Vipond v. Shell Oil Co.
| Decision Date | 15 September 2005 |
| Docket Number | BRB 04-0938 |
| Parties | LANETTE K. VIPOND Claimant-Petitioner v. SHELL OIL COMPANY and ESIS/ACE USA Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order-Denying Benefits of Stephen L Purcell, Administrative Law Judge, United States Department of Labor.
Kurt A. Gronau (Law Offices of Gray & Prouty), Honolulu Hawaii, for claimant.
Gilbert A. Garcia (Veatch, Carlson, Grogan & Nelson), Los Angeles, California, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Claimant appeals the Decision and Order-Denying Benefits (2004-LHC-0293) of Administrative Law Judge Stephen L Purcell 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 Outer Continental Shelf Lands Act, 43 U.S.C. §1331 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).
On February 26, 1981, claimant sustained a work-related injury to her back while working for employer as a production technician on an offshore platform. Initially, claimant neither sought medical attention nor informed employer of her injury. Moreover, claimant never returned to her employment with this employer. She resigned shortly after her February 2, 1981, work accident and stated that her resignation was for personal reasons. Thereafter, claimant secured a non-maritime job performing heavy manual labor for the City of Ventura, California. Claimant passed her pre-employment physical examination and was hired as a maintenance worker on October 6, 1981. On February 18, 1984, claimant suffered a work accident where she “felt a pop” in her back. The next day, claimant was unable to get out of bed, because of the severe pain in her back radiating into her lower extremity. Claimant contended that she had not been gainfully employed since that incident. Claimant filed a claim for benefits under the Act, which resulted in a formal hearing on February 27, 1985, before Administrative Law Judge Henry B. Lasky.
Judge Lasky found that claimant was entitled to temporary total disability benefits from February 27, 1981 through October 6, 1981, the date on which she began her employment with the City of Ventura. The administrative law judge also found that claimant’s position with the City of Ventura did not fairly and accurately represent her post-injury wage-earning capacity, because it was not suitable given her restrictions from the work injury with employer, and he found that she suffered a 50 percent loss of wage-earning capacity. [1] Thus, the administrative law judge awarded claimant permanent partial disability benefits of $148.67 per week. The administrative law judge awarded future medical benefits, see 33 U.S.C. §907, and in addition, awarded employer relief from continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f).
In 2003, claimant sought to modify Judge Lasky’s 1985 award of permanent partial disability benefits to permanent total disability benefits, based on a mistake of fact or a change of condition. See 33 U.S.C. §922. Claimant also sought reimbursement of medical expenses, as well as continuing medical care. A formal hearing was held before Judge Purcell on February 24, 2004. [2] In his Decision and Order, Judge Purcell denied claimant’s modification request, rejecting her contention that Judge Lasky made a mistake in fact regarding her post-injury loss of wage-earning capacity. Judge Purcell also found that claimant did not meet her burden of establishing either a change in her physical or economic condition. Moreover, the administrative law judge denied claimant’s request for medical benefits. In this regard, the administrative law judge found that claimant failed to meet her burden of establishing that the medical treatment she received was for the 1981 injury, or that the costs of such treatment were incurred after authorization was requested and withheld by employer.
On appeal, claimant alleges that the administrative law judge erred in denying her modification petition. Claimant also alleges that the administrative law judge erred in denying medical benefits. Employer responds, urging affirmance of the administrative law judge’s denial of modification and medical expenses. [3] The Director has not responded to this appeal.
Section 22 of the Act provides the only means for changing an otherwise final compensation order. Under Section 22, any party-in-interest, at any time within one year of the last payment of compensation or within one year of the rejection of a claim, may request modification because of a mistake in fact or change in condition. See 33 U.S.C. §922. In considering mistake in fact, the fact-finder had broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence or merely further reflection on the evidence initially submitted. O’Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971), reh’g denied, 404 U.S. 1053 (1972). In order to obtain modification for a mistake in fact, the modification must render justice under the Act. See Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 36 BRBS 35(CRT) (7 th Cir. 2002); Wheeler v. Newport News Shipbuilding & Dry Dock Co., 37 BRBS 107 (2003). Modification based on a change in condition may be predicated on a improvement or deterioration in claimant’s physical or economic condition. Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1(CRT) (1995).
On appeal, claimant first contends that there was a mistake in fact in Judge Lasky’s decision in that he found her job with Ventura to be unsuitable for her, yet used one-half of the wages of this job as the basis for her ongoing permanent partial disability benefits award after she left that employment. Claimant contends the administrative law judge did not address this contention in his decision denying modification.
We agree with claimant that the administrative law judge did not adequately address her contention and therefore we must remand the case for reconsideration. See, e.g., Zepeda v. National Steel & Shipbuilding Co., 24 BRBS 163 (1991); Finch v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989)(wage-earning capacity is a mixed question of law and fact subject to Section 22). Judge Lasky implicitly found that claimant could not return to her usual work. [4] Employer thus bore the burden of establishing suitable alternate employment. Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9 th Cir. 1980). Claimant obtained a job on her own which Judge Lasky found was “totally unsuited” to claimant’s capabilities because of her physical condition due to the work injury. Lasky Decision and Order at 7. His award of permanent partial disability benefits while she worked in the unsuitable position therefore was appropriate for as long as she was employed by Ventura. See generally Ezell v. Direct, Labor, Inc., 37 BRBS 11 (2003).
However, in her modification petition, claimant alleged that the ongoing permanent partial disability award was based on a mistake in fact since she was unable to retain the unsuitable job or to obtain other employment due to her work injury. Claimant therefore maintained that she was entitled to a greater award. This mistake of fact issue should have been addressed by the administrative law judge. [5] O’Keeffe, 404 U.S. 254; see Banks v. Chicago Grain Trimmers Association, Inc., 390 U.S. 459, reh’g denied, 391 U.S. 929 (1968). As claimant was employed in work which was unsuitable after her work injury, this job cannot constitute suitable alternate employment; in order to be suitable, employment must be within the medical restrictions claimant had as a result of her work-related 1981 injury and prior to her 1984 aggravating injury with the City of Ventura. See generally Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9 th Cir. 1993), cert. denied, 511 U.S. 1031 (1994); Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122(CRT) (9 th Cir. 1988). Judge Lasky, however, made no determination regarding suitable alternate employment in his decision, despite finding that claimant’s earnings in the job with the City of Ventura did not represent her wage-earning capacity. He apparently based his finding of a 50 percent loss in wage-earning capacity on the fact that he believed claimant to be totally disabled but that 50 percent of this disability is due to her injury in 1984. Lasky Decision and Order at 8, n.1.
On modification, Judge Purcell discussed the medical evidence relating to claimant’s work restrictions in addressing her change in condition contention. He found that prior to her 1984 injury in Ventura, claimant was restricted from performing heavy work, including heavy lifting, and from repeated bending and stooping. Decision and Order on Modification at 16. He also found that these same restrictions were imposed by claimant’s physicians in 2003. These findings are amply supported by substantial evidence. See EXs 3-6. As Judge Lasky found, this evidence also establishes the unsuitability of both claimant’s usual work with employer and the Ventura job, thus shifting to employer the burden of establishing suitable alternate employment within these restrictions after claimant stopped working for...
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