Tucker v. Steel
| Decision Date | 22 June 2007 |
| Docket Number | BRB 06-0816 |
| Parties | SAMUEL B. TUCKER, JR. Claimant-Petitioner v. THAMES VALLEY STEEL and HARTFORD INSURANCE COMPANY Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order on Remand Awarding Benefits and the Decision and Order Granting in Part and Denying in Part Claimant’s Motion for Reconsideration of Daniel F Sutton, Administrative Law Judge, United States Department of Labor.
Joshua T. Gillelan II (Longshore Claimants’ National Law Center), Washington, D.C., for claimant.
David A. Kelly (Montstream & May, L.L.P.), Glastonbury Connecticut, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Claimant appeals the Decision and Order on Remand Awarding Benefits and the Decision and Order Granting in Part and Denying in Part Claimant’s Motion for Reconsideration (2000-LHC-3381, 2000-LHC-3382, 2000-LHC-3383, and 2001-LHC-1667 through 2001-LHC-1676) of Administrative Law Judge Daniel F. Sutton 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 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).
This is the second time this case has been before the Board. Originally, claimant filed a claim for benefits against several covered employers. He claimed he suffered work-related injuries as the result of exposure to asbestos and other hazardous substances, as well as arthritis and thoracic outlet syndrome from vibrating tools, crawling kneeling, etc. In his initial decision, the administrative law judge found that employer is responsible for claimant’s permanent total disability benefits from May 21, 1985. In its decision on employer’s appeal, the Board addressed numerous issues. Ultimately, as it relates to the current appeal, the Board reversed the administrative law judge’s finding that claimant was an involuntary retiree, held he was a voluntary retiree, and vacated the award of permanent total disability benefits, as a voluntary retiree is limited to a permanent partial disability award under Section 8(c)(23), 33 U.S.C. §908(c)(23). The Board remanded the case to the administrative law judge for reconsideration of the onset date of claimant’s partial disability and the amount of benefits to which he is entitled. The Board affirmed the administrative law judge’s findings on the remaining issues. Tucker v. Thames Valley Steel, BRB No. 04-0136 (Dec. 28, 2004).
On remand, the administrative law judge found that claimant is entitled to permanent partial disability benefits based on a 25 percent impairment to his lungs commencing on April 1, 1993, at the rate of $60.10 per week, and that employer is entitled to a credit for benefits paid. Decision and Order on Remand at 4-5. Claimant moved for reconsideration. The administrative law judge granted the motion in part and adjusted the compensation rate to reflect the national average weekly wage in effect in July 1999 rather than April 1993. Thus, he modified his decision to reflect that claimant is entitled to $72.65 per week in compensation. The administrative law judge, however, denied claimant’s motion regarding the onset date, reaffirming his finding that disability began on April 1, 1993. Decision and Order M/Recon. at 3-4. Claimant appeals these decisions, and employer responds, urging affirmance.
Claimant first contends the Board did not have jurisdiction to render its 2004 decision. Specifically, claimant argues that the Board dismissed employer’s November 13, 2003, notice of appeal as premature pursuant to 20 C.F.R. §802.206(f), [1] and that employer’s December 23, 2003, notice of appeal sought review of only the administrative law judge’s decision on the second motion for reconsideration That is, claimant argues that employer did not file a notice of appeal following the administrative law judge’s final decision that included a request for review of all the administrative law judge’s decisions, and the Board erred in interpreting the December 2003 notice of appeal as such. Claimant also contends that the December 2003 appeal was not timely as successive motions for reconsideration do not toll the period for appeal. Employer responds, arguing that there were no motions for reconsideration related to the November 2003 notice of appeal and that the Board acknowledged the sequence of events and accepted the November notice of appeal as timely with regard to all decisions of the administrative law judge. Additionally, employer argues that claimant is time-barred from raising the issue of the adequacy of the notice of appeal since he did not appeal the Board’s orders of December 12, 2003, and February 23, 2004, and those decisions became final after 60 days.
