Hudson v. Huntington Ingalls, Inc.
| Decision Date | 10 July 2018 |
| Docket Number | BRB 17-0600 |
| Parties | ADRIENNE R. HUDSON Claimant-Petitioner v. HUNTINGTON INGALLS, INCORPORATED (PASCAGOULA OPERATIONS) Self-Insured Employer-Respondent |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Larry W. Price, Administrative Law Judge, United States Department of Labor.
Virginia L. LoCoco (LoCoco & LoCoco, P.A.) D'Iberville, Mississippi, for claimant.
Paul B. Howell (Franke & Salloum, PLLC), Gulfport Mississippi, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.
Claimant appeals the Decision and Order (2016-LHC-00685) of Administrative Law Judge Larry W. Price 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).
Claimant was injured on May 22, 2014, while working for employer as a shipfitter, when she slipped on a ladder and twisted her right knee.[1] An MRI showed claimant had tri-compartmental osteoarthritis in her knee, an osteochondral lesion, and a torn lateral meniscus. EX 13 at 8-9. On July 8, 2014, Dr. Harrison performed arthroscopic surgery on claimant's right knee to debride two partial tears to the menisci, both of which he attributed directly to the May 2014 work injury.[2] CX 15 at 8, 23, 44. Claimant continued to treat with Dr. Harrison, who diagnosed a five percent permanent impairment to the leg on October 31, 2014, and released claimant to unrestricted work as of November 3, 2014. EX 16 at 70-74. In February 2015, claimant fell while attempting to get out of the shower. Id. at 75. On March 2, 2015, she returned to Dr. Harrison's office complaining of increased right knee pain, for which he recommended a Synvisc injection. Id. at 77-78. Dr. Harrison opined that the need for a Synvisc injection was due to the aggravation of claimant's preexisting arthritis caused by the February 2015 fall in the shower. Id. at 81. Based on Dr. Harrison's opinion, employer refused to authorize the Synvisc injections.
Relevant to this appeal, the parties stipulated to a work injury on May 22, 2014. They disputed the extent of claimant's disability and her entitlement to Synvisc injections. Although Dr. Harrison opined that claimant's work injury resulted in a five percent permanent impairment to the lower extremity, the administrative law judge found this rating to be incorrect because Dr. Harrison stated he calculated claimant's impairment using the guidelines set forth in the American Medical Association Guides to the Evaluation of Permanent Impairment (6th ed. 2007) (AMA Guides), but also conceded that the AMA Guides specify an impairment rating of seven to 13 percent for two partial meniscectomies. Decision and Order at 17; CX 15 at 45. The administrative law judge found that an impairment rating of 10 percent represented the extent of claimant's impairment due to her acute injuries, as it accounts for claimant's continued complaints of pain since the surgery and Dr. Harrison's findings on physical examination on October 31, 2014.[3] Decision and Order at 17; see CX 15 at exh. 8. As the record contained no evidence that claimant's torn menisci aggravated her underlying arthritis, the administrative law judge found claimant was not entitled to an impairment rating which included her preexisting arthritis. Decision and Order at 18. Further, based on Dr. Harrison's opinion that the Synvisc injection was recommended to treat an aggravation of claimant's underlying arthritis caused by the February 2015 fall in the shower, which was not related to the work injury, the administrative law judge found that employer was not liable for the injection. Id. Claimant appeals the administrative law judge's findings regarding the extent of her disability and entitlement to a Synvisc injection. Employer responds, urging affirmance.
Claimant asserts the administrative law judge erred in failing to apply the aggravation rule and failed to compensate her for the full extent of her knee impairment, which includes her work-related torn menisci and her pre-existing arthritis. Claimant alleges Dr. Harrison's opinion establishes that the full extent of her disability is in the range of 16 to 34 percent.
