Newport News Shipbuilding and Dry Dock Co. v. Holiday

• Decision Date: 29 December 2009
• Docket Number: No. 08-1122.,No. 08-1129.,08-1129.,08-1122.
• Citation: 591 F.3d 219
• Parties: NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Harry HOLIDAY; Director, Office of Workers' Compensation Programs, Respondents. Harry Holiday, Petitioner, v. Director, Office of Workers' Compensation Programs; Newport News Shipbuilding and Dry Dock Company, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

591 F.3d 219

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Harry HOLIDAY; Director, Office of Workers' Compensation Programs, Respondents.

Harry Holiday, Petitioner, v. Director, Office of Workers' Compensation Programs; Newport News Shipbuilding and Dry Dock Company, Respondents.

No. 08-1129.

No. 08-1122.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: December 29, 2009.

ARGUED: Jonathan Henry Walker, Mason, Mason, Walker & Hedrick, PC, Newport News, Virginia, for Newport News Shipbuilding and Dry Dock Company. Joshua Thomas Gillelan, II, Longshore Claimants National Law Center, Washington, D.C., for Harry Holiday. ON BRIEF: Ralph R. Lorberbaum, Zipperer, Lorberbaum & Beauvais, Savannah, Georgia, for Harry Holiday.

Before NIEMEYER and DUNCAN, Circuit Judges, and JAMES P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge NIEMEYER and Judge JONES joined.

OPINION

DUNCAN, Circuit Judge:

Newport News Shipbuilding and Dry Dock Company ("Newport News") and Harry Holiday ("Holiday") petition and cross-petition for review from a final order of the Department of Labor's Benefits Review Board (the "BRB"). The BRB held that Newport News had not provided substantial evidence to rebut a presumption of compensability that the Longshore and Harbor Workers' Compensation Act (the "LHWCA") provided Holiday once he made out his prima facie case of workplace related aggravation-injury. The BRB also awarded Holiday's appellate counsel $250 per hour, down from his requested hourly rate of $420 per hour, and deducted 1.05 hours from the total time he claimed. For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I.

Holiday worked as a longshoreman for Newport News from early 2001 until February 2004. He worked principally as a nuclear pipefitter at the main yard, but occasionally took overtime assignments at the nearby Copeland industrial park ("Copeland Park").¹ On Saturday, January 31, 2004, Holiday was assembling metal racks at Copeland Park when he experienced pain in his back. Holiday reported the pain to his supervisor there, but declined medical attention. On February 10, 2004, Holiday was at work in the main yard, drilling holes in boxes for mounting. This required him to press down on a drill and bend over repeatedly to pick up the boxes. At one point, Holiday bent over to reach a box on the ground and felt his back give out. He stood hunched over, unable to move, until discovered by two colleagues who escorted him to the medical clinic.

In December 2004, Holiday filed a claim for total temporary disability compensation under the LHWCA with the District Director for the Department of Labor, in Norfolk, Virginia.² Because Holiday had moved to Augusta, Georgia by this time, his case was assigned to an Administrative Law Judge (an "ALJ") in Savannah. The ALJ held a hearing. He first found that Holiday sufficiently alleged a back injury on January 31, and a worsening of the condition on February 10. Therefore, under the terms of the LHWCA, the ALJ credited Holiday with a prima facie case of compensability, creating a presumption of recovery under § 920(a) of that statute.

After he determined that Holiday had established a prima facie case, the ALJ found that Newport News had provided substantial evidence to rebut the presumption, knocking it out of play. To make this finding, the ALJ expressly relied on three pieces of evidence from that which Newport News provided.

First, the ALJ relied on Holiday's accident questionnaire, completed on February 26, 2004. It stated that Holiday's back began to hurt on January 31, but that he finished out the weekend of overtime and returned to his regular shifts on Monday, though with continued pain. Despite this pain, Holiday consistently declined medical attention. Then on February 10, his back still hurt but spasmed when he bent over to pick up a box; at that point, Holiday sought medical attention.

Second, the ALJ considered deposition testimony of Newport News shipyard supervisor Richard T. Jay. Jay deposed that Holiday had not gone to work on Monday, February 2, but had worked the rest of the week, mostly driving a forklift and doing work requiring him to bend and lift twenty- to thirty-pound pieces of materiel. During that period, Holiday also complained periodically about his back.³

Third, the ALJ relied on two responses provided by Holiday in his "Claim for Compensation" form. As to where the accident occurred, Holiday filled in: "Building 610, Copeland Park, Newport News, VA; back gave out while in shipyard." J.A. 113. When asked for a description of the accident, Holiday noted: "Employee was working in Bldg. 610 putting up racks to store material; later that day, back started bothering him; continued to work with increasing pain in back for a couple of weeks; then, while bending over to pick up a box, his back gave out." Id.

