TOPIC 19

Topic  19.1     Procedure--The Claim: Generally

Floyd v. Penn Terminals, Inc., 37 BRBS 141 (2003).

            At issue here is the application of Section 8(j) forfeiture. The claimant has questioned the ALJ's authority to initiate consideration of forfeiture. The Board has previously held that an ALJ has the authority to adjudicate whether benefits should be suspended pursuant to Section 8(j). In the instant case the Board found that Section 8(j) itself provides no direction on the procedures for adjudicating forfeiture proceedings. The Board also noted that the legislative history is equally lacking any relevant information that might indicate whether Congress intended to make the district director the exclusive initial adjudicator of forfeitures.

            After examining the regulations, the Board noted that Section 702.286(b) provides that an employer may initiate forfeiture proceedings by filing a charge with the district director, who shall then convene an informal conference and issue a decision on the merits. Nevertheless, if either party disagrees with the district director's decision, the regulation authorizes an ALJ to consider "any issue" pertaining to the forfeiture. The Board explained that for this reason, despite the statutory reference to the deputy commissioner, the Board has previously held that an ALJ has the authority to adjudicate a forfeiture charge.

            In holding that forfeiture proceedings may, depending upon the specific facts of a case, be initiated before the ALJ, the Board used the following logic:

Section 702.286(b) makes the subpart C rules for [ALJ] hearings (20 C.F.R 702.331-702.351) applicable to forfeiture disputes. Section 702.336, in turn, authorizes an [ALJ] to consider "any" new issue at "any" time prior to the issuance of a compensation order. Thus, as the Director suggests, Sections 702.286 and 702.336 maybe construed harmoniously because section 702.286 does not qualify the authority conferred by Section 702.336. Consequently, the formal hearing procedures permit a party to raise the forfeiture issue for the first time at the hearing.

            Further, the Board rejected the claimant's contention that his right to procedural due process would be abridged unless the district director initially considers all forfeiture charges and noted that ALJ hearings include protective procedural safeguards.

            The Board declined to review the ALJ's certification of the facts of this case to the federal district court, pursuant to Section 27(b) regarding alleged misstatements on an LS-200 form and also regarding a pre-existing back condition. The Board cited A-Z Int'l v. Phillips [Phillips I], 179 F.3d 1187, 33 BRBS 59(CRT) (9th Cir. 1999).

Topic  19.1     Procedure--The Claim: Generally

Hymel v. McDermott, Inc., 37 BRBS 160 (2003).

            Here the claimant sued his employer under the LHWCA as well as in state court against his employer and others, for negligence and intentional exposure to toxic substances in the work place. Executive officers of the employer during the claimant's employment (who were named as defendants in the state court suit) moved to intervene in the LHWCA claim. The ALJ denied the motion to intervene, finding that the issue raised by the interveners was not "in respect of "a compensation claim pursuant to Section 19(a) of the LHWCA. In a subsequent Decision and Order, the ALJ granted the claimant's motion to dismiss the claimant's claim with prejudice, pursuant to Section 33(g), as he settled a part of his state tort claim for less than his compensation entitlement without employer's prior written approval. The interveners filed an appeal with the Board. The Board dismissed the appeal, on the ground that as claimant's claim was no longer pending, the interveners were not adversely or aggrieved by the denial of their motion to intervene. Interveners then filed a motion for reconsideration of the Board's dismissal.

            The Board granted the motion for reconsideration, finding that the interveners are adversely affected or aggrieved by the ALJ's denial of their petition. The Board noted that Section 21(b)(3) of the LHWCA states that the Board is authorized to hear and determine appeals that raise a "substantial question of law or fact taken by a party in interest from decisions with respect to claims of employees" under the LHWCA. However, turning to the merits of the appeal, the Board found that the ALJ's decision was legally correct. The Board noted Fifth Circuit case law to support the ALJ's determination that he was without jurisdiction to rule on interveners' entitlement to tort immunity in a state court suit, as that issue was not essential to resolving issues related to the claimant's claim for compensation under the LHWCA. The Board went on to note that even if the claimant's claim had still been pending, the interveners' claim, while based on Section 33(i) of the LHWCA, is independent of any issue concerning the claimant's entitlement to compensation and/or medical benefits and the party liable for such. Section 33(i) does not provide the right of intervention.

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Topic   19.3    Procedure—Adjudicatory Powers

Opiopio v. United States Marine Corps, (Unpublished) (BRB No. 04-0340)(December 7, 2004).

            In this suitable alternate employment case, the Board found that the ALJ exceeded her authority by ordering the employer to provide the claimant with a job that complies with the doctor’s work restrictions and to enforce the restrictions.  Additionally, the Board held that, contrary to the ALJ’s suggestion that the employer provide the claimant with vocational rehabilitation assistance if it was unable to provide a suitable light duty position, the employer is not obligated under the LHWCA to offer the claimant vocational rehabilitation.  Since Section 39©(1)-(2) and the implementing regulations, 20 C.F.R. § 702.501 et seq., authorize the Secretary of Labor to provide for the vocational rehabilitation of permanently disabled employees in certain circumstances, ALJs do not have the authority to provide vocational rehabilitation.

Topic  19.3     Procedure--Adjudicatory Powers

Floyd v. Penn Terminals, Inc., 37 BRBS 141 (2003).

            At issue here is the application of Section 8(j) forfeiture. The claimant has questioned the ALJ's authority to initiate consideration of forfeiture. The Board has previously held that an ALJ has the authority to adjudicate whether benefits should be suspended pursuant to Section 8(j). In the instant case the Board found that Section 8(j) itself provides no direction on the procedures for adjudicating forfeiture proceedings. The Board also noted that the legislative history is equally lacking any relevant information that might indicate whether Congress intended to make the district director the exclusive initial adjudicator of forfeitures.

            After examining the regulations, the Board noted that Section 702.286(b) provides that an employer may initiate forfeiture proceedings by filing a charge with the district director, who shall then convene an informal conference and issue a decision on the merits. Nevertheless, if either party disagrees with the district director's decision, the regulation authorizes an ALJ to consider "any issue" pertaining to the forfeiture. The Board explained that for this reason, despite the statutory reference to the deputy commissioner, the Board has previously held that an ALJ has the authority to adjudicate a forfeiture charge.

            In holding that forfeiture proceedings may, depending upon the specific facts of a case, be initiated before the ALJ, the Board used the following logic:

Section 702.286(b) makes the subpart C rules for [ALJ] hearings (20 C.F.R 702.331-702.351) applicable to forfeiture disputes. Section 702.336, in turn, authorizes an [ALJ] to consider "any" new issue at "any" time prior to the issuance of a compensation order. Thus, as the Director suggests, Sections 702.286 and 702.336 maybe construed harmoniously because section 702.286 does not qualify the authority conferred by Section 702.336. Consequently, the formal hearing procedures permit a party to raise the forfeiture issue for the first time at the hearing.

