Rollo v. Service Employees International Inc.
| Decision Date | 17 February 2021 |
| Docket Number | BRB 20-0432 |
| Court | Longshore Complaints Court of Appeals |
| Parties | ROBERT ROLLO Claimant-Petitioner v. SERVICE EMPLOYEES INTERNATIONAL INCORPORATED and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA c/o AIG GLOBAL CLAIMS Employer/Carrier-Respondents |
UNPUBLISHED OPINION
Appeal of the Order Granting Employer's Motion for Summary Decision and Denying Claimant's Cross-Motion for Summary Decision of Francine L. Applewhite, Administrative Law Judge United States Department of Labor.
Michael A. Rosenhouse (Rosenhouse Law Office), Rochester, New York, for Claimant.
Lawrence P. Postol (Postol Law Firm, P.C.), McLean, Virginia for Employer/Carrier.
Before: BUZZARD, ROLFE and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals Administrative Law Judge Francine L. Applewhite's Order Granting Employer's Motion for Summary Decision and Denying Claimant's Cross-Motion for Summary Decision (2018-LDA-00684) 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 suffered a "crush injury" to his left foot ("Lisfranc injury") on January 29, 2005, when he dropped a pallet on it during the course of his employment as an ice plant foreman with Employer at Al Assad Air Base in Iraq. He ultimately stopped working in May or June 2005 on the advice of his physician. Claimant has undergone numerous surgeries on his left foot in the United States and the United Kingdom and, allegedly, developed related right foot, back, and neck problems; he has not returned to work. Cl. Br. at 7; Cl. Cross-Motion for Summary Decision (Cross-M/SD) at 2; Settlement at 1, 3, Exh. 3.
Employer voluntarily paid Claimant temporary total disability benefits beginning on June 5, 2005. Settlement at 3. On September 6, 2013, the parties participated in mediation and reached an agreement. Order at 2. Claimant signed the agreement on October 9, 2013; Employer's representative signed it on October 22, 2013. Employer continued to pay Claimant benefits until November 17, 2013, after the district director approved the parties' Section 8(i), 33 U.S.C. §908(i), settlement.[1] Notice of Final Payment (Nov. 19, 2013).
The detailed agreement provided the following: 1) Employer paid $12, 701.07 for a mobility chair; 2) in 2011, Employer paid $1, 387.03 for medical care; 3) Employer paid approximately $49, 000 for two surgeries in the U.S.; 4) Claimant will receive: a) a $250, 000 lump sum for future permanent disability compensation; b) $24, 340 annually, guaranteed for 25 years (October 2014 to October 2038);[2] and c) a $50, 000 lump sum payment for home modifications; and 5) Claimant's then-counsel, George Escobedo, will receive $35, 000 as a fee. This results in a settlement for $708, 500 ($250, 000 + $458, 500) in disability benefits and $200, 000 ($150, 000 "set aside" + $50, 000 renovations) for medical-related costs, in addition to the $497, 255.36 Claimant received prior to the settlement. Settlement at 5-7. The settlement further stated Claimant "carefully considered" and fully understood the settlement, certified it was not procured by fraud or duress and was in his best interests, acknowledged it is not subject to modification, and gave it his "express approval[.]" Settlement at 6, 8. No party appealed the order approving this settlement, and the administrative law judge found it became final on December 22, 2013. Order at 6.
In 2016, Claimant retained new counsel and, in 2017, he filed a Petition to Set Aside the compensation order approving the settlement. Order at 4; Emp. Br. at 15. Claimant challenged many aspects of the settlement, asserted it was procured by fraud or duress and was inadequate, and sought to set it aside.[3] He asked instead to be awarded compensation and medical benefits for permanent total disability based on the "indisputable" evidence supporting such award.
The Office of Workers' Compensation Programs (OWCP) denied Claimant's request, informing counsel on multiple occasions that the settlement was final and fully discharged Employer's liability. Claimant appealed the denials to the Board, and on March 27, 2018, the Board dismissed Claimant's appeal.[4] The case was then referred to the Office of Administrative Law Judges (OALJ).
Employer filed a Motion for Summary Decision (M/SD) on November 9, 2018, with the OALJ, contending the settlement is final and there is no basis to challenge or re-open it. Claimant filed a combined opposition and cross-motion for summary decision, challenging the agreement on grounds of duress, fraud, and inadequacy, asserting there is no time bar to making his challenges, and requesting an award of permanent total disability benefits. Employer's opposition, Claimant's reply, and Employer's sur-reply followed.
