Hidell v. Duwamish Shipyard, Inc.
| Decision Date | 31 May 2019 |
| Docket Number | 18-0564 |
| Court | Longshore Complaints Court of Appeals |
| Parties | JOHN HIDELL Claimant-Petitioner Cross-Respondent v. DUWAMISH SHIPYARD, INCORPORATED and SEABRIGHT INSURANCE COMPANY Employer/Carrier-Respondents Cross-Respondents DUWAMISH MARINE SERVICES, LLC and COMMERCE AND INDUSTRY INSURANCE COMPANY (AIG) Employer/Carrier-Respondents Cross-Petitioners DUWAMISH MARINE SERVICES, LLC and SEABRIGHT INSURANCE COMPANY (ENSTAR) |
UNPUBLISHED OPINION
Appeals of the Decision and Order Awarding Compensation and Benefits of Richard M. Clark, Administrative Law Judge United States Department of Labor.
Amie C. Peters and Amanda E. Peters (Blue Water Legal, PLLC) Edmonds, Washington, for claimant.
Raymond H. Warns, Jr., and Dana O'Day-Senior (Holmes, Weddle & Barcott, P.C.), Seattle, Washington, for Duwamish Shipyard, Incorporated and Seabright Insurance Company.
Michael J. Godfrey (Sather, Byerly & Holloway, LLP), Portland, Oregon, for Duwamish Marine Services, LLC, and Commerce and Industry Insurance Company (AIG).
Nina M. Mitchell (Nicoll Black & Feig), Seattle, Washington, for Duwamish Marine Services, LLC, and Seabright Insurance Company (Enstar).
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and GILLIGAN, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals, and Duwamish Marine Services and Commerce and Industry Insurance Company (DMS/AIG) cross-appeals, the Decision and Order Awarding Compensation and Benefits (2015-LHC-01883) of Administrative Law Judge Richard M. Clark rendered on a claim filed pursuant to 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 Duwamish Shipyard, Incorporated (DSI), from April 1980 to May 13, 2007. In March 2005, he injured his left knee during the course of his employment as a shipfitter foreman. He underwent a meniscectomy on September 2, 2005. Seabright Exhibit (SX) 11 at 180-181. DSI, and its insurer, Seabright Insurance Company (DSI/Seabright), paid claimant temporary total disability and permanent partial disability compensation and medical benefits. SX 1 at 2-4. He underwent a second meniscectomy on August 17, 2006, for which DSI/Seabright again accepted liability and paid compensation.[1] SX 1 at 5-7.
DSI went out of business on May 13, 2007. Tr. at 54. Claimant and a partner purchased some of the shipyard's assets and opened Duwamish Marine Services, LLC (DMS). DMS obtained coverage from AIG from May 14, 2007 to May 13, 2010, and again commencing May 14, 2013. DMS/AIG (AX) 1. Seabright Insurance Company (DMS/Seabright) provided coverage to DMS from May 14, 2010 to May 13, 2013. See Tr. at 38.
Claimant periodically saw Dr. Stickney after his 2006 knee surgery for effusion and discomfort. CX 1 at 40-51. On December 11, 2013, Dr. Stickney performed a total left knee replacement. Id. at 62-63. DSI/Seabright paid claimant compensation for temporary total disability from December 9, 2013 to March 30, 2014, and permanent partial disability for a 25 percent impairment of the left lower extremity. SX 1 at 9-11. On January 29, 2015, Dr. Stickney opined that claimant has a 50 percent permanent partial disability. CX 1 at 76-78. The parties disputed the extent of claimant's knee impairment. DSI also disputed its designation as the responsible employer/carrier and filed a motion to join DMS and its carriers to the case. By Order issued November 2, 2016, Administrative Law Judge Larsen joined DMS/Seabright and DMS/AIG to the claim. AX 4.
The issues before Administrative Law Judge Clark (the administrative law judge) were: the extent of claimant's left knee impairment, the date of maximum medical improvement, and the responsible employer/carrier. Decision and Order at 4. The administrative law judge found that claimant performed physical work as a co-owner of DMS and that the opinions of Drs. Stickney and Toomey establish he performed physical activities while AIG provided coverage after May 13, 2013, which aggravated his left knee condition and contributed to the need for surgery. Id. at 15. Accordingly, the administrative law judge found that DMS/AIG is the responsible employer/carrier based on the aggravation rule. Id. at 16.