            Further, the Board rejected the claimant's contention that his right to procedural due process would be abridged unless the district director initially considers all forfeiture charges and noted that ALJ hearings include protective procedural safeguards.

            The Board declined to review the ALJ's certification of the facts of this case to the federal district court, pursuant to Section 27(b) regarding alleged misstatements on an LS-200 form and also regarding a pre-existing back condition. The Board cited A-Z Int'l v. Phillips [Phillips I], 179 F.3d 1187, 33 BRBS 59(CRT) (9th Cir. 1999).

Topic  19.3     Procedure--Adjudicatory Powers

Vinson v. Resolve Marine Services, 37 BRBS 103 (2003).

            In this matter the employer appealed the ALJ’s Decision wherein an expedited final hearing had been held, alleging that its procedural due process rights had been violated since the hearing was held on October 15, 2001, shortly after the carrier’s offices in the New York World Trade Tower had been destroyed in the September 11, 2001 terrorist attach. Employer had alleged that all of its carrier’s records, and in particular those relevant to the instant case, were destroyed in that disaster and that it would be “unduly prejudiced in attempting to recreate a file, conduct discovery and proceed to trial in this case in only a three week period.” At the hearing, both parties submitted evidence, presented witnesses and argued their respective cases, and the record was held open for a period of time thereafter for the submission of depositions and post-hearing briefs.

            The ALJ had relied on 29 C.F.R. § 18.42(e) which deals with motions to expedite. Although the Board found that the Section 19(c) of LHWCA (10 days notice of hearing) and regulation 20 C.F.R. § 702.335 (notification of place and time of formal hearing must be not less than 30 days in advance) were more specific and therefore controlling, it nevertheless upheld the ALJ’s decision. The Board found, “[T]he facts presented, allowing employer less than the time specified by Section 702.335 is insufficient to warrant a conclusion that employer’s right to procedural due process has been abridged. First, the [ALJ’s] decision complies with the time limit of Section 19(c) of the Act....Second, and more importantly, employer has not provided any substance to its allegation of prejudice, or any indication that the expedited hearing impeded its defense of this case.”

Topic  19.3     Procedure--Adjudicatory Powers

Castro v. General Construction Company, 37 BRBS 65 (2003).

            In this total disability award case geographically in the Ninth Circuit, the employer argued that the Board should not have awarded total disability benefits during the claimant's DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass'n, 27 BRBS 192 (1993), aff'd 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer's expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.) The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse], 315 F.3d 286, 36 BRBS 85(CRT) (4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program. The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment. If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried. "The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment." Additionally the Board noted that while Congress enacted a statute that dealt with "total" and "partial" disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee's physical condition.

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period. The Board found that "Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits."

            The board also rejected the employer's contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue. "Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits."

Topic  19.3     Procedure--Adjudicatory Powers

Burley v. Tidewater Temps, Inc., 35 BRBS 185 (2002).

            Here the Board found the ALJ's exclusion from evidence of a labor market survey to be an abuse of discretion and a violation of 20 C.F.R.. § 702.338 ("...The [ALJ] shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. ...) by excluding this relevant and material evidence. Significantly, the Board stated:

Moreover, given the importance of the excluded evidence in this case and the administrative law judge's use of permissive rather than mandatory language in his pre-hearing order, employer's pre-hearing submission of its labor market survey to claimant ...does not warrant the extreme sanction of exclusion.

            While the submission time of this report did not comply with the pre-trial order, employer argued that it was reasonable in that it was in direct response to a doctor's deposition taken only four days prior to the time limit. Furthermore, the employer argued that the ALJ's pre-trial order used the permissive rather than mandatory language ("Failure to comply with the provisions of this order, in the absence of extraordinary good cause, may result in appropriate sanctions.")

            In ruling in favor of the employer on this issue, the Board distinguished this case from Durham v. Embassy Dairy, 19 BRBS 105 (1986) (Held: ALJ has discretion to exclude even relevant and material evidence for failure to comply with the terms of a pre-hearing order even despite the requirements of Section 702.338) and Smith v. Loffland Bros., 19 BRBS 228 (1987) (Held: party seeking to admit evidence must exercise due diligence in developing its claim prior to the hearing.) The Board noted that Durham did not involve the last minute addition of a new issue, i.e., the availability of suitable alternate employment, but rather employer's failure to list a witness, whose testimony would have been with regard to the sole issue in that case, in compliance with the ALJ's pre-hearing order. Similarly, the Board distinguished Smith as a case where the party did not exercise due diligence in seeking to admit evidence.

            Additionally, in Burley, the Board found that the ALJ properly invoked the Section 20(a) presumption, finding that the parties stipulated that the claimant sowed that he suffered an aggravation to a pre-existing, asymptomatic fracture in his left wrist and that conditions existed at work which could have caused this injury.

Topic  19.3     Procedure--Adjudicatory Powers

McCracken v. Spearin, Preston and Burrows, Inc., 36 BRBS 136 (2002).

            This matter involves a bankrupt carrier wherein the ALJ allowed the Carrier/Employer's attorney to withdraw and found that the Employer's motion for a stay of proceedings had been withdrawn since no one was present to argue the motion to withdraw. Employer's motion for a continuance was also denied and Employer was declared in default. The ALJ issued a default judgment against the Employer, ordering it to pay Claimant permanent total disability benefits, medical benefits and an attorney's fee. Employer, now represented, moves for reconsideration.

            The Board noted that the ALJ had based his declaration of default and his award of permanent total disability benefits solely on Employer's absence from the proceedings. In vacating the award, the Board stated that "Without any evidence, it is impossible to determine whether claimant is entitled to permanent total disability benefits."

            Noting the similarities between 29 C.F.R. § 18.39(b) and Rule 55(c) of the Federal Rules of Civil Procedure (FRCP), the Board agreed with the Employer that the failure to send a company representative to the hearing on the facts presented was insufficient to warrant a declaration of default against Employer and was "a overly harsh sanction" in light of the circumstances presented. The Board noted that 29 C.F.R. § 18.39(b) has a "good cause" standard similar to FRCP 55(c) and applied the good faith standard articulated in Enron Oil Corp. v. Diakuhara 10 F.3d 90 (2d Cir. 1993).

Topic  19.3     Procedure--Adjudicatory Powers

McCracken v. Spearin, Preston and Burrows, Inc., 36 BRBS 136(2002).

            This matter involves a bankrupt carrier wherein the ALJ allowed the Carrier/Employer's attorney to withdraw and found that the Employer's motion for a stay of proceedings had been withdrawn since no one was present to argue the motion to withdraw. Employer's motion for a continuance was also denied and Employer was declared in default. The ALJ issued a default judgment against the Employer, ordering it to pay Claimant permanent total disability benefits, medical benefits and an attorney's fee. Employer, now represented, moves for reconsideration.