Under the aggravation rule, if a work-related injury aggravates, accelerates, or combines with a pre-existing impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable. Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc); Fishel v. Newport News Shipbuilding & Dry Dock Co., 14 BRBS 520 (1981), aff'd, 694 F.2d 327, 15 BRBS 52(CRT) (4th Cir. 1982); Primc v. Todd Shipyards Corp., 12 BRBS 190 (1980). This doctrine does not require that the employment injury cause a pre-existing condition to progress or that it combine in more than an additive way. Nash, 782 F.2d at 517-518, 18 BRBS at 49-50(CRT); Port of Portland v. Director, OWCP, 932 F.2d 836, 839-840, 24 BRBS 137, 140-141(CRT) (9th Cir. 1991). The aggravation rule does not permit apportionment between work-related and non-work-related causes merely because the percentage of impairment attributable to each cause may be ascertained from the record. Fishel, 694 F.2d 327, 15 BRBS 52(CRT). Thus, as applied to disability awards under the schedule, a claimant's compensable disability is the aggregate impairment to the schedule member, inclusive of any pre-existing impairment. Nash, 782 F.2d at 517-518, 18 BRBS at 49-50(CRT); Port of Portland, 932 F.2d at 839-840, 24 BRBS at 140-141(CRT); Fishel, 694 F.2d 327, 15 BRBS 52(CRT).
We agree with claimant that the administrative law judge failed to fully consider the aggravation rule in assessing the extent of her disability and that this error may have affected the outcome of the case. Specifically, in arriving at a 10 percent permanent impairment, the administrative law judge assessed only the portion of claimant's disability directly attributable to her work injury.[4] However, claimant's compensable disability includes her work-related knee impairment plus any pre-existing impairment she may have in that knee due to arthritis. Nash, 782 F.2d at 517-518, 18 BRBS at 49-50 (CRT); Port of Portland, 932 F.2d at 839-840, 24 BRBS at 140-141(CRT); Fishel, 694 F.2d 327, 15 BRBS 52(CRT). Although claimant asserted Dr. Harrison assessed a 16 to 34 percent pre-existing impairment due to arthritis, and employer asserted Dr. Harrison assessed zero percent preexisting impairment or, at most, a one to 13 percent pre-existing impairment due to arthritis, CX 15 at 29-30, 61-62, the administrative law judge did not resolve the parties' dispute. Consequently, it is unclear whether the administrative law judge's legal error in failing to address the aggravation rule affected the outcome of this case. Accordingly, we must remand the case for further consideration.
On remand, the administrative law judge must address whether claimant's combined disability is greater than that caused by her work injury alone. See Nash, 782 F.2d at 519 n. 10, 18 BRBS at 51 n.10(CRT); Port of Portland, 932 F.2d at 839-840, 24 BRBS at 140-141(CRT); Fishel, 694 F.2d 327, 15 BRBS 52(CRT). In so doing, the administrative law judge must resolve the parties' dispute regarding whether Dr. Harrison assessed a preexisting impairment due to arthritis and, if so, to what extent. Further, the administrative law judge must bear in mind that it is claimant's burden to establish the extent of her disability. See Potomac Electric Power Co. v. Director, OWCP [PEPCO], 449 U.S. 268, 14 BRBS 363 (1980); Pisaturo v. Logistec, Inc., 49 BRBS 77 (2015). In assessing the extent of claimant's disability in a scheduled injury case other than one involving hearing loss, an administrative law judge is not bound by any particular standard or formula. See, e.g., King v. Director, OWCP, 904 F.2d 17, 23 BRBS 85(CRT) (9th Cir. 1990); Cotton v. Army & Air Force Exch. Services, 34 BRBS 88 (2000); Pimpinella v. Universal Maritime Services, Inc., 27 BRBS 154 (1993). Although the Act does not require impairment ratings to be made pursuant to the AMA Guides in this type of case, the administrative law judge may, nevertheless, rely on medical opinions that rate a claimant's impairment under these criteria, as it is a standard medical reference. See Brown v. National Steel & Shipbuilding Co., 34 BRBS 195 (2001); Jones v. I.T.O. Corp. of Baltimore, 9 BRBS 583 (1979). However, he may not substitute his opinion for that of a medical expert. See generally Pisaturo, 49 BRBS 77.
Claimant also contends the administrative law judge erred in denying employer's liability for the Synvisc injection. Because we have vacated the administrative law judge's award, which did not specifically address whether claimant's employment injury combined with her pre-existing arthritis in an additive way, we agree with claimant that the denial of Synvisc injection liability also must be vacated.
Section 7 of the Act, 33 U.S.C. §907, provides that an employer is liable for medical expenses that are reasonable and necessary to treat a work-related injury. It is the claimant's burden to establish that medical expenses are reasonable and necessary treatment for her work injury. Ramsey Scarlett & Co. v. Director, OWCP [Fabre], 806 F.3d 327, 49 BRBS 87(CRT) (5th Cir....
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