Mosley v. Global Associates

• Decision Date: 07 December 2006
• Docket Number: BRB 06-0310
• Parties: BARBARA MOSLEY (Widow of PERRY MOSLEY), Claimant-Petitioner v. GLOBAL ASSOCIATES and EMPLOYERS' INSURANCE OF WAUSAU, Employer/Carrier DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent
• Court: Longshore Complaints Court of Appeals

BARBARA MOSLEY (Widow of PERRY MOSLEY) Claimant-Petitioner v. GLOBAL ASSOCIATES and EMPLOYERS' INSURANCE OF WAUSAU Employer/Carrier DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 06-0310

December 7, 2006

UNPUBLISHED OPINION

Appeal of the Decision and Order Denying Claim of Alexander Karst Administrative Law Judge, United States Department of Labor.

Irene C. Morales, Caitlan C. Watters, and Joseph F. Ramos (Inland Counties Legal Services, Inc.), Riverside, California, for claimant.

Matthew W. Boyle (Howard M. Radzely, Solicitor of Labor; Allen H. Feldman, 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: DOLDER, Chief Administrative Appeals Judge, SMITH and BOGGS, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM

Claimant appeals the Decision and Order (2004-LHC-2112) of Administrative Law Judge Alexander Karst 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), as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. 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 employee in this case died on January 17, 1975, while working for employer. Claimant, his surviving spouse, was subsequently awarded death benefits on behalf of herself and a dependent child by Administrative Law Judge Henry B. Lasky. See 33 U.S.C. §909(b). In his decision dated April 28, 1980, Judge Lasky ordered employer and its carrier to pay claimant death benefits for a period of 104 weeks from January 18, 1975, with the Special Fund assuming liability for the payment of said benefits thereafter in accordance with Section 8(f) of the Act, 33 U.S.C. §908(f). As a result, the Special Fund has been making payments to claimant since January 14, 1977.

Under Section 9(b), claimant was entitled to an award on behalf of herself and the dependent child of 66 2/3 percent of decedent’s average weekly wage, plus annual adjustments pursuant to Section 10(f), 33 U.S.C. §910(f), continuing, at the latest, until such time as the dependent child reached the age of 23, which occurred on May 2, 1996. 33 U.S.C. §§909(b), 902(14), 902(18). However, as a result of an administrative error on the part of the Director, Office of Workers’ Compensation Programs (the Director), claimant continued to receive benefits at 66 2/3 percent of decedent’s average weekly wage until November 19, 2003, resulting in an overpayment of $52, 315.71. At that point, claimant’s benefits were reduced to 50 percent of decedent’s average weekly wage in accordance with Section 9(b).

On December 4, 2003, the Director informed claimant of the overpayment. He also began withholding, at first, $50 per week, and then subsequently $25 per week, from claimant’s benefits, in an effort to recoup the overpayment. Claimant, citing financial hardship, objected to the reduction in her benefits, and the case was forwarded to the Office of Administrative Law Judges for a formal hearing. Administrative Law Judge Alexander Karst (the administrative law judge) denied claimant’s request that the Director be barred from further recovery of its overpayment. He concluded that the Director is entitled to continue reducing future payments of claimant’s compensation to recoup the overpayment pursuant to Section 14(j), 33 U.S.C. §914(j).

On appeal, claimant challenges the administrative law judge’s finding that the Director is entitled to reduce the payment of benefits in order to recoup his overpayment. The Director responds, urging affirmance.

Claimant argues that the Director should be barred from recovering the overpayment since no order modifying the existing award has been entered. Claimant also contends that the administrative law judge erred by not considering the equitable doctrines of limitation of actions, laches, and detrimental reliance, which she fully raised before him. Claimant maintains that since the administrative law judge’s decision is silent on these points, these affirmative defenses are ripe for review by the Board.

Under Section 22 of the Act, 33 U.S.C. §922, any party-in-interest may, at any time within one year of the last payment of compensation or within one year of the rejection of a claim, request modification based on a mistake in fact or change in condition. Banks v. Chicago Grain Trimmers Assoc., 390 U.S. 459 (1968), reh’g denied, 391 U.S. 929 (1968). Initially, contrary to claimant’s contention, any Section 22 action would not be time-barred because the payment of benefits in this case is ongoing. Specifically, employer has not made a “last payment” of compensation nor has there been a “rejection of a claim.” See generally Alexander v. Avondale Industries, Inc., 36 BRBS 142 (2002); Moore v. Int'l Terminals, Inc., 35 BRBS 28 (2001). In any event, the facts of the instant case do not present a situation requiring the application of Section 22.