            The Board noted that the ALJ had based his declaration of default and his award of permanent total disability benefits solely on Employer's absence from the proceedings. In vacating the award, the Board stated that "Without any evidence, it is impossible to determine whether claimant is entitled to permanent total disability benefits."

            Noting the similarities between 29 C.F.R. § 18.39(b) and Rule 55(c) of the Federal Rules of Civil Procedure (FRCP), the Board agreed with the Employer that the failure to send a company representative to the hearing on the facts presented was insufficient to warrant a declaration of default against Employer and was "a overly harsh sanction" in light of the circumstances presented. The Board noted that 29 C.F.R. § 18.39(b) has a "good cause" standard similar to FRCP 55(c) and applied the good faith standard articulated in Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993).

Topic  19.3     Procedure–Adjudicatory Powers

Stevens v. General Container Services, (Unpublished) (BRB No. 01-0677A)(April 30, 2003).

            Here the ALJ’s authority to obtain answers to his own interrogatories and thereby discredit the claimant was upheld by the Board.  At the hearing, the ALJ had observed that the claimant’s demeanor while testifying on direct for an hour indicated severe back pain.  However, after a 30 minute break and upon resuming the witness stand, the claimant acted as though he were free of pain.  The ALJ later sent the claimant interrogatories to elicit whether he had taken pain medication during the break.  The claimant answered that he had taken pain medication six hours earlier.  From this response the ALJ concluded, in part because of the changed demeanor on the stand that the claimant was not credible about having severe back pain.  The ALJ had concluded that the claimant had “simply forgot to resume the demeanor he had earlier employed for the purpose of conveying that he was in severe back pain.”  The Board found that the claimant’s disagreement with the ALJ’s weighing of the evidence is not sufficient reason for the Board to overturn it.

Topic  19.3     Procedure--Adjudicatory Powers

Lewis v. SSA Gulf Terminals, Inc., (Unpublished) (BRB No. 03-0523)(April 22, 2004).

            When the claimant moved to stay the longshore proceeding until his Jones Act suit was complete, the Board found that the ALJ was within his authority to stay the LHWCA claim.  The Board noted that the ALJ had based his reasoning on the case law applicable in the Fifth Circuit.  Sharp v. Johnson Brothers Corp., 973 F.2d 423, 26 BRBS 59(CRT) (5^th Cir. 1992), cert. denied, 508 U.S. 907 (1993)(If a formal award under the LHWCA is issued after the ALJ makes findings of fact and conclusions of law, the claimant is precluded from pursuing a Jones Act suit, because he had the opportunity to litigate the coverage issue, even if it was not actually litigated.); contra, Figueroa v. Campbell Industries, 45 F.3d 311 (9^th Cir. 1995).  “As the [ALJ] provided a rational basis for canceling the hearing and holding the case in abeyance, and as employer has not demonstrated an abuse [of] the {ALJ]’s discretion in this regard, we affirm …the action.”  The Board however, did not affirm the ALJ’s decision to remand the case to the district director.  Rather, the ALJ must retain the case on his docket and award or deny benefits after a formal hearing is held.

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Topic  19.3.1  Procedure—Adjudicatory Powers--ALJ Cannot Review Discretionary Acts of District Director

Castro v. General Construction Company, 37 BRBS 65 (2003).

            In this total disability award case geographically in the Ninth Circuit, the employer argued that the Board should not have awarded total disability benefits during the claimant's DOL retraining program and that Abbott v. Louisiana Insurance Guaranty Ass'n, 27 BRBS 192 (1993), aff'd 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994) (Although claimant could physically perform the jobs identified by the employer's expert, he could not realistically secure any of them because his participation in the rehab program prevented him from working.) The Board noted that it has consistently applied Abbott both inside and outside the Fifth Circuit and that the Fourth Circuit recently came to a similar conclusion in Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse], 315 F.3d 286, 36 BRBS 85(CRT) (4th Cir. 2002)(ALJ was entitled to conclude it was unreasonable for the employer to compel claimant to choose between the job and completing his training).

            In the instant case, the employer challenged the application of Abbott on the grounds that there is no specific provision in the LHWCA allowing for an award of total disability benefits merely because a claimant is participating in a vocational rehabilitation program. The Board found that Abbott rest, not on any novel legal concept, but on the well-established principle that, once a claimant established a prima facie case of total disability, the employer bears the burden of demonstrating the availability of suitable alternate employment. If the employer makes this showing, the claimant may nevertheless be entitled to total disability if he shows he was unable to secure employment although he diligently tried. "The decision in Abbott preserves these principles in the context of enrollment in a vocational rehabilitation program which precludes employment." Additionally the Board noted that while Congress enacted a statute that dealt with "total" and "partial" disability, it was left to the courts to develop criteria for demonstrating these concepts, and the tests created establish that the degree of disability is measured by considering economic factors in addition to an injured employee's physical condition.

            The Employer here also argued that its due process rights were violated when it was not given a hearing on the question of whether the claimant was entitled to vocational rehabilitation and whether it was liable for total disability benefits for that period. The Board found that "Because Section 39(c)(2) and its implementing regulation grant authority for directing vocational rehabilitation to the Secretary and her designees, the district directors, and such determinations are within their discretion, the OALJ has no jurisdiction to address the propriety of vocational rehabilitation. ...Thus, in the case at bar, as the question of whether the claimant was entitled to vocational rehabilitation is a discretionary one afforded the district director, and, as discretionary decisions of the district director are not within the jurisdiction of the OALJ, it was appropriate for OWCP to retain the case until it received a request for a hearing on the merits."

            The board also rejected the employer's contention that its constitutional rights to due process were violated by the taking of its assets without a chance to be heard on the issue. "Whether claimant is entitled to total disability benefits during his enrollment in vocational rehabilitation is a question of fact, and employer received a full hearing on this issue before being held liable for benefits."

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Topic  19.3.3  Procedure--Adjudicatory Powers--Dismissal of Claim

Somerson v. Mail Contractors of America, DOL ARB Nos. 02-057, 03-055 (Nov. 25, 2003).

            The U.S. Department of Labor's Administrative Review Board has upheld the dismissal of two complaints brought by a party who engaged in egregious conduct (obstructing hearings and intimidating witnesses). The Board found that ALJs have "inherent power" to dismiss such complaints wherein the complainant engages in misconduct. While neither the pertinent statute (Surface Transportation Assistance Act) nor its regulations specifically authorize dismissal, the Board held that the ALJ has the same inherent power as federal judges to take necessary steps to deter abuse of the judicial process.

