Wilson v. Norfolk & Western Railway Co.
| Decision Date | 29 April 1998 |
| Docket Number | BRB 97-1102 |
| Court | Longshore Complaints Court of Appeals |
| Parties | MAURICE E. WILSON, Claimant-Respondent v. NORFOLK & WESTERN RAILWAY COMPANY, Self-Insured Employer-Petitioner |
Appeal of the Order Denying Motion for Summary Decision and Decision and Order Awarding Benefits of Daniel A. Sarno, Jr. Administrative Law Judge, United States Department of Labor.
Gregory E. Camden and Matthew H. Kraft (Rutter & Montagna), Norfolk, Virginia, for claimant.
James L. Chapman, IV (Crenshaw, Ware & Martin, P.L.C.) Norfolk, Virginia, for self-insured employer.
Before: SMITH, BROWN and DOLDER, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Order Denying Motion for Summary Decision and Decision and Order Awarding Benefits (96-LHC-123) of Administrative Law Judge Daniel A. Sarno, 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. (the Act). We must affirm the findings of fact and conclusions of law of the administrative law judge which are rational, supported by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant worked for employer at its Barney Yard location as a brakeman, where he was responsible for releasing coal cars down railroad tracks toward the dock where the coal would be loaded onto ships. On November 13, 1985, claimant suffered a work-related injury when he pushed down on a pinch bar and felt pain in his lower back. Initially diagnosed with an acute lumbar strain, claimant attempted to return to work on three occasions, but each time he was sent home by his supervisors due to his complaints of pain. Claimant has been unable to return to either his former job with employer as a brakeman, or the part-time truck driving job he held with Albermarle Supply Company prior to his injury.
In December 1986, claimant filed a civil action in state court against employer under the Federal Employee's Liability Act (FELA), 45 U.S.C. §§51-60. Prior to trial, on July 15, 1987, the parties entered into a settlement agreement with respect to this claim for a gross amount of $150, 000, of which $37, 500 was designated for claimant's attorney's fee. On August 4, 1987, pursuant to the parties' joint motion, the state court ordered that the action be dismissed. Independent of the civil action, claimant filed for retirement benefits with the Railroad Retirement Board due to his disability, and for the years 1987 through 1995, claimant received a total of $119, 268.18 in retirement benefits. Claimant presently receives in excess of $1, 000 per month in retirement benefits. On August 10, 1995, claimant filed a claim under the Act seeking permanent partial disability compensation as a result of his 1985 back injury.[1]
Employer, on July 26, 1996, filed a motion to dismiss claimant's longshore claim with the administrative law judge, alleging that the doctrines of res judicata, collateral estoppel and election of remedies barred claimant's claim under the Act, based on the dismissal of claimant's FELA action by the Virginia state court. In the alternative, employer argued that the administrative law judge should approve the 1987 FELA settlement as a valid settlement of the claim filed under the Act pursuant to Section 8(i) of the Act, 33 U.S.C. §908(i). In an Order Denying Motion for Summary Decision, the administrative law judge found that the doctrines of res judicata and collateral estoppel did not apply to the instant case, as an order based on the merits of claimant's FELA claim had never been issued. The administrative law judge next determined that the doctrine of election of remedies was inapposite, as employer failed to show that there were inconsistent remedies available to claimant when the FELA action was settled, that claimant assumed a position in his claim under the Act that was inconsistent with that which he took in his FELA case, or that employer was prejudiced by the longshore claim. While not specifically addressing employer's contention that the 1987 FELA settlement constituted a valid settlement agreement under Section 8(i) of the Act, the administrative law judge construed the FELA settlement as an advance payment of compensation by employer under Section 14(j) of the Act, 33 U.S.C. §914(j), which may be credited against any liability employer may incur as a result of claimant's longshore claim.
