Oberts v. McDonnell Douglas Services
| Decision Date | 15 February 2006 |
| Docket Number | BRB 05-0445 |
| Parties | DANIEL L. OBERTS Claimant-Respondent Cross-Petitioner v. MCDONNELL DOUGLAS SERVICES and AIG CLAIMS SERVICES Employer/Carrier- Petitioners Cross-Respondents ALSALAM AIRCRAFT COMPANY, LIMITED and INSURANCE COMPANY OF PENNSYLVANIA Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Decision and Order Awarding Benefits, the Decision and Order on Reconsideration, the Supplemental Decision and Order Awarding Attorney Fees, and the Supplemental Decision and Order Awarding Attorney Fees on Reconsideration of Richard D Mills, Administrative Law Judge, United States Department of Labor.
Scott C. Sands (Sands & Associates), Chicago, Illinois, for claimant.
Matthew H. Ammerman (Fitzhugh, Elliott, & Ammerman P.C.), Houston, Texas, for McDonnell Douglas Services and AIG Claims Services.
Richard L. Garelick (Flicker, Garelick & Associates, L.L.P.), New York, New York, for Alsalam Aircraft Company, Limited, and Insurance Company of Pennsylvania.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION AND ORDER
McDonnell Douglas Services (MDS) appeals the Decision and Order Awarding Benefits, the Decision and Order on Reconsideration the Supplemental Decision and Order Awarding Attorney Fees, and the Supplemental Decision and Order Awarding Attorney Fees on Reconsideration, and claimant appeals the Supplemental Decision and Order Awarding Attorney Fees and the Supplemental Decision and Order Awarding Attorney Fees on Reconsideration (2003-LHC-2109, 2003-LHC-2125, 2004-LHC-1655) of Administrative Law Judge Richard D. Mills 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 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 amount of an attorney’s fee award is discretionary and will not be set aside unless shown by the challenging party to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
In 1996, claimant began working for MDS, first as a riveter and then as a manufacturing engineer; his position was later eliminated. Tr. at 57-59. In April 1997, claimant began a training course for a new position with employer that would send him to Saudia Arabia. On July 6, 1997, claimant arrived in Saudia Arabia and began working as a crew chief. [1] Tr. at 59-61. On October 28, 1997, the on-site bus in which claimant was riding was involved in a collision with a truck and another car. Tr. at 71-74. Claimant injured his back and neck. MDS paid compensation from October 28 through November 3, 1997. Claimant returned to his usual work thereafter; however, he testified he continued to suffer pain, headaches, spasms in his neck and back, and numbness in certain fingers, and he was treated with therapy and medications. Tr. at 87-89.
On January 13, 1998, claimant’s employer, but not his job, changed when Alsalam Aircraft (Alsalam) bought MDS’s operations. Claimant continued to work but sometimes missed days due to symptom flare-ups caused by the previous day’s work activities. Tr. at 165, 169. After a doctor’s visit instigated by increased symptoms, claimant learned that he had disc herniations at C5-6 and C6-7 from the 1997 injury. On May 18, 1999, claimant injured his shoulder at work. He underwent surgery on his right shoulder on August 17, 1999, and by September 7, 1999, he was released to return to light duty. Claimant testified that physical therapy for his shoulder condition bothered his neck. In March 2000, claimant was released from care for his shoulder injury to return to his usual work, though he testified he suffered pain in his neck when he performed certain aspects of his job. In April 2000, claimant learned that he needed surgery on his neck, and he spent the next few months working with pain until he was advised to be evaluated by doctors in the United States. He arrived in the U.S. on August 18, 2000, and received recommendations to undergo neck surgery with Dr. Gornet. He underwent a second surgery on his right shoulder on January 30, 2001. Because claimant failed to return to work in Saudia Arabia, Alsalam ceased paying claimant’s salary in February 2001, and terminated his employment on May 22, 2001. Cl. Ex. (ii)-44.
