Garrett v. Dyncorp International, BRB 20-0167

Decision Date28 April 2021
Docket NumberBRB 20-0167
PartiesJELANI A. GARRETT Claimant-Petitioner v. DYNCORP INTERNATIONAL and ALLIED WORLD NATIONAL ASSURANCE COMPANY Employer/Carrier-Respondents INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA (AIG)Carrier/Respondent
CourtCourt of Appeals of Longshore Complaints

JELANI A. GARRETT Claimant-Petitioner
v.

DYNCORP INTERNATIONAL

and ALLIED WORLD NATIONAL ASSURANCE COMPANY Employer/Carrier-Respondents INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA (AIG)Carrier/Respondent

BRB No. 20-0167

Court of Appeals of Longshore

April 28, 2021


UNPUBLISHED OPINION

Appeal of the Preliminary Findings, Final Decision and Order, Decision and Order on Reconsideration, and Decision on Claimant's Motion for Reconsideration of Patrick M. Rosenow, Administrative Law Judge, United States Department of Labor.

Jelani Garrett, Austin, Texas.

Richard L. Garelick (Flicker, Garelick & Associates, LLP), New York, New York, for Employer/Allied World National Assurance Company.

Limor BenMaier and Bobbi Roquemore (Schouest, Bambas, Soshea & BenMaier, P.L.L.C.), Houston, Texas, for Employer/AIG.

Before: BUZZARD, ROLFE and JONES, Administrative Appeals Judges.

DECISION AND ORDER

BUZZARD, ADMINISTRATIVE APPEALS JUDGE

Claimant, appearing without legal representation, appeals Administrative Law Judge Patrick M. Rosenow's Preliminary Findings, Final Decision and Order, Decision and Order on Reconsideration, and Decision on Claimant's Motion for Reconsideration (2016-LDA-00184, 2017-LDA-00040, 2017-LDA-00041) rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (Act). In an appeal by a claimant without representation by counsel, the Board reviews the administrative law judge's decision to determine if the findings of fact and conclusions of law are rational, supported by substantial evidence, and in accordance with applicable law. If they are, they must be affirmed. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant began working in Afghanistan in 2005 for KBR as a warehouseman and subsequently became a logistics coordinator. July 6, 2016 Hearing Transcript (Tr. 2) at 32. In December 2009, he continued in essentially the same position for Dyncorp International (Employer). Id. at 37-38. Claimant alleged he sustained a work-related shoulder injury in June 2010, but continued to work full duty. SCX 3[1] at 5-6; AIGX 19 at 9-10. He asserted he injured his right calf on November 20, 2010, but lost no time from work. SCXs 1 at 10, 3 at 4. AIG was Employer's insurance carrier when Claimant sustained these two injuries. Claimant stopped working for Employer on December 4, 2014. Tr. 2 at 43. Allied World Assurance Company (AWAC) provided Employer's insurance coverage as of July 1, 2014. Claimant subsequently filed a claim for cumulative trauma injuries to his neck, shoulders and back, pulmonary and nasal injuries, tinnitus, eosinophilic esophagitis, and post-traumatic stress disorder (PTSD), for which he asserted AWAC is the responsible carrier. SCX 3.

Prior to the hearing, AWAC and Claimant stipulated he sustained work-related PTSD and nasal and pulmonary conditions, and he is unable to return to his usual work due to PTSD.[2] JX 1. In his initial decision, entitled "Preliminary Findings," the administrative law judge denied the claims for work-related tinnitus and eosinophilic esophagitis. Preliminary Findings at 41-42. He determined Claimant established a work-related calf injury with a two percent impairment of the lower right extremity, but AIG is not liable for disability compensation because Claimant failed to timely file a claim for this injury. See 33 U.S.C. §913; Preliminary Findings at 42. The administrative law judge found Claimant established bilateral shoulder injuries from repetitive activity for which AWAC is the responsible carrier. Id. at 43-44. He determined Claimant did not establish work-related spinal injuries because the evidence is in equipoise regarding their relation to his employment. Id. at 45-46.

The administrative law judge determined Claimant's deployment-related lung disease rendered him disabled as of August 18, 2015, as he is unable to work in austere environments with inhalation exposures, and that this lung condition is not at maximum medical improvement.[3] Final Decision and Order at 7. He rejected Claimant's contention that he has been totally disabled by PTSD from his last day of work in Afghanistan on December 4, 2014, and instead accepted AWAC's stipulation that Claimant became unable to return to work in Afghanistan due to PTSD as of February 23, 2015. The administrative law judge determined the jobs Employer identified in the United States establish the availability of suitable alternate employment as of October 18, 2017, and that Claimant did not show a diligent effort to secure alternate work. Preliminary Findings at 48-50. He directed the parties to submit briefs addressing the extent of Employer's liability for medical benefits. Id. at 51-52.

