Goins v. Lake Charles Stevedores, Inc.
| Decision Date | 21 March 2012 |
| Docket Number | BRB 11-0477 |
| Parties | MICHAEL J. GOINS Claimant-Petitioner Cross-Respondent v. LAKE CHARLES STEVEDORES, INCORPORATED and PORTS INSURANCE COMPANY Employer/Carrier- Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order on Remand of Clement J. Kennington Administrative Law Judge, United States Department of Labor.
Michael J. Goins, Glenmora, Louisiana, pro se.
Alan G. Brackett and Robert N. Popich (Mouledoux, Bland, Legrand & Brackett, LLC), New Orleans, Louisiana, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant representing himself, appeals, and employer cross-appeals, the Decision and Order on Remand (2006-LHC-1976, 1977, 1978, and 1979) of Administrative Law Judge Clement J. Kennington rendered on claims filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). In an appeal by a claimant without legal representation, we will review the findings of fact and conclusions of law of the administrative law judge to determine 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). If they are, they must be affirmed. Id.
This case is on appeal for the third time. Claimant was involved in four separate accidents in the course of his work as a longshoreman, the last of which occurred on April 25, 2005, while he worked for employer. Following the April 25, 2005, incident, claimant stated he was no longer able to work due to pain. He sought compensation under the Act for injuries to his back, right shoulder, and right hip, as well as for “mental unrest” which he alleged was due to ll of the work incidents. He also alleged that the April 25, 2005, incident resulted in an aggravation of all of his prior work-related injuries.
In his decision dated May 8, 2007, the administrative law judge found claimant entitled to temporary total disability benefits for the periods of January 17 through February 28, 2001, August 14, 2001, through December 10, 2002, July 6 through September 21, 2004, and from April 25, 2005, through July 5, 2006, noting that claimant resumed full-duty work following each of these periods without a loss of pay or residual impairment except for the last period, at which time he found that claimant’s inability to work was due solely to his non-work-related mental impairment. The administrative law judge also found claimant entitled to, and employer liable for, all reasonable medical benefits arising out of the April 25, 2005, work-related injuries pursuant to Section 7(a) of the Act, 33 U.S.C. §907(a).
Claimant sought modification of the administrative law judge’s decisions pursuant to Section 22 of the Act, 33 U.S.C. §922. Employer filed a motion to compel an updated medical examination of claimant by Dr. Perry. The administrative law judge, by Decision and Order on Modification dated July 29, 2008, denied claimant’s request for modification and, furthermore, suspended payment of compensation pursuant to Section 7(d)(4) of the Act, 33 U.S.C. §907(d)(4), based on claimant’s unreasonable refusal to undergo an examination by Dr. Perry. Claimant appealed. In its decision, the Board reversed the administrative law judge’s finding that claimant’s psychological condition is not work-related, vacated his finding that claimant is not entitled to disability benefits as a result of the April 25, 2005, injury, and remanded the case for further consideration of claimant’s entitlement to disability and/or medical benefits for the period of claimant’s physical disability following that most recent accident, in conjunction with any evidence of disability due to claimant’s psychological condition. M.G. [Goins] v. Lake Charles Stevedores, BRB Nos. 07-0891, 08-0803 (Aug. 14, 2009) (unpub.), recon. denied (Nov. 9, 2009) (unpub. Order). The Board also instructed the administrative law judge to determine the period during which claimant’s benefits were suspended due to claimant’s unjustified and unreasonable refusal to see Dr. Perry. Id.
Following a hearing on remand, the administrative law judge found that claimant’s physical and mental problems combined to prevent him from performing any work as of the date of his last injury. He, therefore, awarded claimant permanent total disability benefits from April 25, 2005, to July 7, 2008, and then entered a continuing award of permanent total disability benefits from December 1, 2009, based on an average weekly wage of $389.70. [1] The administrative law judge also found employer liable for medical benefits relating to claimant’s visits with Dr. Bernauer, including claimant’s travel expenses to and from the physician’s office, as well as for claimant’s referral to a neurologist for further evaluation of his April 25, 2005, injury as recommended by Dr. Bernauer.
