Meehan Seaway Service Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept of Labor

• Decision Date: 15 September 1997
• Docket Number: No. 96-3922,96-3922
• Citation: 125 F.3d 1163
• Parties: MEEHAN SEAWAY SERVICE COMPANY, Employer, and Frank Gates/Acclaim, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, American Grain Trimmers, Inc., and Robert Hizinski, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1163

125 F.3d 1163

1998 A.M.C. 602

MEEHAN SEAWAY SERVICE COMPANY, Employer, and Frank Gates/Acclaim, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, American Grain Trimmers, Inc., and Robert Hizinski, Respondents.

No. 96-3922.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1997.

Decided Sept. 15, 1997.

Gregory Paul Sujack, Chicago, IL, argued, for petitioners.

James Joseph Courtney, Duluth, MN, argued, for respondent Hizinski.

Before LOKEN and ROSS, Circuit Judges, and FENNER, ¹ District Judge.

FENNER, District Judge.

Meehan Seaway Service Company (Meehan) petitions for review of an order of the Benefits Review Board (BRB) of the Department of Labor awarding benefits to Robert Hizinski on his claim arising under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq.

Hizinski worked as a longshoreman in Duluth, Minnesota until October 14, 1989. On that date, Hizinski was employed by Meehan. His job on October 14, 1989, was to carry 110 pound grain sacks across the uneven surface of other sacks as a vessel was being loaded. At the end of his work day, Hizinski told his supervisor that his right knee was giving him pain. Hizinski underwent knee surgery three months later and has not worked since that time.

Hizinski sought benefits for his injured right knee under the LHWCA pursuant to his amended claim which was filed on May 9, 1990. Hizinski alleged two injuries to his right knee. Hizinski asserted a claim against American Grain Trimmers (American) for injury to his right knee while working for American on December 1, 1979, and a claim against Meehan for injury while working for Meehan on October 14, 1989.

A hearing was held before an administrative law judge (ALJ). The ALJ found that in 1979, Hizinski injured his left knee while working at American and, therefore, American was not liable for the complaint of right knee injury. The ALJ further found that Hizinski was entitled to the 33 U.S.C. § 920(a) presumption with regard to the causal nexus between his right knee problems and his employment with Meehan. The ALJ further found that rebuttal had not been established with regard to this condition. The ALJ concluded that claimant was permanently totally disabled, as Meehan did not establish the existence of suitable alternate employment, and awarded benefits based on an average weekly wage of $186. Meehan appealed the decision of the ALJ to the Benefits Review Board of the Department of Labor which affirmed the decision of the ALJ.

STANDARD OF REVIEW

In LHWCA proceedings the BRB must accept the ALJ's findings unless they are contrary to the law or unsupported by substantial evidence. Munguia v. Chevron U.S.A., Inc., 999 F.2d 808 (5th Cir.), rehearing denied, 8 F.3d 24 (5th Cir.1993), cert. denied, 511 U.S. 1086, 114 S.Ct. 1839, 128 L.Ed.2d 466 (1994). On appeal from a decision of the BRB, the Court of Appeals reviews the decision of the ALJ merely to determine that the BRB adhered to the proper standard of review. Robinson v. Missouri Min. Co., 955 F.2d 1181, 1183 (8th Cir.1992). While appellate review of legal conclusions is plenary, review of factual findings is limited. Brown v. Director, OWCP, U.S. Dept. of Labor, 914 F.2d 156, 158 (8th Cir.1990). Factual findings of the ALJ are conclusive if supported by substantial evidence in the record. Id.

SUFFICIENCY OF CLAIM AND NOTICE

On appeal Meehan argues that it was denied due process by the ALJ awarding benefits on a theory that the claimant, Hizinski, did not assert. Meehan argues that Hizinski was asserting a claim against it for a specific trauma accident occurring on October 14, 1989, which the ALJ found did not occur. Meehan argues that it was not given adequate notice to defend against a claim of cumulative trauma or aggravation of pre-existing condition which was the finding of the ALJ. Meehan argues further on this point that by deciding Hizinski's claim on a theory not presented, the ALJ improperly failed to maintain a position of impartiality.

In conducting a hearing, the BRB is not bound by the technical or formal rules of procedure except as provided in the LHWCA. Nothing within the LHWCA makes the formal rules of procedure applicable. 33 U.S.C. § 923(a). However, 33 U.S.C. § 912(b) requires that the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further that "[s]uch notice ... shall contain ... a statement of the time, place, nature, and cause of the injury." The claim, like the notice required by § 12 and like the pleadings required in any type of litigation, serves the purposes of notifying the adverse party of the allegations and of confining the issues to be tried and adjudicated. U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 455 U.S. 608, 613, 102 S.Ct. 1312, 1316-17, 71 L.Ed.2d 495 (1982).

