Kerr v. Stevedoring Services of America
| Decision Date | 25 May 2017 |
| Docket Number | BRB 16-0399 |
| Parties | HENRY M. KERR Claimant-Petitioner v. STEVEDORING SERVICES OF AMERICA and HOMEPORT INSURANCE COMPANY Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order of Paul C. Johnson Jr. Administrative Law Judge, United States Department of Labor.
Lara D. Merrigan (Merrigan Legal), San Rafael, California, and E Paul Gibson and Allison S. Leard (E. Paul Gibson, P.C.) North Charleston, South Carolina, for claimant.
Vincent C. Northcutt and Kate K. Hemingway (Lueder, Larkin & Hunter, LLC), Mount Pleasant, South Carolina, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order (2015-LHC-00610) of Administrative Law Judge Paul C. Johnson, 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 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 employer and its subsidiaries for approximately 33 years. He started working on the waterfront in November 1981 as a gear shop operations manager. In 1993, he began to manage a warehouse for employer's subsidiary, Trans-Hold. Tr. at 28-29; CX 21 at 21. Claimant managed the warehouse until 2010, when he moved into the corporate office to work in sales and business development for employer's subsidiaries, Trans-Hold and Container Freight Station. Tr. at 28-29. In June 2013, when employer was short-handed and the port was busy, employer asked claimant to fill in as a longshoreman for three days, despite the fact that claimant had not worked on a ship for 15 years and was employed as a “Sales Director.” Id. at 30, 39. On June 12, 2013, the first day of claimant's assignment, claimant was struck to the ground by 12 tons of cargo swinging on a crane arm as it was unloaded from a ship. Id. at 30. Claimant alleged he suffered injuries to his upper and lower back and both knees in this accident.
After the accident, claimant returned to work at his sales job and continued to work “with restrictions.” Tr. at 33. Claimant testified that the duties of his sales position did not change following the accident, but, with the consent of his supervisors, he self-modified his duties to cut back on his workload/hours, eliminate “outside” sales calls, and reduce association appointments due to mobility issues, doctors' appointments, and restrictions limiting the number of hours claimant could sit in the office. Id. at 34-35, 41. Employer continued to pay claimant his pre-injury salary. Id. at 35-36. With the exception of two weeks' medical leave in October 2013, claimant performed his sales work for 18 months post-injury until his sales position was eliminated on November 30, 2014, by Premier Logistics, which had acquired Trans-Hold in mid-September 2014. Id. at 36-39; CX 20 at 24. Claimant has not worked since his position was eliminated. He filed a claim under the Act for total disability benefits commencing December 1, 2014.
The parties agreed that claimant suffered compensable injuries to both knees and to his thoracic spine as a result of the June 2013 accident, and that he is entitled to reasonable and necessary medical treatment for these conditions. Decision and Order at 43, 55. Based on the opinion of Dr. McIntosh, who treated claimant's knee injuries, the administrative law judge found claimant's knee condition reached maximum medical improvement on June 17, 2014, and that claimant is entitled to an award under the schedule for a ten percent permanent impairment to his right knee and a five percent permanent impairment to his left knee. 33 U.S.C. §908(c)(2); Decision and Order at 23, 59; CX 2.
The administrative law judge found claimant entitled to the Section 20(a), 33 U.S.C. §920(a), presumption that his pre-existing lumbar back condition was aggravated by the June 2013 accident, but that employer rebutted the presumption with circumstantial evidence that the condition is due to claimant's pre-existing lumbar condition. On the record as a whole, the administrative law judge found that claimant failed to establish that the June 2013 accident aggravated his lumbar condition. Thus, the administrative law judge found this condition is not compensable. Decision and Order at 47.
In addressing whether claimant established a work-related disability, the administrative law judge found that claimant's short-term longshore work was not a regular duty of his usual employment with employer, which was in sales. The administrative law judge further found that claimant did not establish a prima facie case of total disability because he adequately performed his usual sales position for 18 months following the accident until his position was eliminated for reasons unrelated to his injury. Decision and Order at 50-52. Although claimant testified that his physical condition worsened after his termination, the administrative law judge found that claimant failed to establish that any deterioration in his condition was related to his compensable knee and thoracic injuries. Thus, the administrative law judge found any loss in claimant's wage-earning capacity after his position was eliminated is not work-related and he denied the claim for total disability compensation.[1] Id. at 54.
On appeal, claimant asserts the administrative law judge erred in finding his lumbar condition is not work-related, in failing to find he is totally disabled from his usual work, and, alternatively, in failing to enter a nominal award based upon an expectation of future disability to his knees. Employer responds, urging affirmance. Claimant filed a reply brief.
Claimant asserts the administrative law judge erred in finding that employer presented substantial evidence to rebut his prima facie showing of a work-related lumbar aggravation of his pre-existing lumbar condition. Claimant additionally asserts the administrative law judge erred in failing to find, based on the record as a whole, that Dr. Folk's opinion establishes that claimant's lumbar condition was aggravated by the work accident.
A claimant bears the burden of proving the existence of an injury or harm and that a work-related accident occurred or that working conditions existed which could have caused the harm or aggravated a pre-existing condition, in order to establish a prima facie case. Universal Maritime Corp. v Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996); see U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982). If these elements are established, the Section 20(a) presumption applies to link the claimant's injury or harm to the accident or working conditions. Moore, 126 F.3d at 262-263, 31 BRBS at 122-123(CRT).
Upon invocation of the Section 20(a) presumption, the burden shifts to the employer to rebut it with substantial evidence that the claimant's condition was not caused or aggravated by his employment. Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 43 BRBS 67(CRT) (4th Cir. 2009). In a case such as this one where claimant asserts that the work accident aggravated a prior condition, it is incumbent upon the employer to introduce substantial evidence that the work accident did not aggravate the preexisting condition in order to rebut the Section 20(a) presumption. Holiday, 591 F.3d at, 226, 43 BRBS at 69(CRT); see also Moore, 126 F.3d at 262, 31 BRBS at 123(CRT). The employer may rebut the Section 20(a) presumption with substantial evidence “demonstrating that the claimant's symptoms are a natural outgrowth of, or complication from, an existing predicate condition.” Holiday, 591 F.3d at 226, 43 BRBS at 69(CRT). If the administrative law judge finds the Section 20(a) presumption rebutted, it no longer controls, and the issue of causation must be resolved on the evidence of record as a whole, with the claimant bearing the burden of persuasion. Moore, 126 F.3d at 262, 31 BRBS at 124(CRT); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
In this case, the administrative law judge invoked the Section 20(a) presumption linking claimant's lumbar condition to the June 2013 work accident as claimant treated for a lumbar condition post-injury and his treating physician, Dr. Folk, opined that claimant's lower back was substantially worse after the accident. Decision and Order at 44; CX 6 at 6, 16-18; CX 20 at 32, 40-41. The administrative law judge found that employer rebutted the presumption with medical evidence showing that: claimant has a preexisting lumbar condition that he has continuously treated since 2002; claimant's lumbar symptoms progressively increased in the years prior to the work accident; and there was no immediate post-accident impact on claimant's lumbar condition as the treatment records, dated two weeks after the accident, describe only a thoracic injury, claimant did not treat his lumbar condition for over three months post-accident, and all of claimant's post-injury lumbar injections followed the same pattern of treatment as that in the two years prior to the accident.[2] The administrative law judge found this evidence sufficient to rebut the Section 20(a) presumption as it tends to support employer's theory that claimant's lumbar condition was not aggravated in the June 2013 accident. Decision and Order at 45.
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