Lopez v. Stevedoring Services of America
| Decision Date | 26 October 2005 |
| Docket Number | BRB 05-0160 |
| Parties | JAMES M. LOPEZ, Claimant-Respondent v. STEVEDORING SERVICES OF AMERICA and HOMEPORT INSURANCE COMPANY, Employer/Carrier- Petitioners EAGLE MARINE SERVICES, Self-Insured Employer-Respondent MAERSK PACIFIC, LIMITED and SIGNAL MUTUAL INDEMNITY ASSOCIATION, Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Denying Benefits and the Order Concerning Attorney’s Fees of Russell D. Pulver Administrative Law Judge, United States Department of Labor.
Charles D. Naylor, San Pedro, California, for claimant.
James P. Aleccia, Alexa A. Socha, and Courtney B. Adolph (Aleccia Conner & Socha), Long Beach, California, for Stevedoring Services of America and Homeport Insurance Company.
Daniel F. Valenzuela and Michael D. Doran (Samuelsen, Gonzalez Valenzuela & Brown), San Pedro, California, for Eagle Marine Services.
James P. Aleccia (Aleccia, Conner & Socha), Long Beach, California, for Maersk Pacific, Limited and Signal Mutual Indemnity Association.
Mark A. Reinhalter and Kathleen H. Kim (Howard M. Radzely, Solicitor of Labor; Allen H. Feldman, Associate Solicitor), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Stevedoring Services of America (SSA) appeals the Decision and Order Awarding Benefits and the Order Concerning Attorney’s Fees (2003-LHC-2741, 2003-LHC-2742, 2003-LHC-2743 2003-LHC-2744) of Administrative Law Judge Russell D. Pulver 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. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The amount of an attorney’s fee award is discretionary and will not be set aside unless shown by the challenging party to be arbitrary, capricious, an abuse of discretion or not in accordance with the law. See, e.g., Roach v. New York Protective Covering Co., 16 BRBS 114 (1984). The Board heard oral argument in this case on June 27, 2005, in Pasadena, California.
Claimant began working as a casual longshoreman in 1994, and between 1999 and November 29, 2001, he operated a top handler that he alleged caused general pain in his shoulders, elbows, knees and back. In addition, claimant sustained a series of specific accidents with several employers over the course of his employment. On November 29, 2001, while working for Eagle Marine Services (EMS), claimant’s left knee popped out of place in the course of his operating a top handler. He thereafter decided, because of intense pain and safety concerns, that he could no longer operate a top handler, and began driving UTR’s, i.e., trucks used to move containers, chassis, and bomb carts around the yard.
On December 3, 2001, claimant sustained right shoulder and right elbow strains as a result of a UTR accident during his work for EMS. Claimant stopped driving UTR’s on January 6, 2002, because the work became too painful, and he subsequently obtained light-duty work through the casual board. Claimant filed claims under the Act seeking benefits from EMS related to his November 29, 2001, and January 6, 2002, work accidents.
Claimant next performed signal and clerking duties from the casual board from January 7, 2002, until April 8, 2003, including a stint with Maersk Pacific (Maersk) from October 10-14, 2002. On October 17, 2002, Dr. Delman opined that claimant’s recent work activities, including those for Maersk, exacerbated his prior shoulder, elbow and knee symptoms, and thus he placed claimant on temporary total disability for a period of two days. As a result, claimant filed a claim under the Act against Maersk in November 2002, seeking benefits for continuous repetitive trauma to his shoulders, knees and elbows. On February 28, 2003, Dr. Gold scheduled surgery on claimant’s right shoulder for April 10, 2003. Claimant continued to perform light-duty work up until the scheduled surgery, with his last employment, as a signalman for SSA, occurring on April 8, 2003. Claimant alleged that his work for SSA on that day caused an increase in his overall symptoms, and he thus filed a claim for benefits against SSA on June 18, 2003.
Dr. Gold performed surgery on claimant’s right shoulder on April 10, 2003, and on his left shoulder on June 10, 2003. Claimant then underwent laparoscopic banding surgery, on September 23, 2003, to lose weight in preparation for his impending knee surgeries. Left knee surgery was performed by Dr. Gold on February 23, 2004. At the time of the formal hearing, the right knee surgery was pending while claimant recovered from the left knee surgery.
