Patillo v. Director, Office of Workers' Compensation Programs
| Decision Date | 21 March 2002 |
| Docket Number | BRB 01-0570 |
| Parties | DANIEL PATILLO, Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Order of Dismissal and Order Granting Respondent's Motion for Summary Judgment of Daniel J. Roketenetz Administrative Law Judge, United States Department of Labor.
Daniel C. Patillo, Saginaw, Michigan, pro se.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant without the assistance of counsel, appeals the Order of Dismissal and Order Granting Respondent's Motion for Summary Judgment (2000-LHC-0237) of Administrative Law Judge Daniel J. Roketenetz 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). In an appeal by a pro se claimant, we will review the administrative law judge's decision to determine if the findings of fact and conclusions of law 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). If they are, they must be affirmed.
Claimant was injured during the course of his employment with Houston Ship, Incorporated, when he fell approximately 30 feet while working in the hold of a ship. He sustained serious injuries to his head, back, arm and leg, and treatment included four surgeries on his inner ear and psychological counseling. In a Decision and Order dated December 1, 1995, Administrative Law Judge Alfred Lindeman awarded claimant permanent total disability and medical benefits, holding claimant's uninsured employer and its officers jointly and severally liable for claimant's benefits. Thereafter, he denied employer's motion for reconsideration. These decisions were not appealed. Because employer filed for bankruptcy, the Secretary of Labor assumed liability for claimant's benefits, and payments were made out of the Special Fund. See 33 U.S.C. §918(b); 20 C.F.R. §702.145(f).
In 1998, claimant sought to increase the benefits he was receiving and obtain reimbursement for certain medical, dental and legal expenses, so he filed a claim against the Director, Office of Workers' Compensation Programs (the Director). Administrative Law Judge Daniel J. Roketenetz (the administrative law judge) was assigned the case, and he granted the Director's motion for summary judgment. He found that Judge Lindeman did not make a mistake in calculating claimant's average weekly wage, as the record supports Judge Lindeman's finding that claimant was a five-day per week worker and not a seven-day worker. Accordingly, the administrative law judge concluded there was no mistake in the determination of a fact warranting modification pursuant to Section 22 of the Act, 33 U.S.C. §922. Order of Dismissal at 4-5. Additionally, the administrative law judge found that the Special Fund is not liable for the costs of a massage therapist, which he termed an "alternative" treatment excluded from coverage by Section 702.404 of the regulations, 20 C.F.R. §702.404. He also found that the Director reimbursed claimant over $12, 000 in out-of-pocket medical expenses and that the Special Fund has been paying for claimant's chiropractic treatment. Order of Dismissal at 5-6. The administrative law judge rejected claimant's post-hearing request for dental costs, finding there is no evidence to establish that claimant's work-related injury requires dental treatment, and he denied reimbursement of legal fees and expenses, finding that only an attorney, and not claimant, can request legal fees. The administrative law judge also found that there is no credible evidence of unnecessary delay in processing claimant's claim, and any delay there may have been was not deliberate or malicious; thus, there is no evidence to support claimant's claim for compensation for a processing delay. Nor did he find any evidence to support claimant's claim of discrimination, racial or otherwise, in this case.[1] Order of Dismissal at 6-8. Claimant appeals. The Director has not responded.
First, claimant argues that the administrative law judge improperly granted the Director's motion for summary judgment. It is proper to grant a motion for summary decision if there are no factual disputes, when all reasonable inferences are made in favor of the non-moving party.[2] Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991); Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990); 29 C.F.R. §18.41(a). The party opposing a motion for summary judgment, in this instance, claimant, must "set forth specific facts showing that there is a genuine issue of fact for the hearing" in order to defeat the motion. 29 C.F.R. §18.40(c). Because the administrative law judge addressed each issue individually to determine whether the Director was entitled to summary judgment for that issue, we shall do likewise. Thus, we will consider each argument to ascertain whether claimant established a genuine issue of fact, viewing all inferences in the light most favorable to claimant.
