Young v. Newport News Shipbuilding and Dry Dock Co.
| Decision Date | 22 June 2011 |
| Docket Number | BRB 10-0678 |
| Parties | RANDOLPH YOUNG, Claimant-Respondent v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Self-Insured Employer-Petitioner DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order on Modification and the Order Denying Motion to Vacate and Denying Motion for Reconsideration of Kenneth A. Krantz, Administrative Law Judge, United States Department of Labor.
John H. Klein (Montagna Klein Camden L.L.P.), Norfolk, Virginia for claimant.
Jonathan H. Walker (Mason, Mason, Walker & Hedrick P.C.), Newport News, Virginia, for self-insured employer.
Ann Marie Scarpino (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: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Modification and the Order Denying Motion to Vacate and Denying Motion for Reconsideration (2009-LHC-0731) of Administrative Law Judge Kenneth A. Krantz 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).
Claimant was hired by employer as a chipper in April 1983. On August 17, 1983, claimant injured his right knee during the course of his employment. On November 7, 1983, he injured his left knee during the course of his employment. The parties stipulated that claimant could not return to his usual work. The issue at the original hearing was whether employer had demonstrated the availability of suitable alternate employment. Administrative Law Judge Sarno found that employer failed to establish the availability of suitable alternate employment, but that, in any event, claimant diligently, yet unsuccessfully, attempted to find alternate work. Therefore, Judge Sarno awarded claimant permanent total disability benefits. Decision and Order (Nov. 26, 1990) at 6. The Board affirmed the administrative law judge’s finding that the jobs identified by employer were not suitable for claimant and affirmed the award of benefits. Young v. Newport News Shipbuilding & Dry Dock Co., BRB No. 91-0609 (Aug. 7, 1992).
In a 1997 pre-hearing statement, employer raised the issue of its entitlement to Section 8(f), 33 U.S.C. §908(f), relief. On October, 22, 1998, employer filed another pre-hearing statement seeking modification of the permanent total disability award and re-raising the Section 8(f) issue. 33 U.S.C. §922. A hearing was scheduled for July 24, 2000 but claimant was unable to participate due to his incarceration. [1] Administrative Law Judge Campbell, based on the agreement of the parties, issued a stay of compensation order on August 15, 2000. The stay was effective until such time as claimant was released and able to pursue his claim. Claimant was released from prison on January 6, 2004. A formal hearing was held on October 14, 2009, before Administrative Law Judge Krantz. [2]
Judge Krantz (the administrative law judge) lifted the stay of payments. He found that the parties stipulated to the work-relatedness of claimant’s knee injuries and that claimant continued to report symptoms related to his knees after the initial award of benefits. He further found that, although the objective medical evidence does not show significant abnormalities in claimant’s knees, that fact does not detract from claimant’s subjective complaints, as his original torn meniscus was not revealed on testing but was discovered during surgery; therefore, the administrative law judge found that the absence of objective test findings does not necessarily correlate with the absence of symptoms. Decision and Order on Modif. at 24-26. Thus, the administrative law judge relied on claimant’s complaints of pain over the years, and he rejected employer’s assertion that claimant’s testimony in this regard was impeached by his criminal conduct and conflicting testimony. Rather, the administrative law judge found that claimant was not credible with regard to whether he accurately testified about his criminal activities, but that these discredited statements did not concern his medical symptoms. The administrative law judge found that, as claimant suffered work-related knee injuries and consistently complained of pain in his knees for over 25 years, his statements in that regard are reliable. The administrative law judge thus invoked the Section 20(a), 33 U.S.C. §920(a), presumption linking claimant’s current complaints to the work injuries. Decision and Order on Modif. at 26-28. He found that employer rebutted the presumption, as its expert definitively stated that claimant’s current symptoms are not related to the 1983 injuries because they are “medial” and not “lateral” knee complaints. Id. at 29. On the record as a whole, however, the administrative law judge gave greater weight to Dr. Stiles’s long-term treatment of claimant to conclude that claimant established by a preponderance of the evidence that his symptoms are related to his work injuries. Id. at 30. Also based on Dr. Stiles’s opinion, the administrative law judge found that claimant is permanently disabled and cannot return to his usual work. Id. at 31.
The administrative law judge next addressed the work restrictions established by the doctors, giving greater weight to those set forth by Dr. Stiles, and the post-1990 Decision and Order evidence submitted to show the availability of suitable alternate employment. [3] The administrative law judge rejected employer’s assertions that claimant’s illegal activity, his working as a maintenance worker in prison, and his singing in churches at funerals constituted suitable alternate employment. He also rejected those jobs in the labor market surveys that were outside of Ahoskie, North Carolina, as being outside claimant’s relevant community. Of the ten remaining jobs, the administrative law judge found that they are within the physical restrictions set by Dr. Stiles and Dr. Cohn, employer’s expert, and he found that employer established the availability of suitable alternate employment as of July 2, 2007. Decision and Order on Modif. at 32-35. The administrative law judge also found that claimant failed to establish diligence in his search for employment. Id. at 35-40. Accordingly, he awarded claimant permanent total disability benefits from August 17, 2000, when employer ceased paying benefits pursuant to the stay, through July 1, 2007, when employer established suitable alternate employment. 33 U.S.C. §908(a).
As the administrative law judge found that employer established the availability of suitable alternate employment and that claimant’s disability is partial, he awarded benefits under the schedule for claimant’s knee injuries. 33 U.S.C. §908(c)(2), (19). Based on the 1985 opinion of Dr. Bobbitt, the shipyard physician, which is the only evidence of record concerning the extent of claimant’s impairment, the administrative law judge found that claimant has a 10 percent permanent impairment of the right leg and a 15 percent impairment of the left leg. Decision and Order on Modif. at 6-7, 40-41; ALJ Ex. 5; 33 U.S.C. §908(c)(2), (19). The administrative law judge also held employer liable for medical treatment with Dr. Stiles. 33 U.S.C. §907; Decision and Order on Modif. at 42.
With regard to the Section 8(j) forfeiture issue raised by employer, the administrative law judge found that any “income” from claimant’s criminal activity between 1993 and 1996 is not required to be reported on the LS-200 “Report of Earnings” form because it is not “earnings from employment or self-employment” and it is not included in the definition of “earnings” in the regulation at 20 C.F.R. §702.285(b). Further, the administrative law judge found that any earnings from the prison maintenance job are not required to be reported because there is no proof that claimant performed that work during his first three months of incarceration, which are the only dates that coincide with the earnings requests. Accordingly, the administrative law judge found that no benefits are subject to forfeiture under Section 8(j), 33 U.S.C. §908(j). Decision and Order on Modif. at 43-44.
Employer subsequently filed a motion to vacate the Decision and Order on Modification, arguing that the parties did not raise the issue of permanent partial disability compensation under the schedule and had not been put on notice that it would be addressed; therefore, they were not afforded the opportunity to submit evidence on the issue. Employer also filed a motion asking the administrative law judge to reconsider his findings on causation and extent of disability. The administrative law judge denied the motion to vacate, stating that a claim for total disability includes a claim for a lesser degree of disability; therefore, claimant’s claim for permanent total disability benefits implicitly included a claim for permanent partial disability benefits. Moreover, he stated that where employer challenged the permanent total disability award and submitted evidence of suitable alternate employment, it cannot assert that it was not arguing that claimant was permanently partially disabled. The administrative law judge denied employer’s motion for reconsideration of the causation and disability issues. Order Denying the Motio...
To continue reading
Request your trial