Hill v. Gulf Coast Fabrications
| Decision Date | 10 January 2006 |
| Docket Number | BRB 04-0396,04-0396A |
| Parties | KEVIN HILL Claimant-Respondent Cross-Petitioner v. GULF COAST FABRICATIONS and RELIANCE NATIONAL INSURANCE COMPANY c/o MISSISSIPPI INSURANCE GUARANTY ASSOCIATION Employer/Carrier- Petitioners Cross-Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Decision and Order, Decision and Order on Section 22 Modification, and Supplemental Decision and Order Awarding Attorney’s Fee of Lee J. Romero, Jr., Administrative Law Judge, United States Department of Labor.
Tommy Dulin (Dulin and Dulin, LTD), Gulfport, Mississippi, for claimant.
Donald P. Moore (Franke, Rainey & Salloum, PLLC), Gulfport Mississippi, for employer/carrier.
Jennifer R. Marion (Howard M. Radzely, Solicitor of Labor Allen H. Feldman, Associate Solicitor; Mark A. Reinhalter Counsel for Longshore), 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
Employer appeals and claimant cross-appeals the Decision and Order Decision and Order on Section 22 Modification, and Supplemental Decision and Order Awarding Attorney’s Fee (2002-LHC-02722) of Administrative Law Judge Lee J. Romero, Jr., 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 findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant injured his right knee on June 16, 1998, during the course of his employment for employer as an electrician. Claimant returned to work on August 3, 1998, but he stopped working in January 1999 due to right knee pain. On February 2, 1999, Dr. Flores removed the bursa from claimant’s knee. Claimant unsuccessfully attempted to return to work in August 1999. He was referred to a work-hardening program where he alleged he injured his back on August 17, 1999. He has not since retuned to work. Claimant fell at his church on April 28, 2001, which he attributed to his right knee buckling. Claimant underwent operations to his right hip and left foot for injuries caused by this fall. The parties stipulated that employer paid claimant compensation for temporary total disability, 33 U.S.C. §908(b), from July 17, 1998, to July 21, 2001. Employer also provided medical benefits for claimant’s knee injury until it went bankrupt and the Mississippi Insurance Guaranty Association assumed coverage of the claim.
In his decision, the administrative law judge accepted the parties’ stipulation that claimant has a compensable right knee injury. The administrative law judge found that claimant’s back injury while undergoing work hardening for the knee injury is also compensable. The administrative law judge found, however, that this injury was only temporarily disabling until June 15, 2000, and that claimant has no continuing disability or work restrictions related to this injury. The administrative law judge found that claimant failed to establish that his April 2001 right hip and left ankle/foot injuries are related to the June 1998 work injury. The administrative law judge credited the opinion of Dr. Graham to find that claimant’s right knee injury reached maximum medical improvement on December 12, 1999. The administrative law judge credited the June 2003 opinion of Dr. Flores to find that claimant is unable to return to his usual employment as an electrician. Because employer presented no evidence of suitable alternate employment, the administrative law judge found claimant entitled to compensation for temporary total disability from June 17, 1998, to December 11, 1999, and for continuing permanent total disability, 33 U.S.C. §908(a), thereafter. The administrative law judge denied employer’s request for Section 8(f) relief, 33 U.S.C. §908(f), finding that employer failed to establish that claimant had a serious and lasting pre-existing permanent partial disability or that claimant’s prior back injury contributed to his current disability from the work-related knee injury.
Employer appealed and claimant cross-appealed this decision. BRB Nos. 04-0396/A. While the appeals were pending, both parties filed motions for modification. 33 U.S.C. §922. By Orders issued March 11, 2004, and March 30, 2004, the Board dismissed the appeals and remanded the case for modification proceedings. The administrative law judge held a hearing on the parties’ motions for modification. In his decision on modification, the administrative law judge found that employer is not entitled to modification inasmuch as employer could have presented evidence of suitable alternate employment at the initial hearing and thus did not establish a change in claimant’s economic condition. Alternatively, the administrative law judge rejected employer’s evidence of suitable alternate employment. In addressing claimant’s petition for modification, the administrative law judge found that claimant failed to show a mistake of fact in his determination that claimant’s hip and left ankle/foot injuries from the April 2001 fall at church are not related to the initial work injury. However, the administrative law judge found that claimant established he has a psychological injury related to his work injuries. The administrative law judge also found claimant entitled to medical treatment for his work-related lower back injury. Finally, the administrative law judge found claimant failed to establish that a diagnostic arthroscopy of his right knee is a reasonable and necessary medical expense.
Employer appealed and claimant cross-appealed this decision. BRB Nos. 05-0348/A. In addition, by Order issued February 9, 2005, the Board reinstated the parties’ appeals of the administrative law judge’s Decision and Order, BRB Nos. 04-0396/A, and consolidated these appeals with the parties’ appeals of the administrative law judge’s decision on modification. Subsequent to issuance of the administrative law judge’s Decision and Order on Modification, claimant’s counsel submitted a petition requesting a fee of $16, 555.75, representing 66.625 hours at $200 per hour, plus costs of $3, 230.75. Employer filed objections to the fee petition. In his Supplemental Decision and Order Awarding Attorney’s Fee, the administrative law judge awarded claimant’s counsel a fee of $8, 538.40, representing 28.69 hours at $185 per hour, plus costs of $3, 230.75. Both parties appeal this decision. By Order issued May 4, 2005, the Board consolidated the parties’ appeals of the administrative law judge’s supplemental fee award with BRB Nos. 05-0348 and 05-0348A.
We first address claimant’s challenge to the administrative law judge’s finding that claimant failed to establish that his fall at church on April 28, 2001, was due to his right knee buckling as a result of the June 16 1998, right knee injury at work. In order to be entitled to invocation of the Section 20(a) presumption, claimant must establish a prima facie case by showing that he suffered a harm and that either a work-related accident occurred or that working conditions existed that could have caused or aggravated the harm. See Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000). Once claimant has established his prima facie case, Section 20(a) of the Act provides him with a presumption that his injury is causally related to his employment. The burden then shifts to employer to rebut the presumption by producing substantial evidence that claimant’s injury was not caused or aggravated by his employment. See Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 37 BRBS 35(CRT) (5th Cir. 2003); Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1999). If the administrative law judge finds the Section 20(a) presumption rebutted, it drops from the case. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997). The administrative law judge then must weigh all the evidence and resolve the issue of causation on the record as a whole with claimant bearing the burden of persuasion. Id.; see Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
If there has been a subsequent non work-related event, an employer can establish rebuttal of the Section 20(a) presumption by showing that the claimant’s disabling condition is caused by the subsequent event, provided the employer also proves that the subsequent event was not caused by claimant’s work injury. See generally Shell Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 31 BRBS 129(CRT) (5th Cir. 1997); see also Plappert v. Marine Corps Exchange, 31 BRBS 109, aff’g on recon. en banc 31 BRBS 13 (1997); James v. Pate Stevedoring Co., 22 BRBS 271 (1989). Where the subsequent injury is not a natural or unavoidable result of the work injury, but is the result of an intervening cause, employer is relieved of liability for that portion of disability attributable to the intervening cause. See Wright v. Connolly-Pacific Co., 25 BRBS 161 (1991), aff’d mem. sub nom. Wright v. Director, OWCP, 8 F.3d 34 (9th Cir. 1993); see also Arnold v. Nabors Offshore Drilling, Inc., 35 BRBS 9 (2001), aff’d, 32 Fed.Appx. 126 (5th Cir. 2002); Bass v. Broadway Maintenance, 28 BRBS 11 (1994); Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991).
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