Stricklin v. Dep't of Army, BRB 21-0118
| Decision Date | 27 August 2021 |
| Docket Number | BRB 21-0118,21-0118A |
| Parties | LISA E. STRICKLIN Claimant-Petitioner v. DEPARTMENT OF THE ARMY and ARMY CENTRAL INSURANCE FUND c/o CONTRACT CLAIMS SERVICES, INCORPORATED Employer/Carrier-Respondents Cross-Petitioners |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits, the Order Denying Claimant's Motion for Reconsideration Except for Correction of Date of Commencement of Temporary Partial Disability in Paragraph 3 of Order, and the Order Denying Employer's Motion for Reconsideration of Larry A. Temin Administrative Law Judge, United States Department of Labor.
Stephen P. Moschetta (The Moschetta Law Firm, P.C.) Washington, Pennsylvania, for Claimant.
Jonathan H. Walker (Mason, Mason, Walker & Hedrick, P.C.), Newport News, Virginia, for self-insured Employer.
Before: ROLFE, GRESH and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals and Employer cross-appeals Administrative Law Judge (ALJ) Larry A. Temin's Decision and Order Awarding Benefits, Order Denying Claimant's Motion for Reconsideration Except for Correction of Date of Commencement of Temporary Partial Disability in Paragraph 3 of Order, and Order Denying Employer's Motion for Reconsideration (2018-LHC-00788) 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 Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq. (Act). We must affirm the ALJ'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 worked at the Fort McCoy Club, in Wisconsin, as an assistant business manager. She injured her left side on April 8, 2014, when she was struck by a cart carrying frozen food.[1] Tr. at 51-52, 56. Employer voluntarily paid Claimant compensation for temporary total disability, 33 U.S.C. §908(b), from June 23, 2014, when she stopped working, to August 17, 2014, and medical benefits, 33 U.S.C. §907, through September 2014. Decision and Order at 3, 3 n.4, 71 n.176; Tr. at 66. Claimant returned to modified work for Employer on August 18, 2014, until she was terminated on September 23, 2015. Decision and Order at 54, 54 n.90; Tr. at 15, 66-68. Claimant filed a claim for injuries to her left side and left lower extremity on June 2, 2016. CX 16 at 2. She filed an amended claim for a psychological injury on November 8, 2017. CX 17 at 2. Employer contested the claims.
In his decision, the ALJ first determined Claimant satisfied the requirements of Sections 12 and 13 of the Act, 33 U.S.C. §§912, 913, and found her notice of injury and claim for compensation for her physical and psychological injuries were timely filed. Decision and Order at 32-39. After finding Claimant invoked and Employer rebutted the Section 20(a), 33 U.S.C. §920(a), presumption, he found, based on the record evidence as a whole, Claimant established work-related complex regional pain syndrome (CRPS). Id. at 42-51. He also found Employer presented no evidence that Claimant's work injury did not result in an emotional injury, and that the preponderance of the evidence establishes the April 8, 2014 work injury resulted in both physical and emotional injuries.[2] Id. at 51.
The ALJ determined Claimant was unable to physically perform her usual employment after her termination on September 23, 2015, but is capable of performing sedentary employment as defined in the Dictionary of Occupational Titles (DOT). Decision and Order at 54-57. He found Claimant's modified position for Employer constituted suitable alternate employment from August 18, 2014 to September 23, 2015. Id. at 58-59. He rejected Employer's assertion that Claimant was terminated for good cause and found her termination was, at least in part, due to her work injuries. Id. at 59-61. The ALJ determined two of the jobs identified in Employer's December 19, 2019 labor market survey, a customer service representative and an administrative assistant, established the availability of suitable alternate employment, and Claimant did not diligently seek alternative work. Id. at 61-65. He found Claimant entitled to compensation for temporary total disability from September 24, 2015, to December 19, 2019, because Employer's evidence is insufficient to show suitable jobs were available prior to the date of the labor market survey. Id. at 63-64. The ALJ accepted the parties' stipulations as to Claimant's average weekly wage and compensation rate, and determined, based on the jobs constituting suitable alternate employment, Claimant is entitled to compensation for temporary partial disability, 33 U.S.C. §908(e), of $168.28 per week as of December 20, 2019. Id. at 67-70; see also Order Denying Claimant's Motion for Reconsideration Except for Correction of Date of Commencement of Temporary Partial Disability in Paragraph 3 of Order (Order Denying Claimant's Motion for Reconsideration) at 2.