Thereafter, in his Decision and Order, the administrative law judge initially found that claimant's average weekly wage, including earnings while working for Albermarle Supply Company, totaled $543.09. Next, the administrative law judge determined that employer was entitled to a credit for only the net amount paid to claimant as a result of the FELA settlement; thus, the administrative law judge found that employer's credit did not include the amount apportioned for claimant's FELA attorney's fee. Next, the administrative law judge rejected employer's contention that it was entitled to a credit for the amount of benefits claimant received from the Railroad Retirement Board. Lastly, the administrative law judge found that claimant was capable of working five minimum wage jobs which paid $4.00 per hour as of April 17, 1986, but that employer failed to establish that claimant was capable of performing three higher paying contracting jobs. Concluding that claimant's post-injury wage-earning capacity was thus $160 per week, the administrative law judge awarded claimant permanent partial disability compensation commencing on April 17, 1986 at a weekly rate of $255.39, based on a post-injury loss in wage-earning capacity of $383.09 per week.[2] 33 U.S.C. §908(c)(21).
Employer advances several arguments on appeal. First, employer contends that the administrative law judge erred by failing to dismiss claimant's claim under the Act pursuant to the doctrines of res judicata, full faith and credit, and election of remedies. In the alternative, employer asserts that the administrative law judge should have accepted the parties' 1987 FELA settlement as a valid settlement of claimant's claim under the Act pursuant to Section 8(i) of the Act. Next, employer contends that the administrative law judge committed error by failing to offset against its longshore liability the entire $150, 000 claimant received as a result of the 1987 FELA settlement, as well as the payments claimant has received from the Railroad Retirement Board. Lastly, employer argues that administrative law judge erred by including income claimant received from Albermarle Supply Company in calculating claimant's average weekly wage. Claimant responds, urging affirmance of the administrative law judge's denial of employer's requests to either dismiss the claim or accept the 1987 FELA settlement as a Section 8(i) settlement. Additionally, claimant urges affirmance of the administrative law judge's determinations with regard to employer's credit and claimant's average weekly wage. Employer replies, reiterating its prior arguments.
In his Order Denying Motion for Summary Decision, the administrative law judge denied employer's motion to dismiss the claim based on the doctrines of res judicata and election of remedies. The administrative law judge first found that since there had been no prior decision on the merits with regard to the instant case, res judicata did not apply. Next, the administrative law judge determined that the doctrine of election of remedies did not apply to the instant case, as employer failed to establish that claimant has assumed a position in his claim under the Act that is inconsistent with his position in connection with his FELA action.[3] For the reasons that follow, we affirm the administrative law judge's determinations.
The application of res judicata requires a showing of the following three elements: "(1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits." Keith v. Aldridge, 900 F.2d 736, 739 (4th Cir.), cert. denied, 498 U.S. 900 (1990), citing Nash County Board of Education v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.), cert. denied, 454 U.S. 878 (1981). The third element, identity of parties, is not in dispute. On appeal, employer contends that the doctrine of res judicata should apply to the instant case since, (1) the Virginia court's dismissal of the FELA action on August 4, 1987 constitutes a final order on the merits for claim preclusion purposes, and (2) both the FELA action and longshore claim arise from the same event, the November 13, 1985, work injury. We reject employer's contentions.
It is undisputed that the root of claimant's FELA action and longshore claim lies in the November 13, 1985, work injury. However, issue and claim preclusion can only be given effect when the legal standards are the same in both the previous and current jurisdictions. See Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 583 F.2d 1273, 8 BRBS 723 (4th Cir. 1978), cert. denied, 440 U.S. 915 (1979); Barlow v. Western Asbestos Co., 20 BRBS 179 (1988). It is axiomatic that the standards for establishing recovery under the FELA, which provides a negligence cause of action for railroad employees, and the Act, a workers' compensation scheme, are distinct. See 33 U.S.C §901 et seq.; 45 U.S.C. §§51-60; see, e.g., Barlow, 20 BRBS at 181. In addition, it is well-established that relitigation of an issue or claim will only be precluded in a second case where the parties or their privies had a full and fair opportunity to litigate the claim or issue....
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