BRB Nos. 99-288, 00-232
and 02-345
PAUL BUTLER )
)
Claimant-Petitioner )
)
v. )
)
INGALLS SHIPBUILDING, ) DATE ISSUED: 01/24/2003
2003
INCORPORATED ))
and )
)
MISSISSIPPI INSURANCE GUARANTY )
ASSOCIATES )
)
Self-Insured Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeals of the Decision and Order - Denying Benefits, Decision and
Order Denying Motion for Modification, and Decision and Order Denying
Second Motion for Modification of David W. DiNardi, Administrative Law
Judge, United States Department of Labor.
Leslie Roussell, Laurel, Mississippi, for claimant.
Paul B. Howell (Franke, Rainey & Salloum, PLLC), Gulfport,
Mississippi, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denying Benefits, Decision and
Order Denying Motion for Modification and Decision and Order Denying Second
Motion for Modification (94-LHC-2284, 97-LHC-2628) of Administrative Law Judge
David DiNardi rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). We must affirm the findings of fact and conclusions
of law of the administrative law judge which are rational, supported by
substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant was exposed to asbestos while working for employer during several
periods of time between 1958 and 1967. EX 44 at 25. On May 5, 1965, claimant
injured his back while working as a shipfitter, and subsequently underwent a
laminectomy and spinal fusion, and was thereafter placed on light duty at his
regular wage. Employer voluntarily paid claimant temporary total disability
compensation based upon an average weekly wage of $92.25, until he reached
maximum medical improvement on March 2, 1967, and permanent partial disability
compensation at a weekly rate of $18.45 thereafter. Claimant filed a claim for
his back injury on December 19, 1967, ALJ EX 18, and the parties thereafter
agreed that employer would pay claimant continuing permanent partial disability
benefits at an increased rate. The deputy commissioner[1] memorialized this agreement in a Memorandum of Informal Conference
dated August 26, 1968. On July 18, 1978, employer suspended compensation
payments, as the payments to claimant had exceeded the maximum amount of $24,000
allowed under the Act at the time the injury occurred.[2] On August 3, 1978, the assistant deputy commissioner forwarded
correspondence to the claimant stating that his file was being closed since the
$24,000 compensation ceiling had been reached. EX 14. On November 21, 1988,
claimant sustained a non work-related injury when he slipped and fell after
stepping on a coat hanger.
Claimant filed a separate claim for asbestosis on December 6, 1989. EXs
33-35. On July 28, 1992, claimant began pursuing a claim for additional
compensation as a result of his 1965 back injury, seeking benefits from 1978,
when employer made its last payment, until the present. EX 27. The Mississippi
Insurance Guaranty Association, on the risk at the time, controverted the claim
on June 24, 1992.[3] EX 28; JX 2. An informal
conference was held in the fall of 1992, CX 1 at 11, during which time the
parties stipulated to an average weekly wage of $92.25, at the time of the back
injury.
The claims for both the back injury of May 5, 1965, and asbestosis were
consolidated and a hearing before the administrative law judge was held on April
23, 1998. In a Decision and Order - Denying Benefits dated October 26, 1998,
the administrative law judge found that claimant's claim for additional benefits
for his work-related back injury was barred by the statute of limitations or,
alternatively, by the doctrine of laches. The administrative law judge further
found that even if not barred as untimely, claimant's non work-related fall in
1988 constituted an intervening cause, severing the causal connection between
claimant's 1965 work injury and his present back complaints. The administrative
law judge thus denied further benefits. The administrative law judge also
denied claimant's asbestosis claim, finding that claimant had no impairment and
was not entitled to any medical benefits. Claimant appealed this decision to
the Board in November 1998. BRB No. 99-288. While the case was pending before
the Board, claimant filed a motion for modification. In light of this motion,
the Board remanded the case to the administrative law judge. On October 12,
1999, the administrative law judge issued a Decision and Order Denying Motion
for Modification. Claimant thereafter appealed to the Board and additionally
reinstated his prior appeal with the Board. BRB No. 00-232. Claimant then
filed a second motion for modification while the case was pending before the
Board. The Board again remanded the matter to the administrative law judge for
modification proceedings. On October 11, 2001, the administrative law judge
issued a Decision and Order Denying Second Motion for Modification. Claimant
appealed this decision to the Board on December 27, 2001.[4] BRB No. 02-345.