            Before the complainant's cases were assigned to an ALJ he made abusive calls to OALJ. Later he made repeated outbursts during the hearing resulting in the ALJ ordering his removal from the room. Subsequently he left a message with the judge's law clerk calling the ALJ an "asshole." At that point the ALJ referred the case to the U.S. District Court. The court, in turn, issued a consent order stipulating that he "shall conduct himself within the bounds of appropriate respect and decorum albeit with allowance for appropriate zeal and vigor, during any proceedings, and any matter related thereto, held under the authority of the [OALJ]." After the company received anonymous e-mails insulting and threatening its counsel and management witnesses, the company sought a protective order from the ALJ. The ALJ issued a show cause order. The complainant then "conspicuously" ignored concerns about the implicitly threatening nature of the e-mails.

Topic  19.3.3  Procedure–Adjudicatory Powers–Dismissal of Claim

Goicochea v. Wards Cove Packing Co., 37 BRBS 4 (2003).

            The Board held that an ALJ cannot rely upon the Federal Rules of Civil Procedure to dismiss a claim based upon the claimant’s failure to comply with the multiple orders issued by an ALJ.  The ALJ must consider the applicability of Section 27(b) to the facts before him/her.  “As claimant’s failure to execute and deliver an authorization releasing his INS records to employer was in direct noncompliance with [the judge’s] orders, it constitutes conduct which should be addressed under the procedural mechanism of Section 27(b).  Rather than dismissing claimant’s claim, the [ALJ] must follow the procedures provided for in Section 27(b) of the Act.”  The employer had cited Section 18.29(a)(8) of the OALJ regulations, 29 C.F.R. § 18.29(a)(8), as a source of authority for the ALJ’s decision to dismiss the claimant’s claim.  An ALJ’s authority in general to dismiss a claim with prejudice stems from 29 C.F.R. § 18.29(a), which affords the ALJ all necessary powers to conduct fair and impartial hearings and to take appropriate action authorized by the Federal Rules of Civil Procedure.  See Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989).  “As Section 27(b) of the Act is a ‘rule of special application’ which addresses the issue presented on appeal, however, the OALJ regulations do not apply.”  29 C.F.R. § 18.1(a).

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Topic  19.3.5  Procedure—Adjudicatory Powers—ALJ Must Detail the Rationale Behind His Decision and Specify Evidence Relied Upon

[ED. NOTE: The following case is included for informational value only.]

Hardman v. Barnhart, Commissioner, Social Security Administration, 362 F.3d 676(10th Cir. 2004).

            In this Social Security case, the ALJ was reversed for relying on standard boilerplate language in accessing the claimant's credibility. In addressing the claimant's allegations of disabling pain, the ALJ had recited boilerplate language stating that full consideration had been given to the claimant's subjective complaints. Then the ALJ rejected the claimant's allegations of pain and limitation using more boilerplate language that:

Claimant's allegations are not fully credible because, but not limited to, the objective findings, or the lack thereof, by treating and examining physicians, the lack of medication for severe pain, the frequency of treatments by physicians and the lack of discomfort shown by the claimant at the hearing.

            The Tenth Circuit noted that it had previously held that this boilerplate was insufficient in the absence of a more thorough analysis, to support the ALJ's credibility determination as required by case law. "The boilerplate language fails to inform us in a meaningful, reviewable way of specific evidence the ALJ considered in determining the claimant's complaints were not credible….More troubling, it appears that the Commissioner has repeatedly been using this same boilerplate paragraph to reject the testimony of numerous claimants, without linking the conclusory statements contained therein to evidence in the record or even tailoring the paragraph to the facts at hand almost without regard to whether the boilerplate paragraph has any relevancy to the case….As is the risk with boilerplate language, we are unable to determine in this case the specific evidence that led the ALJ to reject claimant's testimony." The court went on to note that it was error for the ALJ to fail to expressly consider the claimant's personal attempts to find relief from his pain, his willingness to try various treatments for his pain, and his frequent contact with physicians concerning his pain-related complaints.

Topic  19.3.5  Procedure–Adjudicatory Powers--ALJ Must Detail the Rationale Behind His Decision and Specify Evidence Relied Upon

[ED. NOTE: The following Social Security case is included since its holding may be applied in a Longshore context as well.]

Connett v. Jo Anne B. Barnhart, Commissioner, 340 F.3d 871 (9th Cir. 2003).

            At issue here was the ALJ’s acceptance/rejection of medical evidence. The Ninth Circuit noted that the ALJ who holds a hearing in the commissioner’s stead, is responsible for determining credibility and resolving conflicts in medical testimony, and that when rejecting a claimant’s testimony, the ALJ must be specific. An ALJ may reject pain testimony, but must justify his/her decision with specific findings. In the instant case, the court noted that the ALJ’s rejection of certain claims regarding the claimant’s limitations was based on clear and convincing reasons supported by specific facts in the record that demonstrated an objective basis for his finding. “The ALJ stated which testimony he found not credible and what evidence suggested that the particular testimony was not credible.” Therefore, the decision was supported by substantial evidence.

            As to other claims where the ALJ did not assert specific facts or reasons to reject the claimant’s testimony, the matter was reversed. In addressing the treating physician’s opinion, the Ninth Circuit noted that where a treating physician’s opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. The ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician “if the ALJ makes ‘findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.’” In the instant case the Ninth Circuit found that the treating physician’s extensive conclusions were not supported by his own treatment notes.

            The claimant also alleged that the “crediting as true” doctrine is mandatory in the Ninth Circuit. The “crediting as true” doctrine holds that an award of benefits is mandatory where the ALJ’s reasons for rejecting the claimant’s testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant’s testimony. However, the Ninth Circuit specifically stated that it is not convinced that the doctrine is mandatory in that circuit. In finding that there is no other way to reconcile the case law of the circuit, the court stated, “Instead of being a mandatory rule, we have some flexibility in applying the ‘crediting as true’ theory.”

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Topic  19.3.6.1           Procedure—Adjudicatory Powers—Issues at Hearing

Woodmansee v. Newport News Shipbuilding & Dry Dock Co., (Unpublished)(BRB No. 03-0614)(May 7, 2004).

[ED. NOTE: Might not consideration be given to limiting the "judicial economy" rule to issues where the claimant has an interest? Claimants have no standing concerning the application of Section 8(f). If employers are forced to "litigate" all issues, they may be reluctant to enter into agreements to pay compensation until the Section 8(f) issue is resolved. And, would such a scenario impact attorney fees at the OALJ level?]

            Despite the fact that there was no specific statute of limitations regarding when a party should request a hearing of the district director's recommendation that Section 8(f) relief be denied, the Board upheld the ALJ's determination that the employer waived the Section 8(f) issue by allowing compensation orders awarding claimants permanent disability benefits to become final without disposing of the Section 8(f) issue. The Board found the employer's actions to be an impermissible attempt to bifurcate issues. "The policy of judicial economy dictates that all claims relating to a specific injury, including affirmative defenses such as Section 8(f), be raised and litigated at the same time, especially as the Director is not bound by stipulations into which the private parties enter without his agreement."

Topic  19.3.6.1           Procedure—Adjudicatory Powers—Issues at Hearing

Hallman v. CSX Transportation, Inc., (Unpublished Order)(BRB No. 04-0731)(November 23, 2004).

