Robirds v. ICTSI Oregon, Inc.
| Decision Date | 28 January 2019 |
| Docket Number | BRB 17-0635 |
| Court | Longshore Complaints Court of Appeals |
| Parties | MICHAEL ROBIRDS Claimant-Petitioner v. ICTSI OREGON, INCORPORATED and SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
Appeal of the Decision and Order Awarding Compensation and Benefits of Richard M. Clark, Administrative Law Judge, United States Department of Labor.
Charles Robinowitz and Genavee Stokes-Avery (Law Offices of Charles Robinowitz), Portland, Oregon, for claimant.
James R. Babcock (Holmes, Weddle & Barcott, P.C.), Lake Oswego Oregon, for employer/carrier.
Cynthia Liao (Kate S. O'Scannlain, Solicitor of Labor Kevin Lyskowski, Acting Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BOGGS, BUZZARD, GILLIGAN, and ROLFE, Administrative Appeals Judges.[1]
EN BANC
DECISION AND ORDER
BETTY JEAN HALL, CHIEF ADMINISTRATIVE APPEALS JUDGE
Claimant appeals the Decision and Order Awarding Compensation and Benefits (2016-LHC-00905) of Administrative Law Judge Richard M. Clark 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). 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 law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Claimant sustained injuries to his right leg (knee and thigh), neck, ribs, and back on September 12, 2011, while working for employer as a crane mechanic.[2] Tr. at 20-21. He was diagnosed with arthritis and two meniscus tears in his knee. Employer began paying claimant temporary total disability benefits on September 13, 2011. EX 3. Claimant underwent surgery on November 14, 2011. After physical therapy and a work-hardening program, claimant's conditions reached maximum medical improvement, and he was released to return to work on November 15, 2012. JX 15. Due to a lack of job openings on the hiring board, claimant did not return to work until November 18, 2012.[3] EX 1.
On November 20, 2012, employer filed an LS-208 form terminating claimant's temporary total disability benefits retroactive to November 15 and converting the overpayment of temporary total disability benefits to permanent partial disability benefits. EX 4. Employer completed another LS-208 form on April 3, 2013, indicating it paid claimant a lump sum of $18, 098 and terminated further permanent partial disability benefits.[4] EX 5. The parties agreed that claimant had a 10 percent impairment due to his meniscus tear, but disputed whether any disability due to arthritis also should be compensated. Decision and Order at 8.
The administrative law judge found that claimant suffered from arthritis prior to his knee injury and that the arthritis and work injury combined to result in his leg impairment. Decision and Order at 11-12. Affording the opinion of claimant's medical expert, Dr. James, greater weight than that of employer's medical expert, Dr. Youngblood, the administrative law judge found that claimant has a 19 percent permanent impairment to his right lower extremity, entitling him to 54.72 weeks of permanent partial disability benefits commencing November 15, 2012. 33 U.S.C. §908(c)(2), (19); Decision and Order at 12.
The administrative law judge also awarded claimant interest on past-due disability benefits and a Section 14(e), 33 U.S.C. §914(e), assessment for the period between November 20, 2012 and April 3, 2013, because employer did not timely controvert claimant's claim for permanent partial disability benefits.[5] Decision and Order at 14-15; see 33 U.S.C. §914(e); Nat'l Steel & Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1295 (9th Cir. 1979); Scott v. Tug Mate, Inc., 22 BRBS 164 (1989). In light of the Board's decision in Cox v. Army Times Publishing Co., 19 BRBS 195 (1987), the administrative law judge denied claimant's request for interest on the Section 14(e) assessment. Decision and Order at 13-15. The administrative law judge also rejected claimant's assertion that he is entitled to permanent total disability benefits from November 15 to 18, 2012, because his injury was not the cause of his inability to work. Id. at 16. Finally, the administrative law judge found that claimant's average weekly wage is $2, 120.72, which entitles him to the maximum compensation rate of $1, 256.84. Id. at 18.
