Pittsburgh & Conneaut v. Director, Workers' Comp.
| Decision Date | 04 January 2007 |
| Docket Number | No. 05-3425.,05-3425. |
| Citation | 473 F.3d 253 |
| Parties | PITTSBURGH & CONNEAUT DOCK CO., et al., Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States, et al., Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregory P. Sujack, Garofalo, Schreiber, Hart & Storm, Chicago, Illinois, for Petitioners. Steven C. Schletker Steven Schletker, Attorney at Law, Covington, Kentucky, for Respondents.
ON BRIEF:
Gregory P. Sujack, Garofalo, Schreiber, Hart & Storm, Chicago, Illinois, for Petitioners. Steven C. Schletker, Steven Schletker, Attorney at Law, Covington, Kentucky, for Respondents.
Before MOORE and McKEAGUE, Circuit Judges; POLSTER, District Judge.*
MCKEAGUE, J., delivered the opinion of the court, in which POLSTER, D.J., joined. MOORE, J. (pp. 267-273), delivered a separate opinion concurring in part and dissenting in part.
This case arises out of a claim for worker's compensation benefits under the Longshore and Harbor Workers' Compensation Act ("Longshore Act"). 33 U.S.C. § 901, et seq. Thomas Bordeaux was injured in the course and scope of his employment, and his employer began voluntarily paying him temporary disability benefits. A dispute later developed over whether Bordeaux's disability was permanent. A formal hearing was held before an Administrative Law Judge ("ALJ") who determined that both Bordeaux's physical and cognitive disabilities were permanent and total. Bordeaux's employer, Pittsburgh & Conneaut Dock Co. ("P & C Dock") appealed the determination of permanency with respect to Bordeaux's cognitive disability to the Benefits Review Board ("BRB"). P & C Dock also appealed the ALJ's decisions to deny a motion to compel filed by P & C Dock and to require P & C Dock to pay Bordeaux's attorney's fees. The BRB affirmed the ALJ on all points, although it affirmed the award of attorney's fees on an alternate basis. P & C Dock filed a timely notice of appeal. For the reasons set forth below, we affirm the determinations on permanency and the motion to compel, but vacate the assessment of liability for attorney's fees.
Thomas Bordeaux began working at P & C Dock in 1997. He worked as a structural welder initially and then as a pipe fitter. Bordeaux was injured on September 12, 2000. While he was working in a catch basin, a fifty-pound sandbag fell into the pit and struck him on the base of his head and neck, missing his hard hat. Bordeaux estimated that the sandbag fell approximately twelve to fourteen feet before hitting him. Following treatment at the emergency room, Bordeaux was released. He returned to the hospital the following day because he was having difficulty formulating any kind of sentence and was suffering extreme headaches. After his visit to the emergency room, Bordeaux was treated for a right wrist fracture and underwent extensive therapy for his neck and wrist. Bordeaux testified that two to three months following his accident he continued to have episodes of numbness and tingling in his head, occasionally leading him to become dizzy and pass out. Bordeaux also indicated he was having difficulty with focusing and his attention span.
Bordeaux underwent extensive medical treatment for both his neck and wrist injuries and his cognitive problems. Throughout 2000, 2001, and into 2002 he attended numerous physical therapy sessions before being discharged when his progress reached a plateau. At the time of the formal hearing, he continued to treat with Dr. Rematullah, his primary treating physician. Bordeaux testified that he was still suffering from stiffness and pain in his neck and that he would still get headaches. Dr. Rematullah testified that maximum medical improvement for Bordeaux's head and neck injuries was reached on August 20, 2002.
Bordeaux also attended numerous speech therapy sessions. The speech therapy was in the form of cognitive therapy which was designed to aid him in his day-to-day activities such as remembering people's names, numbers and appointments. Therapy was also designed to help him read due to complaints that he had been unable to concentrate for more than ten minutes. Bordeaux indicated that the speech sessions were beneficial and that he was able to increase his concentration time from ten to twenty minutes.
Bordeaux's wife stated that prior to his accident in September of 2000, Bordeaux was in good shape and had no problems with his memory. The day following his accident she noticed that he was a little slow with his speech, and he indicated that he was having trouble getting his thoughts together. Mrs. Bordeaux also noted that Bordeaux seemed somewhat confused following his accident and was not able to focus on what was going on around him. Bordeaux's speech and focus steadily improved for six to eight months. After that, she believed that his progress plateaued. She believed that he continued to have memory problems and problems focusing.
