M.G. v. Lake Charles Stevedores, Inc.
| Decision Date | 14 August 2009 |
| Docket Number | BRB 07-0891 |
| Parties | M.G. Claimant-Petitioner v. LAKE CHARLES STEVEDORES, INCORPORATED and PORTS INSURANCE COMPANY Employer/Carrier- Respondents J.J. FLANAGAN STEVEDORES and SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Benefits, Decision and Order on Reconsideration, and Decision and Order on Modification of Clement J. Kennington, Administrative Law Judge, United States Department of Labor.
M.G Glenmora, Louisiana, pro se.
Alan G. Brackett, Jon B. Robinson, and Robert N. Popich (Mouledoux, Bland, Legrand & Brackett, LLC), New Orleans Louisiana, for Lake Charles Stevedores, Incorporated and PORTS Insurance Company.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
Claimant representing himself, appeals the Decision and Order Granting Benefits, Decision and Order on Reconsideration, and Decision and Order on Modification (2006-LHC-1976, 1977, 1978, and 1979) of Administrative Law Judge Clement J. Kennington rendered on claims filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). In an appeal by a claimant without legal representation, we will review the findings of fact and conclusions of law of the administrative law judge to determine 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). If they are, they must be affirmed. Id.
Claimant was involved in four separate accidents in the course of his work as a longshoreman; three while he was employed by Lake Charles Stevedores (LCS), and a fourth while he was employed by J.J. Flanagan Stevedores (JJF). Specifically, claimant sustained injuries to his right shoulder and lower mid-back as a result of an accident on January 17, 2001. As a result of these injuries, claimant was off work from January 18, 2001, to March 4, 2001. [1] Upon returning to work, claimant resumed his normal activities, and continued to work in this capacity until August 14, 2001, when he reinjured his right shoulder and back. As a result of this second injury, claimant had right shoulder surgery which took place on October 10, 2002. [2]
Claimant returned to work in Eastern Texas on December 10, 2002. On July 6, 2004, claimant took a job with JJF in Lake Charles, Louisiana. While working that day, claimant stated that he injured his lower mid-back forcing him to miss work until September 22, 2004, when he stated he resumed working intermittently. [3]
On April 25, 2005, claimant, while working for LCS, stated that he began to experience severe shoulder and back pain and weakness, in addition to mental fatigue, which prevented him from working. Claimant denied being “injured” and referred to this incident as an aggravation causing his back and shoulder to go out. Nonetheless, claimant stated, and Dr. Bernauer agreed, that as of April 25, 2005, he was no longer able to work due to pain. Claimant, thereafter, sought, without assistance of counsel, additional compensation under the Act for injuries to his low mid back, right shoulder, and right hip, as well as for “mental unrest” which he alleged was due to the work incidents on January 17, 2001, August 14, 2001, July 6, 2004, and April 25, 2005. He also alleged that the April 25, 2005, incident resulted in an aggravation of all of his prior work-related injuries. [4]
In his initial decision dated May 8, 2007, the administrative law judge found that claimant established invocation of the Section 20(a) presumption with regard to his back injury, his right shoulder injury, and present psychological condition, and that employer established rebuttal only with regard to the psychological condition. Having found that claimant’s back and right shoulder injuries are work-related, the administrative law judge then found, based on the record as a whole, that claimant’s four work accidents did not cause or aggravate his long standing psychological condition, i.e., affective disorders and/or paranoid schizophrenia. He thus awarded claimant temporary total disability benefits, based on his work-related back and right shoulder injuries, for the periods of January 17 through February 28, 2001, August 14, 2001 through December 10, 2002, July 6 through September 21, 2004, and from April 25, 2005 through July 5, 2006, finding that claimant was able to return to work after each injury except for the last, at which time he found that claimant’s inability to work is due solely to his non-work-related psychological impairment. The administrative law judge denied claimant’s motion for reconsideration.
