Maldonado v. Gulf Copper Dry Dock & Rig Repair
| Decision Date | 06 June 2017 |
| Docket Number | BRB 16-0417,16-0417A |
| Parties | GUILLERMO MALDONADO Claimant-Petitioner Cross-Respondent v. GULF COPPER DRY DOCK & RIG REPAIR and AMERICAN LONGSHORE MUTUAL ASSOCIATION, LIMITED Employer/Carrier-Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Order Admitting Proposed Exhibit 31 and Reopening the Record, the Decision and Order, and the Supplemental Order Amending Decision of Clement J. Kennington, Administrative Law Judge, United States Department of Labor.
William G. Pulkingham (Rendon & Associates), Houston Texas, for claimant.
Kevin A. Marks and Scott R. Huete (Melchiode Marks King LLC), New Orleans, Louisiana, for employer/carrier.
Before: BUZZARD, GILLIGAN and ROLFE, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals and employer cross-appeals the Order Admitting Proposed Exhibit 31 and Reopening the Record, the Decision and Order, and the Supplemental Order Amending Decision (2015-LHC-00510) 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). We must affirm the administrative law judge's findings of fact and conclusions of law 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).
Claimant injured his low back and knees on September 15, 2011, during the course of his employment with employer as a sandblaster/painter. Employer voluntarily paid compensation and provided medical benefits. Claimant underwent right knee surgery by Dr. Siller, who released claimant to return to light-duty work on December 28, 2011. CX 6 at 16; EXs 6 at 18, 21 at 8. Employer terminated its compensation payments on January 5, 2012. EX 17 at 7. Claimant did not respond to employer's January 30, 2012 offer of light-duty work in its office. EX 3 at 1. Claimant received pain management treatment from Dr. Cardona at Bodies in Balance from May 25, 2012 to August 3, 2012, for which employer declined to pay. CX 18; EX 21 at 9-12, 47.
Claimant filed a claim under the Act that was date-stamped by the Office of Workers' Compensation Programs (OWCP) on October 27, 2014. EX 17 at 50. Claimant sought ongoing compensation for temporary total disability, 33 U.S.C. §908(b), from January 12, 2012, and medical expenses totaling $16, 270 from Bodies in Balance and $1, 944.63 from UTMB of Galveston. Employer challenged, inter alia, the timeliness of the claim and the compensability of Dr. Cardona's treatment.
In his decision, the administrative law judge found that claimant's claim was timely filed under Section 13 of the Act, 33 U.S.C. §913. Decision and Order at 11-12. The administrative law judge found that claimant's right knee condition reached maximum medical improvement 12 weeks after his surgery on November 9, 2011. Id. at 14. The administrative law judge rejected claimant's contention that he did not receive employer's January 2012 offer of a light-duty job at its Galveston facility, and found, based on this offer, that employer established the availability of suitable alternate employment. The administrative law judge ordered employer to pay claimant compensation for permanent total disability, 33 U.S.C. §908(a), from January 12 to January 30, 2012; the administrative law judge found that claimant did not have a loss in wage-earning capacity after this date. Id. The administrative law judge found that employer authorized necessary treatment at Bodies in Balance, which, therefore, is compensable under Section 7, 33 U.S.C. §907, and he also ordered employer to pay the medical bill for claimant's initial treatment at UTMB Galveston.[1] Id. at 15.
Claimant appeals the administrative law judge's maximum medical improvement and suitable alternate employment findings. Claimant also challenges the potential implications of the administrative law judge's evaluation of the reports of Dr. Howie, and he further asserts the decision does not comport with the Administrative Procedure Act (APA), 5 U.S.C. §557, because the administrative law judge did not discuss all of claimant's work-related conditions. BRB No. 16-0417. Employer responds that claimant's contentions are without merit. Claimant filed a reply brief. Employer appeals the administrative law judge's findings that the claim was timely filed pursuant to Section 13 and the compensability of claimant's treatment at Bodies in Balance. BRB No. 16-0417A. Claimant filed a response brief, and employer filed a reply brief.