Claimant, without the assistance of counsel, appeals the administrative law judge’s decision on remand. BRB No. 11-0477. Employer responds, urging rejection of claimant’s contentions. In its cross-appeal, employer challenges the administrative law judge’s evidentiary findings relating to Dr. Bernauer and the introduction of claimant’s exhibits at the hearing on remand, as well as the administrative law judge’s award of permanent total disability and medical benefits. [2] BRB No. 11-0477A.
The Board, in its August 14, 2009, decision, affirmed the administrative law judge’s average weekly wage determinations, as well as the administrative law judge’s decision to suspend claimant’s compensation benefits during the period he unreasonably refused to be examined by Dr. Perry. Goins, Aug. 14, 2009, slip op. at 9-10. As the Board fully addressed these issues in its prior decisions, and there is no basis for finding that the law of the case doctrine should not apply, the Board’s holdings constitute the law of the case. See, e.g., Kirkpatrick v. B.B.I., Inc., 39 BRBS 69 (2005); Schaubert v. Omega Services Industries, 32 BRBS 233 (1998). Claimant’s contentions relating to these issues are therefore rejected, and the administrative law judge’s findings are affirmed.
As for the dates of the suspension of compensation benefits pursuant to Section 7(d)(4), at the hearing on remand the administrative law judge showed the parties his July 8, 2008, Order compelling claimant to attend an examination by Dr. Perry, followed by evidence of claimant’s immediate refusal to attend and his eventual compliance on November 30, 2009, when Dr. Perry examined claimant. HT at 8-9. The administrative law judge thus concluded that compensation benefits should be suspended for the period from July 8, 2008, to November 30, 2009. Decision and Order on Remand at 2. As this finding is supported by substantial evidence, it is affirmed. [3] B.C. [Casbon] v. Int’l Marine Terminals, 41 BRBS 101 (2007).
In its appeal, employer initially argues that the administrative law judge erred by allowing claimant to introduce exhibits at the remand hearing, and by thereafter ordering employer to obtain a narrative report from claimant’s treating physician, Dr. Bernauer, post-hearing and after the record was closed, without allowing it the opportunity to depose Dr. Bernauer for the purpose of clarifying inconsistencies in the physician’s three post-hearing reports. Employer contends that the administrative law judge’s actions relating to these reports violates 29 C.F.R. §§18.54, 18.55, which restrict the admission of evidence in a case once the record is closed and enable the opposing party the opportunity to respond to such evidence.
An administrative law judge has great discretion concerning the admission of evidence and any decisions regarding the admission or exclusion of evidence are reversible only if they are shown to be arbitrary, capricious, or an abuse of discretion. Burley v. Tidewater Temps, Inc., 35 BRBS 185 (2002); Cooper v. Offshore Pipelines Int’l, Inc., 33 BRBS 46 (1999). We reject employer’s reliance on the regulations at 29 C.F.R. §§18.54, 18.55, as the specific regulations promulgated under the Act, 20 C.F.R. §§702.338, 702.339, are applicable here. [4] 29 C.F.R. §18.1; Wayland v. Moore Dry Dock, 21 BRBS 177 (1988). Moreover, the administrative law judge has the discretion to admit post-hearing evidence. Wayland, 21 BRBS at 180; 20 C.F.R. §702.338. We also reject employer’s contention concerning the admission of claimant’s exhibits. At the December 14, 2010, remand hearing, employer raised the issue that, despite the administrative law judge’s pre-hearing directive to submit and exchange exhibits and witness lists, claimant did not identify any exhibits for introduction at the hearing. HT at 15. Nonetheless, employer stated that it would not object to claimant’s exhibit 1, id., and it also acceded to the submission of claimant’s exhibits 2 and 3 when the administrative law judge entered them into the record. [5] HT at 63, 69. Thus, employer’s concessions preclude its ability to now argue that this evidence should not have been admitted.
As for the post-hearing reports of Dr. Bernauer, the record establishes that employer likewise consented to the administrative law judge’s actions. In this case, the administrative law judge, after consideration of the post-hearing record, found “it necessary to inquire further into claimant’s physical status following the April 25, 2005, injury, ” from Dr. Bernauer because, as claimant’s treating physician, “he’s probably the most knowledgeable from a treatment standpoint.” Order dated December 20, 2010; TCT at 3. Rather than object, employer’s counsel responded “yes, sir, ” that “I...
To continue reading
Request your trial