Lewis v. Bay Shipbuilding Company
| Decision Date | 26 March 2001 |
| Docket Number | BRB 00-0794 |
| Parties | RONALD E. LEWIS, Claimant-Respondent v. BAY SHIPBUILDING COMPANY and SENTRY INSURANCE COMPANY, Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Court of Appeals of Longshore Complaints |
Appeal of the Decision and Order Granting Benefits and the Supplemental Decision and Order Denying Reconsideration and Awarding Attorney Fees of Pamela Lakes Wood, Administrative Law Judge, United States Department of Labor.
Holly P. Lutz, Wausau, Wisconsin, for claimant.
Gregory P. Sujack (Garofalo, Schreiber & Hart Chartered), Chicago, Illinois, for employer/carrier.
Thomas Giblin (Judith E. Kramer, Acting Solicitor of Labor; Carol A DeDeo, Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McATEER, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order Granting Benefits and the Supplemental Decision and Order Denying Reconsideration and Awarding Attorney Fees (97-LHC-1373) of Administrative Law Judge Pamela Lakes Wood 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. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3). The amount of an attorney's fee award is discretionary and may be set aside only if the challenging party shows it to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. See e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
On February 29, 1996, claimant injured his lower back during the course of his employment as a steelworker. Employer provided work within claimant's restrictions until he was laid off on June 21, 1996. Claimant resided during the week in Green Bay with his daughter for employment purposes, but he returned to his residence in Tipler, Wisconsin, on weekends. After his layoff in June 1996, claimant continuously resided in Tipler, which is located approximately 180 miles from employer's facility in Sturgeon Bay and 130 miles from Green Bay. Claimant was terminated by employer on November 6, 1996, for failure to report for work without reasonable cause for four consecutive days after receiving employer's written request that he return to work on October 23, 1996. He has not since returned to the workforce.
In her Decision and Order Granting Benefits, the administrative law judge found the medical evidence establishes that claimant is unable to return to his usual employment as a steelworker, which required occasional lifting up to a hundred pounds and frequent lifting and carrying up to 50 pounds. The administrative law judge credited the opinions of claimant's treating physicians, Dr. Robinson and Dr. Carlson, to find that claimant is restricted to light duty work involving lifting no more than 20 pounds occasionally and 10 pounds frequently. The administrative law judge next found that employer did not offer claimant employment at its facility in November 1996, or any time thereafter, that was within his work restrictions. The administrative law judge then determined that the northern counties of Wisconsin surrounding claimant's residence in Tipler are the appropriate geographic area for establishing the availability of suitable alternate employment. The administrative law judge credited employer's June 8, 1998, labor market survey to find that employer identified suitable alternate employment in the northern counties, and that this employment establishes that claimant has a residual wage-earning capacity of $6.00 per hour. Accordingly, claimant was awarded compensation for temporary total disability, 33 U.S.C. §908(b), from June 21, 1996, to September 27, 1996, compensation for permanent total disability, 33 U.S.C. §908(a), from September 27, 1996, to June 8, 1998, and, thereafter, compensation for permanent partial disability, 33 U.S.C. §908(c)(21), based on a loss of wage-earning capacity. Finally, the administrative law judge denied employer Section 8(f) relief, 33 U.S.C. §908(f), from continuing compensation liability.
Subsequent to the administrative law judge's decision, Russell J. LaCourse of the law office of Courtney, LaCourse and Little, P.A., submitted a fee petition requesting $27, 485.84, representing 70 hours of attorney services by the late James Courtney III, at an hourly rate of $185, 21.75 hours of paralegal services by the late Jill N.T. Swapinski, at an hourly rate of $75, 94.5 hours of paralegal services by Joan Lindgren at an hourly rate of $60, and costs of $7, 234.59. Holly Lutz submitted a fee petition requesting $7, 307.50, representing 39.5 hours at an hourly rate of $185, plus costs of $300.[1] Employer filed objections to the fee requests.
