Lake v. L-3 Communications
| Decision Date | 17 December 2013 |
| Docket Number | BRB 13-0107 |
| Parties | CHARLES LAKE, Claimant-Petitioner Cross-Respondent v. L-3 COMMUNICATIONS and ACE AMERICAN INSURANCE COMPANY, Employer/Carrier- Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order of Christine L. Kirby Administrative Law Judge, United States Department of Labor.
Daniel S. Shaivitz (Bulman, Dunie, Burke & Feld, Chtd.) Bethesda, Maryland, for claimant.
Keith L. Flicker and Brendan E. McKeon (Flicker, Garelick & Associates, LLP), New York, New York, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals and employer cross-appeals the Decision and Order (2011-LDA-00355) of Administrative Law Judge Christine L Kirby 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., 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 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, while working for employer in Iraq as a law enforcement instructor, sustained multiple injuries resulting from two suicide bomb detonations on December 6, 2005. Claimant continued to work for employer until March 2006, when he returned to the United States for further medical treatment. Claimant filed a claim under the Act for compensation and medical benefits for the disability resulting from his work-related injuries. No hearing was held as the parties requested a decision based on their written briefs and certain of their previously-submitted stipulations. [1] The legal issue to be decided by the administrative law judge concerned the calculation of claimant’s permanent total disability benefits.
In her Decision and Order issued on November 1, 2012, the administrative law judge approved the parties’ previously-submitted Stipulation of Facts with the exception of paragraphs 10, 11 and 14. Thus, consistent with the approved stipulations, the administrative law judge found, inter alia, that claimant’s work-related injuries reached maximum medical improvement on December 10, 2008, and that his average weekly wage at the time of his injury was $2, 865.33. The administrative law judge further found that claimant was entitled to temporary total disability benefits from March 21, 2006, through December 9, 2008, and to permanent total disability benefits from December 10, 2008 and continuing. 33 U.S.C. §908(a), (b). It was undisputed that, pursuant to Section 6(b)(1), 33 U.S.C. §906(b)(1), the applicable compensation rate for the entire period of claimant’s temporary total disability is $1, 073.64, which is the maximum rate allowable at the time his entitlement to those benefits commenced on March 21, 2006. The parties disagreed, however, as to the statutory maximum rates applicable to claimant’s subsequent permanent total disability benefits. Claimant asserted that he became entitled to the fiscal year 2009 statutory maximum rate of $1, 200.62 as of December 10, 2008, when his entitlement to permanent total disability benefits commenced. The administrative law judge rejected claimant’s position and found, pursuant to the Board’s decision in Reposky v. Int’l Transp. Services, 40 BRBS 65 (2006), that for the period from December 10, 2008 through September 30, 2009, claimant was limited to the same fiscal year 2006 maximum rate of $1, 073.64 that he had received for his previous temporary total disability. The administrative law judge next determined the maximum rates for claimant’s permanent total disability benefits for the succeeding fiscal years. Specifically, for the period from October 1, 2009 through September 30, 2010, she found claimant entitled to the maximum rate in fiscal year 2010, $1, 224.66. The administrative law judge further found that each October 1 thereafter, claimant is entitled to the new statutory maximum rate until such time that the statutory maximum rate exceeds two-thirds of his average weekly wage. In so finding, the administrative law judge rejected employer’s argument that the compensation rate for claimant’s permanent total disability benefits should be based only on the fiscal year 2006 maximum rate adjusted annually pursuant to Section 10(f), 33 U.S.C. §910(f).
On appeal, claimant assigns error to the administrative law judge’s finding that the fiscal year 2006 maximum rate applies to his permanent total disability award for the period from December 10, 2008 through September 30, 2009. Employer responds, urging affirmance of the administrative law judge’s finding regarding the maximum rate during this period. BRB No. 13-0107. In its cross-appeal, employer challenges the administrative law judge’s findings regarding the maximum compensation rates applicable to the period from October 1, 2009 through September 30, 2010, and in subsequent fiscal years. [2] Claimant responds, urging affirmance of the administrative law judge’s findings regarding the maximum rates applicable as of October 1, 2009 and thereafter. BRB No. 13-0107A.
We first consider the issue presented by claimant’s appeal, BRB No. 13-0107, regarding his initial period of entitlement to permanent total disability benefits from December 10, 2008 through September 30, 2009. For the reasons that follow, we agree with claimant that the administrative law judge erred in basing claimant’s benefits for this period on the fiscal year 2006 statutory maximum compensation rate rather than on the fiscal year 2009 maximum compensation rate. Pursuant to Sections 8(a) and (b) of the Act, compensation for permanent and temporary total disability is paid at the rate of two-thirds of the claimant’s average weekly wage. 33 U.S.C. §908(a), (b). The award, however, is subject to the maximum rate allowable under the Act. 33 U.S.C. §906. In this regard, Section 6 provides, in pertinent part, that:
33 U.S.C. §906(b)(1), (3), (c).
In the case before us, the administrative law judge relied on the Board’s decision in Reposky, 40 BRBS 65, to find that claimant’s compensation for the period from December 10, 2008 through the end of fiscal year 2009, that is September 30, 2009, is limited to the fiscal year 2006 statutory maximum rate of $1, 073.64, the rate that applied to claimant’s preceding period of temporary total disability compensation. Decision and Order at 3-4. The administrative law judge recognized that the Board’s holding in Reposky [3] regarding the statutory maximum rate applicable to the initial period of entitlement to permanent total disability benefits was overruled by the United States Court of Appeals for the Ninth Circuit in Roberts v. Director, OWCP, 625 F.3d 1204, 1208-09, 44 BRBS 73, 76(CRT) (9th Cir. 2010), aff’d sub nom. Roberts v. Sea-Land Services, Inc., 132 S.Ct. 1350, 46 BRBS 15(CRT) (2012). Id. at 3. The administrative law judge found, however, that the Ninth Circuit’s holding in Roberts is not binding precedent in this case, which arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit. [4]
In its decision in Reposky, 40 BRBS 65, the Board addressed the factual situation presented in this case, where the claimant’s temporary total disability changed to permanent total disability during the fiscal year, and reasoned that while the date of maximum medical improvement changes the nature of the claimant’s disability, a claimant who was continuously receiving benefits was not “newly awarded” compensation at that time. The Board consequently held that the Section 6(b) statutory maximum rate in effect during the fiscal year that the claimant reached maximum medical improvement does not apply to increase the claimant’s compensation rate for permanent total disability, and it concluded that such a claimant receives the same rate until the following October 1, when she is then entitled to the new Section 6(b) statutory maximum rate as she was “currently receiving” permanent total disability benefits at that time. Reposky, 40 BRBS at 77.
As acknowledged by the administrative law judge in this case the Ninth Circuit subsequently addressed this precise issue in Roberts, 625 F.3d 1204, 44 BRBS 73(CRT). In Roberts, the claimant was awarded temporary total disability benefits from March 2002 to July 2005, permanent total disability benefits from July 2005 to October 9, 2005, and ongoing permanent partial disability benefits commencing October 10, 2005. The Ninth Circuit addressed two questions regarding the interpretation of Section 6(c). The first issue involved the ...
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