Claimant appeals the administrative law judge's decision denying him
benefits under the Act. Employer responds, urging affirmance.
Claimant first argues that the administrative law judge erred in finding
his request for additional benefits for his back condition untimely. Claimant
contends that the parties stipulated that the claim was originally timely filed,
see October 26, 1998 Decision and Order, Stipulation 6, and that, as his
claim was never closed because it was not fully adjudicated until the
administrative law judge did so in this case on November 3, 1998, it remained
open and pending. We agree. Section 13(a) of the Act, 33 U.S.C. §913(a),
provides that a claim for benefits for a traumatic injury must be filed within
one year of the time the claimant was aware, or should have been aware, of the
relationship between his injury and his employment. In Intercounty Constr.
Corp. v. Walter, 422 U.S. 1, 2 BRBS 3 (1975), the United States Supreme
Court held that where a claim is timely filed under Section 13 of the Act, but
is never adjudicated, it remains open and pending until a compensation order is
issued.
In Intercounty, the Court construed Section 22 of the Act, 33 U.S.C.
§922, as applying only where a compensation order resolving a claim has
been issued. Thus, once an Order is entered, claimant has until one year after
a final order issues or the last payment of compensation is made in which to
seek additional benefits under Section 22. Applying Intercounty to this
case, since the last payment of compensation was made in 1978, and claimant did
not seek additional benefits within one year, determining whether claimant may
now do so turns on whether his prior timely claim remains open and pending or
was closed by order of the deputy commissioner.
The administrative law judge found that claimant's claim for additional
compensation for his back injury is barred, finding that the deputy
commissioner's August 26, 1968, Memorandum of Informal Conference was a final
adjudication of claimant's pending claim.[5]
The administrative law judge reasoned that prior to the 1972 Amendments to the
Act, the deputy commissioner had the power to adjudicate disputes and issue
formal compensation orders, in addition to his role in investigating claims and
recommending informal resolutions.[6] 33
U.S.C. §919 (1970) (amended 1972). The administrative law judge found that
the Memorandum of Informal Conference issued by the deputy commissioner was the
equivalent of a current administrative law judge's issuance of consent findings,
and that claimant's back injury claim thus had been finally "adjudicated" as of
August 26, 1968. Decision and Order at 21. For the following reasons, we
reverse the administrative law judge's finding that the deputy commissioner's
Memorandum of Informal Conference constituted a final compensation order. See
Seguro v. Universal Maritime Service Corp., 36 BRBS 28 (2002).
Claimant injured his back on May 5, 1965. The parties stipulated that
claimant gave timely notice and filed a timely claim for this injury, which
employer timely controverted. Decision and Order at 3. An informal conference
was held initially on September 14, 1967, and continued on August 21, 1968,
during which the parties agreed that claimant, who had returned to light duty
employment, was entitled to permanent partial disability benefits at a rate
greater than that which employer had previously been paying. Following this
conference, the deputy commissioner issued the Memorandum of Informal
Conference, which detailed the parties' agreement. Employer paid claimant
benefits pursuant to this agreement until July 1978.[7] On August 3, 1978, the associate deputy commissioner wrote to
claimant that as the maximum benefits had been paid, his file was being closed,
subject to the limitations of the Act, and he enclosed a copy of Form BEC 208A,
a notice that compensation payments have ceased.[8] EX 14 at 2. In June 1992, claimant again sought to pursue a claim
based on the May 5, 1965, back injury.
Prior to the 1972 amendments to the Longshore Act, the regulations at 20
C.F.R. §31.8 provided for prehearing conferences in order "amicably to
dispose of controversies wherever possible." 20 C.F.R. §31.8(b)(1968).
Specifically, this subsection of the Act's implementing regulations stated that:
At the termination of such conferences the person in charge thereof shall prepare stipulations, . .
.covering agreements as to all or part of the facts, admissions . . . . Such stipulations when signed
by the parties in interest shall be made and become part of the formal record of the case. . . .[T]he
person in charge . . . may by letter. . . make his recommendations . . . to dispose of the matter in
controversy. Every such letter should advise the interested parties that the purpose thereof is to
recommend a basis for agreement, . . . and that such recommendation is not a "decision" in the case
and will not affect or prejudice the rights of any party . . . should the recommendation not be
accepted by such parties and a later hearing be found necessary.
