Zaradnik v. The Dutra Group, Inc.
| Decision Date | 09 December 2016 |
| Docket Number | 16-0128A,BRB 16-0128 |
| Parties | KELLY ZARADNIK Claimant-Respondent Cross-Petitioner v. THE DUTRA GROUP, INCORPORATED and SEABRIGHT INSURANCE COMPANY Employer/Carrier- Petitioners Cross-Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order Granting Benefits and Order Granting Reconsideration of William Dorsey, Administrative Law Judge, United States Department of Labor, and the Order Ruling on Claimant's Motion to Continue and Employer/Carrier's Motion to Change Location of Hearing of Steven B. Berlin, Administrative Law Judge, United States Department of Labor.
Eric A. Dupree and Paul R. Myers (Dupree Law, APLC), Coronado California, for claimant.
Barry W. Ponticello and Renee C. St. Clair (England Ponticello & St. Clair), San Diego, California, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, BOGGS and GILLIGAN, Administrative Appeals Judges.
Employer appeals, and claimant cross-appeals, the Decision and Order Granting Benefits and Order Granting Reconsideration (2012-LHC-00988) of Administrative Law Judge William Dorsey and claimant challenges the Order Ruling on Claimant's Motion to Continue and Employer/Carrier's Motion to Change Location of Hearing of Administrative Law Judge Steven B. Berlin 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 rational, supported by substantial evidence, and 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 alleged that she sustained cumulative injuries to her left hip, back, hands, and lungs, over the course of her work as a union pile driver which began in 1991. Prior to her work for employer, claimant had been diagnosed with several pulmonary and orthopedic conditions.[1] See HT at 47-50, 199-201, 232-233, 236-237; CX 23. Claimant worked for employer for parts of 48 days, from July 23 until September 20, 2010, [2] when her entire crew was laid off due to the completion of the job. HT at 56. Claimant subsequently worked in non-covered employment for Stone & Webster (S & W) on two separate occasions, [3] with the second job ending with a lay-off on or around January 27, 2012. Claimant stated she thereafter unsuccessfully looked for work until September 2012, when she received notice that she would receive Social Security disability benefits. She retired from the union that same month.
Claimant filed a claim for benefits under the Act against employer on October 12, 2011, seeking compensation for cumulative trauma injuries to her hips, back, and hands, and for her pulmonary conditions, alleging that her work for employer contributed to, aggravated and/or accelerated her underlying orthopedic and respiratory conditions. Employer controverted the claim.
In his decision, the administrative law judge found that claimant provided timely notice to employer of her injuries under Section 12 of the Act, 33 U.S.C. §912, and that the claim was timely filed under Section 13 of the Act, 33 U.S.C. §913. The administrative law judge found claimant entitled to the Section 20(a) presumption that all of her claimed orthopedic and respiratory conditions are related to her work for employer, and that employer established rebuttal thereof. 33 U.S.C. §920(a). Addressing the evidence as whole, the administrative law judge found that claimant's work for employer as a pile driver aggravated, accelerated, and/or contributed to her overall orthopedic and respiratory conditions. The administrative law judge rejected employer's contention that claimant's subsequent employment with S & W is the cause of her disabling conditions. Thus, the administrative law judge found claimant entitled to, and employer liable for, ongoing temporary total disability benefits commencing January 28, 2012, 33 U.S.C. §908(b), and medical benefits for her work-related conditions. 33 U.S.C. §907(a). The administrative law judge denied employer's motion for reconsideration.
On appeal, employer challenges the administrative law judge's findings that claimant provided timely notice of her injuries, that she timely filed her claim for benefits, and that, on the merits, claimant's orthopedic and respiratory conditions are related to her work with employer. BRB No. 16-0128. Claimant responds, urging affirmance of the administrative law judge's award of benefits. Employer has filed a reply brief. On cross-appeal, claimant challenges the administrative law judge's finding that her total disability is temporary rather than permanent. Claimant also challenges Judge Berlin's pre-hearing Order denying an attorney's fee for claimant's response to employer's motion for a change in venue. BRB No. 16-0128A. Employer responds, urging rejection of claimant's contentions. Claimant has filed a reply brief.
