Kallabat v. Aecom Technology
| Decision Date | 08 May 2020 |
| Docket Number | BRB 19-0442 |
| Court | Longshore Complaints Court of Appeals |
| Parties | SAM KALLABAT Claimant-Respondent v. AECOM TECHNOLOGY, f/k/a McNEIL TECHNOLOGIES, INCORPORATED and ACE AMERICAN 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UNPUBLISHED OPINION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 and Erratum of Larry A. Temin Administrative Law Judge, United States Department of Labor.
Stephen P. Moschetta (The Moschetta Law Firm, P.C.) Washington, Pennsylvania, for claimant.
Alan G. Brackett, Patrick J. Babin and Daniel P. Sullivan (Mouledoux, Bland, Legrand & Brackett, LLC), New Orleans Louisiana, for employer/carrier.
William M. Bush (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, 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: BOGGS, Chief Administrative Appeals Judge, BUZZARD and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order and Erratum (2018-LDA-00031) of Administrative Law Judge Larry A. Temin rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C §1651 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, while working for employer as a linguist, cultural advisor and analyst in Iraq, injured his right leg and allegedly sustained psychological injuries and type II diabetes as a result of a March 28, 2011 rocket attack. After initial treatment at the base clinic, claimant was taken to Sather Air Base where he underwent a same-day surgical procedure to address acute compartment syndrome of his right leg. On March 31, 2011, claimant underwent irrigation and debridement of his right leg wound. He was transferred to City Hospital in Dubai on April 2, 2011, where a second irrigation and debridement occurred on April 3, 2011, and skin grafts were applied on April 5, 2011. Claimant thereafter began a rehabilitation and physiotherapy program and was released to return to the United States on April 24, 2012.
Once stateside, claimant received additional treatment for blood clots from Dr. Modini Liyange, who referred claimant to orthopedic surgeon Dr. Stanley Sczecienski. Claimant also underwent physical therapy. He soon began having an "emotional reaction" to the rocket attack in the form of nightmares, depression, anxiety, and panic attacks. Claimant stated he was initially capable of handling these symptoms on his own, but at his wife's insistence, he began seeing a psychiatrist, Dr. Sam Ajluni, on January 8, 2016. Dr. Ajluni diagnosed claimant with major depressive disorder - single episode and PTSD, caused by the work injuries he sustained on March 28, 2011. He opined, in a July 11, 2017 report, that claimant has been temporarily disabled since January 8, 2016, and should remain off work due to his industrial psychological injuries.
Meanwhile, Dr. Sczecienski opined claimant's right leg injury reached maximum medical improvement on September 12, 2012, with a ten percent impairment.[1] Claimant began looking for work one week after he returned home from Iraq, but was unable to procure any regular employment until April 1, 2014, when he started working as a manager at a liquor store owned by his cousin. Employer voluntarily paid claimant temporary total disability benefits from March 29, 2011 to September 12, 2012, permanent partial disability benefits under the schedule for a ten percent loss of use of his right lower extremity, and medical benefits. 33 U.S.C. §§907, 908(b), (c)(2), (19).
On August 10, 2016, claimant filed a claim under the Act alleging, in addition to his right leg injury, he sustained psychological injuries, back pain, left leg pain, and type II diabetes as a result of the 2011 work accident. Employer controverted the claim on the grounds claimant has been fully compensated for his right leg injury and the claim for the other injuries was not timely filed, nor are the conditions work-related. The case was forwarded to the Office of Administrative Law Judges and a formal hearing was held on August 30, 3018.
In his decision, the administrative law judge found claimant provided timely notice to employer of his physical injuries, but not his psychological injuries, under Section 12(a), 33 U.S.C. §912(a), but employer was not prejudiced by the delayed filing under Section 12(d)(2), 33 U.S.C. §912(d)(2). He found claimant's claim timely under Section 13(a), 33 U.S.C. §913(a).