20 C.F.R. §31.8 (1968). In contrast to these provisions for informal resolution, the regulations also describe
the procedures for entering a compensation order stating:
Orders adjudicating claims for compensation . . . shall be designated by the term "compensation
order" followed by a descriptive phrase designating the particular type of such order, such as "award
of compensation." . . . . [and] shall contain . . .a statement for the basis for the order. . . and whether
a hearing was held . . . findings of fact, an award, rejection, or other appropriate paragraph
containing the action of the deputy commissioner, and appended thereto shall be a paragraph headed
"proof of service," containing the certification of the deputy commissioner that a copy of the
compensation order was on a date stated sent by registered mail . . . Compensation orders shall be
signed by the deputy commissioner at two places.
20 C.F.R. §31.12(a) (1968). These regulations thus distinguish between the
recommendations made at the end of an informal conference and a formal
compensation order, providing specific requirements where a formal compensation
order is issued. See also 33 U.S.C. §919 (1970)(amended 1972).
The document at issue is titled "Memorandum of Informal Conference,"
listing the issue as "Extent of Disability" and indicating that attorneys for
claimant and employer/carrier, but not claimant himself, were present. The
memorandum begins by stating, "This is a continuation of a conference previously
held on September 14, 1967." It states that a claim was made that claimant had
disability in excess of what the insurance carrier had been paying voluntarily
and that "it was agreed" that $40 per week would be a reasonable rate for
permanent partial disability compensation, that "it was agreed" that the
agreement would be retroactive, and that "it was further agreed" that the
insurance carrier would pay certain medical bills. In addition, it provides
that the carrier "shall" continue to pay claimant $40 per week "subject to the
limitations of the Act or until further recommendation by the Deputy
Commissioner." EX 12 at 1. This document is signed by the deputy commissioner
and indicates copies were provided to the parties.
Viewed under the regulations applicable at the time it was issued, it is
clear that this document lacks the indicia of a formal compensation order. On
its face, the document memorializes an informal conference and the agreement
reached by the parties at that conference. While it does not specifically state
it is not a "decision," as Section 31.8 suggests it should, the document
provides for the continuance of benefits "until further recommendation"
by the deputy commissioner. Moreover, it does not meet the requirements for a
formal compensation order contained in Section 31.12(a), as it does not commence
with the title "compensation order" or include the descriptive term "award of
compensation." Significantly, there is no certificate of service certifying
that the parties were served by registered mail, nor is the document signed in
two places as required by the regulation. Finally, there is no indication that
the document was filed as a compensation order in the office of the deputy
commissioner as required by the statute, 33 U.S.C. §919(e). This document
therefore is not a final compensation order under Section 19 or the applicable
regulations. As the deputy commissioner did not issue a compensation order
pursuant to 20 C.F.R. §31.12(a), the initial claim for benefits was never
the subject of a final formal compensation order prior to the adjudication by
the administrative law judge. As claimant's back claim was not previously
adjudicated, it remains open and pending. Intercounty, 422 U.S. 1, 2 BRBS
3; Seguro, 36 BRBS at 31. We therefore reverse the administrative law
judge's finding that claimant's claim for his back condition is barred by the
statute of limitations, 33 U.S.C. §§913, 922.
The administrative law judge, in the alternative, found that even if
claimant's back injury claim is not barred by Section 13 of the Act, the claim
is barred by the doctrine of laches pursuant to the Board's decision in
Rodriguez v. California Stevedore & Ballast Co., 16 BRBS 371 (1984). The
Board has held, however, that since the Act contains a statutory limitation
period for filing a claim under Section 13, the doctrine of laches does not
apply and has expressly limited Rodriquez to its facts. See, e.g.,
Norton v. Nat'l Steel & Shipbuilding Co., 27 BRBS 33 (1993) (Brown, J.,
dissenting), aff'g on recon. en banc 25 BRBS 79 (1991); Lewis v.
Norfolk Shipbuilding & Dry Dock Co., 20 BRBS 126 (1987). For the
reasons set forth in detail in Norton, 27 BRBS at 40-41, we reverse the
administrative law judge's finding that claimant's claim is barred by the
doctrine of laches. Accordingly, we will now review the administrative law
judge's alternate findings with respect to claimant's back condition.
