Quinones v. H.B. Zachery, Incorporated

• Decision Date: 10 February 1998
• Docket Number: BRB 97-0688
• Parties: JOSE QUINONES, Claimant-Respondent v. H.B. ZACHERY, INCORPORATED and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Employer/Carrier-Petitioners
• Court: Longshore Complaints Court of Appeals

JOSE QUINONES, Claimant-Respondent v. H.B. ZACHERY, INCORPORATED and BRB No. 97-0688

February 10, 1998

Appeal of the Decision and Order Awarding Compensation Benefits of Richard D. Mills, Administrative Law Judge, United States Department of Labor.

Yancy White White, Huseman & Pletcher, Corpus Christi, Texas for claimant.

Mike Murphy Eastham, Watson, Dale & Forney, Houston, Texas for employer/carrier.

Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM

Employer appeals the Decision and Order Awarding Compensation Benefits (96-LHC-0928) 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 findings of fact and conclusions of law of the administrative law judge if they are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).

Claimant a masonry foreman, allegedly sustained injuries to his back during the course of his employment at Kwajalein Army Base in the Marshall Islands on or about May 15, 1994, and June 4, 1994. Claimant continued to perform his usual employment duties for employer until his return to San Antonio, Texas, in August 1994, whereupon claimant filed a claim under the Act seeking permanent total disability compensation. Claimant has not worked since his return to Texas.

In his Decision and Order, the administrative law judge found that claimant invoked the Section 20(a), 33 U.S.C. §920(a), presumption with regard to causation and that employer failed to rebut it. Thus, the administrative law judge awarded claimant permanent total disability compensation based on claimant's average weekly wage, including the value of the room and board provided to claimant while working for employer in claimant's wages.

Employer now appeals, arguing that the administrative law judge erred in finding that claimant established his prima facie case or, alternatively, that it failed to rebut the Section 20(a) presumption. Employer also challenges the calculation of claimant's average weekly wage. Claimant responds, urging affirmance of the administrative law judge's decision in its entirety.

Employer initially challenges the administrative law judge's determination that claimant established the existence of working conditions which could have caused his present back condition. It is well-established that claimant bears the burden of proving the existence of an injury or harm and that a work-related accident occurred or that working conditions existed which could have caused the harm, in order to establish his prima facie case. See Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996); Obert v. John T. Clark and Son of Maryland, 23 BRBS 157 (1990). It is claimant's burden to establish each element of his prima facie case by affirmative proof. See Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (CRT)(1994).

In the instant case, it is uncontested that claimant suffered a "harm, " i.e., back pain. In his decision, the administrative law judge, after setting forth claimant's testimony regarding the requirements of his job, credited that testimony in finding that claimant had established the second element of his prima facie case. Specifically, the administrative law judge found that claimant was engaged in labor which involved lifting and moving heavy materials. See Decision and Order at 8. It is well-established that, in arriving at his decision, the administrative law judge is entitled to evaluate the credibility of all witnesses and to draw his own inferences and conclusions from the evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961). Accordingly, the administrative law judge's credibility determinations are not to be disturbed unless they are inherently incredible or patently unreasonable. See Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). On the basis of the record before us, the administrative law judge's decision to rely upon claimant's testimony is neither inherently incredible nor patently unreasonable; accordingly, we affirm the administrative law judge's determination that claimant established his prima facie case, and his consequent invocation of the Section 20(a) presumption.^[1] See Sinclair v. United Food & Commercial Workers, 23 BRBS 148 (1989).

Once the Section 20(a) presumption is invoked, the burden shifts to employer to rebut the presumption with substantial evidence that claimant's condition was not caused or aggravated by his employment. See Manship v. Norfolk & Western Railway Co., 30 BRBS 175 (1996); Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995). It is employer's burden on rebuttal to present specific and comprehensive evidence to sever the causal connection between the injury and the employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). Where aggravation of a pre-existing condition is at issue, employer must establish that work events neither directly caused the injury nor aggravated the pre-existing condition resulting in injury. See, e.g., Cairns v. Matson Terminals, 21 BRBS 252 (1988). If the administrative law judge finds that the Section 20(a) presumption is rebutted, he must weigh all of the evidence and resolve the causation issue based on the record as a whole. See Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 270 (1990).

We affirm the administrative law judge's finding that employer failed to rebut the Section 20(a) presumption. The administrative law judge's finding is supported by the record, as he rationally found the opinion of Dr. Arredondo, upon whom employer relies in support of its contention of error, insufficient to rebut the presumption. Although Dr. Arredondo testified that it was his opinion within a reasonable degree of medical certainty that claimant's pain was not caused by his work, he conceded that trauma may have aggravated or exacerbated claimant's pre-existing tumor. See CX 4 at 43-46. Accordingly, as Dr. Arredondo's testimony does not address aggravation or rule out the possibility that claimant's employment had an aggravating effect on his condition, it is insufficient to rebut the Section 20(a) presumption. Similarly, Dr. Meadows opined that an injury as described by claimant could have aggravated his underlying condition. See CX 3 at 13. Accordingly, as neither the opinion of Dr. Arredondo nor Dr. Meadows establishes that claimant's working conditions played no role in the onset of his undisputed back pain, the Section 20(a) presumption has not been rebutted. We thus affirm the administrative law judge's finding that claimant's back condition is causally related to his employment with employer. See Clophus v. Amoco Production Co., 21 BRBS 261 (1988).

Lastly, employer contends that the administrative law judge erred when, relying on Guthrie v. Holmes & Narver, Inc., 30 BRBS 48 (1996), he included the value of the room and board provided by employer to claimant in his calculation of claimant's average weekly wage. Specifically, after noting that subsequent to the issuance of the administrative law judge's decision, the Board's decision in Guthrie was reversed by the United States Court of Appeals for the Ninth Circuit in Wausau Ins. Cos. v. Director, OWCP, 114 F.3d 120, 31 BRBS 41 (CRT)(9th Cir. 1997), employer urges the Board to reverse the administrative law judge's determination on this issue pursuant to the reasoning of the Ninth Circuit.^[2]

Section 2(13) of the amended Act, 33 U.S.C. §902(13)(1994), defines wages as:

the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle C of the Internal Revenue Code of 1954 [26 U.S.C.A. §3101 et seq.] (relating to employment taxes). The term wages does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement.

Prior to the 1984 Amendments to the Act, Section 2(13) specifically included, inter alia, the reasonable value of board, rent, and housing in the definition of wages.^[3] In interpreting pre-amendment Section 2(13), the United States Supreme Court stated that where benefits received were not "money recompensed, " or "gratuities received from others, " the narrow question was whether the benefits were of a "similar advantage to board, rent, housing, or lodging in that the benefits have a present value that can be readily converted into a cash equivalent on the basis of their market value." See Morrison-Knudsen Const. Co. v. Director OWCP, 461 U.S. 624, 15 BRBS 155 (CRT)(1983). The 1984 Amendments to the Act thus codified the Supreme Court's holding in Morrison-Knudsen that fringe benefits such as employer contributions to employee benefit plans are not included in "wages" und...