Claimant appeals the denial of interest on the Section 14(e) assessment and the denial of permanent total disability benefits. He urges the Board to overrule Cox in light of more recent circuit court precedent, as well as other long-established Board precedent. He also asserts entitlement to permanent total disability benefits from November 15 to 18, 2012, arguing he was medically stable but employer did not provide him with work.
Employer responds, asserting that the issues on appeal have been rendered moot by its overpayment of benefits, as the $885.18 it overpaid between November 15 and 19, 2012, subsumes the request for interest ($746.05 as calculated by the Office of Workers' Compensation Programs). Employer also urges affirmance of both the denial of interest on the Section 14(e) assessment pursuant to Cox and of permanent total disability benefits because claimant did not show an injury-related inability to return to work after November 15, 2012. Because he testified there were no jobs available, employer asserts it is inappropriate for claimant to now aver that his knee condition prevented his return to work or to introduce speculation that, had he never been injured, he would have obtained work on those days. Claimant filed a reply brief.
The Director, Office of Workers' Compensation Programs (the Director), also responds to claimant's appeal, agreeing with claimant that Cox should be overruled and that interest may be awarded on "additional compensation" under Section 14(e).[6]Employer replied to the Director's brief.
Claimant first contends the administrative law judge erred in denying interest on the Section 14(e) award. Employer asserts the issue is moot because its overpayment of compensation would cover any amount that might be awarded to claimant by virtue of his appeal. The Director disagrees[7] because, absent an order or stipulation identifying the overpayment as a payment of interest, employer could change its mind and seek credit for the overpayment, leaving claimant without the sought-after interest. Employer asserts that claimant would lose nothing by dismissal of this claim because he already received the money, it unequivocally waived its right to receive a credit for the overpayment, and its waiver is enforceable under Groves v. Prickett, 420 F.2d 1119, 1125-1126 (9th Cir. 1970).
We agree with the Director: the controversy is not moot. Without modifying the administrative law judge's compensation order, employer could still be relieved of the obligation to waive its credit for the overpayment. McCauley v. Trans Union, L.L.C., 402 F.3d 340, 342 (2d Cir. 2005) (). Moreover, without our review, the Director's legal challenge to the Board's holding in Cox will inevitably recur. See, e.g., Moody v. Huntington Ingalls, Inc., 879 F.3d 96, 101 n.1, 51 BRBS 45, 46 n.1(CRT) (4th Cir. 2018) (case not moot where employer opted to pay benefits and moved to dismiss because challenged conduct was likely to recur given the Board's "erroneous" decisions); Payne Enter. Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (); O'Berry v. Jacksonville Shipyards, Inc., 21 BRBS 355 (1988), aff'd and modified on recon, 22 BRBS 430 ().
On the merits, claimant and the Director contend the Board's decision in Cox should be overruled so as to permit an award of interest on "additional compensation" obtained pursuant to Section 14(e). They assert that Cox was incorrectly decided based on the plain language of the Act, Section 14(e)'s similarity to Section 14(f), 33 U.S.C. §914(f), and subsequently decided cases. See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 41 BRBS 53(CRT) (9th Cir. 2007); Newport News Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245, 38 BRBS 37(CRT) (4th Cir. 2004); Ingalls Shipbuilding, Inc. v. Dalton, 119 F.3d 972, 31 BRBS 77(CRT) (Fed. Cir. 1997); Sea-Land Service, Inc. v. Barry, 41 F.3d 903, 29 BRBS 1(CRT) (3d Cir. 1994). For the following reasons, we agree and overrule Cox.
Although not specifically provided for in the statute, pre-judgment interest is due on overdue compensation payable for disability or death. Price v. Stevedoring Services of America, 697 F.3d 820, 46 BRBS 51(CRT) (9th Cir. 2012) (en banc); Matulic v. Director, OWCP, 154 F.3d 1052 32 BRBS 148(CRT) (9th Cir. 1998); Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71(CRT) (9th Cir. 1991). Section 14 of the Act addresses the payment of compensation to claimants, including when it becomes due, and is entitled: "Payment of Compensation."[8] Section 14(e), entitled "Additional compensation for overdue...
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