Claimant filed a claim for benefits for the 1999 shoulder injury, and Administrative Law Judge Roketenetz found Alsalam liable for temporary total disability benefits from February 8 through May 9, 2001, and permanent total disability benefits from May 10 through July 2, 2001. [2] Cl. Exs. (ii)-5, 47. On July 3, 2001, claimant underwent neck surgery, at MDS’s expense, and MDS paid claimant disability compensation from July 3, 2001, through May 4, 2004, at varying rates. MDS Ex. 62. According to claimant, he experienced additional neck and back symptoms in the summer of 2003, and on September 29, 2003, he learned that the first neck surgery was unsuccessful and he needed revision surgery. MDS denied authorization for this second neck surgery. Claimant sought benefits against both MDS and Alsalam, and MDS averred that Alsalam is liable for the 2001 surgery and other benefits related to the neck condition because claimant’s work with Alsalam aggravated his condition.
Administrative Law Judge Mills (the administrative law judge) found that claimant’s current neck disability is due solely to the natural progression resulting from the 1997 injury because MDS failed to show there was a new injury or aggravation of this condition while claimant worked for Alsalam. Decision and Order at 23-24. The administrative law judge held MDS liable for temporary total disability benefits, beginning on July 3, 2001, and continuing, and for the costs of the revision surgery, as well as future medical expenses. Decision and Order at 26-29. In calculating claimant’s average weekly wage as of October 28, 1997, the administrative law judge found that neither Section 10(a) nor Section 10(b) could be applied; accordingly, he used Section 10(c) to calculate claimant’s average weekly wage. 33 U.S.C. §910(a)-(c). As he concluded that claimant had not been employed in his position for substantially the whole of the year preceding the 1997 injury, the administrative law judge calculated claimant’s average weekly wage using the earnings claimant would be entitled to receive under his employment contract, and he found claimant’s average weekly wage was $1, 235.50. Decision and Order at 30-31. MDS appeals the administrative law judge’s finding that it is the responsible employer. MDS also contends the administrative law judge erred in calculating claimant’s average weekly wage. Claimant and Alsalam respond, urging affirmance. The administrative law judge subsequently awarded claimant’s counsel an attorney’s fee and that award has been appealed by MDS and claimant, see infra.
MDS contends the administrative law judge erred in finding that claimant’s current disability is the result of the natural progression of his October 1997 injury and therefore, in holding it liable for claimant’s continuing benefits and medical expenses. It argues that the administrative law judge erred in applying the aggravation rule and that he did not address claimant’s aggravation claim against Alsalam.
In allocating liability between successive employers and carriers in cases involving traumatic injury, the employer at the time of the original injury remains liable for the full disability resulting from the natural progression of that injury. If, however, the claimant sustains an aggravation of the original injury, the employer at the time of the aggravation is liable for the entire disability resulting therefrom. Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. [Price], 339 F.3d 1102, 37 BRBS 89(CRT) (9th Cir. 2003), cert. denied, 125 S.Ct. 309 (2004); Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71(CRT) (9th Cir. 1991); Kelaita v. Director, OWCP, 799 F.2d 1308 (9th Cir. 1986); Lopez v. Stevedoring Services of America, 39 BRBS 85 (2005). Each employer has the burden of persuading the administrative law judge that the disability is the result of either the natural progression of the original injury or is the result of a new injury or an aggravation of the pre-existing condition with a subsequent covered employer. [3] Buchanan v. International Transportation Services, 33 BRBS 32 (1999), aff’d mem. sub nom. Int’l Transp. Services v. Kaiser Permanente Hosp., Inc., 7 Fed.Appx. 547 (9th Cir. 2001); see also McAllister v. Lockheed Shipbuilding, 39 BRBS 35 (2005).
To resolve the responsible employer issue, it is necessary to restate the law as to what constitutes an “aggravation.” Contrary to the administrative law judge’s statements, an employer need not establish any progression of an underlying condition; rather, an “aggravation” may occur where there is an increase in symptoms due to the claimant’s employment. Gardner v. Bath Iron Works Corp., 11 BRBS 556 (1979), aff’d sub nom. Gardener v. Director OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981). Thus, an injury has occurred if the employment aggravates the symptoms of the condition, Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986), and the onset of symptoms constitutes an injury within the meaning of the Act. Pittman Mechanical Contractors, Inc. v....
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