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DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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TOPIC 23
Topic 23.1 Evidence—APA—Generally
Mai v. Knight & Carver Marine, (Unpublished)(BRB
No. 04-0183)(Oct. 15, 2004).
This case contains a discussion of the “adverse inference rule.” Here the
Board rejected the claimant’s contention that an adverse inference should have
been drawn based on the employer’s failure to produce the claimant’s time
cards, which the claimant alleges would have shown maritime employment:
“Such an inference cannot
substitute for claimant’s failure to establish an essential element of his
claim, namely, that he engaged in maritime employment. Moreover, employer
correctly contends that claimant could have obtained this evidence through
discovery, but apparently made no attempt to do so.”
Topic 23.1 Evidence
Newport News Shipbuilding & Dry Dock Co. v.
Harris-Smallwood, (Unpublished)(No. 02-1590) (4th Cir July 12,
2004).
In this unpublished matter involving Sections 12 and 13, the Fourth Circuit
provides a good discussion dealing with crediting testimony of witnesses and
weighing contradictory evidence and Section 8(f).
Topic 23.1 Evidence
APA--Generally
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 23.2 Admission of
Evidence
Patterson v. Omniplex World Services, 36 BRBS 149
(2003).
This Defense Base Act case has issues concerning the admission of evidence and
the scope of the relevant labor market for suitable employment purposes. Here,
the claimant from Missouri was injured while employed as a security guard in
Moscow as an embassy construction site. He had previously worked for this same
employer for approximately six years before this injury in various locations.
After the close of the record in this matter, the employer requested that the
record be reopened for the submission of "new and material" evidence
which became available only after the close of the record. Specifically, the
employer asserted that in a state court filing dated subsequent to the LHWCA
record closing, the claimant stated that he had previously been offered and had
accepted a security guard job in Tanzania.
The claimant argued that this evidence should not be admitted as it was outside
the relevant Trenton, Missouri, labor market. The ALJ issued an Order Denying
Motion to Reopen Record, stating that his decision would be based upon the
existing record "due to the fact that the record was complete as of the
date of the hearing together with the permitted post-hearing submissions, the
complexity of the matters being raised post-hearing, the delays that would be
encountered if further evidence is admitted, and the provisions of Section 22
of the Act which provide for modification of the award, if any."
In overturning the ALJ on this issue, the Board found the evidence to be
relevant and material, and not readily available prior to the closing of the record.
The evidence was found to be "properly admissible under Section 18.54(c)
of the general rules of practice for the Office of Administrative Law Judges,
as well as under the specific regulations applicable to proceedings under the
Act. 20 C.F.R. §§ 702.338, 702.339. See Generally Wayland v. Moore Dry Dock,
21 BRBS 177 (1988).
The Board further noted that Sections 18.54(a) of the Rules of Practice and 20
C.F.R. § 702.338 explicitly permit an ALJ to reopen the record, at any time
prior to the filing of the compensation order in order to receive newly
discovered relevant and material evidence.
While the Board affirmed the ALJ's conclusion that Missouri is the claimant's
permanent residence, and thus his local labor market in the case, the Board
opined that the ALJ should have considered the significance of the claimant's
overseas employment in evaluating the relevant labor market. The Board
concluded that, given the claimant's employment history, the labor market
cannot be limited solely to the Trenton, Missouri, area. Additionally, the
Board noted that, in fact, the claimant has continued to perform post-injury
security guard work in the worldwide market.
Topic 23.2 Admission of Evidence
[ED. NOTE: Since the following Black Lung
case involves the OALJ regulation, 29 C.F.R. § 18.20, it is mentioned here.]
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.
Topic 23.5 Evidence—ALJ Can
Accept Or Reject Medical Testimony
Cooper/T. Smith, Inc, v. Veles, (Unreported)(No.
03-60809)(5th Cir. March 17, 2004); 2004 U.S. App. LEXIS 5077.
In this Section 20(a) presumption case, the employer faulted the ALJ for
preferring the testimony of treating physicians over the respondent's expert
witness and for crediting the claimant's testimony with respect to the
difficulties caused by his knee and back. However, the Fifth Circuit
found that the ALJ's findings were supported by substantial evidence, and that
the Board acted properly in refusing to gainsay them. The court found that
although the respondents pointed to the employer's physician's doubts that the
back injury flowed from the claimant's limp, and also pointed to the claimant's
"hypersensitivity" to pain, it was within the ALJ's purview to
exercise his judgment in evaluating witnesses' credibility and in assembling
the evidence presented to him. "Merely because different determinations of
credibility could have led to different conclusions, does not mean that the
ALJ's fact finding was unsupported by substantial evidence."
Topic 23.5 Evidence–ALJ Can
Accept Or Reject Medical Testimony
[ED. NOTE: The following Black Lung Benefits
Act case is included because it may be applicable to Longshore cases. For a
thorough discussion, please see the Black Lung portion of this Digest.]
Eastover Mining Co. v. Williams, 338 F.3d 501 (6th
Cir. 2003).
In Black Lung cases, the Sixth Circuit has retreated from its earlier position
that the treating physician’s opinion is entitled to controlling weight. [The
Longshore Bar has long called this concept of giving controlling weight to the
treating physician, the “treating physician rule.”] In its opinion, the Sixth
Circuit notes the Supreme Court’s position in Black & Decker
Disability Plan v. Nord, 123 S.Ct. 1965 (2003)(Ginsburg, J.) wherein
a unanimous Court criticizes the usefulness of automatically granting deference
to the opinion of a treating physician.
Topic 23.5 Evidence–ALJ Can
Accept or Reject Medical Evidence
[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.”
Topic 23.6 ALJ Determines
Credibility of Witness
Newport News Shipbuilding & Dry Dock Co. v. Harris-Smallwood,
(Unpublished)(No. 02-1590) (4th Cir July 12, 2004).
In this unpublished matter involving Sections 12 and 13, the Fourth Circuit
provides a good discussion dealing with crediting testimony of witnesses and
weighing contradictory evidence and Section 8(f).
Topic 23.6 Evidence–ALJ
Determines Credibility of Witnesses
[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.”
Topic 23.6 ALJ Determines
Credibility of Witnesses
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 23.7 Evidence—ALJ May
Draw Inferences Based on Evidence Presented
Mai v. Knight & Carver Marine, (Unpublished)(BRB
No. 04-0183)(Oct. 15, 2004).
This case contains a discussion of the “adverse inference rule.” Here the
Board rejected the claimant’s contention that an adverse inference should have
been drawn based on the employer’s failure to produce the claimant’s time
cards, which the claimant alleges would have shown maritime employment:
“Such an inference cannot
substitute for claimant’s failure to establish an essential element of his
claim, namely, that he engaged in maritime employment. Moreover, employer
correctly contends that claimant could have obtained this evidence through
discovery, but apparently made no attempt to do so.”
Topic 23.7 Evidence–ALJ May
Draw Inferences Based On Evidence Presented
[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.”
Topic 23.7 ALJ May Draw
Inferences Based On Evidence Presented
[ED. NOTE: Since the following Black Lung
case involves the OALJ regulation, 29 C.F.R. § 18.20, it is mentioned here.]
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.
Topic 23.7 ALJ May Draw
Inference Based on Evidence Presented
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.
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