            This bifurcated coverage issue claim involves the employer’s appeal of an ALJ’s finding that there was situs and status, and that there would be a subsequent decision and order on other issues.  The Board first noted the Supreme Court’s three-pronged test to determine whether an order that does not finally resolve litigation is nonetheless appealable.  Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (‘collateral order doctrine”).  The Board then granted the claimant’s motion to dismiss the employer’s appeal, noting that the issues of status and situs were not collateral to the merits of the action and could be addressed once a final decision and order granting or denying benefits was issued.  Additionally the Board was not persuaded by the employer’s argument that the issues presented are important and should be decided now, because the ALJ’s decisions have created uncertainty for its risk management procedures, i.e. liability under the LHWCA versus under the FELA.  Finally, the Board rejected the employer’s contention that it should decide this appeal because the Board has previously decided interlocutory appeals of coverage issues.  “The fact that the Board has the authority to decide interlocutory appeals does not require that we do so as it is desirable to avoid piecemeal review.”

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Topic 19.3.6.2 Procedure—Adjudicatory Powers—Discovery

Expert Witness Fees

            In setting an expert witness fee, the LHWCA, at Section 25 provides that “Witnesses summoned in a proceeding before a deputy commissioner or whose deposition are taken shall receive the same fees and mileage as witnesses in courts of the United States.”  Further,  20 C.F.R. § 702.342 provides “Witnesses summoned in a formal hearing before an administrative law judge or whose depositions are taken shall receive the same fees and mileage as witnesses in courts of the United States.”

            The U.S. district courts set expert witnesses fees pursuant to the Federal Rules of Civil Procedure, Rule 26 (b)(4)(C)(i), which requires the deposing party to pay the responding party’s expert a reasonable hourly fee for time spent by the expert in deposition, time spent by the expert traveling to and from the deposition, and time spent in gathering documents responsive to the deposition subpoena.  In re Shell Oil Refinery, Robert Adams, Sr., v. Shell Oil Company, 1992 WL 31867 (E.D. La. 1992) citing United States v. City of Twin Falls, Idaho, 806 F. 2d 862, 879 (9^th Cir. 1986); Goldwater v. Postmaster General of the United States, 136 F.R.D. 37 (D. Conn. 1991).  The deposing party is not responsible to pay the expert for time spent reviewing documents prior to deposition and in preparation for the deposition.  The expert’s compensation shall be limited to a reasonable amount even if it is less than his customary fee.

            In Shell Oil, the district court noted the following factors to be considered in determining the reasonableness of a fee:

(1)  the witness’s area of expertise; (2) the education and training that is required to provide the expert insight which is sought; the prevailing rates of other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area, and (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.  

            Failure to comply with a deposition request may subject one to appropriate sanctions pursuant to Section 27 of the LHWCA.  See Topics 27.1.2 ALJ Can Compel Attendance at Deposition; 27.1.3  ALJ Issues Subpoenas, Gives Oaths; and 27.3  Federal District Court Enforcement.

Topic  19.3.6.2           Procedure—Adjudicatory Powers—Discovery

P & O Ports Louisiana, Inc. v. Newton, (Dismissal of Petition for Review)(No. 04-60403)(5th Cir. July 30, 2004).

            The Fifth Circuit dismissed the employer's motion for lack of jurisdiction. Previously, while the matter was before OWCP the claimant had filed a Motion to Compel Discovery, seeking enforcement of an OALJ subpoena pursuant to Maine v. Bray-Hamilton Stevedore Co., 18 BRBS 129 (1986). The claimant had sought to discover information about potential employers identified by P & O's vocational expert regarding suitable alternate employment. P & O filed a Motion to Quash Subpoena Ducem Tucem and a Motion for Protective Order. The ALJ denied P & O's motions, finding that its vocational evidence is discoverable, relevant and not privileged. P & O appealed to the Board and the claimant moved to dismiss the employer's appeal. The Board recognized that the employer was appealing a non-final order of an ALJ and noted that it "generally declines to review interlocutory discovery orders, as they fail to meet the third prong of the collateral order doctrine, that is, the discovery order is reviewable when a final decision is issued." The Board further found that the case did not involve due process considerations, that the employer did not contend the documents were privileged, and that the employer would not suffer undue hardship by complying with the ALJ's subpoena since the evidence was already in existence. Thus the Board dismissed the employer's appeal. The employer then petitioned the Fifth Circuit.

Topic  19.3.6.2           Procedure—Adjudicatory Powers--Discovery

Rodriguez v. Columbia Grain, Inc., (Unpublished)(BRB No. 03-0376)(February 23, 2004).

            Here the Board vacated an ALJ’s Order to compel Appearance at Medical Examination.  When the employer replaced a scheduled panel’s psychiatrist with a neuropsychologist the claimant refused to attend, arguing that his claim was only for a purely physical injury.  When the ALJ issued an Order to Compel,, the claimant appealed.    While finding that an ALJ has broad discretion, the Board noted that Section 18.14(a) of the OALJ Rules of Practice mandates that matters sought to be discovered be relevant to the subject matter involved in the proceeding.  “The [ALJ’s] summary conclusion in his Order does not sufficiently explain how the psychological component of the examination is relevant to these proceedings.  Moreover, claimant specifically raised this question below, asserting that since his claim for benefits under the Act is based upon a physical injury alone, an employer-sponsored psychological examination is not relevant to his claim of a work-related back injury.  The [ALJ] did not discuss claimant’s arguments in this regard or explain how the psychological evaluation of claimant is relevant to his claim.  As the [ALJ] did not address claimant’s assertions, which go directly to the relevancy of employer’s discovery request, the case must be remanded.”

Topic  19.3.6.2           Procedure—Adjudicatory Powers—Discovery

P&O Ports Louisiana, Inc. v. Newton, (Fifth Circuit No. 04-60403)(Petition for Review).

            Recently P & O Ports filed a Petition for Review with the Fifth Circuit, asking that the court review the Board's interlocutory Order in this matter. See Newton v. P & O Ports Louisiana, Inc., 38 BRBS 23 (2004), reported in the March/April Digest. In response to the Petition for Review, the Director has filed a Motion in Opposition urging that the issues are not final. Interestingly, in a foot note in the motion, the Director questions the scope of Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986)(en banc) which limits the powers of district directors to issue subpoenas. In Maine, the Board held that only ALJs have authority to issue subpoenas, even in cases pending before the Director.

Topic  19.3.6.2           Procedure—Adjudicatory Powers—Discovery

Newton v. P & O Ports Louisiana, Inc., 38 BRBS 23 (2004).