Employer contends that claimant's notice of injury and claim for compensation dated October 12, 2011, were untimely filed. Employer maintains that the administrative law judge's findings that claimant became “aware” of her hip injury on August 29, 2011, and her respiratory condition on November 9, 2012, are contrary to the evidence and law. Employer states that the record is replete with statements from claimant that she was aware of the relationship between her work activities with employer and her allegedly worsening hip and respiratory conditions prior to her last day of work in that job on September 20, 2010.
Section 12(a) of the Act, 33 U.S.C. §912(a), requires that claimant must, in a traumatic injury case, give employer written notice of her injury within 30 days of the injury or of the date claimant is aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the injury and her employment. Todd Shipyards Corp. v. Allan, 666 F.2d 399, 14 BRBS 427 (9th Cir.), cert. denied, 459 U.S. 1034 (1982); Bivens v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990). In the absence of substantial evidence to the contrary, it is presumed pursuant to Section 20(b) of the Act, 33 U.S.C. §920(b), that employer has been given sufficient notice of the injury pursuant to Section 12(a). See Lucas v. Louisiana Ins. Guaranty Ass'n, 28 BRBS 1 (1994). “Awareness” in a traumatic injury case occurs when the claimant is aware, or should have been aware, of the relationship between the injury, the employment, and an impairment of her earning power, and not necessarily on the date of the accident, or in this repetitive trauma case, the date of the last trauma. See Abel v. Director, OWCP, 932 F.2d 819, 24 BRBS 130(CRT) (9th Cir. 1991); J.M. Martinac Shipbuilding v. Director, OWCP, 900 F.2d 180, 23 BRBS 127(CRT) (9th Cir. 1990) (discussing same standard in 33 U.S.C. §913). In a case involving an occupational respiratory disease which does not immediately result in disability, claimant must give employer notice of her injury within one year of her awareness of the relationship between the employment, the disease and the disability. 33 U.S.C. §912(a).
The administrative law judge found that it was only after Dr. Ezzet, on August 29, 2011, explained that claimant's hip problems were work-related and advised her to leave her career as a pile driver, that claimant became aware of the full extent, character, and impact of her hip injury. Decision and Order at 25; Order on Recon. at 2. Specifically, the administrative law judge found that by August 29, 2011, claimant knew she had a hip injury, that her work over the years had made it worse, and that her symptoms had increased while working for employer. Additionally, the administrative law judge found that August 29, 2011, represents the first time claimant became aware that she suffered an “impairment of earning power, ” as that is when Dr. Ezzet told her to quit working as a pile driver. He thus concluded that claimant's inability to return to her usual work as a pile driver on August 29, 2011, initiated the Section 12(a) statute of limitations. With regard to claimant's respiratory conditions, the administrative law judge found there was nothing during claimant's work for employer which alerted her to the possibility that her work may have aggravated or accelerated her pre-existing respiratory conditions until she received a medical opinion to that effect from Dr. Harrison on November 9, 2012.
Substantial evidence supports the administrative law judge's findings that claimant first became aware of the relationship between her hip and respiratory injuries, her work for employer, and an impairment to earning power on August 29, 2011 and November 9, 2012, respectively. In his report dated August 29, 2011, Dr. Ezzet diagnosed osteoarthritis and “had a lengthy and frank discussion” with claimant informing her that he “does not think construction work is in her best interest any longer, ” because of her left hip condition. CX 23. Specifically, Dr. Ezzet stated that claimant “does not tolerate [construction work] well with her arthritic hips and would not be a good candidate for that kind of work if she has her hip replaced.” Id. Drs. Harrison and Greenfield each agreed that Dr. Ezzet's August 29, 2011 report represents the first time any doctor declared claimant disabled as a result of her hip condition. CX 21 at 59; Post-Hearing Dep. of Dr Greenfield at 25. The opinions of Drs. Ezzet, Harrison and Greenfield thus support the administrative law judge's finding that claimant first became aware, or should have been aware, of the relationship...
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