In his decision, the administrative law judge initially found that SSA is the responsible employer as it was the last employer to have subjected claimant to trauma that aggravated and accelerated his underlying bilateral shoulder, knee and elbow conditions. The administrative law judge then determined that although claimant did not provide written notice of his April 8, 2003, injury to SSA until June 27, 2003, claimant’s notice was timely as it was given within 30 days of the date upon which claimant first became aware of the relationship between his injuries and his employment with SSA. 33 U.S.C. §912(a). Moreover, the administrative law judge concluded that SSA did not show that it was prejudiced by its perceived lack of timely notice. 33 U.S.C. §912(d). With regard to the merits of the claim, the administrative law judge found that claimant is entitled to ongoing temporary total disability and medical benefits from April 9, 2003. 33 U.S.C. §§907, 908(b).
Claimant’s counsel thereafter requested an attorney’s fee totaling $58, 171.53, representing 196.35 attorney hours at an hourly rate of $275, plus costs of $4, 175.28. Claimant’s counsel also filed a supplemental petition for an attorney’s fee requesting an additional fee of $5, 175, representing 23 attorney hours at an hourly rate of $225, for work performed in conjunction with the initial fee petition. SSA objected to its liability for an attorney’s fee pursuant to Section 28 of the Act, 33 U.S.C. §928. In his Order Concerning Attorney’s Fees, the administrative law judge found SSA liable for an attorney’s fee to claimant’s counsel totaling $49, 422.78, representing 201.1 hours at an hourly rate of $225, plus the requested costs of $4, 175.28.
On appeal, SSA challenges the administrative law judge’s finding that claimant’s employment with it aggravated his orthopedic conditions and therefore that it is the responsible employer in this case. SSA also contends that the administrative law judge erred in finding that claimant filed a timely notice of injury, and that it is liable for claimant’s medical benefits and an attorney’s fee. Claimant, EMS, Maersk, and the Director, Office of Workers’ Compensation Programs (the Director), have filed response briefs in this case. Claimant and EMS urge affirmance of the administrative law judge’s decision. Maersk, on the other hand, joins SSA in arguing that the administrative law judge erred in finding that claimant’s orthopedic conditions were aggravated by his employment subsequent to his last work for EMS, that claimant provided timely notice of his injury pursuant to Section 12 of the Act, and that claimant is entitled to medical benefits. The Director urges the Board to affirm the administrative law judge’s award of temporary total disability benefits, and to vacate the award of medical expenses and remand for clarification of SSA’s liability with regard to any awarded medical expenses.
SSA asserts that claimant’s notice of injury to SSA was untimely as it was first received on June 27, 2003, sixty days beyond the purported date of injury, April 8, 2003. SSA maintains that the record establishes that claimant was aware or should have been aware of his duty to report his alleged injury at SSA within thirty days of April 8, 2003. In this regard, SSA points to the facts that claimant, at that time represented by counsel, had already filed claims against EMS and Maersk and thus was well-versed in the Act’s requirements and that claimant, who stopped working as of April 8, 2003, in order to undergo surgery for his work-related shoulder condition on April 10, 2003, testified that his signaling duties at SSA caused him increased pain.
Section 12(a) of the Act requires that claimant must, in a traumatic injury case, give employer written notice of his injury within 30 days of the injury or of the date 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 employment. [1] 33 U.S.C. §912(a); Todd Shipyards Corp. v Allan, 666 F.2d 399, 14 BRBS 427 (9 th 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 claimant is aware, or should have been aware, of the relationship between the injury, the employment, and the disability, and not necessarily on the date of the accident, or in this case, the last alleged trauma to claimant’s overall condition. See Ceres Gulf, Inc. v. Director, OWCP [Fagan], 111 F.3d 17, 31 BRBS 21(CRT) (5 th Cir. 1997); Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 24 BRBS 98(CRT) (4 th Cir. 1991); J.M. Martinac Shipbuilding v. Director, OWCP [Grage], 900 F.2d 180, 23 BRBS 127(CRT) (9 th Cir. 1990); Marathon Oil Co. v. Lunsford, 733 F.2d 1139, 16 BRBS 100(CRT) (5 th Cir. 1984); see also Bath Iron Works Corp. v....
To continue reading
Request your trial