L.W. v. Northrop Grumman Ship Systems, Inc.
| Decision Date | 27 March 2009 |
| Docket Number | BRB 08-0497 |
| Parties | L.W., Claimant-Petitioner v. NORTHROP GRUMMAN SHIP SYSTEMS, INCORPORATED, Self-Insured Employer-Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order and the Decision and Order on Reconsideration of Clement J. Kennington, Administrative Law Judge, United States Department of Labor.
Sue Esther Dulin (Dulin & Dulin, Ltd.), Gulfport Mississippi, for claimant.
Donald P. Moore (Franke & Salloum, PLLC), Gulfport, Mississippi for self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order and the Decision and Order on Reconsideration (2006-LHC-1610, 2006-LHC-2146) of Administrative Law Judge Clement J. Kennington 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).[1] 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).
At issue in this case are two consolidated claims for injuries sustained by claimant while in the course of her employment as a first class electrician with employer. It is undisputed that on January 22, 2003, claimant sustained an injury to her lower back, for which a claim for benefits under the Act was filed. CXs 1, 4. Following this injury, claimant continued to work for employer with various work restrictions, CX 10, until July 15, 2003, when she was taken off work by Dr. Smith, her treating neurosurgeon. CX 11 at 9. On September 26, 2003, claimant underwent an L5-S1 left lumbar microdiscectomy, and on July 19, 2004, she underwent an L5-S1 bilateral lumbar decompression, discectomy and fusion. CX 11 at 16, 47-49. On December 28, 2004, Dr. Smith stated that claimant had reached maximum medical improvement and released her to return to work with restrictions. Id. at 60.
Employer voluntarily paid claimant temporary total disability benefits from July 16, 2003, to January 3, 2005, when she returned to work for employer in a modified position.[2] EXs 6, 7; Tr. at 64-67. From February 21, 2005 to June 6, 2005, claimant was off work as employer had no modified work available to her; employer paid claimant temporary total disability benefits during this period of time.[3] EXs 6, 7; EX 18 at 11; EX 21 at 14, 18-19. On June 6, 2005, claimant returned to work for employer in a modified position performing bench work in the electrical shop.[4] CX 30; EX 21 at 21-23. On August 22, 2005, claimant experienced pain in her lower and upper back, both hips, and right shoulder area while pulling pallets on a pallet jack from her work area to the shipping area, and she reported an injury to her supervisor that day.[5] CXs 1, 33; EX 21 at 36-37; Tr. at 70-71. On November 22, 2005, claimant filed a claim for her August 22, 2005, injury; employer did not accept the compensability of this claim, and the compensation it paid claimant following August 25, 2005, was based on her previous January 22, 2003, injury.[6]
On September 28, 2005, employer resumed compensation payments for claimant's January 22, 2003 injury as it did not have work within her restrictions available to her. Employer, however, did not pay claimant total disability benefits as it previously had done during the periods modified work was not available, but, rather, paid her permanent partial disability benefits based on a post-injury wage-earning capacity equal to the minimum wage rate. CX 31; EXs 6, 7, 21 at 40; see Emp. Resp. Br. at 5-6. Thereafter, employer obtained a labor market survey dated December 14, 2005, which identified several positions that were available as of the date of the survey and three additional positions that had been available on or about September 28, 2005. EX 20. Based on its alleged retrospective showing of suitable alternate employment as of September 28, 2005, employer concluded that claimant's wage-earning capacity was higher than the minimum wage rate upon which its permanent partial disability payments had been based; therefore, employer recouped its alleged overpayment of compensation by ceasing compensation payments for the period from February 23, 2006 to April 13, 2006. EX 7 at 3; see Emp. Br. at 6. Employer reinstated permanent partial disability benefits for the period from April 13, 2006 to November 7, 2006, and then terminated compensation on the basis that claimant failed to report back to work in a modified position with employer.[7] ALJX 1; EX 12. On January 15, 2007, claimant returned to modified work for employer, [8] and she continued such work as of the date of the hearing.[9]