Initially, the administrative law judge did not address claimant's
entitlement to benefits prior to 1988, the date that he found an intervening
cause of claimant's disability occurred. Even if the 1988 event was an
intervening cause, it does not affect claimant's entitlement to benefits prior
to that date, and employer's last payment was made in 1978. Accordingly, the
case must be remanded for the administrative law judge to address claimant's
entitlement to benefits prior to the occurrence of the 1988 incident.
Where causation is at issue, Section 20(a) of the Act, 33 U.S.C.
§920(a), provides claimant with a presumption that his disabling condition
is causally related to his employment. Under Section 20(a), the burden shifts
to employer to produce substantial evidence that claimant's condition was not
caused or aggravated by his employment. See Port Cooper/T. Smith Stevedoring
Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000); Conoco,
Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187 (CRT)(5 th Cir. 1999);
Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir.
1998); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C.
Cir.), cert. denied, 429 U.S. 820 (1976). Employer can rebut the
presumption by producing substantial evidence that claimant's disabling
condition was caused by a subsequent non work-related event which was not the
natural or unavoidable result of the initial work injury. See Shell
Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 31 BRBS 129 (CRT)(5 th Cir.
1997), cert. denied, 523 U.S. 1095 (1998); Bass v. Broadway
Maintenance, 28 BRBS 11 (1994). If the administrative law judge finds that
the Section 20(a) presumption is rebutted, he must weigh all of the evidence in
the record and resolve the causation issue based on the record as a whole.
See Port Cooper, 227 F.3d 285, 34 BRBS 96(CRT); Gooden, 135 F.3d
1066, 32 BRBS 59 (CRT); see also Director, OWCP v. Greenwich Collieries,
512 U.S. 267, 28 BRBS 43 (CRT)(1994). Where a subsequent injury or aggravation
is not a natural or unavoidable result of the work injury, but is due to an
intervening cause, employer is relieved of that portion of the disability
attributable to the subsequent injury. See Plappert v. Marine Corps
Exchange, 31 BRBS 13, aff'd on recon. en banc, 31 BRBS 109 (1997);
Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991).
Claimant challenges the administrative law judge finding that the causal
relationship between his present back complaints and his 1965 work-related
injury was severed by his subsequent non work-related accident of November 21,
1988. In finding that this 1988 accident, in which claimant slipped and fell,
was an intervening cause, the administrative law judge gave little weight to
claimant's testimony that he continued to have back problems from 1965 until
November 21, 1988. Rather, the administrative law judge found that both Drs.
Enger and Wiggins attributed claimant's present back problems to an independent
intervening aggravation of his original condition, see EXs 23, 26; that
there is no evidence in the record that claimant suffered any back problems
between 1972 and 1989; that Dr. Wiggins, after reviewing claimant's medical
records, found no history of significant back problems between 1972 and 1989;
and that claimant told several doctors that he did not have back problems
between the original injury and his 1988 slip and fall incident. See
Decision and Order at 29. EX 19 at 1-2, 7, 11.
Based on the evidence on which he relied, primarily the opinions of Dr.
Enger and Dr. Wiggins, the administrative law judge's denial of all benefits
cannot be affirmed. As summarily stated by the administrative law judge, both
Drs. Enger and Wiggins attributed claimant's increased back problems to an
independent intervening aggravation of his original condition. See EXs
23, 26. The credited evidence thus supports the conclusion that any increased
disability thereafter is due to the 1988 event. However, the credited medical
evidence recognizes that the aggravation rests on claimant's prior underlying
condition; thus, claimant's present back complaints may be due, in part, to his
underlying 1965 work-injury. While any disability attributable to the
aggravation is not compensable, the administrative law judge must determine
whether claimant retains any continuing disability as a result of his underlying
work-related injury. As the administrative law judge did not make this
determination, supra at p. 7, we vacate his denial of all benefits. The
case is remanded for the administrative law judge to reconsider the evidence
relative to the cause of claimant's present back complaints and determine the
extent of disability attributable to his work-related injury. See generally
Bass, 28 BRBS at 15-16; Merrill, 25 BRBS at 144-145.
Claimant next contends that he is entitled to payment for medical expenses
related to his back. Section 7 of the Act, 33 U.S.C. §907, generally
describes an employer's duty to provide medical and related services and costs
necessitated by its employee's work-related injuries. The Act does not require
that an injury be economically disabling in order for a claimant to be entitled
to medical expenses, but only that the injury be work-related. See, e.g.,
Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990).