            Here the Board granted the claimant's Motion to Dismiss the employer's appeal of the ALJ's interlocutory order since (1) the case does not raise any due process considerations; (2) the employer did not allege that the documents the claimant sought to discover constituted privileged materials; (3) there was no undue hardship since the evidence the claimant sought to recover was already in existence; and (4) the ALJ is afforded broad discretion in authorizing discovery and the interlocutory order will be reviewable after a final decision is issued in this matter.

            In this matter, the claimant's claim for benefits is pending before the district director. The claimant had filed a motion with the ALJ seeking enforcement of a subpoena that the ALJ had issued. The subpoena had called for the employer to disclose the names and addresses of the companies identified as potential suitable alternate employment by the employer's vocational expert." The employer had resisted on the ground that it is not required to disclose this information, and it filed motions to quash the subpoena and for a protective order.

            The ALJ had found that the employer was confusing the standard for establishing suitable alternate employment with the standard for what is discoverable material. The ALJ had found that under 29 C.F.R. § 18.14, the parties may obtain discovery regarding any matter which is not privileged and which is relevant to the subject matter involved in the proceeding or which appears reasonably calculated to lead to the discovery of admissible evidence. The ALJ found that while the employer is not obligated to produce its evidence of suitable alternate employment at the hearing, its vocational evidence is nonetheless discoverable in that the claimant is entitled "to test the quality of the employer's vocational evidence." Thus, the ALJ found that the information sought by the claimant is relevant notwithstanding that the claimant's attorney is familiar with the vohab person's qualifications and methodology. The ALJ had further found that the information was not privileged and therefore denied the employer's motions to quash and for a protective order; and granted the claimant's motion to compel.

            It is noteworthy that the Board did not find it necessary to refer to the ALJ's inherent authority to enforce discovery while a claim is pending with the district director. See Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986)(en banc).

Topic  19.3.6.2           Procedure—Adjudicatory Powers--Formal Hearing--Discovery

[ED. NOTE: The following is an Order to Compel Vocational Information Discovery issued by an ALJ in a matter still pending before OWCP. Pursuant to Maine v. Brady-Hamilton, 18 BRBS 129 (1986)(en banc), since the 1972 amendments, only OALJ has authority to issue subpoenas and process other discovery matters even though the claim is pending before the Director.)]

Newton v. P & O Ports, Inc., (OWCP No. 07-163948) (Oct. 7, 2003).

            Here the claimant filed a Motion to Compel Discovery with OALJ seeking enforcement of a subpoena issued by OALJ for the names and addresses of the companies identified as suitable alternative employment by the employer's vocational expert. The employer resisted the subpoena on the grounds that, based on case law, an employer need not produce to a claimant the identity of suitable alternative jobs located by the employer. Maintaining that position the employer filed a Motion to Quash Subpoena Duces Tecum and a Motion for Protective Order.

            In addressing this matter, the ALJ first noted that pursuant to Maine, it is manifest that OALJ possesses the authority in LHWCA cases not only to issue subpoenas, but also to decide matters arising from the subpoenas it has issued. Second, the ALJ found that the Employer "conflates the substantive standards for proving suitable alternative employment with the standards for discovery. The former involves a determination on the merits, while the latter is procedural in nature."

            The ALJ noted that as to the substantive standards of suitable alternative employment, an employer does not need to identify actual, specific employment openings to prove that a claimant has a work capacity. See e.g., New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1041-43, 14 BRBS 156, 163-65 (5th Cir. 1981); P & M Crane Co. v. Hayes, 930 F.2d 424, 430-31, 24 BRBS 116, 120-21 (CRT) (5th Cir. 1991). Similarly, an employer can prevail on the merits with respect to suitable alternative employment without producing to the claimant the jobs its vocational expert has identified. See e.g. P & M Crane Co., 930 F.2d at 429 n. 9, 24 BRBS at 120 n. 9 (CRT); Palombo v. Director, OWCP, 937 F.2d 70, 74, 25 BRBS 1, 7 (CRT) (2d Cir. 1991).

            However, the ALJ went on to explain that the substantive correctness of the case law cited by P & O, namely Turner and its progeny, are not at issue in a discovery matter. Under discovery rules, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding or which appears reasonably calculated to lead to the discovery of admissible evidence. 18 C.F.R. § 18.14.

            The ALJ found that to grant the employer's motions would be to convert the substantive suitable alternative employment standards of Turner and its progeny into the standard for discovery. As the two standards are discrete, the ALJ refused to grant the motion. He reasoned that there is a distinction between the necessity of procuring certain evidence in the first place and the necessity of producing the evidence one has already procured. Turner and its progeny pertain to the former; the rules of discovery pertain to the latter.

            The ALJ specifically noted, "Evidence that is not required to prevail on the merits may nonetheless be evidence that is admissible. Information that need not be divulged voluntarily to prevail on the merits may nonetheless be information that reasonably may lead to the discovery of admissible evidence. Handcuffing discovery with substantive standards would disqualify from discovery all information that is helpful yet substantively unnecessary."

            Next, the ALJ addressed the employer's reliance on policy concerns to support its position and noted that such reliance is misplaced. Citing language from Turner, P & M Crane, and Palombo, the employer had asserted that employers are not meant under the LHWCA to be employment agencies for claimants and that requiring employers to identify specific employment openings would provide a disincentive for claimants to independently seek alternate employment. The ALJ reasoned, "Those policy concerns are important in the reasoning of Turner and its progeny. However, those policy concerns do not warrant heavy consideration here because the dispute before the Court is not about the employer's hardship in satisfying its burden for suitable alternate employment nor the quality of the claimant's job search. Rather, this dispute is about the claimant's ability to test the quality of the employer's vocational evidence."

            The ALJ next determined that the information at issue was not privileged and that good cause existed to compel its production. The ALJ found that vocational information in dispute is still relevant for discovery purposes post-Turner. He explained that while the case law relied upon by the employer indicated that a showing of specific openings was not necessary to meet the employers' burden regarding suitable alternative employment, those cases did not indicate that specific job openings were irrelevant altogether.

            The judge found that the information is relevant based on the claimant's right to challenge the employer's vocational evidence. The employer argued that the claimant's attorney was already familiar with its vocational expert through first-hand experience and therefore had no reason to question the expert's competency or credibility. The employer further argued that the claimant's attorney did not need the identity of the suitable alternate employers to challenge the expert's qualifications or methodology.

            However, the ALJ found these arguments flawed. First, the claimant's right to challenge vocational evidence is not limited to the expert's credentials and methods. The claimant has a right to challenge the substance of the expert's findings. The findings in this case were based in part upon information from actual, specific employers. The ALJ explained, when a vocational report is formulated based on information from actual employers, the claimant would be at a disadvantage to challenge the accuracy of the report if the claimant were deprived of the identities of those employers. The judge concluded that for each of the positions identified by the expert, the claimant should have the opportunity to verify from the source of the information that the job description, including the physical duties and wage information, was reported accurately by the expert.