We first address employer's contention that the administrative law judge erred in finding that the claim was timely filed. Section 13(a), 33 U.S.C. §913(a), applies in traumatic injury cases and provides that the right to compensation is barred unless the claim is filed within one year of the date claimant is aware, or in the exercise of reasonable diligence should have been aware, of the relationship between the injury and the employment. 33 U.S.C. §913(a);[2] Ceres Gulf, Inc. v. Director, OWCP [Fagan], 111 F.3d 17, 31 BRBS 21(CRT) (5th Cir. 1997). Employer must establish that it filed a Section 30(a) report of injury, 33 U.S.C. §930(a), as a predicate to rebutting the Section 20(b) presumption that the claim was timely filed, 33 U.S.C. §920(b).[3] Blanding v. Director, OWCP, 186 F.3d 232, 33 BRBS 114(CRT) (2d Cir. 1999); 20 C.F.R. §§702.201-202. Pursuant to Section 30(f), 33 U.S.C. §930(f), the Section 13(a) time limitation is tolled until such time as the employer complies with Section 30(a).[4] Aurelio v. Louisiana Stevedores, Inc., 22 BRBS 418 (1989), aff'd, 924 F.2d 105 (5th Cir. 1991) (table).
We agree with employer that the administrative law judge erred in finding that employer is precluded from rebutting the Section 20(b) presumption because employer did not file a Section 30(a) report within 10 days of the September 15, 2011 work injury and because the notice of injury form inaccurately stated claimant's address. By letter dated September 30, 2011, employer submitted an LS-202, Notice of Injury Form, to the OWCP, which apparently was received on October 14, 2011. EX 17 at 4. The form contains the Ball Street address in Galveston where claimant lived while working for employer.[5] 33 U.S.C. §930(a); 20 C.F.R. §702.202(b). Claimant supplied this address to employer on February 9, 2011. See EX 1 at 11. As employer's notice of injury contains the address claimant provided to employer, there is no basis for the administrative law judge's finding that employer incorrectly filled out the Section 30(a) report.
More significantly, while Section 30(a) provides that employer's first report of injury “shall be filed” with the OWCP within 10 days of the injury, Section 30(f) states only that the Section 13(a) limitations period is tolled until the Section 30(a) report is filed. See n.4, supra. Thus, the Section 13(a) time limitation was tolled pursuant to Section 30(f) only until October 14, 2011, at the latest. Accordingly, the administrative law judge's finding that claimant's claim was timely filed because employer did not comply with Section 30(a) is reversed.
Section 13(a) further provides that the time for filing a claim is tolled until one year after the last voluntary payment of compensation, which in this case was on January 5, 2012.[6] EX 16 at 1; see n.2, supra. Thus, the Section 13(a) limitations period commenced on this date. See Vodanovich v. Fishing Vessel Owners Marine Ways, Inc., 27 BRBS 286 (1994); 33 U.S.C. §913(a). The OWCP received claimant's LS-203, Claim for Compensation, on October 27, 2014. EX 17 at 50. This claim was untimely filed with respect to the date of the last voluntary payment.
Citing Walker v. Rothschild Int'l Stevedoring Co., 526 F.2d 1137, 3 BRBS 6 (9th Cir. 1975), the administrative law judge further stated that attending physicians' reports indicating the possibility of continuing disability filed with the OWCP within a year after the termination of voluntary payments will suffice to meet the requirements of Section 13(a). See Decision and Order at 11. This is an accurate statement of the law. Any writing filed with the OWCP may constitute a claim so long as it discloses an intention to assert a right to compensation. Avondale Industries, Inc. v. Alario, 355 F.3d 848, 37 BRBS 116(CRT) (5th Cir. 2003); Vodanovich, 27 BRBS 286; Bingham v. General Dynamics Corp., 14 BRBS 614 (1982); see also Fireman's Fund Ins. Co. v. Bergeron, 493 F.2d 545 (5th Cir. 1974). However, the administrative law judge did not discuss any evidence of record in terms of this law.[7] Therefore, we vacate the administrative law judge's finding that claimant filed a timely claim under the Act. We remand the case for him to address any evidence relevant to whether claimant filed with the OWCP, within one year of the last voluntary payment, any other writing that could constitute a claim under the Act.
Employer challenges the administrative law judge's finding that it is liable for the medical treatment provided at Bodies in Balance. The administrative law judge found that Donnie Amaya, employer's claims adjuster, authorized Dr Cardona's treatment at Bodies in Balance and that this treatment was reasonable and necessary based on the deposition testimony of claimant's treating physician, Dr. Siller. Decision and Order at 11, 15. Accordingly, the administrative law judge ordered that employer pay claimant's medical bill from Bodies in Balance, totaling $16, 270.
Section 7(a) of the Act requires that employer pay for its injured worker's medical treatment. 33 U.S.C §907(a).[8] In...
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