In her Supplemental Decision and Order Denying Reconsideration and Awarding Attorney Fees, the administrative law judge denied both employer's and claimant's motions for reconsideration on the issues of suitable alternate employment and wage-earning capacity. The administrative law judge, after considering the objections raised by employer, approved the hourly rates requested, and the number of hours requested for Mr. Courtney, reduced by 3.75 the number of hours claimed for work performed by Ms. Swapinski, reduced by one the number of hours sought for Ms. Lundgren, and reduced by 1.25 the number of hours requested by Ms. Lutz. The administrative law judge granted Ms. Lutz's motion requesting an additional six hours at $185 per hour for responding to employer's objections to her fee petition. Accordingly, the administrative law judge awarded the law offices of Courtney, LaCourse and Little, P.A., $26, 104.59, representing $20, 097.50 for attorney and paralegal time and costs of $6, 007.09. The administrative law judge awarded Ms. Lutz an attorney's fee of $8, 186.25, representing $7, 076.25 for the initial time requested, $1, 110 for time spent responding to employer's fee objections, and costs of $300.
On appeal, employer challenges the administrative law judge's findings that claimant is capable of performing only light duty work, that employer did not offer claimant a job at its facility within his work restrictions, and that the northern counties surrounding Tipler, Wisconsin, are the appropriate geographic area for purposes of establishing the availability of suitable alternate employment. Employer also contends the administrative law judge erred by denying its request for Section 8(f) relief. Finally, employer challenges the administrative law judge's fee awards. Claimant responds, urging affirmance of the administrative law judge's decisions awarding benefits and attorneys' fees. The Director, Office of Workers' Compensation Programs, responds, urging affirmance of the administrative law judge's denial of Section 8(f) relief.
Employer initially contends that the administrative law judge erred by crediting the opinions of Dr. Robinson and Dr. Carlson restricting claimant to light duty work due to his injury. Employer argues that the opinion of Dr. Blasier, as well as Dr. Robinson's notation in his September 27, 1996, report that claimant was farming tobacco, which Dr. Robinson opined constitutes medium or medium-heavy work, establish that claimant is capable of performing medium duty employment lifting up to 25 pounds frequently and 50 pounds occasionally.
It is well-established that claimant bears the burden of establishing the nature and extent of any disability sustained as a result of a work-related injury. See generally Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989). In the instant case, the administrative law judge credited the assessment of Dr. Carlson restricting claimant to lifting or carrying 10 pounds frequently and lifting 20 pounds occasionally, which the administrative law judge found consistent with the assessment made by Dr. Robinson on June 11, 1996. The administrative law judge explicitly rejected employer's interpretation of Dr. Robinson's notation regarding claimant's tobacco farming, finding that Dr. Robinson's statement does not establish that claimant is capable of performing medium duty work on a full-time basis. Moreover, in her decision on reconsideration, the administrative law judge noted claimant's assertion that there has been no showing of the nature and extent of claimant's work on his small tobacco plot, and the administrative law judge found that much of the work was performed by claimant's wife and children. See Tr. at 80, 82. The administrative law judge further found Dr. Blasier's opinion outweighed by the opinions of claimant's treating physicians, Drs. Carlson and Robinson, who had assessed claimant's condition over a period of time. Compare EX 1 with CX 1-K, O.
In adjudicating a claim, it is well-established that the administrative law judge is entitled to weigh the evidence and is not bound to accept the opinion or theory of any particular witness. Rather, the administrative law judge may draw his own conclusions and inferences from the evidence. See Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797 (7th Cir. 1977). In the instant case, we hold that the administrative law judge's decision to credit Dr. Carlson's opinion, as supported by the June 1996 assessment of Dr. Robinson, over the opinion of Dr. Blasier and Dr. Robinson's September 1996 notation regarding claimant's farming activities is rational. Accordingly, we affirm the administrative law judge's conclusion that claimant is restricted to light duty employment as it is supported by...
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