Inman v. Palmetto Bridge Constructors, Inc.

Decision Date31 October 2006
Docket NumberBRB 06-0254
CourtLongshore Complaints Court of Appeals
PartiesDAVID INMAN, Claimant-Respondent v. PALMETTO BRIDGE CONSTRUCTORS, INCORPORATED and ST. PAUL FIRE & MARINE INSURANCE COMPANY Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent

UNPUBLISHED OPINION

Appeal of the Decision and Order of Richard E. Huddleston Administrative Law Judge, United States Department of Labor.

Kirk E. Karamanian (O’Bryan Baun Cohen Kuebler), Birmingham Michigan, for claimant.

J. Marshall Allen and Sean D. Houseal (Buist Moore Smythe McGee, P.A.), Charleston, South Carolina, for employer/carrier.

Peter B. Silvain, Jr. (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

PER CURIAM

Employer appeals the Decision and Order (2005-LHC-1064) of Administrative Law Judge Richard E. Huddleston 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).

Claimant alleged that he injured his back on May 16, 2002, during the course of his employment for employer as a heavy-lift foreman on a crane barge during a bridge construction project. Claimant continued working, but he sought treatment from Dr. Anguelova, who placed him on light-duty work restrictions on May 20, 2002. Claimant further alleged that he aggravated his back condition at work on May 24, 2002. After reviewing an MRI, Dr. Anguelova referred claimant to Dr. Poletti, an orthopedic surgeon. The MRI showed a ruptured disc at L5/S1. Dr. Poletti recommended surgery and claimant stopped working in July 2002. Claimant underwent a laminectomy/discectomy on September 12, 2002, a lumbar fusion on January 6, 2003, and a follow-up procedure to the disc fusion on January 12, 2004. Dr. Poletti opined that claimant’s back condition reached maximum medical improvement on October 14, 2004, and that he is totally and permanently disabled due to a 40 percent impairment of the spine and a 10 percent impairment of the left leg. Claimant sought benefits under the Act for permanent total disability.

In his decision, the administrative law judge found that claimant’s injury occurred on navigable waters while in the course of his employment and thus concluded, pursuant to Director, OWCP v. Perini North River Associates (Perini), 459 U.S. 297, 15 BRBS 62(CRT) (1983), that claimant’s employment was covered under the Act. The administrative law judge found that claimant provided timely notice to employer of his injury under Section 12, 33 U.S.C. §912, and that the claim was timely filed inasmuch as the Section 13, 33 U.S.C. §913, statute of limitations was tolled by employer’s payment of benefits pursuant to a South Carolina award of workers’ compensation benefits. The administrative law judge found that claimant’s back condition was caused or aggravated by his work injuries on May 16 and May 24, 2002. The administrative law judge credited the opinion of Dr. Poletti that claimant’s back condition reached maximum medical improvement on October 14, 2004. He found it uncontested that claimant is unable to return to his usual employment as a heavy-lift foreman, and he rejected employer’s labor market survey as establishing the availability of suitable alternate employment. The administrative law judge found claimant entitled to a Section 14(e) assessment, 33 U.S.C. §914(e), on compensation due from July 17, 2004, until May 27, 2004, limited to the difference between the amount paid pursuant to the South Carolina award and the greater amount awarded under the Act. Claimant was awarded compensation for temporary total disability, 33 U.S.C. §908(b), from July 13, 2002, to October 14, 2004, and continuing compensation for permanent total disability from October 15, 2005. 33 U.S.C. §908(a). Finally, the administrative law judge denied employer’s request for Section 8(f) relief from continuing compensation liability. 33 U.S.C. §908(f). The administrative law judge found employer’s application untimely pursuant to Section 8(f)(3), 33 U.S.C. §908(f)(3). Alternatively, the administrative law judge found that employer failed to establish that claimant’s pre-existing back disability was manifest or that it contributed to claimant’s permanent total disability.

On appeal, employer challenges the administrative law judge’s findings that claimant’s injury is within the Act’s coverage, that claimant’s notice of injury and claim were timely filed, that claimant’s injuries are work-related and that claimant is totally disabled. Claimant responds, urging affirmance. Employer also contends the administrative law judge erred in denying it Section 8(f) relief. The Director, Office of Workers’ Compensation Programs (the Director), responds, urging affirmance of the denial of Section 8(f) relief.