In his Decision and Order, the administrative law judge found that claimant sustained work-related injuries on January 22, 2003, and August 22, 2005, but found that claimant's second injury was a temporary aggravation that resolved by November 28, 2005, and that this second injury did not increase claimant's work restrictions beyond those assigned after she reached maximum medical improvement on December 28, 2004, following her first injury. Decision and Order at 11, 13. The administrative law judge next found that claimant's modified work assignments with employer were not beyond her restrictions. Id. at 11, 15. With respect to claimant's January 22, 2003, injury, the administrative law judge found that she was entitled to temporary total disability benefits from July 16, 2003, to December 28, 2004, and to permanent total disability benefits from December 29, 2004, to January 3, 2005, and from February 21, 2005, to June 16, 2005. Id. at 14. He further found that claimant was entitled to permanent partial disability benefits from September 28, 2005, to February 22, 2006, and from April 13, 2006 to November 7, 2006, and that these benefits were to be calculated based upon an average weekly wage of $598.50[10] and a weekly post-injury wage-earning capacity of $320, which he determined by averaging the wages of the jobs identified in employer's labor market survey. Id. at 14-15. In awarding these benefits, the administrative law judge found that claimant could not rely on a provision in the collective bargaining agreement (CBA) between employer and her union which provided that her employment with employer would be terminated should she accept employment with another employer while she was on industrial leave of absence to excuse her from seeking suitable alternate employment during the periods that employer did not have modified work available for her to perform. Id. at 17. Lastly, the administrative law judge denied claimant's request for a de minimis award, and he found that employer is not responsible for the medical treatment provided by Drs. Lanni and Wu. Id. at 17-18. The administrative law judge therefore concluded that claimant is not entitled to any benefits in addition to those previously paid to her by employer. Id. at 19.[11]
Claimant appeals the administrative law judge's denial of her claim for additional disability and medical benefits.[12] Employer responds, urging affirmance.
We first consider claimant's argument that the administrative law judge erred in rejecting her contention that suitable alternate employment outside of employer's facility was not realistically available to her post-injury because of the contractual provisions of the CBA entered into between employer and her union. Specifically, claimant argued before the administrative law judge that employer could not establish the availability of suitable alternate employment with the positions identified in its labor market survey because the leave of absence provision of the CBA provided that her employment with employer would be subject to termination if she were to accept employment with another employer while she was off work due to her work-related injuries.[13] In a single sentence, the administrative law judge rejected this argument, stating:
Claimant cannot rely upon a collective bargaining agreement for her admitted failure to search for suitable alternative [employment] when out of work because a claimant may not turn down an otherwise suitable job merely because it did not provide the same kind of benefits as contained on [sic] past work with an employer. Dove v. Southwest Marine of San Francisco, 18 BRBS 139 (1986).
Decision and Order at 17. In support of her contention of error, claimant cites decisions in which two different administrative law judges found that this specific leave of absence provision of the CBA between employer[14] and claimant's union precludes employer from demonstrating the availability of suitable alternate employment with jobs outside employer's facility while the claimant remains on leave of absence status with employer. N.W. v. Northrop Grumman Ship Systems, Inc., 2006-LHC-1241 (Aug. 17, 2007) (unpub.); McGehee v. Northrop Grumman Ship Systems, Inc., 40 BRBS 5 (ALJ) (2006).[15]We agree with claimant that the administrative law judge erred in finding other suitable alternate employment available to claimant when she was on leave of absence from employer, as the applicable contract provision precluded her taking other jobs without losing her job with employer, thus rendering work with other employers unavailable to claimant.
Initially the Board's decision in Dove v. Southwest Marine of San Francisco, Inc., 18 BRBS 139 (1986), relied upon by the administrative law judge in this case, does not address the issue or support the result he reached here. In Dove, the administrative law judge rejected claimant's assertion that he should not be required to...
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