer's health and safety director, who assigned claimant to work in the purchasing trailer under the supervision of Craig Guidry, employer's purchasing manager, performing such tasks as emptying trash, sweeping the floor, and making coffee. Ms. Matherne also encouraged claimant to perform work in employer's yard whenever his tasks in the trailer were completed, but advised claimant not to perform any work in the yard that caused him discomfort, even if they were within Dr. Walker's restrictions. Ms. Matherne monitored claimant's medical condition, accompanying him to his medical appointments. Although claimant complained to Dr. Walker that his work activities were causing him pain, claimant never specified the tasks which caused him pain, and admitted that he never directly complained to Ms. Matherne, Mr. Guidry or any supervisor that the work he performed in the yard was too difficult for him to perform. After leaving work on September 7, 1994, claimant secured a letter from Dr. Walker stating his physical restrictions, and gave it to his wife, who then gave it to employer. Thereafter, claimant did not return to work for employer and has not been gainfully employed since September 7, 1994, although employer continued to leave open for claimant its light duty position at claimant's usual pay rate. Claimant continued treatment with Dr. Walker until January 19, 1995, when Dr. Walker, noting a lack of effort or malingering with respect to claimant's functional capacities evaluation with non-physiological findings, opined in his report that surgery would not benefit claimant, that claimant would not progress under his care, and suggested that claimant be referred elsewhere for additional treatment. Dr. Walker maintained claimant on light duty restrictions for an additional month. Claimant thereafter filed a claim under the Act seeking permanent total disability compensation.
In his Decision and Order, the administrative law judge determined that the canal where claimant was injured was navigable water as it connected with an intercoastal waterway. Thus, as claimant's injury occurred on navigable waters while in the course of his employment, the administrative law judge found that claimant was covered under the Act. The administrative law judge next found that claimant reached maximum medical improvement on January 19, 1995, based on the report of Dr. Walker. Thereafter, the administrative law judge determined that employer established the availability of suitable alternate employment by virtue of its light duty position, discrediting claimant's testimony that he was required to perform tasks in excess of his physical requirements. Thus, the administrative law judge denied claimant's claim for permanent total disability compensation, and found that claimant was entitled to temporary total disability compensation from August 10, 1994, until January 19, 1995, based on an average weekly wage of $307.50. 33 U.S.C. §908(b). Lastly, the administrative law judge determined that claimant was not entitled to reimbursement for the treatment of Dr. Vogel, as claimant failed to seek authorization for this treatment. In addressing this issue, the administrative law judge determined that Dr. Walker's suggestion that claimant seek treatment elsewhere was not tantamount to a refusal to treat claimant. The administrative law judge did award claimant medical benefits under Section 7 of the Act, 33 U.S.C. §907, for all other future reasonable medical treatment.
In subsequent post-decision orders, the administrative law judge denied claimant's requests to submit additional exhibits into the record, and denied claimant's motion for reconsideration. Claimant's counsel filed a fee petition with the administrative law judge requesting a fee of $54, 000, representing 423.3 hours of services performed at an hourly rate of $125, plus $17, 416.18 in costs. In a Supplemental Decision and Order, the administrative law judge awarded claimant's counsel an attorney's fee of $3, 100, and $17, 079.18 in costs.
Claimant appeals the administrative law judge's Decision and Order and subsequent orders, and employer cross-appeals the administrative law judge's Decision and Order and the fee award in this matter. In his appeal, claimant challenges the administrative law judge's finding that employer's light duty position constituted suitable alternate employment, contending that the administrative law judge erred in relying on the testimony of Ms. Matherne and Mr. Guidry. In addition, claimant contends that the administrative law judge erred in finding that claimant reached maximum medical improvement on January 19, 1995, and in denying claimant reimbursement for the medical treatment provided by Dr. Vogel. Lastly, claimant asserts that the administrative law judge erred in failing to accept post-hearing exhibits into the record. Employer responds, urging affirmance of the administrative law judge's findings with respect to these issues.
In its cross-appeal, employer challenges the administrative law judge's finding that claimant is covered under the Act. Specifically, employer asserts that pursuant to the holding of the United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, in Bienvenu v. Texaco, Inc., 164 F.3d 901 (5th Cir. 1999)(en banc), claimant was only transiently and fortuitously on navigable waters at the time of his injury, and therefore, coverage should not be conferred in the instant case. In addition, employer contends that the administrative law judge erred in his calculation of claimant's average weekly wage. Lastly, employer contends that the administrative law judge's award of temporary total disability compensation should be reduced to reflect that claimant actually worked and received his usual pay rate from August 11, 1994, through September 7, 1994. Claimant responds, urging affirmance of the administrative law judge's finding that claimant is a covered employee under the Act, as well his findings with respect to average weekly wage and the temporary total disability award.
Claimant and employer have also appealed the administrative law judge's fee award. In his appeal, claimant challenges the administrative law judge's reductions in the attorney's fee petition. In its cross-appeal, employer asserts that the administrative law judge's reduced award of an attorney's fee is still excessive in light of the limited success achieved by claimant's counsel.
Inasmuch as the issues regarding coverage are fundamental to the disposition of the...
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