In his Final Decision and Order, the administrative law judge ordered AWAC to pay Claimant temporary total disability compensation, based on an average weekly wage of $1, 789.48, from February 23, 2015 to October 17, 2017. Final Decision and Order at 7. He awarded Claimant compensation for temporary partial disability, 33 U.S.C. §908(e), based on a loss in wage-earning capacity commencing on October 18, 2017. Id. at 2-3, 8. He awarded Claimant some medical benefits and travel expenses for his work-related injuries. Id. at 4-7. He determined, however, Claimant failed to show surgical treatment for his nasal injury is reasonable and necessary. Id. at 5. He also rejected Claimant's assertion that he is entitled to reimbursement of $15, 981.32 for private health insurance premiums and $10, 810.80 for travel expenses to Denver, Colorado, for medical treatment.[4]Id. at 6-7.

Claimant appeals the administrative law judge's decision. AIG and AWAC filed response briefs urging affirmance in all respects. Claimant filed two reply briefs.[5]

SECTION 13

Claimant challenges the administrative law judge's denial of compensation for his work-related right calf injury because the claim was not timely filed. Claimant injured his right calf on November 20, 2010, while AIG was on the risk. Preliminary Findings at 42. He immediately received treatment from medics at the Kandahar Military Base (Kandahar); he was also examined on November 25, 2010, at the Canadian Specialists Hospital for "severe swelling" and was diagnosed with a calf sprain based on an MRI. December 8, 2017 Hearing Transcript (Tr. 1) at 64; SCX 1 at 10-13.

Claimant did not miss any time from work beyond the day of the injury but the injury occasionally caused him pain. Preliminary Findings at 42; Tr. 1 at 66-68. He did not have the injury examined when he returned to the United States but "popped it a couple of times" after his return; it still gives him problems and flares up periodically. Tr. 1 at 33-35. In July and August 2016, Claimant was evaluated at Orthopedic Specialists of Austin, Texas, and diagnosed with a chronic calf tear with intermittent flares from increased physical activity. Id. at 32. In October 2016, Dr. William Lawson examined Claimant's calf and opined he sustained a seven percent impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) and the injury reached maximum medical improvement two years after the accident. SCX 1 at 165, 167. In February 2017, Dr. Terry Beal examined Claimant's calf and opined he sustained a two percent impairment and reached maximum medical improvement six weeks after the accident.

The administrative law judge found Claimant should have been aware of the effect of his calf injury on his wage-earning capacity as of January 1, 2011, based on Dr. Beal's opinion it would have reached maximum medical improvement by then. Preliminary Findings at 43. Because Claimant did not filed his claim until September 21, 2015, SCX 3 at 4, the administrative law judge denied it as untimely.[6] See 33 U.S.C. §913(a); Preliminary Findings at 43.

Section 13(a) of the Act provides a claimant with one year to file a claim for compensation after he becomes aware, or with the exercise of reasonable diligence should be aware, of the relationship between his traumatic injury and his employment. 33 U.S.C. §913(a). Following the decision of the United States Court of Appeals for the District of Columbia Circuit in Stancil v. Massey, 436 F.2d 274 (D.C. Cir. 1970), the courts of appeals have held that the statute of limitations begins to run only after the employee becomes aware or reasonably should have been aware of the full character, extent, and impact of the injury. Dyncorp Int'l v. Director, OWCP [Mechler], 658 F.3d 133, 45 BRBS 61(CRT) (2d Cir. 2011); Paducah Marine Ways v. Thompson, 82 F.3d 130, 30 BRBS 33(CRT) (6th Cir. 1996); Duluth, Missabe & Iron Range Ry. Co. v. Director, OWCP [Heskin], 43 F.3d 1206 (8th Cir. 1994); Abel v. Director, OWCP, 932 F.2d 819, 24 BRBS 130(CRT) (9th Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 24 BRBS 98(CRT) (4th Cir. 1991); Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22(CRT) (11th Cir. 1990); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 6 BRBS 100(CRT) (5th Cir. 1984); see Suarez v. Serv. Employees Int'l, Inc., 50 BRBS 33 (2016).

The mere diagnosis of a work-related condition and treatment therefor does not commence the running of the statute of limitations. Paducah Marine Ways, 82 F.3d 130, 30 BRBS 33(CRT); Parker, 935 F.2d 20, 24 BRBS 98(CRT); E.M. [Mechler] v. Dyncorp Int'l, 42 BRBS 73 (2008), aff'd sub nom. Dyncorp Int'l, 658 F.3d 133, 45 BRBS 61(CRT). Furthermore, in the absence of substantial evidence to the contrary, Section 20(b) of the Act, 33 U.S.C. §920(b), presumes the claim was timely filed. Steed v. Container Stevedoring Co., 25 BRBS 210 (1991).

The administrative law judge's finding Claimant should have been aware of the full nature and extent of his...

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