The administrative law judge addressed each of Claimant's complaints, rejecting his arguments of economic duress, fraud, general duress, inadequacy, and fraud on the court.[5] Order at 6-8. She concluded "there is no ability to set aside the settlement agreement" which became final on December 22, 2013. Id. at 5-6 (citing Diggles v. Bethlehem Steel Corp., 32 BRBS 79 (1998)). Alternatively, the administrative law judge found Claimant's claim must be dismissed for lack of subject matter jurisdiction, as she has no authority to re-open the case. Id. at 8. She granted Employer's motion, denied Claimant's cross-motion, and dismissed Claimant's petition to set aside the settlement. Id. Claimant appeals the decision, and Employer responds, urging affirmance. Claimant has filed a reply brief.
Claimant contends the administrative law judge erred in granting Employer's motion. In short, he asserts the 2013 settlement was procured by fraud, signed under duress, and was inadequate, and it should be set aside and he should be awarded permanent total disability benefits. Claimant asserts the administrative law judge committed the following errors: 1) holding there was no fraud against the court under the Federal Rules of Civil Procedure, Fed.R.Civ.P. (FRCP) 60(d)(3), merely because Claimant was represented by counsel; 2) finding Claimant was "guilty of unreasonable delay;" 3) holding Claimant was not under economic duress at the time he signed the settlement agreement; 4) alternatively holding she lacked subject matter jurisdiction; and 5) not awarding Claimant permanent total disability benefits.[6]
In ruling on a party's motion for summary decision, the administrative law judge must determine, after viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the moving party is entitled to summary decision as a matter of law. Morgan v. Cascade General, Inc., 40 BRBS 9 (2006); see also O'Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir. 2002); Brockington v. Certified Elec., Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991); R.V. [Villaverde] v. J. D'Annunzio & Sons, 42 BRBS 63 (2008), aff'd sub nom. Villaverde v. Director, OWCP, 335 Fed.Appx. 79 (2d Cir. 2009); Buck v. General Dynamics Corp., 37 BRBS 53 (2003); Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990); 29 C.F.R. §18.72. To defeat a motion for summary decision, the non-moving party must "come forward with specific facts" to show "there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the administrative law judge could find for the non-moving party, or if it is necessary to weigh evidence or make credibility determinations on the issue presented, summary decision is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986); Walker v. Todd Pac. Shipyards, 47 BRBS 11 (2013), vacating in pert. part on recon., 46 BRBS 57 (2012).
Section 8(i) of the Act, 33 U.S.C. §908(i), governs settlements of claims. A settlement agreement must be approved within 30 days of its submission unless it is inadequate, procured by duress, or not in conformance with the regulatory criteria. See Losacano v. Electric Boat Corp., 48 BRBS 49 (2014); Richardson v. Huntington Ingalls, Inc., 48 BRBS 23 (2014); McPherson v. National Steel & Shipbuilding Co., 26 BRBS 71 (1992), aff'g on recon. en banc, 24 BRBS 224 (1991); 20 C.F.R. §§702.241-702.243. Once approved, the effect of the settlement is to completely discharge the employer's liability for the claimant's injury. 33 U.S.C. §908(i)(3); Diggles, 32 BRBS 79; 20 C.F.R. §702.243(b). Additionally, once a settlement is approved and the time for appeal to the Benefits Review Board has expired, it is binding on the parties and not subject to rescission. Diggles, 32 BRBS 79; Porter v. Kwajalein Services, Inc., 31 BRBS 112 (1997), aff'd on recon., 32 BRBS 56 (1998), aff'd sub nom. Porter v. Director, OWCP, 196 F.3d 484 (9th Cir.) (table), cert. denied, 528 U.S. 1052 (1999). Settlements also are not subject to Section 22, 33 U.S.C. §922, modification. The Board, however, has stated there may be a possibility of re-opening a settlement as a matter of equity if a party establishes it was fraudulently secured. Downs v. Texas Star Shipping Co., Inc., 18 BRBS 37 (1986), aff'd sub nom. Downs v. Director, OWCP, 803 F.2d 193, 19 BRBS 36(CRT) (5th Cir. 1986).
In this case, the administrative law judge addressed each of Claimant's arguments, viewing the facts in the light most favorable to Claim...
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