Employer first argues that the administrative law judge erred in finding coverage under the Act. Employer contends that claimant, a bridge builder, does not satisfy the status requirement for coverage and that the administrative law judge erred by finding that claimant’s injury on actual navigable waters confers coverage.

Prior to the enactment of the 1972 Amendments to the Act, in order to be covered by the Act, claimant had to establish that his injury occurred upon the navigable waters of the United States, including any dry dock. See 33 U.S.C. §903(a)(1970)(amended 1972 and 1984). In 1972, Congress amended the Act to add the status requirement of Section 2(3), 33 U.S.C. §902(3), and to expand the sites covered under Section 3(a) landward. In Perini, the Supreme Court of the United States determined that Congress, in amending the Act to expand coverage, did not intend to withdraw coverage from workers injured on navigable waters who were covered by the Act before 1972. 459 U.S. at 315-316, 15 BRBS at 76-77(CRT). Thus, the Court held that when a worker is injured on actual navigable waters while in the course of his employment on those waters, he is a maritime employee under Section 2(3). Regardless of the nature of the work being performed, such a claimant satisfies both the situs and status requirements and is covered under the Act, unless he is specifically excluded from coverage by another statutory provision. Id., 459 U.S. at 323-324, 15 BRBS at 80-81(CRT). See also Walker v. PCL Hardaway/Interbeton, 34 BRBS 176 (2000); Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999); Caserma v. Consolidated Edison Co., 32 BRBS 25 (1997). With regard to bridge workers specifically, prior to 1972, employees injured on navigable waters while engaged in bridge work were held covered by the Act. See Davis v. Dept. of Labor, 317 U.S. 249 (1942); Peter v. Arrien, 325 F.Supp. 1361 (E.D. Pa. 1971), aff’d, 463 F.2d 252 (3d Cir. 1972); Dixon v. Oosting, 238 F.Supp. 25 (E.D. Va. 1965).

In this case, employer does not contest the administrative law judge’s finding that claimant’s alleged injuries on May 16 and May 24, 2002, while on a crane barge in the Cooper River occurred on navigable waters and that claimant thereby satisfies the situs test for coverage. Employer’s Petition for Review at 23-24. Moreover, the administrative law judge properly found that whether claimant separately satisfies the Act’s status requirement is irrelevant under Perini. See Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187 (4th Cir. 1991), cert. denied, 503 U.S. 907 (1992); see also Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 24 BRBS 160(CRT) (4th Cir. 1991). The administrative law judge concluded that since claimant’s work-related injuries occurred upon navigable waters, and he is not otherwise excluded from coverage, he has satisfied the situs and status elements and is entitled to coverage under the Act. Decision and Order at 32.

The administrative law judge’s analysis of the coverage issue pursuant to Perini is rational, supported by substantial evidence, and in accordance with law. Perini, 459 U.S. at 315-316, 15 BRBS at 76-77(CRT). Therefore, his finding that claimant is covered under the Act is affirmed. Walker, 34 BRBS 176. As the administrative law judge found that claimant’s injury occurred on navigable waters, there was no need for him to further consider the status issues in this case as urged by employer. Zapata Haynie Corp., 933 F.2d 256, 24 BRBS 160(CRT).

Employer asserts that claimant’s notice of injury was not timely as it was first received on July 17, 2002, more than 30 days after the purported dates of injury on May 16 and May 24, 2002. In this regard, employer argues that claimant was examined for back pain on May 20, 2002, by Dr. Anguelova, and on the following day he presented his supervisor with a light-duty work slip, but he failed to timely report that he had injured his back at work.

Section 12(a) of the Act requires, in a traumatic injury case, that claimant give employer written notice of his injury within 30 days of the injury or of the date claimant is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of a relationship between the injury and employment. [1] 33 U.S.C. §912(a); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 14 BRBS 427 (9th Cir.), cert. denied, 459 U.S. 1034 (1982);...

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