In May of 2001, Bordeaux began taking Zoloft, an antidepressant medication, at the suggestion of psychologist Dr. Schwabenbauer. The prescription for Zoloft was discontinued approximately a month later when Bordeaux presented to his family physician, Dr. Choi, with unusual symptoms including cold sweats and elevated blood pressure. Bordeaux's medical records show that he subsequently was prescribed, and demonstrated an intolerance for, several other antidepressant medications including Nortriptoline, Depakote, Elavil, and Doxepin.
At the formal hearing, deposition testimony from three doctors was submitted that addressed the state of Bordeaux's cognitive limitations. Dr. Schwabenbauer pointed out that Bordeaux was well beyond the six to twelve month primary recovery period for head injuries and opined that his cognitive limitations had reached maximum medical improvement. The doctor also indicated that further individual psychotherapy and antidepressant therapy could assist Bordeaux in dealing with the "emotional residuals" of his head injury although they would not enable any further recovery in the area of cognitive function. Dr. Schwabenbauer acknowledged that the further therapy he was suggesting should help Bordeaux with his anxiety and depression which could, in turn, have an impact on whether he could return to work. The doctor stated that he had no way to estimate the likelihood that Bordeaux would see beneficial results from the suggested therapy. When asked whether the chance was better than a coin flip, he responded that it was "[p]robably better than a coin flip, but it could be very difficult to predict someone's response to treatment in advance."
Dr. McCue, a neuropsychologist, examined Bordeaux in January and February of 2003. While he initially stated that Bordeaux had not yet reached maximum psychological improvement, later in his deposition he stated that the cognitive limitations Bordeaux was suffering were permanent and that Bordeaux had reached maximum medical improvement. Dr. McCue testified that a course of psychotherapy (including antidepressant medication) cognitive rehabilitation, and vocational rehabilitation had a very good chance of enabling Bordeaux to return to work. Dr. McCue acknowledged that he was making his suggestions without being aware of whether any of those treatments had already been employed. Since he was not familiar with the treatment Bordeaux had previously undergone, Dr. McCue could not determine whether Bordeaux had already received some or all of the types of treatment he was recommending.
Bordeaux's treating neurologist, Dr. Lyons, treated Bordeaux for his head injury, not for any underlying psychological condition. When asked whether she agreed with the recommendations for additional psychotherapy made by Drs. Schwabenbauer and McCue, Dr. Lyons replied that she "was in no position to disagree." She went on to opine that the proposed treatment would not treat the underlying cognitive condition or significantly improve Bordeaux's degree of cognitive limitation. As to Bordeaux's ability to return to work after undergoing the proposed treatment, Dr. Lyons opined that there was a twenty percent chance that it would help him return to work and an eighty percent chance that it would help him feel better. Dr. Lyons further testified that returning Bordeaux to work by relieving his symptoms of anxiety and depression was "worth trying," but she commented that "I don't think it is going to happen."
On January 21, 2004, the ALJ entered an order awarding benefits under the Longshore Act. Following an extensive review of the evidence, the ALJ awarded permanent and total disability benefits. He found August 20, 2002 to be the date Bordeaux became permanently and totally disabled. Temporary total disability was awarded for the preceding period. Medical benefits were also awarded. While the matter had been pending before the ALJ, P & C Dock had requested the ALJ to compel Bordeaux to participate in the psychotherapy that had been recommended. The ALJ refused this request in the order awarding benefits. In a supplemental proceeding, the ALJ ordered P & C Dock to pay Bordeaux's attorney's fees pursuant to 33 U.S.C. § 928(a).
P & C Dock appealed the decision awarding compensation and denying the motion to compel and the award of attorney's fees to the Benefits Review Board ("BRB"). The BRB affirmed the decision of the ALJ that Bordeaux was permanently and totally disabled. The BRB also upheld the refusal of the ALJ to direct Bordeaux to pursue the prescribed psychotherapy. Next, the BRB upheld the award of attorney's fees. However, it found that the fees should not have been awarded under § 928(a), but were properly awarded under § 928(b). Finally, the BRB awarded fees to Bordeaux's counsel for services rendered before the BRB. P & C Dock timely appealed all of the BRB's determinations.
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