Martin v. Aegis Defense Services, LLC
| Decision Date | 08 January 2019 |
| Docket Number | BRB 18-0122,18-0122A |
| Court | Longshore Complaints Court of Appeals |
| Parties | MATTHEW MARTIN Claimant-Respondent Cross-Petitioner v. AEGIS DEFENSE SERVICES, LLC Employer and ALLIED WORLD ASSURANCE COMPANY Carrier-Petitioner Cross-Respondent and CONTINENTAL INSURANCE COMPANY Carrier-Respondent Cross-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
UNPUBLISHED OPINION
Appeals of the Amended Decision and Order Awarding Compensation and Benefits of Richard M. Clark, Administrative Law Judge, United States Department of Labor.
Charles Robinowitz and Genavee Stokes-Avery (Law Offices of Charles Robinowitz), Portland, Oregon, for claimant.
Raymond H. Warns, Jr. (Holmes Weddle & Barcott, P.C.) Seattle, Washington, for employer and Allied World Assurance Company.
Marcy Singer Ruiz (Law Offices of Edward Kozel), Chicago, Illinois, for employer and Continental Insurance Company.
Milne Young (Kate S. O'Scannlain, Solicitor of Labor; Kevin Lyskowski, Acting Associate Solicitor; Mark A. Reinhalter, 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, BOGGS and BUZZARD, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its carrier Allied World Assurance Company (Allied) appeal, and claimant cross-appeals, the Amended Decision and Order Awarding Compensation and Benefits[1] (2015-LDA-00202 00203) of Administrative Law Judge Richard M. Clark 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 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, after serving in the United States Marine Corps, obtained work with employer in January 2012 as a Designated Defensive Marksman/PSS Personal Security Specialist (DDM). As a DDM, claimant worked under employer's contract securing the United States Embassy in Kabul, Afghanistan. JX 1. Prior to his deployment, claimant, while participating in an employer-sanctioned refresher training course on May 26, 2012, fractured his neck at the C1 level.[2] Claimant received treatment from Dr. Khosla, who provided him with a C-collar and pain medication, and told him to let the fracture heal on its own. Continental Insurance Company (CNA), who insured employer at the time of the May 26, 2012 injury, voluntarily paid claimant temporary total disability benefits for the neck fracture from May 27 to September 1, 2012, at the maximum compensation rate of $1, 295.60 per week. On August 22, 2012, Dr. Khosla released claimant to full-duty work, but explained to claimant that he could have flare-ups of pain while in Afghanistan. Claimant informed employer of his full-duty release and was deployed to Afghanistan around September 6, 2012. HT at 95-96.
As a DDM in Afghanistan, claimant agreed to work 12-hour shifts, six days per week, with fifteen weeks on and five weeks off, at a daily rate of $544.43. When on duty, he was required to move every four hours among three different posts at the embassy. He had to wear his gear and helmet when moving, as well as during the daily convoys between his living quarters at Camp Sullivan and the embassy.[3] Claimant stated he experienced neck pain from the outset of his work in Afghanistan, particularly when wearing his helmet, and that in November 2012, he began noticing pain radiating down his neck to his right arm and experiencing migraine headaches. He saw the doctor at Camp Sullivan on November 2, 2012, for temporal, orbital headaches, on November 25, 2012, for frequent migraines, and on January 11, 2013, for an occipital nerve block. Claimant extended his tour twice without going home, but returned stateside in January 2013 for scheduled leave because he missed his family and had neck pain.
Once stateside, claimant was referred by Dr. Khosla to Dr. Blake, who gave claimant facet point injections and imposed work restrictions of no lifting, pushing, or pulling over 80 pounds. Claimant did not return to work in Afghanistan. Instead, he worked as a forklift driver at Costco from November 3, 2014 to July 25, 2015, and as a full-time roofer at Kodiak Roofing since August 10, 2015. CNA again voluntarily paid claimant temporary total disability benefits from January 16, 2013, to September 9, 2014. Claimant filed claims seeking additional benefits for the May 26, 2012 neck fracture, as well as for the post-January 15, 2013 inability to return to his DDM work.[4] Employer and its carriers controverted the claim, [5] and the case was transferred to the Office of Administrative Law Judges for a formal hearing. Allied also sought Section 8(f) relief, 33 U.S.C. §908(f).