            In addition, the ALJ found that furnishing the claimant with the names and addresses of employers identified for suitable alternative employment would allow the claimant to fully exercise his right to challenge the suitability, not only of the type of work, but also of the specific employers and work locations referenced by the vocational expert. He specifically noted that, although the claimant's attorney has been familiar with the expert's methods in the past, the claimant is not limited under the law to presuming that the expert, in the present case, used the same methods and used those methods properly.

            Finally the ALJ noted that there is a distinction between the needs of a claimant in discovery and the entitlement of a claimant in discovery. "Even if Claimant ultimately did not use the information in dispute to prepare his case, Claimant would nonetheless be entitled to obtain the information because the information is relevant."

Topic  19.3.6.2           Procedure--Adjudicatory Powers—Discovery

[ED. NOTE: The following is a Discovery Order issued by an ALJ while this case was pending before OWCP, pursuant to Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986) (en banc).]

Newton v. P &O Ports, Inc. (OWCP No. 07-163948) (Oct. 2003).

            This "Order Granting Claimant's Motion To Compel Discovery, Denying Employer's Motion To Quash Subpoena Duces Tecum, and Denying Employer's Motion For Protective Order" involves vocational information. Here the claimant filed a Motion to Compel Discovery, seeking enforcement of a subpoena issued by OALJ for the names and addresses of the companies identified as suitable alternate employment by employer's vocational expert. The employer resisted the subpoena arguing that an employer need not produce to a claimant the identity of suitable alternative jobs located by the employer.

            The ALJ found that the employer "conflates the substantive standards for proving suitable alternative employment with the standards for discovery." He explained that the former involves a determination on the merits, while the latter is procedural in nature. The ALJ noted that the substantive standards for suitable alternative employment, as noted in New Orleans (Gulfwide) Stevedores v. Turner [Turner], 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981), do not govern the discovery dispute before OALJ.

            According to 18 C.F.R. § 18.14, under the rules of discovery, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding or which appears reasonably calculated to lead to the discovery of admissible evidence. In distinguishing between the substantive suitable alternative employment standard of Turner and the standard for discovery, the ALJ explained that evidence that is not required to prevail on the merits may nonetheless be evidence that is admissible. "Information that need not be divulged voluntarily to prevail on the merits may nonetheless be information that reasonably may lead to the discovery of admissible evidence. Handcuffing discovery with substantive standards would disqualify from discovery all information that is helpful yet substantively unnecessary." The ALJ also found that employer's reliance on policy concerns was misplaced and that the sought after information was not privileged.

Topic  19.3.6.2           Procedure—Adjudicatory Powers--Discovery

[ED. NOTE: Since the following Black Lung case involves the OALJ regulation, 29 C.F.R. § 18.20,  it is mentioned here.  For a thorough discussion of this case, see the Black Lung Act portion of this Digest.]

Johnson v. Royal Coal Co., 326 F.3d 421 (4th Cir. 2003).

            In this matter, the Fourth Circuit found that the Board incorrectly upheld the ALJ’s failure to address admissions and erred in finding that 29 C.F.R. § 18.20 (Failure to respond appropriately to an outstanding admission request constitutes admissions) does not apply to the Black Lung Act.  The Fourth Circuit further found that, based on a consideration of the analogous Fed. R.Civ. P. 36, an opposing party’s introduction of evidence on a matter admitted [via failure to respond to requests for admissions] does not constitute either a waiver by the party possessing the admissions, nor as a constructive motion for withdrawal or amendment of admissions.

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Topic  19.3.7  Procedure—Adjudicatory Powers—ALJ Disqualifying Attorney

LAWYER SUSPENDED FOR ACTIONS THAT INCLUDE MISCONDUCT BEFORE ALJ IN A LONGSHORE CASE

In Re: Joseph W. Thomas (Disciplinary Proceedings) (2003-B-2738)(February 25, 2004).

            Attorney Joseph W. Thomas’s three year suspension resulted after the Louisiana Supreme Court found that he incompetently handled civil cases, insulted an ALJ and disrupted another judge by shoving a lawyer against a wall.  Thomas showed up more than an hour late for a hearing before Judge James Kerr, without apologizing and with what was described as a belligerent attitude.  He lacked preparation to represent the family of a longshoreman killed on the job.  Judge Kerr had determined that Thomas had never met with his clients before the hearing and failed to file a witness list.  The Louisiana Supreme Court found that during the trial, Thomas demonstrated a complete lack of familiarity with the procedural rules of the administrative proceeding.  Thomas objected to Judge Kerr questioning witnesses, calling the judge “biased” and the hearing “a joke.”  In its 19-page decision, the Louisiana Supreme Court found that Thomas’ “insulting and abusive language toward Judge Kerr and his utter lack of preparation for this case is frankly shocking to this court.”

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Topic  19.4     Procedure—Formal Hearings Comply with APA

[ED. NOTE: The following case is included for informational value only.]

Hardman v. Barnhart, Commissioner, Social Security Administration, 362 F.3d 676 (10th Cir. 2004).

            In this Social Security case, the ALJ was reversed for relying on standard boilerplate language in accessing the claimant's credibility. In addressing the claimant's allegations of disabling pain, the ALJ had recited boilerplate language stating that full consideration had been given to the claimant's subjective complaints. Then the ALJ rejected the claimant's allegations of pain and limitation using more boilerplate language that:

Claimant's allegations are not fully credible because, but not limited to, the objective findings, or the lack thereof, by treating and examining physicians, the lack of medication for severe pain, the frequency of treatments by physicians and the lack of discomfort shown by the claimant at the hearing.

            The Tenth Circuit noted that it had previously held that this boilerplate was insufficient in the absence of a more thorough analysis, to support the ALJ's credibility determination as required by case law. "The boilerplate language fails to inform us in a meaningful, reviewable way of specific evidence the ALJ considered in determining the claimant's complaints were not credible….More troubling, it appears that the Commissioner has repeatedly been using this same boilerplate paragraph to reject the testimony of numerous claimants, without linking the conclusory statements contained therein to evidence in the record or even tailoring the paragraph to the facts at hand almost without regard to whether the boilerplate paragraph has any relevancy to the case….As is the risk with boilerplate language, we are unable to determine in this case the specific evidence that led the ALJ to reject claimant's testimony." The court went on to note that it was error for the ALJ to fail to expressly consider the claimant's personal attempts to find relief from his pain, his willingness to try various treatments for his pain, and his frequent contact with physicians concerning his pain-related complaints.

Topic  19.4     Procedure--Formal Hearings Comply With APA

[ED. NOTE: While the following is not a LHWCA case, it is included because it is applicable to all administrative hearings.]

Bunnell v. Barnhart, 336 F.3d 1112 (9th Cir. 2003).

            In this Social Security disability case, the Ninth Circuit found that the ALJ did not have to recuse himself from hearing a claimant’s case due to the “appearance of impropriety” standard of 28 U.S.C. § 455(a). The Ninth Circuit found that 28 U.S.C. § 455(a) does not apply to an ALJ. The claimant had claimed that the alleged “appearance of impropriety” arose from a suit brought by her attorney against the Commissioner as well as three ALJs, including the ALJ assigned to her case.