In order for a medical expense to be assessed against employer, the expense must
be both reasonable and necessary for the treatment of claimant's work-related
injury. Romeike v. Kaiser Shipyards, 22 BRBS 57, 60 (1989). Under
Section 7(d), claimant must request prior authorization for the medical services
performed by any physician, including claimant's initial choice, in order for
the expenses to be compensable. See Maguire v. Todd Shipyards Corp.,
25 BRBS 299 (1992). Where a claimant's request for authorization is refused
by employer, claimant is released from the obligation of continuing to seek
approval for his subsequent treatment and thereafter need only establish that
the treatment he subsequently procured on his own initiative was necessary for
his injury in order to be entitled to such treatment at employer's expense.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).
In the instant case, the administrative law judge noted that employer paid
for claimant's back-related expenses until 1971, that there is no evidence in
the record that claimant sought treatment for his back between 1971 and 1988,
and that employer was not liable for any medical bills incurred after the 1988
accident because that injury was due to an intervening cause. Alternatively,
the administrative law judge determined that even if the medical expenses
incurred by claimant for the treatment of his back after 1988 were work-related,
claimant would still not be entitled to reimbursement because he did not comply
with the authorization provision of Section 7. Claimant does not challenge the
administrative law judge's finding that he did not seek prior authorization for
the his treatment post-1988, nor does claimant contend that he sought and was
denied such authorization. Accordingly, we affirm the administrative law judge's decision on this issue.[9]
Claimant also contends that the stomach problems which he developed are a
result of the medication he was taking for his work-related back condition, and
that therefore he is entitled to payment for related medical expenses. In
denying the compensability of medical bills for a stomach disorder, the
administrative law judge observed that Dr. Enger concluded that all of
claimant's problems other than his back condition were unrelated to the May 5,
1965, injury, and that Dr. Fox concluded that claimant's gastroparesis and
gastroesophageal reflux diseases were unrelated to the medication being taken
for the back injury. Decision and Order at 30; EX 23 at 28-29, CX 4 at 263.
The administrative law judge further noted that medical records establish that
claimant's stomach condition is based on an unrelated January 24, 1966, injury,
EX 5, and that none of the physicians who examined claimant during the late
1980s or early 1990s ever connected claimant's stomach problems to his May 1965
injury. We hold that the administrative law judge acted within his discretion
in crediting the opinions of Drs. Enger and Fox, which affirmatively establish
rebuttal of the Section 20(a) presumption, and we therefore affirm his finding
that based on the medical evidence of record, claimant's stomach problems are
not work-related. See Phillips v. Newport News Shipbuilding & Dry Dock Co.,
22 BRBS 94 (1988). Moreover, as entitlement to medical benefits is
contingent upon a finding of a casual relationship between the injury and
claimant's employment, we affirm the administrative law judge's finding that
employer is not liable for claimant's medical expenses which are related to his
stomach condition. See generally Wendler v. American Red Cross, 23 BRBS
408 (1990)(McGranery, J., dissenting on other grounds).
Claimant lastly appeals the administrative law judge's denial of benefits based on his condition resulting
from asbestos exposure. Specifically, claimant alleges that the administrative law judge erred in finding that he
has no impairment as a result of his asbestos
exposure, and in denying medical benefits related to this condition.[10] In the instant case, the administrative
law judge initially determined that as claimant's asbestos-related condition
did not become manifest until after claimant retired in 1988 due to an unrelated
condition, claimant is a voluntary retiree with respect to his asbestos-related
claim. The administrative law judge therefore concluded that claimant was
limited to an award for permanent partial disability based on the extent of his
medical impairment under the American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides), but that claimant
had not submitted any evidence providing a disability rating. Moreover, the
administrative law judge determined that the medical evidence overwhelmingly
demonstrates that claimant's pleural thickening, secondary to asbestos exposure,
has resulted in absolutely no impairment. Decision and Order at 44-45. For the
reasons that follow, we affirm the administrative law judge's decision to deny
the benefits requested by claimant.