The administrative law judge, having found that claimant sustained a work-related neck injury on May 26, 2012, and aggravated that condition while working for employer in Afghanistan through January 15, 2013, concluded that Allied, as employer's carrier as of September 1, 2012, is the responsible carrier. The administrative law judge found claimant's work-related neck condition precludes him from returning to his DDM work and that employer did not demonstrate the availability of suitable alternate employment. Based on claimant's average weekly wage of $4, 286.10, and his earnings from his post-injury work at Costco and Kodiak Roofing, the administrative law judge awarded claimant disability benefits as follows: 1) temporary total disability benefits from February 13, 2013 to March 23, 2014; 2) permanent total disability benefits from March 24, to November 1, 2014; 3) permanent partial disability benefits from November 2, 2014 to August 9, 2015, based on a weekly loss of wage-earning capacity of $3, 541.54; and 4) ongoing permanent partial disability benefits from August 10, 2015, based on a weekly loss of wage-earning capacity of $3, 586.74. Additionally, the administrative law judge ordered CNA and Allied to reimburse claimant for certain out-of-pocket medical expenses and medical mileage incurred while each was employer's carrier, but he denied claimant's request for reimbursement of his home refinancing expenses.[6]
On appeal, Allied contends the administrative law judge failed to address whether claimant had an ongoing permanent partial disability due to the May 2012 neck fracture such that it is liable only for the loss in claimant's already reduced wage-earning capacity. Allied also challenges the administrative law judge's average weekly wage and post-injury wage-earning capacity findings. In her response brief, the Director, Office of Workers' Compensation Programs (the Director), requests that the Board remand the case to the administrative law judge to reconsider his finding that claimant's neck injury had fully healed by August 22, 2012, but affirm his inclusion of claimant's increased salary in his average weekly wage finding. Claimant and CNA also respond, urging rejection of Allied's contentions. Allied filed a reply brief. On cross-appeal, claimant challenges the administrative law judge's denial of his refinancing costs. CNA responds, urging affirmance of the denial of those costs. Claimant filed a reply brief.
Allied contends the administrative law judge erred by not addressing whether claimant sustained a permanent partial disability following the May 2012 work accident. Allied maintains that this missed analytical step affects claimant's entitlement to concurrent permanent partial disability awards and, thus, its liability for benefits due after the January 2013 work injury.[7] The Director agrees with this contention.
The administrative law judge found claimant sustained a neck fracture in May 2012 while CNA was the carrier on the risk that the neck injury had healed by August 22, 2012, and that claimant sustained an aggravation of his neck condition as a result of his work for employer in Afghanistan from September 2012 to January 2013 while Allied was the carrier on the risk. The administrative law judge thus found Allied liable for all compensation due claimant because it was on the risk at the time claimant's work caused the new aggravation injury.
We reject the assertions by Allied and the Director that the administrative law judge failed to address evidence suggesting claimant may not have fully healed from the May 26, 2012 neck fracture at the time he began his deployment in September 2012.[8] The administrative law judge fully summarized and discussed this evidence prior to finding that claimant sustained an aggravating injury.[9] See Decision and Order at 9-11, 14-15, 22, 26, 27. Moreover, the administrative law judge's findings that claimant sustained an aggravating neck injury as result of his work in Afghanistan and that Allied, as employer's carrier at the time of the aggravation, is liable for all post-January 2013 benefits, are supported by substantial evidence and in accordance with law.
Under the aggravation rule, an employer is liable for the entire resulting disability if an injury occurs during claimant's employment which aggravates a pre-existing condition and results in disability. Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT) (9th Cir. 1991). A claimant may be entitled to concurrent awards for his permanent disabilities to fully compensate him for the reduction in his earning power where he has successive...
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