On appeal, Claimant challenges the ALJ's finding that Employer established the availability of suitable alternate employment.[3] Employer responds, urging affirmance. BRB No. 21-0118. Employer cross-appeals the ALJ's finding of work-related CRPS. Employer also challenges the ALJ's determination that the modified position it provided Claimant did not establish suitable alternate employment after she was terminated on September 25, 2015. Alternatively, Employer cross-appeals the ALJ's finding the testimony of its vocational consultant, Deborah Frost, did not establish the jobs identified as suitable alternate employment were available before the December 19, 2019 labor market survey. Employer also avers the ALJ erred in finding Claimant had no income after September 25, 2015, because she has been self-employed as an internet entrepreneur and real estate agent. BRB No. 21-0118A. Claimant did not respond to Employer's cross-appeal.
Employer alleges the ALJ erred in weighing Claimant's subjective complaints, her medical history, and the medical evidence to conclude she established work-related CRPS, based on the record as a whole.[4]
After finding Claimant entitled to the Section 20(a) presumption of compensability and finding Employer rebutted the presumption the ALJ weighed the relevant evidence of work-related CRPS. Decision and Order at 40-43. He summarized the medical evidence addressing CRPS from Claimant's initial office visit to Dr. Joseph Binegar on April 10, 2014, to her office visit with Patricia Wickert, an advanced practice nurse practitioner (APNP), on May 30, 2018. Id. at 44-48. He found "[t]he medical evidence shows generally consistent complaints of left leg and foot discomfort and examinations reveal temperature, sensory and color changes in the left lower extremity." Id. at 44. The ALJ rejected Employer's contention that Claimant's left leg/foot pain after the April 8, 2014 injury is a continuation of pain she has had since 2013. Id. at 48. He stated, prior to the injury, Claimant was treated for lower back pain that radiated into her left hip, which she reported was improving on April 1, 2014, and then she reported to Dr. Binegar on April 10, 2014, that her pain worsened after the work injury. Id. at 48; see EXs 11 at 3, 12, 25, 35; 12 at 1. The ALJ gave weight to the opinion of Dr. Jason Waddell, a neurosurgeon, that Claimant's post-work injury left leg/foot pain is not radicular. Although some of Claimant's pain may be attributable to her lumbar spine condition, he found her post-injury treatment was primarily due to CRPS. Id. at 48-49; CX 5 at 1-2. He gave weight to the CRPS diagnoses of Dr. Mary Zaky and Ms. Wickert based on their qualifications, [5] their treatment of Claimant since 2014, and their reliance on Claimant's symptoms, which are consistent with a diagnosis of CRPS. Id. at 49; see CXs 6 at 1-4, 12 at 1-4, 17 at 4-6, 18 at 1-2, 19 at 39-42. He found the contrary opinion of Dr. Richard Lemon, an orthopedist, not creditable.[6] Decision and Order at 49-50.
The ALJ found Claimant credible with regard to the existence of pain. Decision and Order at 32. He rejected the argument that her symptoms are entirely manufactured, finding it inconsistent with the medical record, which shows treatment for subjective symptoms of pain and sensitivity to touch as well as objective symptoms of temperature change and discoloration, all of which are consistent with a diagnosis of CRPS. Id. at 50. He found it "difficult to believe" Claimant would undergo extensive treatment simply to pursue her claim. Id. at 50-51. The ALJ also relied on Claimant's extensive work history, which he found inconsistent with an unwillingness to work. Id. at 51.
As Claimant invoked, and Employer rebutted, the Section 20(a) presumption, the case must be decided on the record as a whole with Claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994). The United States Court of Appeals for the Seventh Circuit, in whose jurisdiction this case arises, has stated the function of the reviewing body "is simply to consider whether the ALJ looked at all relevant medical evidence, substituted his or her judgment for that of a qualified expert, or disregarded the opinion of a qualified expert absent evidence to the contrary or a legal basis for doing so." Bunge Corp. v. Carlisle, 227 F.3d 934, 938, 34 BRBS 79, 81(CRT) (7th Cir. 2000).
We reject Employer's contentions of error on appeal.[7] The ALJ in this case permissibly relied on the CRPS diagnoses of C...
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