The statement of the claim must be more than a mere declaration that the employee has received an injury or is suffering from an illness that is related to his employment; it must contain enough details about the nature and extent of the injury or disease to allow the employer to conduct a prompt and complete investigation of the claim so that no prejudice will ensue. Id.

Citing Larson, The Law of Workmen's Compensation, the Supreme Court in U.S. Industries/Federal Metal, Inc., noted that:

an informal substitute for a claim may be acceptable if it "identif[ies] the claimant, indicate[s] that a compensable injury has occurred, and convey[s] the idea that compensation is expected." [3A. Larson, The Law of Workmen's Compensation], § 78.11, p 15-9; that "considerable liberality is usually shown in allowing amendment of pleadings to correct ... defects," unless the "effect is one of undue surprise or prejudice to the opposing party," id., p. 15-11; and that "wide latitude is allowed" as to variance between pleading and proof, "[b]ut if the variance is so great that the defendant is prejudiced by having to deal at the hearing with an injury entirely different from the one pleaded, the variance may be held fatal," id., at 15-13 - 15-14.

U.S. Industries Federal Sheet Metal, Inc., 455 U.S. at 613-14, 102 S.Ct. at 1317.

Hizinski's claim notified Meehan that he was seeking benefits in regard to injury to his right knee related to his employment. Hizinski alleged that "[w]hile doing heavy hold work carrying wheat bags weighing approximately 110 pounds and carrying them 5 to 20 feet at a time, employee injured his knee." Hizinski alleged in his complaint that the date of his injury was October 14, 1989. In his deposition and at trial, Hizinski testified that his knee was injured on October 14, 1989, when he stepped in a hole between bags of grain and twisted his knee. Nonetheless, the ALJ determined that the evidence did not support a finding of a specific accident as represented but rather that the evidence supported a finding of cumulative trauma or aggravation of preexisting injury. The BRB affirmed the decision of the ALJ.

Hizinski's complaint notified Meehan that he had received an injury to his right knee which he claimed was related to his employment. Furthermore, Hizinski filed a Pretrial Stipulation in which he provided notice to Meehan that he wished to reserve the right to claim that his knee injury was in the nature of a "Gillette" injury or occupational disease. The BRB defined a "Gillette" injury as a cumulative trauma injury under state law. Additionally, three months prior to the hearing herein, counsel for Hizinski sent a letter to the Department of Labor with a The record reflects that Meehan was put on notice prior to the hearing date that there was uncertainty as to the nature of Hizinski's injury with a possibility of cumulative trauma. Furthermore, there was substantial evidence presented at the hearing to support the finding of the ALJ. Meehan was not prejudiced by the lack of specificity as to the nature of the injury under the circumstances presented here. The finding of the ALJ does not reflect a lack of impartiality. Meehan's challenge to the sufficiency of the claim and lack of notice is denied.

                copy to the claim representative for Meehan's insurer stating that after having time to consider the injury that the "work [Hizinski] did at Meehan (not the accident he had) temporarily aggravated his knee condition."   At the hearing, Hizinski testified that his knee condition became progressively worse over the years.  Hizinski notified the Department of Labor in 1985 that his knee was hurting him more and more.  In 1986, Hizinski was examined for increasing knee pain by two physicians and prescribed medication.  Hizinski's treating physician after October 1989 reflected in his notes that Hizinski was having continuing problems with his right knee
                

SECTION 920(a)

PRESUMPTION

Meehan argues on this point that Hizinski was not entitled to the presumption that his claim was within the LHWCA as provided under 33 U.S.C. § 920(a) and that even if he was that the ALJ erred in finding that Meehan failed to rebut the presumption.

Title 33 U.S.C. § 920(a) provides that in any proceeding for enforcement of a claim for compensation under the LHWCA, it shall be presumed that the claim comes within the provisions of the act. However, this presumption does not apply to a claim that has never been made and is, therefore, not properly before the ALJ. U.S. Industries Federal Sheet Metal, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 455 U.S. at 612-13, 102 S.Ct. at 1316. Before the presumption will attach a claimant must state a prima facie claim for compensation which must at least allege an injury that arose in the course of employment as well as out of employment. Id. at 615, 102 S.Ct. at 1317. Arising "out of" and "in the course of" employment are separate elements: the...