The administrative law judge relied on Dr. Stickney's opinion to find claimant's left knee was at maximum medical improvement on August 25, 2014. Decision and Order at 17. However, he credited the impairment rating of Dr. Toomey to find that claimant has a 25 percent impairment of the left lower extremity. Id. at 18-19. The administrative law judge found DMS/AIG entitled to a credit for prior compensation paid by DSI/Seabright for a five percent permanent impairment. Id. at 21. He also determined that DSI/Seabright is entitled to reimbursement from DMS/AIG for its payments to claimant for the December 2013 surgery and resulting disability.[2] Id. at 22.
On appeal, claimant challenges the admission into evidence of Dr. Toomey's deposition and the administrative law judge's finding that he has a 25 percent left knee impairment. BRB No. 18-0564. DSI/Seabright and DMS/AIG respond that these determinations should be affirmed. Claimant filed a reply brief. DMS/AIG cross-appeals the administrative law judge's findings that it is the responsible employer/carrier and that it must reimburse DSI/Seabright for the compensation and medical benefits paid commencing in December 2013. BRB No. 18-0564A. Claimant, DSI/Seabright and DMS/Seabright filed response briefs, urging affirmance. DMS/AIG filed a reply to DSI/Seabright's response. DSI/Seabright filed a brief in agreement with claimant's response brief.
Claimant argues that Dr. Toomey's August 11, 2016 deposition was improperly admitted into evidence at the formal hearing. He contends the deposition was taken solely for purposes of discovery and admission of the deposition denied him an opportunity to fully cross-examine Dr. Toomey about new evidence presented to him at the deposition and other evidence later obtained through discovery. Claimant asserts that this is prejudicial error because DSI's counsel had previously indicated that Dr. Toomey would testify at the hearing and then was unavailable to do so.
Dr Toomey examined claimant on behalf of DSI on December 23, 2014. SX 6. He was deposed at claimant's request on August 11, 2016. SX 8. The parties' attorneys discussed at the hearing claimant's motion to exclude Dr. Toomey's deposition based on his unavailability to appear at the hearing. Tr. at 16-21. In his decision, the administrative law judge found that claimant was not prejudiced by the admission of Dr. Toomey's deposition because claimant's counsel had the opportunity to question Dr. Toomey at the deposition. Moreover, he found that claimant had eight months after the August 2016 deposition to conduct further discovery related to information obtained at Dr. Toomey's deposition, including time after DMS was joined to the case. Thus, he denied the motion to exclude the deposition. Decision and Order at 3.
We reject claimant's contention of error. An administrative law judge has great discretion concerning the admission or exclusion of evidence and any such decisions are reversible only if the challenging party shows them to be arbitrary, capricious, based on an abuse of discretion or contrary to law. See, e.g., Collins v. Elec. Boat Corp., 45 BRBS 79 (2011); Patterson v. Omniplex World Services, 36 BRBS 149 (2003); Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999). Section 23(a) of the Act provides:
In making an investigation or inquiry or conducting a hearing the [administrative law judge] shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties.
33 U.S.C. §923(a); see 20 C.F.R. §702.339; see also 33 U.S.C. §919(d); 20 C.F.R. §702.338 ().[3] The right to procedural due process in an administrative proceeding encompasses a party's "meaningful opportunity to present [its] case." Mathews v. Eldridge, 424 U.S. 319, 349 (1976); see also Goldberg v. Kelly, 397 U.S. 254 (1970).
Claimant has not established that he was denied due process of law or that the administrative law judge abused his discretion in admitting Dr. Toomey's deposition. Claimant examined Dr. Toomey at his deposition after he authored his medical report. Dr. Toomey did not provide any additional evidence in this case. Thus, claimant was afforded all process that was legally due. Richardson v. Perales, 402 U.S. 389 (1971). In addition, claimant had ample opportunity to conduct further discovery before the hearing. See G.K. [Kunihiro] v. Matson Terminals, Inc., 42 BRBS 15 (2008), aff'd mem. sub nom. Director, OWCP v. Matson Terminals, Inc., 442 Fed.Appx. 304 (9th Cir. 2011). Moreover, Dr. Toomey's opinion clearly is "relevant evidence" and thus was properly admitted in the absence of a due process violation. See Casey v. Georgetown Univ. Med. Ctr., 31 BRBS 147 (1997). Therefore, we affirm the administrative law judge's denial of claimant's motion to exclude Dr. Toomey's deposition.[4]
Claimant also challenges the finding that he has a 25 percent impairment of the...
To continue reading
Request your trial