Tisdale v. American Logistics Services

• Decision Date: 29 April 2010
• Docket Number: BRB 09-0582,09-0582A
• Parties: JOHN TISDALE, Claimant-Petitioner Cross-Respondent v. AMERICAN LOGISTICS SERVICES and ABDUL RAHMAN AL-GHANIM (Individually and as Principal), Employer-Respondent Cross-Petitioner GEORGE H. LEE (Individually and as Principal), Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Administrator-Respondent
• Court: Longshore Complaints Court of Appeals

JOHN TISDALE, Claimant-Petitioner Cross-Respondent
v.
AMERICAN LOGISTICS SERVICES and ABDUL RAHMAN AL-GHANIM (Individually and as Principal), Employer-Respondent Cross-Petitioner GEORGE H. LEE (Individually and as Principal), Employer-Respondent DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Administrator-Respondent

BRB Nos. 09-0582, 09-0582A

April 29, 2010

Appeals of the Order Denying Motion for Partial Summary Decision and Cross-Motion for Summary Decision, the Decision and Order on Remand, and the Order Denying Motion for Reconsideration, Leave to Introduce Newly Discovered Evidence and In the Alternative for Modification of Lee J. Romero, Jr., Administrative Law Judge, United States Department of Labor.

Joshua T. Gillelan II (Longshore Claimants' National Law Center), Washington, D.C., and Jay Lawrence Friedheim (Admiralty Advocates), Honolulu, Hawaii, for claimant.

Jennifer O'Sullivan and Edward J. Patterson III (Fulbright & Jaworski, L.L.P.), Austin, Texas, for employer and Abdul Rahman Al-Ghanim.

Edward D. Sieger (M. Patricia Smith, Solicitor of Labor; Rae Ellen James, 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: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.

DECISION and ORDER

PER CURIAM:

Claimant appeals the Order Denying Motion for Partial Summary Decision and Cross-Motion for Summary Decision, the Decision and Order on Remand, and the Order Denying Motion for Reconsideration, Leave to Introduce Newly Discovered Evidence and In the Alternative for Modification, and American Logistic Services and Abdul Rahman Al-Ghanim (employer or ALS) cross-appeal the Order Denying Motion for Partial Summary Decision and Cross-Motion for Summary Decision (2006-LDA-18) of Administrative Law Judge Lee J. Romero, Jr., 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 administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). The Board held oral argument in this case in Washington, D.C., on March 11, 2010.

This is the second time this case has come before the Board. Employer, a Kuwaiti company, hired claimant to work as a warehouse specialist in Iraq. Claimant filed a claim asserting that he injured his shoulder at work in December 2004. Following a hearing at which employer was not represented, the administrative law judge found that claimant sustained a work-related injury, cannot return to his usual work, and is entitled to medical and disability benefits. Relying on the district director's determination that employer was not insured for coverage under the Defense Base Act (DBA), the administrative law judge held two principals, Al-Ghanim, then-Chairman, and George Lee, then-President and Chief Executive Officer, together with employer, jointly and severally liable for the benefits awarded pursuant to Section 38(a) of the Act, 33 U.S.C. §938(a).^[1] Decision and Order at 4, 25. Employer and Al-Ghanim appealed, arguing that they did not receive the required ten days notice of hearing and, in fact, that they never received the notice of hearing. See 33 U.S.C. §919(c). The Board vacated the award of benefits and remanded the case for a new evidentiary hearing with proper notice to employer and the potentially-liable individuals and instructions to address all issues properly raised by the parties.^[2] J.T. [Tisdale] v. American Logistics Services, 41 BRBS 41 (2007).

On remand, claimant filed a motion for partial summary decision, asserting that the contract under which he worked was either "with the United States" or an agency thereof or was "approved and financed by" the United States, bringing it within DBA coverage, 42 U.S.C. §1651(a)(4), (5), and that the Section 20(a), 33 U.S.C. §920(a), presumption applies to this issue. Claimant also moved for summary decision on the issues of average weekly wage and residual wage-earning capacity. Employer and Al-Ghanim, as an individual and principal, responded and asserted in a cross-motion that the DBA is not applicable.^[3] The administrative law judge found that genuine issues of material fact remained regarding the identities of the parties to, and the source of financing for, the contract under which claimant worked, as those could not be "ascertained within the four comers" of the contract, and that genuine issues remain as to claimant's average weekly wage and wage-earning capacity. Therefore, he denied both claimant's motion for partial summary decision and employer's motion for summary decision.