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Topic  19.4.2  Procedure—Summary Decision

Hooker v. Westinghouse Savannah River, Co., ARB No. 03-036, ALJ No. 2001-ERA-16 (ARB Aug. 26, 2004).

            Here the ARB over-turned an ALJ decision  (granting a summary motion) on the procedural grounds of lack of notice to a pro se complainant.  The ARB based its holding on Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975)(Before entering summary judgment against a pro se litigant, the district court must advise the litigant ‘of his right to file counter-affidavits or other responsive material and alert the litigant to the fact that his failure to so respond might result in the entry of summary judgment against him).  Notably, the complainant here did file a response to the motion and asked for additional time to further answer the motion.  The ALJ granted the request and subsequently advised the complainant twice of the need to respond further and twice extended the time for the complainant to do so.  The complainant did not respond further and the ALJ granted summary judgment because the complainant did not produce sufficient evidence that the respondent constructively discharged or blacklisted him.  The ARB reversed, reasoning that the complainant “was pro se and the ALJ did not notify him pursuant to Roseboro.”

Topic  19.4.2  Procedure--Summary Decision

Seguro v. Universal Maritime Service Corp., 36 BRBS 28 (2002).

            There is no provision under the LHWCA or the regulations for a "voluntary order" unless the parties agreement is embodied in a formal order issued by the district director or ALJ. Moreover, voluntary payments by an employer do not equate to a final order.

            In the original claim in the instant case, the parties stipulated to all issues, including permanent disability, with the exception of Section 8(f) Trust Fund relief. In the original Decision and Order, the ALJ noted the parties stipulations, but did not incorporate an award of benefits to the claimant into his order. He stated that the only disputed issue was Section 8(f) relief and he found that as the employer did not establish that the claimant's pre-existing permanent partial disability contributed to the claimant's total disability, Section 8(f) relief was denied. This Decision neither awarded nor denied benefits.

            Subsequently, the employer filed a Motion for Modification alleging that claimant had become capable of suitable alternate employment and the employer also filed a Motion for Partial Summary Decision, seeking a ruling that there was no final compensation award contained in the original Decision and Order. A second ALJ granted the partial Motion for Summary Decision, holding that there was no compensation award in place. The employer then stopped making payments. A third ALJ heard the employer's request for modification and found that there had been a "voluntary compensation order." Both the second and third ALJ decisions are the subject of this appeal.

            On appeal, the Board found that the original Decision did not constitute a final compensation order and thus, Section 22 was not applicable as the initial claim for benefits had never been the subject of a final formal compensation order prior to the adjudication by the third ALJ hearing the modification. Therefore, the claim before the third ALJ must be viewed as an initial claim for compensation.

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Topic  19.6     Procedure—Formal Order Filed With District Director

ERRATA

            “Ledet v. Phillips Petroleum Co., 163 F.3d 901 (5^th Cir. 1998)” is the correct cite for this case.

Topic  19.6     Procedure—Formal Order Filed With District Director

Ferro v. Holt Cargo Systems, (Unpublished)(BRB Nos. 04-0226 and 0400226A)(May 28, 2004).

            The Board held that the Director was essentially estopped from contending that he is not bound by an underlying award where the Director's brief did not challenge the award of permanent total benefits. See Director, OWCP v. Coos Head Lumber & Plywood Co., 194 F.3d 1032, 33 BRBS 131 (CRT)(9th Cir. 1998). However, the Board did find that there was no effective award in-as-much-as there was no proof that a copy had been sent by registered or certified mail. See Section 19(e), 21(a): 20 C.F.R. §§ 702.349, 702.350; see generally Jeffboat, Inc. v. Mann, 875 F.2d 660, 22 BRBS 79(CRT)(7th Cir. 1989).

Topic  19.6     Procedure--Formal Order Filed with District Director

Seguro v. Universal Maritime Service Corp., 36 BRBS 28 (2002).

            There is no provision under the LHWCA or the regulations for a "voluntary order" unless the parties’ agreement is embodied in a formal order issued by the district director or ALJ. Moreover, voluntary payments by an employer do not equate to a final order.

            In the original claim in the instant case, the parties stipulated to all issues, including permanent disability, with the exception of Section 8(f) Trust Fund relief. In the original Decision and Order, the ALJ noted the parties’ stipulations, but did not incorporate an award of benefits to the claimant into his order. He stated that the only disputed issue was Section 8(f) relief and he found that as the employer did not establish that the claimant's pre-existing permanent partial disability contributed to the claimant's total disability, Section 8(f) relief was denied. This Decision neither awarded nor denied benefits.

            Subsequently, the employer filed a Motion for Modification alleging that claimant had become capable of suitable alternate employment and the employer also filed a Motion for Partial Summary Decision, seeking a ruling that there was no final compensation award contained in the original Decision and Order. A second ALJ granted the partial Motion for Summary Decision, holding that there was no compensation award in place. The employer then stopped making payments. A third ALJ heard the employer's request for modification and found that there had been a "voluntary compensation order." Both the second and third ALJ decisions are the subject of this appeal.

            On appeal, the Board found that the original Decision did not constitute a final compensation order and thus, Section 22 was not applicable as the initial claim for benefits had never been the subject of a final formal compensation order prior to the adjudication by the third ALJ hearing the modification. Therefore, the claim before the third ALJ must be viewed as an initial claim for compensation.

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Topic  19.10   Procedure--Bankruptcy

McCracken v. Spearin, Preston and Burrows, Inc., 36 BRBS 136 (2002).

            This matter involves a bankrupt carrier wherein the ALJ allowed the Carrier/Employer's attorney to withdraw and found that the Employer's motion for a stay of proceedings had been withdrawn since no one was present to argue the motion to withdraw. Employer's motion for a continuance was also denied and Employer was declared in default. The ALJ issued a default judgment against the Employer, ordering it to pay Claimant permanent total disability benefits, medical benefits and an attorney's fee. Employer, now represented, moves for reconsideration.

            The Board noted that the ALJ had based his declaration of default and his award of permanent total disability benefits solely on Employer's absence from the proceedings. In vacating the award, the Board stated that "Without any evidence, it is impossible to determine whether claimant is entitled to permanent total disability benefits."

            Noting the similarities between 29 C.F.R. § 18.39(b) and Rule 55(c) of the Federal Rules of Civil Procedure (FRCP), the Board agreed with the Employer that the failure to send a company representative to the hearing on the facts presented was insufficient to warrant a declaration of default against Employer and was "an overly harsh sanction" in light of the circumstances presented. The Board noted that 29 C.F.R. § 18.39(b) has a "good cause" standard similar to FRCP 55(c) and applied the good faith standard articulated in Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993).

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