Retirement is defined as a situation wherein a claimant has voluntarily
withdrawn from the workforce with no realistic expectation of return. See
20 C.F.R. §702.601(c). Under the Act as amended in 1984, when an employee
voluntarily retires and his occupational disease becomes manifest subsequent to
his retirement, his recovery is limited to an award for permanent partial
disability based on the extent of medical impairment under the AMA Guides
and is not based on economic factors. See 33 U.S.C. §§902(10),
908(c)(23), 910(d)(2) (1994); Adams v. Newport News Shipbuilding & Dry Dock
Co., 22 BRBS 78 (1989); McLeod v. Bethlehem Steel Corp., 20 BRBS 234
(1988). Claimant is a voluntary retiree if he withdraws from the workforce for
reasons other than the condition which is the subject of the claim. Ponder v.
Peter Kiewit Sons' Co., 24 BRBS 46 (1990). Claimant may be considered a
voluntary retiree and receive benefits under Section 8(c)(23) even if a medical
condition or other factor provided the impetus for his retirement as long as the
occupational disease for which benefits are sought did not cause claimant's
withdrawal from the workforce. Hansen v. Container Stevedoring Co., 31
BRBS 155 (1997); Wayland v. Moore Dry Dock, 21 BRBS 177 (1988).
Claimant on appeal does not challenge the administrative law judge's
determination that he is a voluntary retiree; accordingly, we affirm that
finding. Since claimant is a voluntary retiree, he must establish an impairment
rating under the AMA Guides in order to obtain benefits under the Act.
33 U.S.C. §908(c)(23). See Morin v. Bath Iron Works Corp., 28
BRBS 205 (1994); Carver v. Ingalls Shipbuilding, Inc., 24 BRBS 243
(1991). In finding that claimant had not met his burden in this regard, the
administrative law judge determined that while Dr. Neese stated that the
pleural findings could be contributing to claimant's restrictive abnormality,
pulmonary function studies performed by by Dr. Wallace in 1993, CX 4 at 270, did
not show any restrictive abnormality. The administrative law judge further
found that this opinion was later rejected by Dr. Pinkston's well-reasoned
report, as well as Dr. Neese's testimony that claimant did not have asbestosis,
that the general view is that pleural thickening and plaques do not generally
result in impairment or disability, and that claimant does not have any
disability associated with the pleural findings alone.[11] CX 4 at 270; EXs 45a at 3, 6, 8; 45b at 23-24. A review of the
record reveals no evidence that claimant has sustained an impairment as a result
of his exposure to asbestos As the medical evidence contains no impairment
rating, we affirm the administrative law judge's denial of disability benefits.
33 U.S.C. §§902(10); 908(c)(23); 910(d)(1), (2) (1988).
Claimant also seeks medical benefits for the treatment of his asbestos-related pleural disease. The administrative law judge found that claimant filed
his LS-203 form on December 3, 1989, for this condition, and as he did not seek
prior approval for any related medical treatment before that time, he was not
entitled to benefits. Subsequently, the administrative law judge noted that,
after December 3, 1989, claimant's medical expenses were limited to monitoring
and testing for asbestos exposure. The administrative law judge found that both
Dr. Neese and Dr. Pinkston concluded that claimant did not require medical
treatment for his pleural disease. See Decision and Order at 45; EX 45a
at 8; EX 45b at 26, 35-36. The administrative law judge then concluded that
further medical monitoring is a treatment not reasonable or necessary and denied
claimant's request for medical benefits. On modification, the administrative law
judge accepted additional medical evidence, but reitereated his finding that
medical treatment was not necessary. Claimant challenges this finding,
asserting that his need for continuing treatment is documented by his more
recent records. Dr. McFadden, in a report dated January 4, 2000, which was
admitted on modification, opined that claimant did not need treatment for his
pleural plaques, and the administrative law judge found this report consistent
with the other medical experts, who found claimant did not currently require
treatment for his condition. His finding on modification and in his initial
decision that claimant did not establish the necessity of treatment is affirmed.
However, Dr. McFadden's report also states that claimant should be followed "on
a periodic basis with C/Ts of the chest to determine if any further plaquing
should develop and a biopsy would be indicated should there be suggestion of
this developing into a malignant process of a mesothelioma." As periodic
medical monitoring is compensable and this evidence could establish it is
necessary, see Ingalls Shipbuilding v. Director, Office of Workers'
Compensation Programs, 991 F.2d 163, 27 BRBS 14 (CRT)(5th Cir. 1993);
Romeike, 22 BRBS 57, on remand the administrative law judge should
consider whether claimant is entitled to periodic medical monitoring.
