Harris-Smallwood v. Newport News Shipbuilding and Dry Dock Co.

• Decision Date: 03 April 2002
• Docket Number: BRB 01-0566
• Parties: SHEILA HARRIS-SMALLWOOD, Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent
• Court: Longshore Complaints Court of Appeals

SHEILA HARRIS-SMALLWOOD, Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 01-0566

April 3, 2002

UNPUBLISHED OPINION

Appeal of the Decision and Order Granting Permanent Partial Disability and Denying Section 8(f) Relief of Richard K Malamphy, Administrative Law Judge, United States Department of Labor.

Robert E. Walsh (Rutter, Walsh, Mills & Rutter, L.L.P.) Norfolk, Virginia, for claimant.

Jonathan H. Walker (Mason, Cowardin & Mason, P.C.), Newport News, Virginia, for self-insured employer.

Joshua T. Gillelan II (Eugene Scalia, Solicitor of Labor; Carol A. DeDeo, Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM:

Employer appeals the Decision and Order Granting Permanent Partial Disability and Denying Section 8(f) Relief (98-LHC-1315) of Administrative Law Judge Richard K. Malamphy 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 supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

This appeal involves a claim by claimant who alleged she sustained a left shoulder injury, culminating in October 1995, as a result of her employment as a sewing operator at employer's sail loft. Prior to October 1995, claimant sustained work-related injuries to her left hand in 1988, her right leg in 1990, and her right hand and wrist in 1991. An MRI of claimant's left shoulder taken on October 2, 1995, was interpreted as showing degenerative tendonopathy/chronic tendinitis, evidence of impingement, partial tearing of the rotator cuff, and associated degenerative joint disease. Claimant continued working as a sewing operator until June 1998, when she was laid off by employer. She obtained work as a counter person at a dry cleaners in March 1999. Claimant filed her claim for compensation under the Act for her left shoulder condition on May 18, 1999.

In his decision, the administrative law judge found that, assuming notice of the injury was not properly provided, employer had knowledge of claimant's shoulder injury in late 1995, and that there was no resulting prejudice to employer. 33 U.S.C. §912(a), (d). The administrative law judge found that the claim filed in May 1999 was timely because claimant filed within one year after she was laid off by employer in June 1998, when the administrative law judge found that claimant became aware that her shoulder impairment could affect her wage-earning capacity. 33 U.S.C. §913(a). The administrative law judge found that claimant was entitled to the Section 20(a) presumption, 33 U.S.C. §920(a), linking her shoulder condition to her employment, that employer proffered substantial evidence to rebut the presumption, and that, based on the record as a whole, claimant sustained a work-related shoulder injury. The administrative law judge found claimant entitled to compensation for permanent partial disability, 33 U.S.C. §908(c)(21), (h), based on the difference between her wages for employer and the wages paid by her dry cleaning job. Finally, the administrative law judge denied employer's request for Section 8(f) relief from continuing compensation liability. 33 U.S.C. §908(f).

On appeal, employer contends that the administrative law judge erred in finding that the claim is not barred under Section 13, in finding that employer was aware in late 1995 that claimant's shoulder condition may be related to her employment, and, alternatively, in finding that employer was not prejudiced by any failure by claimant to provide timely notice of her injury under Section 12. Employer also asserts that the administrative law judge erred by finding the Section 20(a) presumption invoked, and by concluding that claimant's shoulder condition is related to her employment based on the record as a whole. Finally, employer challenges the administrative law judge's finding that claimant's shoulder condition caused additional permanent disability that prevented her from performing her usual employment, and the administrative law judge's denial of Section 8(f) relief. Claimant responds, urging affirmance of the administrative law judge's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds, urging affirmance of the administrative law judge's decision in all respects, including the denial of Section 8(f) relief.