Claimant, without the assistance of counsel, appealed the administrative law judge’s decision to the Board. BRB No. 07-0891. Claimant then requested modification of the administrative law judge’s decision, and the Board dismissed claimant’s appeal and remanded the case for further proceedings pursuant to Section 22 of the Act, 33 U.S.C. §922. In response to claimant’s petition, employer filed a motion to compel an updated medical examination of claimant by Dr. Perry. In his Decision and Order on Modification on July 29, 2008, the administrative law judge found that claimant did not show either a change in his economic or physical condition or that there had been a mistake in fact in the prior decision. The administrative law judge therefore denied claimant’s request for modification. The administrative law judge also suspended further payment of compensation pursuant to Section 7(d)(4) of the Act, 33 U.S.C. §907(d)(4), based on claimant’s unreasonable refusal to undergo an examination by Dr. Perry.
Claimant appealed the administrative law judge’s Decision and Order on Modification, BRB No. 08-0803, [5] and the Board, by Order dated September 9, 2008, reinstated claimant’s prior appeal, BRB No. 07-0891, and consolidated it with BRB No. 08-0803. LCS responds, urging affirmance of the administrative law judge’s decisions. JJF has not responded to this appeal.
Claimant contends that his four claims should have been addressed separately and that the administrative law judge violated his due process rights and otherwise showed bias toward him. Since claimant’s pursuit of total disability and medical benefits in all four claims involved the same body parts and the development and presentation of similar evidence, the administrative law judge did not err in addressing all four claims at one time, as this is specifically permitted by the applicable regulation. 29 C.F.R. §18.11; [6] see also 20 C.F.R. §702.339. Second, contrary to claimant’s assertions, a review of the large record in this case, including the extensive submissions by claimant, reveals that the administrative law judge assured that claimant was treated fairly and provided with every possible opportunity to present evidence and to respond to employer’s evidence. Richardson v. Perales, 402 U.S. 389, 401-402 (1971). Moreover, we reject claimant’s allegation that the administrative law judge was biased against him, as unfavorable rulings alone are insufficient to show bias. See Orange v. Island Creek Coal Co., 786 F.2d 724, 8 BLR 2-192 (6th Cir. 1986); Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988).
We next address the administrative law judge’s finding in his initial decision that claimant’s psychological condition is not work-related and specifically the finding that employer rebutted the Section 20(a) presumption. The administrative law judge found that employer rebutted “any assertion by claimant that his four accidents either caused or aggravated claimant’s mental problems, ” Decision and Order dated May 8, 2007 at 15, as the reports of Drs. Culver and Quillin provide no evidence of any work connection to claimant’s long-standing psychological problems.
Once the Section 20(a) presumption is invoked, as in this case, the burden shifts to employer to rebut the presumption with substantial evidence that claimant’s condition is not related to his employment. See Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999). Where aggravation of a pre-existing condition is at issue, such as here where claimant has an existing psychological condition, the employer must present substantial evidence that the work accidents neither directly caused claimant’s injury nor aggravated the pre-existing condition. [7] Id.
Dr Quillin found that claimant had an extensive psychiatric history of outpatient treatment with evidence of alcohol and poly-drug abuse, poor social functioning, poor insight, considerable irritability, depression, and bipolar disorder. Dr. Quillin added that claimant’s condition is poor and prognosis is “poor, ” that it presents a substantial barrier to functional behavior, and thus, he recommended that claimant undergo more aggressive treatment of his affective disorder. JJX 17. On July 18, 2006, Dr. Culver diagnosed claimant with paranoid schizophrenia, personality disorder not otherwise specified, and osteoporosis, sarcoidosis, essential hypertension, degenerative disc disease and status/post acromioplasty. [8] CCX 114. As the administrative law judge found, the reports of Drs. Quillin or Culver do not state that there is a causal link between claimant’s psychological condition and his work accidents. However, the physicians also do not state that the work accidents did not cause or aggravate claimant’s existing psychological condition. As neither psychiatrist gave an opinion to a reasonable degree of medical probability that claimant’s psychological condition was not caused or aggravated by his work-related injuries, their opinions do not constitute substantial evidence sufficient to rebut the Section 20(a)...
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