Claimant contends modification of Judge Lindeman's award is warranted. He argues that Judge Lindeman made a mistake in the determination of claimant's average weekly wage. Section 22 of the Act permits the modification of a final award if the party seeking to alter the award can establish either a change in conditions or a mistake in a determination of fact. 33 U.S.C. §922; Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 30 BRBS 1(CRT) (1995). If a mistake in the determination of a fact is asserted, the administrative law judge has great discretion to correct any mistakes of fact and may consider wholly new evidence, cumulative evidence, or may further reflect on evidence initially submitted. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971). In this case, claimant does not allege a change of conditions but only that there was a mistake in calculating his average weekly wage. The record reveals that Judge Lindeman fully considered claimant's assertion at the original hearing that he worked a seven-day week and discredited claimant's testimony on this matter. Judge Lindeman found that the most reasonable approximation of claimant's wage was based on a five-day work-week pursuant to claimant's claim for compensation form dated December 16, 1988. Lindeman Dec. at 3; Admin. Ex. 2. On modification, Judge Roketenetz possessed broad discretion in reviewing evidence and determining whether a mistake has been made. In this case, he stated that, other than bare assertions, claimant has offered no additional or new evidence to support his claim that his average weekly wage should be based on a seven-day work-week. Accordingly, Judge Roketenetz reaffirmed Judge Lindeman's credibility determinations, as is within his discretion. Therefore, it was rational for Judge Roketenetz to find that Judge Lindeman made no mistake in calculating claimant's average weekly wage. As claimant has not shown any mistake in the determination of a fact, Section 22 does not apply and his award cannot be modified. As there is no genuine issue of fact remaining with regard to claimant's average weekly wage, the administrative law judge properly granted the Director's motion for summary judgment on this issue. Brockington, 903 F.2d 1523; 29 C.F.R. §18.40(c).
Claimant also asserts that the administrative law judge erred in denying him additional medical benefits and reimbursement of his out-of-pocket medical expenses. Claimant specifically argues that he is entitled to coverage of his chiropractic care, massage therapy as recommended by his chiropractor, and recommended dental work. Section 7 of the Act, 33 U.S.C. §907, authorizes coverage of medical expenses for the reasonable and necessary treatment of a claimant's work-related injury.[3] The claimant has the burden of establishing the elements of a claim for medical benefits. Schoen v. United States Chamber of Commerce, 30 BRBS 112 (1996).
Claimant contends he is entitled to additional medical benefits to cover the costs of Dr. Malochleb's chiropractic care. However, Dr. Malochleb testified that she has been reimbursed, and is continuing to be reimbursed, for claimant's treatment. Tr. at 33. Moreover, the administrative law judge found that the Special Fund reimbursed claimant $12, 827.68 on August 13, 2000, for medical expenses, including chiropractic care, which claimant incurred. Order of Dismissal at 5. Consequently, the administrative law judge found there is no evidence to support claimant's assertion that the Special Fund has not paid for claimant's chiropractic care.[4] In light of this evidence, we affirm the administrative law judge's finding and his decision to grant the Director's motion for summary judgment on this issue.
Claimant next alleges he is entitled to have the Special Fund pay for his massage therapy, which is recommended by his chiropractor. Dr. Malochleb testified that she recommended massage therapy, including cranial sacral therapy, for claimant's work-related condition because his muscles are often tense or immobile when he arrives for spinal manipulation. She stated that he is not improving as quickly as she would like and that the massage therapy would help relax claimant's muscles thereby holding the spinal adjustments better, so claimant's need for chiropractic care would be reduced in the long term.[5] Tr. at 34-36 38-39. Dr. Malochleb further testified that the massage therapy would not be performed by her but would be done by a trained massage therapist whose hourly fees would be lower than hers. Id...
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