The administrative law judge found claimant invoked the Section 20(a), 33 U.S.C. §920(a), presumption with regard to his right leg and psychological injuries, but not for his back and left leg pain or diabetes. Finding employer offered no evidence to rebut the Section 20(a) presumption, the administrative law judge concluded claimant's psychological injuries and right leg injury are work-related. The administrative law judge found claimant is neither physically nor psychologically capable of returning to his usual employment, employer did not show the availability of suitable alternate employment, but claimant's actual work as an assistant manager at a liquor store from April 1, 2014, constitutes suitable alternate employment. He therefore awarded claimant temporary total disability benefits from March 29, 2011 to September 12, 2012, permanent total disability benefits from September 13, 2012 to April 1, 2014, and concurrent awards for permanent partial disabilities of the right leg under Sections 8(c)(2), (19), 33 U.S.C. §908(c)(2), (19), and for his psychological injuries under Section 8(c)(21), 33 U.S.C. §908(c)(21), from April 2, 2014. At employer's request, the administrative law judge issued an Erratum clarifying the maximum compensation rate and the schedule of payments to reflect claimant's entitlement to concurrent awards of scheduled and unscheduled permanent partial disability benefits for periods subsequent to April 1, 2014.
On appeal, employer challenges the administrative law judge's findings that claimant's filings relating to his psychological injuries were timely under Sections 12 and 13 and that certain jobs identified in its labor market surveys do not constitute suitable alternate employment. Employer also challenges the administrative law judge's calculation of claimant's benefits, including his failure to apply Sections 6(b)(1) and 10(i) of the Act, 33 U.S.C. §§906(b)(1), 910(i). Claimant responds, urging affirmance of the administrative law judge's decision. The Director, Office of Workers' Compensation Programs (the Director), responds, asserting the administrative law judge's decision "contains errors of commission and omission" requiring remand for him to make complete findings with respect to the duration, nature, and extent of claimant's psychological disability.[2] Employer filed a reply brief.
Employer contends claimant's psychological claim should be barred because it did not receive timely notice of the injury under Section 12 of the Act. Employer avers the administrative law judge's finding that claimant became aware of his psychological injury on January 6, 2016, irrationally ignores claimant's testimony and medical history from 2011, which establishes he had the requisite awareness of the relationship between his psychological injury, employment and disability prior to that date. Employer further contends the administrative law judge erred in finding it was not prejudiced by claimant's "more-than-five-year delay" in giving notice of his psychological injuries, such that claimant's late notice should not be excused.
Section 12(a) of the Act, 33 U.S.C. §912(a), provides that in a traumatic injury case a claimant must give the employer written notice of his injury within 30 days of the injury or the date the claimant is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the injury and his employment.[3] Todd Shipyards Corp. v. Allan 666 F.2d 399, 14 BRBS 427 (9th Cir.), cert. denied, 459 U.S. 1034 (1982); Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990). "Awareness" for purposes of Section 12 in a traumatic injury case occurs when the claimant is aware, or should have been aware, of the relationship between his injury, employment, and an impairment in earning capacity, and not necessarily on the date of the accident. See Ceres Gulf, Inc. v. Director, OWCP [Fagan], 111 F.3d 17, 31 BRBS 21(CRT) (5th Cir. 1997); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 6 BRBS 100(CRT) (5th Cir. 1984); Suarez v. Service Employees Int'l, Inc., 50 BRBS 33 (2016). The date a claimant becomes aware of the relationship between his work and his disabling injury is often the date a doctor states there is a connection. However, a doctor's opinion relating the condition to the employment is not necessarily controlling; the administrative law judge may consider other facts as to when the claimant should have been aware of that relationship. Fagan, 111 F.3d 17, 31 BRBS 21(CRT); Wendler v. American Red Cross, 23 BRBS 408 (1990) (McGranery, J., concurring and dissenting); see also V.M. [Morgan] v. Cascade General, Inc., 42 BRBS 48 (2008), aff'd mem., 388 Fed.Appx. 695 (9th Cir. 2010). Failure to give timely notice will bar the claim unless one of the exceptions...
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