Section 9(b) of the Act, 33 U.S.C. §909(b), provides for the payment of one death benefit where a decedent is survived by a spouse and one or more dependent children. See generally Hawkins v. Harbert Int’l, Inc., 33 BRBS 198 (1999); Ferguson v. Southern States Cooperative, 27 BRBS 16 (1993); Lewis v. Bethlehem Steel Corp., 19 BRBS 90 (1986). In particular, the benefit includes additional compensation for the decedent’s child or children, but it is not considered to be two or more separate benefits. Id. Section 9(b) directs that a widow with a dependent child shall receive 66 2/3 percent of decedent’s average weekly wage and that compensation at that rate remains payable, at the latest, until such time as the dependent child reaches the age of 23. ^[1] 33 U.S.C. §§909(b), 902(14), 902(18) (defining a child as a person under age eighteen, or full-time student under age of twenty-three attending an accredited institution). At that point, the widow’s entitlement reverts to her statutorily prescribed 50 percent of decedent’s average weekly wage. 33 U.S.C. §909(b).

Judge Lasky’s award of death benefits pursuant to Section 9(b) generally incorporates the reduction in benefits subsequently sought by the Director in this case as it reflects the appropriate calculation of entitlement to benefits pursuant to the Act. ^[2] Lasky Decision and Order at 4. Thus, no modification proceedings were required in order to reduce claimant’s compensation in this case, or for the Director to seek reimbursement of the resulting overpayment under Section 14(j), 33 U.S.C. §914(j). We therefore reject claimant’s assertion that the Director must proceed via Section 22 in order to recover the overpayment.

Moreover, the Director’s lack of diligence in terminating the payment of the child’s benefits in a timely manner is insufficient to bar his recovery of the overpayment. As the Director notes, neither Section 14(j) nor any other provision of the Act requires a showing of fault on the part of a claimant to allow either an employer or the Special Fund to recoup an overpayment to which the claimant has no legal entitlement. See Flynn v. John T. Clark & Sons, 30 BRBS 73 (1996). Rather, the language of Section 14(j) is clear in that it allows employer, or in this case the Special Fund, to receive a credit for “advance” payments of compensation against any compensation subsequently found due. ^[3] 33 U.S.C. §914(j); Flynn, 30 BRBS 73. Moreover, as the Board has previously recognized, the explicit purpose of Section 14(j) is to enable an employer to recover those funds which it has paid out, and claimant has received, to which it is later found that claimant is not entitled. Flynn, 30 BRBS 73; see also generally Phillips v. Marine Concrete Structures, Inc., 877 F.2d 1231, 22 BRBS 83(CRT) (5th Cir.1989), aff'g 21 BRBS 233 (1988), rev'd on other grounds, 895 F.2d 1033, 23 BRBS 36(CRT) (5th Cir.1990) (en banc).

In Flynn, 30 BRBS 73, the claimant and her two minor children were awarded death benefits pursuant to the Act commencing on February 6, 1968. The carrier paid the benefits until November 8, 1990, when it realized that it had been erroneously making cost-of-living adjustments pursuant to a newly enacted Massachusetts workers’ compensation statute, resulting in an alleged overpayment of $5, 099.42. The carrier intended to recoup this overpayment by suspending the payment of benefits to claimant for a total of 445 weeks or approximately eight and one-half years, and, upon recoupment, to reinstate the benefits. Claimant sought to have her past due benefits paid, her benefits reinstated, and to have the collection of the carrier’s overpayment waived. The administrative law judge concluded that the carrier was not entitled to a credit against future benefits owed to claimant for over payments it mistakenly made after an award was issued. The Board, however, reversed the administrative law judge’s conclusion, holding that an employer who is paying benefits pursuant to an award under the Act may credit excess payments it erroneously made under the provisions of a state workers’ compensation statute as such payments were “advanced payments of compensation” for purposes of Section 14(j). In this regard, the Board held that the plain language of Section 14(j) does not require that a mistaken overpayment can be recouped only if it is voluntarily made prior to the entry of an award. Rather, the literal language of Section 14(j) merely requires...