Garcia v. National Steel and Shipbuilding Co.
| Decision Date | 31 August 2016 |
| Docket Number | 15-0441A,BRB 15-0441 |
| Parties | JOSE J. GARCIA 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 |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order Awarding Benefits of William Dorsey, Administrative Law Judge, United States Department of Labor.
Jeffrey Winter and Kim Ellis, San Diego, California, for claimant.
Barry W. Ponticello and Renee C. St. Clair (England, Ponticello & St. Clair), San Diego, California, for self-insured employer.
Ann Marie Scarpino (M. Patricia Smith, Solicitor of Labor; Maia Fisher, Acting 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, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals and claimant cross-appeals the Decision and Order Awarding Benefits (2011-LHC-02075, 2011-LHC-02076 2011-LHC-02077, 2011-LHC-02078) of Administrative Law Judge William Dorsey 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).
Claimant worked for employer from 1974 to 2006 as a welder. Claimant sustained injuries to his back, both knees, and both shoulders working for employer between 2002 and 2006.[1] Due to his injuries, claimant worked in a light-duty capacity with employer from July 26, 2005 through December 1, 2006, when he was let go because light-duty work was no longer available. Claimant began a vocational program approved by the Department of Labor on December 14, 2006, which was suspended between March 30 and November 19, 2007, due to claimant's left shoulder surgery and recovery therefrom. Claimant resumed his program from November 19, 2007, through April 12, 2008, and he obtained a security guard job with Allied Barton on May 1, 2008. However, due to the deterioration of his left knee condition and the need for surgery, claimant left Allied Barton on September 15, 2008.[2] Claimant did not work again until he secured a part-time position with World Private Security (WPS) on April 2, 2010. However, claimant quit this job on April 17, 2010, due to back and knee pain, and he has not worked since. Claimant filed claims for his various injuries. See n.1, supra.[3]
Before the administrative law judge, the parties disputed a number of issues: employer's liability for additional compensation and medical benefits for claimant's 2002 right and left knee injuries; whether the 2006 left shoulder injury was a “new” injury or “sprang” from the 2004 right shoulder injury; the availability of suitable alternate employment; claimant's entitlement to total disability benefits during his vocational program; and, employer's entitlement to Section 8(f), 33 U.S.C. §908(f), relief.[4] In response to an argument employer raised in opposition to claimant's claim for additional benefits for his left knee injury, the administrative law judge interpreted claimant's claim for additional benefits for his 2002 knee injuries as a Section 22, 33 U.S.C. §922, motion for modification of the 2006 Compensation Order. See n.3, supra. The administrative law judge found that the 2002 claim for a cumulative trauma injury to the left knee could not be modified under Section 22 because the final payment under that order would have been made over one year prior to claimant's new claim. Nevertheless, the administrative law judge awarded claimant temporary total disability benefits for his left knee injury following the 2008 surgery. Decision and Order at 17, 54. Further, although the administrative law judge found that claimant's claim for a specific right knee injury on October 2, 2002, remained open because it had not been addressed in the district director's 2006 order, he found that employer had fully compensated claimant for the ten percent impairment to his right leg due to a cumulative injury as a result of work up to October 9, 2002, such that claimant is not entitled to additional compensation under the schedule for his right knee. Id. at 18, 22. The administrative law judge also found that claimant's September 2006 left shoulder injury was a separate injury caused by cumulative trauma while working for employer, rather than an extension of claimant's 2004 right shoulder injury.[5] Decision and Order at 15.
As the parties agreed that claimant's back and shoulder injuries prevent him from returning to his usual work with employer, and as employer no longer had light-duty work available for claimant as of December 2, 2006, the administrative law judge found claimant established a prima facie case of total disability as of that date. Decision and Order at 3, 22, 36-37, 55, 58. Although the administrative law judge acknowledged that employer established the availability of suitable alternate employment during all periods claimant was unemployed and capable of working (December 2, 2006 - March 2007; September 11, 2007 - April 30, 2008; March 2, 2009 - April 1, 2010; and April 18, 2010, onward), id. at 37, the administrative law judge awarded claimant total disability benefits for the entire period between December 2, 2006 and April 1, 2010. Concluding that claimant did not diligently search for employment after he left his job with WPS on April 17, 2010, and as all of claimant's work injuries had reached maximum medical improvement, the administrative law judge found claimant was permanently partially disabled as of this date.
Thus, the administrative law judge awarded claimant temporary total disability benefits from January 31, 2003 through March 20, 2004, for claimant's right knee surgeries and recovery periods; from August 17, 2004 to July 25, 2005, and from January 5 to July 31, 2006, for claimant's back and right shoulder injuries; and from September 15, 2008 through March 1, 2009, for claimant's left knee surgery and recovery period. Decision and Order at 57-58. The administrative law judge awarded claimant permanent total disability benefits from December 2, 2006, the date light-duty work with employer ended, through April 30, 2008, the day before claimant began work with Allied Barton; and from March 2, 2009, the date Dr. Bernicker placed claimant's left knee at maximum medical improvement, through April 1, 2010, when claimant began work with WPS. Additionally, the administrative law judge awarded claimant permanent partial disability benefits from April 18, 2010, onward for a loss in wage-earning capacity due to his unscheduled injuries.[6] Id. at 57-60. Lastly, the administrative law judge denied employer's request for Section 8(f) relief. Id. at 37-57.
Employer appeals the administrative law judge's award of benefits on various grounds and his denial of Section 8(f) relief. Claimant responds, urging the Board to reject employer's arguments. The Director, Office of Workers' Compensation Programs (the Director), responds, urging affirmance of the denial of Section 8(f) relief. Employer filed a reply brief. BRB No. 15-0441. Claimant cross-appeals the decision, asserting the administrative law judge erred in finding the Section 22 statute of limitations applies to his left knee claim and in failing to account for inflation in awarding ongoing permanent partial disability benefits. Employer responds, urging the Board to reject claimant's arguments. Claimant filed a reply brief. BRB No. 15-0441A.
Employer contends the administrative law judge erred in awarding additional benefits following the 2008 surgery for claimant's 2002 left knee injury in view of the administrative law judge's finding that the claim is barred by Section 22.[7] Employer asserts that it made its final payment pursuant to the September 2006 Compensation Order on September 21, 2006, and that claimant's “motion for modification” for additional left knee benefits is untimely. Claimant contends on cross-appeal that the administrative law judge erred in finding his “request for modification” untimely.[8]
The administrative law judge found that the only left knee claim before him was claimant's claim for a cumulative trauma injury through October 9, 2002 (OWCP No. 18-79299), which was resolved by the September 2006 Compensation Order. He concluded that the claim constituted a motion for modification and that it was untimely filed because benefits pursuant to the Compensation Order were paid in 2006 and the claim was not filed until 2010. Decision and Order at 16-17. Despite finding claimant's request untimely, however, the administrative law judge awarded claimant additional temporary total disability benefits for the period of claimant's 2008 left knee surgery and recovery. Id. at 57-58.
Section 22 of the Act provides in relevant part:
Upon his own initiative, or upon the application of any party in interest... on the ground of a change in conditions or because of a mistake in a determination of fact by the [administrative law judge], the [administrative law judge] may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case and in accordance with such section...
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