The administrative law judge issued his Decision and Order Awarding Benefits on September 30, 2003, and it was filed with the district director on October 2, 2003. Following an Errata Order which corrected a typographical error, claimant and employer filed motions for reconsideration with the administrative law judge. On November 5, 2003, the administrative law judge issued his Order Granting in Part and Denying in Part the Motions for Reconsideration. On November 13, 2003, employer appealed the administrative law judge’s decisions. The Board acknowledged this appeal on December 12, 2003, and assigned it BRB No. 04-0136. Employer also filed a motion for reconsideration with the administrative law judge, and the administrative law judge denied the motion on December 17, 2003. On December 23, 2003, employer filed another appeal with the Board. On February 23, 2004, the Board dismissed BRB No. 04-0136 pursuant to the regulation at Section 802.206(f). See n.1, supra. In that same Order, the Board acknowledged employer’s second appeal, construed it as an appeal of all the underlying decisions, and assigned it BRB No. 04-0136. On December 28, 2004, the Board issued its decision vacating the administrative law judge’s award of benefits and remanding the case for further consideration.
Initially, we reject employer’s arguments in response to claimant’s appeal. Employer’s assertion that there were no motions for reconsideration that affected the November 2003 notice of appeal is incorrect. Although the November 2003 notice of appeal was timely filed, it was later properly dismissed as premature when the Board learned that a second motion for reconsideration had been filed with the administrative law judge. See Aetna Casualty & Surety Co. v. Director, OWCP [Jourdan], 97 F.3d 815, 30 BRBS 81(CRT) (5th Cir. 1996); Harmar Coal Co. v. Director, OWCP, 926 F.2d 302, 14 BLR 2-182 (3 d Cir. 1991); Tideland Welding Service v. Sawyer, 881 F.2d 157, 22 BRBS 122(CRT) (5th Cir. 1989), cert. denied, 495 U.S. 904 (1990); 20 C.F.R. §802.206(f). Employer itself filed the second motion that resulted in the dismissal of its November 2003 appeal. Further, contrary to employer’s argument, the adequacy of the November 2003 notice of appeal is not at issue. Rather, claimant argues that the December notice of appeal sought review of only the decision on the second motion for reconsideration and therefore cannot be considered a renewed or inclusive notice of appeal of all the administrative law judge’s decisions and orders. To the extent employer is arguing that claimant should have challenged the Board’s jurisdiction over the December 2003 appeal or moved to dismiss it at the time it was filed or prior to the issuance of the Board’s December 2004 decision on the merits, we reject employer’s argument, as the issue of a court’s lack of subject-matter jurisdiction may be raised at any time. Kontrick v. Ryan, 540 U.S. 443 (2004); Lackawanna Refuse Removal, Inc. v. Proctor & Gamble Paper Products Co., 86 F.R.D. 330 (D.C. Pa. 1979); Fed.R.Civ.P. Rules 12(h)(1), 60(b)(4). Therefore, we reject employer’s arguments in response to claimant’s current appeal.
Nevertheless, we reject claimant’s arguments regarding the Board’s jurisdiction to review the administrative law judge’s substantive first decision. The Board obtains jurisdiction over a case where a party files a timely notice of appeal. 20 C.F.R. §§702.391, 802.204. The appeal must raise a substantial question of law or fact. 20 C.F.R. §702.392. The notice of appeal shall contain, inter alia, information identifying the decision or order being appealed such as the OALJ file number, OWCP number, and the date of the order or decision being appealed. 20 C.F.R. §802.208(a)(4), (5). Notwithstanding the requirements set forth above, “any written communication which reasonably permits identification of the decision from which an appeal is sought and the parties affected or aggrieved thereby, shall be sufficient notice for purposes of §802.205.” 20 C.F.R. §802.208(b). Moreover, “[i]n the event that identification of the case is not possible from the information submitted, the Clerk of the Board shall notify the petitioner and shall give the petitioner a reasonable time to produce sufficient information to permit identification of the case.” 20 C.F.R. §802.208(c).
Claimant argues that the Board did not have jurisdiction to issue its December 28, 2004, decision vacating and remanding the administrative law judge’s decision because employer validly appealed only the administrative law judge’s decision on the second motion for reconsideration. The December 2003 notice of appeal specifically stated “The petitioners... respectfully give notice of its appeal of Administrative...
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