Claimant's former attorney, David Goff, who represented claimant for a
period of time, filed an attorney's fee petition with the Board, requesting
$22,374.84, for 172.4 hours of services at $120 per hour, and .6 hours at $100
per hour, rendered between May 2, 1997, and January 5, 1999, and $1,626.84 in
expenses.[12] As claimant has not yet been
found entitled to benefits, a fee is denied at this time. If claimant is
successful in obtaining benefits on remand, his former counsel may resubmit his
petition.
Accordingly, the administrative law judge's finding that the claim for
claimant's 1965 back injury is barred is reversed, and the case is remanded for
reconsideration of his entitlement to benefits for this injury. His finding
that the November 1988 incident was an independent intervening cause which ended
all entitlement with regard to claimant's back is vacated, and the case is
remanded for further consideration of this issue consistent with this opinion.
On remand, the administrative law judge must consider claimant's entitlement to
periodic monitoring of his asbestos-related condition. In all other respects,
the administrative law judge's Decision and Order Denying Benefits, Decision and Order Denying
Motion for Modification, and Decision and Order Denying Second Motion for
Modification are affirmed.
SO ORDERED.
____________________________________
NANCY S. DOLDER, Chief
Administrative Appeals Judge
____________________________________
ROY P. SMITH
Administrative Appeals Judge
____________________________________
BETTY JEAN HALL
Administrative Appeals Judge
To Top of Document
Footnotes.
1)The term deputy commissioner has been replaced by the term
district director. See 20 C.F.R. '702.105. This decision will use the
term deputy commissioner, as that title was in effect during the time period at
issue.
Back to Text
2)Prior to the 1972 Amendments there was a $24,000 limit for
permanent partial disability awards. 33 U.S.C. '914(m) (1970) (repealed 1972).
Back to Text
3)Employer is self-insured with respect to the asbestos-related claim.
Back to Text
4)By order dated February 15, 2002, the Board reinstated
claimant's appeals in BRB No. 99-288 and BRB No. 00-232, and consolidated them
with BRB No. 02-345.
Back to Text
5)Although the administrative law judge stated that the claim
was barred by Section 13, the parties stipulated that claimant filed a timely
claim under Section 13 in 1967. If this claim was closed as the administrative
law judge found, then claimant's subsequent claim would be barred by Section 22,
rather than Section 13.
Back to Text
6) 6Section 19(d) of the 1972 Amendments removed from the
deputy commissioner the authority to hold hearings after November 26, 1972. 33
U.S.C. '919(d). Subsequent to the amendments, the deputy commissioner retained
his administrative and investigatory functions, while the authority to hold
hearings and adjudicate claims was transferred to administrative law judges.
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7)Employer stopped payments to claimant in July 1978,
reasoning that the Section 14(m) $24,000 ceiling had been reached. The
administrative law judge, in his first decision, correctly found that this
limitation does not apply to claimant because claimant reached the ceiling after
the effective date of the 1972 Amendments to the Act, which repealed Section
14(m). See O'Berry v. Jacksonville Shipyards, Inc., 21 BRBS 355 (1988),
aff'd and modified on recon., 22 BRBS 430 (1989). Accordingly, claimant
may be entitled to additional compensation for disability related to the initial
1965 back injury, subsequent to July 18, 1978, the date of employer's last
payment.
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8) 8This form is similar to the current LS-208, and both
state that a claim for compensation must be filed in writing within one year of
the date of injury or date of last payment of compensation in order to be valid.
EX 14 at 2.
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9) 9Claimant would be entitled to any future medical
benefits necessary for treatment of the initial injury rather than for the 1988
non-work-related aggravation, subject to the requirements of Section 7(d).
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10)As employer has not challenged the administrative law
judge's finding that claimant's diagnosed pleural thickening is related to his
asbestos exposure while working for employer, that determination is affirmed.
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11)Dr. Neese deposed that he believed claimant's restrictive
abnormality on the pulmonary function test is probably more likely related to
his obesity and possibly from the pleural thickening. EX 45b at 23.
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12)Mr. Goff stated that he represented claimant and filed his
notice of appeal on November 25, 1998, and that claimant dismissed him and he
withdrew on January 6, 1999, prior to filing a supporting brief. We note that
only fees for work before the Board may be awarded by this body. Fees for work
while the case was before the administrative law judge must be sought from that
office.
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NOTE: This is an UNPUBLISHED LHCA Document.
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