In the absence of substantial evidence to the contrary, Section 20(b) of the Act, 33 U.S.C. §920(b), presumes that the notice of injury and the filing of the claim were timely. See Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989). With regard to Section 12(d), the administrative law judge credited the medical records of claimant's initial treating physician, Dr. Kline, and found that claimant and employer were aware in late 1995 that claimant's shoulder condition was related to her employment.^[1] The administrative law judge also found that employer had knowledge of claimant's injury on October 1, 1995, based on employer's statement to that effect in its October 29, 1999, Notice of Controversion. EX 34. Alternatively, the administrative law judge found employer was not prejudiced by claimant's failure to provide formal notice of her injury. With regard to Section 13, the administrative law judge found that claimant was, or should have been, aware of the relationship between her employment, her shoulder condition and her disability no later than June 15, 1998, when she was laid off by employer. Thus, he found that claimant's claim, filed on May 18, 1999, was timely under Section 13(a).

Claimant's failure to give employer timely notice of her injury pursuant to Section 12 of the Act is excused if employer had knowledge of the injury or if employer was not prejudiced by the failure to give proper notice. 33 U.S.C. §912(d)(1), (2). Prejudice under Section 12(d)(2) is established where employer provides substantial evidence that due to claimant's failure to provide timely written notice, it was unable to effectively investigate the claim in order to determine the nature and extent of the illness or to provide medical services. A conclusory allegation of prejudice or of an inability to investigate the claim when it was fresh is insufficient to meet employer's burden of proof. See Kashuba v. Legion Ins. Co., 139 F.3d 1273, 32 BRBS 62(CRT) (9^th Cir. 1998), cert. denied, 525 U.S. 1102 (1999); ITO Corp. v. Director, OWCP [Aples], 883 F.2d 422, 22 BRBS 126(CRT) (5^th Cir. 1989); Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990).

In this case, employer asserts prejudice based on claimant's lack of memory and conflicting testimony as to the identity of her supervisor in October 1995 and the nature of her job duties. Employer's allegation of prejudice based on claimant's alleged lack of memory is insufficient to meet its burden in this case, as the administrative law judge credited employer's evidence that claimant was supervised during 1995 by Douglas Quinn. See Decision and Order at 6, 13. Moreover, the conflicting testimony of claimant and Mr. Quinn regarding claimant's job duties during 1995 is insufficient to show prejudice, as employer has failed to show that it was unable to effectively investigate the injury or to provide medical services.^[2] See Strachan Shipping Co. v. Davis, 571 F.2d 968, 8 BRBS 161 (5^th Cir. 1978); Boyd v. Ceres Terminals, 30 BRBS 218 (1997). Consequently, we reject employer's assertions, and we affirm the administrative law judge's determination that employer was not prejudiced due to any failure by claimant to provide timely notice.^[3] Bustillo v. Southwest Marine, Inc., 33 BRBS 15 (1999).

We next address employer's contention that the claim for benefits was not filed in a timely manner pursuant to Section 13. Employer contends that evidence showing claimant was excused from work for approximately eleven days due to her shoulder condition by Dr. Kline between September 27, 1995, and October 30, 1995, and for two days by Dr. Mein in May 1996, establishes that claimant was aware that her shoulder condition might affect her wage-earning capacity prior to her being laid off by employer in June 1998.

Section 13(a) of the Act provides a claimant with one year after she becomes aware, or with the exercise of reasonable diligence should be aware, of the relationship between her traumatic injury and her employment within which she may file a claim for compensation for the injury. 33 U.S.C. §913(a). In Stancil v. Massey, 436 F.2d 274 (D.C. Cir. 1970) the United States Court of Appeals for the District of Columbia Circuit held that the one-year limitations period does not commence to run until the employee reasonably believes that he has "suffered a work-related harm which would probably diminish his capacity to earn his living." Stancil, 436 F.2d at 279. Following Stancil, the United States Court of Appeals for the Fourth Circuit, in whose jurisdiction this case arises, held that the limitations period in cases of traumatic injury does not commence until the employee knows or should know of the likely impairment of her earning capacity. Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 24 BRBS 98(CRT) (4^th Cir. 1...