Parihuaman Carrasco v. Triple Canopy, Inc., 19-0485
| Decision Date | 29 September 2020 |
| Docket Number | 19-0485A,19-0485 |
| Parties | ROBER M. PARIHUAMAN CARRASCO Claimant-Petitioner Cross-Respondent v. TRIPLE CANOPY, INCORPORATED and CONTINENTAL INSURANCE COMPANY Employer/Carrier-Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeals of the Decision and Order Awarding Benefits of Paul R. Almanza, Administrative Law Judge, United States Department of Labor.
David C. Barnett and Samuel Frankel (Barnett, Lerner, Karsen Frankel & Castro, P.A.), Fort Lauderdale, Florida, for Claimant.
Alexandra E. Grover and Krystal L. Layher (Brown Sims) Houston, Texas, for Employer/Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and JONES, Administrative Appeals Judges.
Claimant appeals, and Employer cross-appeals, Administrative Law Judge Paul R. Almanza's Decision and Order Awarding Benefits (2017-LDA-00269) rendered on a claim filed pursuant to 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. (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 applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant, a Peruvian citizen, began working for Employer as a security guard in the Green Zone of Baghdad, Iraq, in October 2005. JX 2 at 27, 38. He worked the night shift, 7 p.m. to 7 a.m., between 72 and 84 hours per week, until his termination in October 2010. Id. at 37-38. He testified he was exposed to mortar and rocket attacks and small arms fire, but was never struck. Id. at 45-46, 49-50, 58. Upon his termination, Claimant returned to Peru and has since been working independently as a taxi driver. Id. at 27.
Claimant asserted he developed sleeping problems due to his work schedule, nightmares, hypervigilance, loneliness, anxiety, negative thoughts, and distrust of others. JX 2 at 28, 39, 44, 45. Claimant never sought medical attention while working for Employer. Id. at 61. He believed his problems would "go away somehow," but they continued to grow "worse and worse." He first sought medical attention on August 19, 2016, with Dr. Carmen Ciuffardi, who diagnosed work-related post-traumatic stress disorder (PTSD). Id. at 29-31; JX 10. Claimant subsequently filed a written claim on October 14, 2016, alleging a "psychological injury" resulting from "living and working in a war zone;" this was the first indication of injury he gave Employer. JX 4. During the course of his April 2017 deposition, Claimant testified to multiple symptoms including work-related sleep irregularities, which he asserted are a "mental" condition. JX 2 at 44-45. In his Closing Brief, [1] he stated his psychological injury claim should not be narrowly construed as a claim for PTSD only, but rather more broadly for a "harm in the form of psychological symptoms," including sleep deprivation, hypervigilance, and anger, with sleep issues being his "primary concern." Cl. Br. at 16, 19, 38.
The administrative law judge found Claimant sufficiently asserted a psychological injury claim encompassing both PTSD and a "sleep disorder"[2] and Employer had adequate notice of both alleged injuries and suffered no undue prejudice. Decision and Order at 23, 25. Addressing each alleged injury separately, he found Claimant invoked the Section 20(a), 33 U.S.C. §920(a), presumption that his PTSD and "sleep disorder" are causally related to his working night shifts for Employer in war zone conditions, the existence of which Employer conceded. However, he found the opinion of Employer's expert, Dr. Gloria Morote, rebuts the presumption with respect to both alleged injuries. He found Claimant established a work-related "sleep disorder" based on the record as a whole, but did not establish a compensable psychological condition apart from the "sleep disorder." Decision and Order at 25, 27. Further, the administrative law judge found Claimant was aware of his work-related "sleep disorder" no later than October 2010, he first notified Employer of his work-related injury in October 2016 when he filed his claim, and Employer did not have knowledge of the condition prior to receiving the claim.[3] With respect to the timeliness of the claim, the administrative law judge found no basis for tolling the Section 13(b)(2), 33 U.S.C. §913(b)(2), statute of limitations[4] and concluded Claimant's claim for compensation was untimely filed. Decision and Order at 35. Accordingly, he awarded medical benefits only. See Siler v. Dillingham Ship Repair, 28 BRBS 38 (1994) () (a claim for medical benefits is never time-barred).