On July 22, 2008, the administrative law judge conducted a formal hearing in this case. All parties, except Mr. Lee, appeared. The issue before the administrative law judge involved claimant's coverage under the DBA. Specifically, the administrative law judge addressed whether the contract under which claimant was employed was between ALS and the United States or an agency thereof since the contract was issued by the Coalition Provisional Authority (CPA). The administrative law judge found that, assuming Section 20(a), 33 U.S.C. §920(a), applies to the coverage issue, employer rebutted it by showing that, on its face, the U.S. was not a party to the contract. Decision and Order on Remand at 14. Further, the administrative law judge found that, even though U.S. forms were used and the Inspector General for the CPA (CPA-IG) was required to audit the contract, claimant did not establish that employer's contract was with the United States. As he found the evidence was, at best, evenly balanced, he concluded that claimant did not satisfy his burden of showing that the contracting entity, the CPA, was an agency or an instrumentality of the U.S. Government. Thus, the administrative law judge found no coverage under Section 1(a)(4) of the DBA. Decision and Order on Remand at 17; see 42 U.S.C. §1651(a)(4). Finally, the administrative law judge concluded that claimant failed to meet his burden of showing that the contract was approved and financed by the U.S. or agency thereof He found that the contract itself is insufficient to so show, as it designated that payment was to be made by the Iraqi "Ministry of Interior" at the Republican Presidential Compound in Baghdad, Iraq, via "DFI Transfer." The administrative law judge noted that the CPA-IG's Quarterly Report stated that DFI funds are Iraqi funds but did not discuss the specific funding for this particular contract. Decision and Order on Remand at 18; CI. Ex. 45 at 53. Accordingly, he found that claimant failed to establish that the U.S. "approved and financed" the contract at issue, and that, as a result, there is no coverage under Section 1(a)(5) because, at best, the evidence is in equipoise. Decision and Order on Remand at 18-19; see 42 U.S.C. §1651(a)(5). Accordingly, the administrative law judge denied claimant's claim for benefits. Id. at 19.

On February 23, 2009, claimant filed a "Motion for Reconsideration, Leave to Introduce Newly Discovered Evidence and in the Alternative for Modification." Claimant asserted that the administrative law judge failed to consider relevant evidence from an Army investigation and that claimant had newly discovered evidence to present in the form of his Department of Defense Contractor identification badge. Claimant contended this evidence altered the balance of the evidence in his favor. The administrative law judge rejected claimant's arguments, stating that the investigative reports were considered in the denial of the motions for summary decision, wherein claimant conceded they did not contain any final determinations as a matter of law, and the reports were not submitted into evidence at the hearing, despite claimant's having been told that only evidence admitted at the hearing would be considered. Order on M/SD at 3; Order on M/Recon. at 3. With regard to the identification badge, the administrative law judge stated that it was not newly discovered evidence, that claimant did not request the record be held open until he could retrieve his badge, and that the badge is unauthenticated hearsay which does not address the contractual issue at hand. Order on M/Recon. at 3-4. Thus, the administrative law judge denied claimant's motions and affirmed his decision on remand. Order at 1-5.

Claimant appeals the administrative law judge's denial of his motion for summary decision, the finding that his injury is not covered under Section 1(a)(4) or (5) of the DBA, and the denial of his motions for reconsideration and modification. The Director, Office of Workers' Compensation Programs (the Director), responds, agreeing that claimant is covered under Section 1(a)(4) of the DBA. BRB No. 09-0582. Employer cross-appeals the administrative law judge's denial of its cross-motion for summary decision. BRB No. 09-0582A.

Initially, we affirm the administrative law judge's denial of both parties' motions for summary decision. In determining whether to grant a party's motion for summary decision, the administrative law judge must decide, 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 (2^d Cir. 2002); Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11^th Cir. 1990), cert. denied, 498 U.S...