Grenz v. Cascade General, Inc.
| Decision Date | 18 February 2005 |
| Docket Number | BRB 04-0550 |
| Parties | DARRELL R. GRENZ Claimant-Petitioner v. CASCADE GENERAL, INCORPORATED and LIBERTY NORTHWEST INSURANCE CORPORATION Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Gerald Michael Etchingham Administrative Law Judge, United States Department of Labor.
George J. Wall (Welch, Bruun & Green), Portland, Oregon, for claimant.
Gene L. Platt, Newberg, Oregon, and Ronald W. Atwood, Portland Oregon, for employer/carrier.
Before: SMITH, McGRANERY and BOGGS, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order (2003-LHC-0127) of Administrative Law Judge Gerald Michael Etchingham 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).
The facts of this case are not in dispute. In 1986 and 1987, claimant underwent surgical releases to resolve bilateral chondromalacia of the right and left knees. He continued to suffer some symptoms, but he returned to work and did not see his doctor for this condition after 1989. Decision and Order at 4-5; Cl. Exs. 2-11. While working for employer in late May 2000, claimant suffered a slag burn on his right thigh, three or four inches above the knee. He continued to work, but the injury became infected, and he was hospitalized from June 10 through June 15, 2000. Thereafter, claimant performed some light-duty work between July 12, 2000, and January 9, 2001, when the light-duty program was abolished. Decision and Order at 5; Emp. Exs. 2-6, 5A; Tr. at 23-24. Employer paid disability and medical benefits for this injury until May 18, 2001, when it controverted the claim and terminated benefits based on a doctor’s report stating that claimant’s work-related burn condition had resolved. Emp. Exs. 9A, 10, 17A. Claimant filed a claim for continuing temporary total disability and medical benefits from May 18, 2001, through August 29, 2002, the date claimant contends he was released to return to his usual work. Additionally, claimant filed a discrimination claim, contending employer violated Section 49 of the Act, 33 U.S.C. §948a, because it improperly dropped claimant from its seniority list. As of the date of the hearing, claimant had returned to work with a different employer.
The administrative law judge found that claimant is not entitled to additional disability or medical benefits because after May 18, 2001, there is no causal connection between his May 2000 slag burn and his right knee condition. Decision and Order at 17. Additionally, he rejected claimant’s contention that employer violated Section 49 by treating claimant in a discriminatory manner. Therefore, he denied claimant’s claim for reinstatement and back pay. Id. at 19-20. Claimant appeals the denial of benefits and back pay. Employer responds, urging affirmance.
Claimant first contends the administrative law judge erred in denying additional benefits after May 18, 2001. He argues that his knee pain after that date was related to his slag burn and that the administrative law judge erred in not accepting the opinion of Dr. Noall, claimant’s treating orthopedist, over those of the examining doctors. In this same vein, claimant argues that the administrative law judge erred in allowing employer to submit the post-hearing report of Dr. Schilperoot, as claimant was not permitted to cross-examine the doctor and this violated his due process rights. We reject claimant’s arguments, and we affirm the administrative law judge’s denial of claimant’s request for benefits after May 18, 2001.
In determining whether a disability is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked only after he establishes a prima facie case. To establish a prima facie case, the claimant must show that he sustained a harm or pain and that conditions existed or an accident occurred at his place of employment which could have caused the harm or pain. Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir.1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981); see also U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982). Once the claimant establishes a prima facie case, Section 20(a) applies to relate the injury to the employment, and the employer can rebut this presumption by producing substantial evidence that the injury was not related to the employment. Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); see also American Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999) (en banc), cert. denied, 528 U.S. 1187 (2000). Where aggravation of a pre-existing condition is at issue, the employer must establish that the work events neither directly caused the injury nor aggravated the pre-existing condition, resulting in the injury. Conoco, 194 F.3d 684, 33 BRBS 187(CRT). Under the aggravation rule, if a work-related injury contributes to, combines with, or aggravates a pre-existing condition, the entire resultant condition is compensable. Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc); Independent Stevedore Co. v. O’Leary, 357 F.2d 812 (9th Cir. 1966); Kubin v. Pro-Football, Inc. 29 BRBS 117 (1995). If the employer rebuts the presumption, it no longer controls and the issue of causation must be resolved on the evidence of record as a whole, with the claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
The administrative law judge found that claimant failed to establish a prima facie case. However, he alternatively found that if the presumption is invoked, it has been rebutted, and the presumption falls out of the case, requiring a determination on the evidence as a whole. Decision and Order at 15-16. On the evidence as a whole, the administrative law judge stated that he credited the opinions of Drs. Noall, Fuller, Vessely and Schilperoot to determine that claimant’s burn condition resolved and that any post-May 18, 2001, knee pain or disability is not related to the burn injury. Decision and Order at 17. Claimant does not contest the finding that employer rebutted the Section 20(a) presumption; therefore, only the administrative law judge’s weighing of the evidence is at issue before us, and the record contains substantial evidence to support his conclusion that claimant is not entitled to additional benefits.
Initially we reject claimant’s argument that the administrative law judge should have given controlling weight to the opinion of claimant’s treating physician, Dr. Noall, as expressed in a June 19, 2003, letter, based on his long-term relationship with claimant. An administrative law judge may give “special weight” to a treating physician’s opinion when there are conflicting opinions regarding the course of treatment and no doctor states that the course chosen by the claimant and his physician is unnecessary or unreasonable. Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480, 32 BRBS 144(CRT) (9th Cir. 1999), cert. denied, 528 U.S. 809 (1999); see also Pietrunti v. Director, OWCP, 119 F.3d 1035, 31 BRBS 84(CRT) (2 d Cir. 1997) (when a treating physician’s opinion is uncontradicted, the administrative law judge cannot substitute his own opinion). The issue herein, however, is whether claimant’s injury continued to cause him problems, not whether the course of his treatment was reasonable, and it is well-settled that the administrative law judge may determine how to credit and weigh the evidence of record. Lennon v. Waterfront Transport, 20 F.3d 658, 28 BRBS 22(CRT) (5th Cir. 1994); Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2 d Cir. 1961); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969). The June 19, 2003, letter, which was merely a letter typed by claimant’s counsel summarizing a conversation about Dr. Noall’s medical opinions regarding claimant’s condition on which Dr. Noall indicated whether he agreed or disagreed by marking a box, Cl. Ex. 17, does not reflect the opinion expressed in Dr. Noall’s previous reports and notes, and it contradicts other medical evidence of record. The administrative law judge found that this “check-the-box” response was “unreliable[,]” and he rejected the opinion expressed therein as “unsupported by objective medical evidence....” Decision and Order at 14. In his previous notes and reports, Dr. Noall consistently stated that the primary problem with claimant’s right knee was the scarring that developed as a result of the earlier, release surgery. Emp. Exs. 11A, 13A, 15A, 23A. While he stated that the slag burn temporarily deconditioned the muscle and caused some symptoms to develop, he clearly stated in his February 2003 statement that the burn did not result in a lasting sequela and that there was no relationship between the burn and claimant’s current complaints. Emp. Ex. 23A. The difference between the reported opinions and the checkbox summary letter is that the word “temporary” is...
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