Evaluating the case without the presumption, the ALJ held for Newport News. Holiday appealed the ALJ's decision to the BRB, in Washington, D.C. On appeal, Holiday procured new counsel, Joshua T. Gillelan ("Gillelan"), based in Washington, D.C. Gillelan did all the work associated with the appeal in Washington. The parties did not appear before the BRB to argue. The BRB concluded that the ALJ relied upon insufficient evidence to find the presumption rebutted and reversed, remanding for the ALJ to reconsider the question in light of the entire evidentiary record. On remand, the ALJ considered all of the evidence that Newport News had put forward, but found it insufficient to rebut. Newport News moved the ALJ to reconsider. The ALJ granted the motion, but reached the same conclusion.

Newport News then appealed to the BRB, requesting only a summary affirmance, which is a predicate final order to petitioning this court for review. In its request, Newport News appealed "only the [BRB]'s ruling in its prior decision that [the] employer did not rebut the Section 20(a) presumption." J.A. 195. The BRB affirmed the ALJ's remand determinations, noting that Newport News had not challenged them.

In its appeal, Newport News protested Gillelan's application for his fee award, to which he was entitled under the LHWCA for successfully appealing the ALJ's initial determination. Gillelan had requested an award of $9,420, based on an hourly rate of $420 per hour and a total of 22 hours of work on the appeal. Gillelan based his request on his belief that he should be paid a fee commensurate with other Washington, D.C. attorneys. The BRB disagreed, stating that $250 per hour would be a reasonable hourly rate in Georgia. The BRB also disallowed 1.05 hours of Gillelan's claimed time of 22 hours, holding that it was not sufficiently related to litigation before the BRB.

Having obtained a final order, Newport News petitioned this court for review of the BRB's legal conclusion on the question of substantial evidence. Gillelan cross-petitioned for review of his fee award. We possess jurisdiction over a petition and cross-petition for review of a final BRB order under 33 U.S.C. § 921(c).

II.

We first address Newport News's petition. We review the BRB's legal conclusions de novo. Scott v. Mason Coal Co., 289 F.3d 263, 267 (4th Cir.2002). We examine the record independently to determine whether the ALJ's initial decision was supported by substantial evidence. Id.

The Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., provides a form of workers' compensation to maritime employees. To state a claim for compensation, a claimant must at least "allege (1) an injury or death (2) that arose out of and in the course of (3) his maritime employment." Universal Mar. Corp. v. Moore, 126 F.3d 256, 262 (4th Cir.1997). Under the LHWCA, "injury" can be either a new harm, or the aggravation of an existing condition. Newport News Shipbuilding & Dry Dock Co. v. Fishel, 694 F.2d 327, 329 (4th Cir. 1982). Once a claimaint makes out a prima facie case by properly alleging a claim, § 920(a) of the LHWCA provides a presumption of compensability, stating that "the claim comes within the provisions of this chapter." 33 U.S.C. § 920(a); see Moore, 126 F.3d at 262. To rebut the § 920(a) presumption, the employer must provide "substantial evidence" to undermine the claim. See, e.g., Moore, 126 F.3d at 262. Where the claimant makes out a prima facie case alleging the aggravation of a previous injury, the employer may rebut with substantial evidence demonstrating that the claimant's symptoms are a natural outgrowth of, or complication from, an existing predicate condition.⁴ See Admiralty Coatings Corp. v. Emery, 228 F.3d 513, 517-18 (4th Cir.2000); Dir., OWCP v. Newport News Shipbuilding & Dry Dock Co., 138 F.3d 134, 138 (4th Cir. 1998).

Before we can review the BRB's decision below, we must clarify the precise issue before us. When Newport News appealed to the BRB, its appeal was limited to "only ... the [BRB]'s ruling in its prior decision that [the] employer did not rebut the Section 20(a) presumption." J.A. 195. As mentioned, the BRB did not consider the ALJ's decisions on remand because Newport News did not request that. We therefore find that Newport News has waived its challenge to consideration of anything other than the determination the ALJ made in his first hearing. On appeal, we will consider only whether the three pieces of evidence the ALJ relied on in his first determination amount to substantial evidence.⁵

The substantial evidence standard of proof requires the employer to put forward as much relevant factual matter as a reasonable mind would need to accept, as one rational conclusion, that the employee's injury did not arise out of his employment. Milburn...