On appeal, Claimant challenges the administrative law judge's denial of disability benefits for his sleep problems, asserting error in failing to toll the Section 13 statute of limitations. Employer responds, urging affirmance on this issue. Employer cross-appeals, asserting it did not have sufficient notice of a claim for a separate and distinct sleep disorder and the administrative law judge erred in resolving the merits of this claim. Claimant responds, urging affirmance on these issues.
We first address Claimant's appeal. Claimant contends the administrative law judge erred in finding his October 2016 claim for compensation is time-barred under Section 13(b)(2), 33 U.S.C. §913(b)(2), which precludes his claim for disability benefits. He asserts substantial evidence does not support the administrative law judge's finding Employer lacked knowledge of his alleged "sleep disorder" such that Sections 30(a) and (f), 33 U.S.C. §930(a), (f), are inapplicable and do not toll the statute of limitations. Specifically, Claimant contends his uncontroverted testimony establishes Employer was aware of his sleep problems during his employment and this fact, in conjunction with Employer's concession that working conditions could have caused psychological injury, is sufficient to infer Employer had knowledge of a work-related injury in October 2010 when it terminated his employment.[5]
A claim for compensation for an occupational disease must be filed within two years of the date the claimant becomes aware, or should have become aware, of the relationship between his employment, his disease and his disability. 33 U.S.C. §913(b)(2).[6] However, the time for such filing may be tolled pursuant to Section 30(f) if the employer or its agent receives notice of the injury, or has knowledge of the injury and its work-relatedness, and fails to file a report of injury as required under Section 30(a). 33 U.S.C. §930(a), (f).[7]Knowledge of the work-relatedness of an injury may be imputed where the employer knows of the injury and has facts that would lead a reasonable person to conclude liability is possible and further investigation is warranted. Stark v. Washington Star Co., 833 F.2d 1025, 1028, 20 BRBS 40, 44(CRT) (D.C. Cir. 1987); Steed v. Container Stevedoring Co., 25 BRBS 210 (1991); Kulick v. Continental Baking Corp., 19 BRBS 115, 117 (1986). Moreover, Section 20(b) of the Act, 33 U.S.C. §920(b), presumes the claimant's claim was timely filed unless the employer presents substantial evidence to the contrary. See Stevenson v. Linens of the Week, 688 F.2d 93 (D.C. Cir. 1982); Shaller v. Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989). In order to rebut the Section 20(b) presumption, an employer must establish it complied with Section 30(a), or did not receive notice or obtain knowledge of the work-related injury by the end of the Section 13 filing period. Blanding v. Director, OWCP, 186 F.3d 232, 33 BRBS 114(CRT) (2d Cir. 1999) (Section 30(a), (f), applies to Section 13(b)(2)).
Absent application of a tolling provision under the Act, the statute of limitations for filing a claim in this case expired in October 2012, and Claimant's 2016 claim for compensation was untimely filed.[8] In addressing whether Employer received notice or had knowledge of a work-related injury such that Section 30(a), (f) applied to toll the Section 13(b)(2) statute of limitations, [9] the administrative law judge credited Claimant's uncontroverted testimony as establishing Employer was aware he had difficulty waking up, was late for work on two occasions in 2005, and fell asleep on the job in 2006. Decision and Order at 33, 35. However, he found Employer's awareness of Claimant's sleep issues in conjunction with its later concession of potentially causative working conditions is not sufficient to impute to Employer knowledge that Claimant could have suffered a work-related injury earlier than October 2016. In this respect, Claimant testified he did not seek medical treatment in the five years he worked for Employer, and he "repeatedly" "downplay[ed]" his sleep problems while working for Employer. Decision and Order at 33; JX 2 at 30-31, 40, 44; Cl. Br. at 24.
In appealing the administrative law judge's conclusion Claimant does not challenge the characterization of his testimony or assert the administrative law judge failed to consider relevant evidence; rather, he invites the Benefits Review Board to draw a different conclusion from the same evidence, which is outside the Board's scope of review. Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 28 BRBS 7(CRT) (2d Cir. 1993); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961) (). As the administrative law judge accurately characterized Claimant's...
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