Recent Significant Decisions May-August 1995

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September 21, 2008 DOL Home > OALJ Home > Longshore Collection

RECENT SIGNIFICANT DECISIONS

Longshore

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 122
May - August 1995

Circuit courts of appeals

In Brady-Hamilton Stevedore Co. v. Director, OWCP, ___ F.3d ___, Case No. 93-70616 (9th Cir. June 20, 1995), Claimant was awarded compensation for permanent partial disability in the amount of $145.00 per week and, subsequent to a second injury, became permanently and totally disabled with an average weekly wage of $674.72. In the case of permanent total disability, Section 908(a) of the Act provides for compensation in the amount of 66 and 2/3 % of the injured worker's average weekly wages during the term of such disability. The Ninth Circuit held that:

Courts have upheld combining permanent partial disability benefits with permanent total disability benefits. (citations omitted). We do not disagree with this principal where it is warranted. The central problem in this case is that the combined benefits of permanent partial disability and permanent total disability exceed the statutory limit of 33 U.S.C. § 908(a). Brady-Hamilton contends that this amounts to excessive 'double-dipping' and we agree.

Specifically, the court noted that the administrative law judge did not determine whether Claimant's "ability to earn a higher wage increased during the period between his injuries" or that the "higher wages were a result of an increase in wage rates under a labor agreement."

[ 8.4.3, combining permanent partial and permanent total disability ]

Benefits Review Board

In Bridier v. Alabama Dry Dock and Shipbuilding Corp., ___ B.R.B.S. ___, BRB No. 92-2358 (June 27, 1995), the Board, in this case arising within the Eleventh Circuit, held that the circuit court:

[H]as stated consistently that the regulation at 20 C.F.R. § 702.221(b) is a combination of the Section 13(a) requirement that an employee be aware of the relationship between the injury and employment and Section 8(c)(13)(D), so that an employee must receive an audiogram with an accompanying report which indicates that he has sustained a loss of hearing related to his or her employment before the time for filing a claim starts to run.

In this vein, the Board concluded that an "October 19, 1983 letter, which indicates that claimant has 'fair' and 'below normal' hearing and is silent as to any employment connection, stating only that due to noise surveys conducted by employer claimant should wear ear plugs, is wholly inadequate" to commence the § 13 time limitation to run. In so holding, the Board concluded that the employer failed to sustain its burden under § 20(b) that the claim was untimely as the record did not demonstrate that the claimant "was provided with an audiogram and accompanying report which indicated that he had sustained a permanent hearing loss related to his employment at any time prior to the filing of the claim . . .."

Finally, the Board held that the employer did not rebut the § 20(a) presumption as a matter of law, which requires that it demonstrate that "claimant's work environment did not aggravate or contribute to his hearing loss," as the employer relied on a physician's opinion which, according to the Board, testified that "since neither the noise level nor the hearing loss was quantified, the effect of the noise on claimant's condition could not be calculated; thus, whether noise exposure contributed to claimant's hearing loss could not be determined."

[ 20.2.4, § 20(a) presumption; 13.3.2, statute of limitations - hearing loss ]

In Nelson v. Stevedoring Services of America, ___ B.R.B.S. ___, BRB No. 88-3695 (June 28, 1995)(published), a case involving assessment of the average weekly wage where Claimant suffered a 1979 work-related back injury and then injured his shoulder in 1984, the Board held the following:

[With regard to the 1984 injury, the administrative law judge] determined that it was unreasonable to adopt Administrative Law Judge Matera's finding of claimant's post-injury wage-earning capacity as of May 2, 1979, five years prior to the July 7, 1984 injury as the basis for his average weekly wage without any adjustment to reflect intervening contract wage increases. Relying on claimant's actual earnings prior to his injury, the administrative law judge found that claimant's average weekly wage was $ 918.06 by dividing claimant's actual $35,804.21 in earnings by the 39 weeks he worked prior to the July 7, 1984 injury.

. . .

As it is undisputed that claimant's increase in wages prior to the second injury is the result of a general increase in wage rates and not an increase in his earning capacity, the administrative law judge properly concluded that it would be unreasonable to adopt a finding representing 1979 wage-earning capacity without adjustment. The administrative law judge's decision to use claimant's actual earnings prior to the 1984 injury to calculate his average weekly wage is thus affirmed . . ..

The Board also addressed issues regarding attorney fees. Specifically, it reiterated that time spent preparing the fee petition was properly disallowed. However, the Board held that the administrative law judge erred in finding that she lacked jurisdiction to award a fee for time spent by claimant's counsel "reading the decision and calculating the benefits awarded" as "such 'wind-up' services are routinely awarded by the administrative law judge, who is in the best position to evaluate the reasonableness of the time claimed."

Finally, the Board held that "where the question of delay is timely raised, . . . the body awarding the fee must consider this factor" in determining whether enhancement of the hourly rate is proper. In so stating, the Board concluded that "the fact-finder may adjust the fee based on historical rates to reflect its present value, apply current market rates, or employ any other reasonable means to compensate counsel for delay."

[ 28.1, attorney fees; 10.2.5, average weekly wage ]

In a separate claim, Nelson v. Stevedoring Services of America, ___ B.R.B.S. ___, BRB No. 90-2046 (July 31, 1995)(en banc), the Board overruled its holding in Sproull v. Stevedoring Services of America, 25 B.R.B.S. 100 (1991)(J. Brown, dissenting), mod. on other grounds on recon., 28 B.R.B.S. 271 (1994)(en banc) to conclude that the Section 14(f) penalty does not apply to overdue interest. In so finding, the Board stated the following:

Section 14(f) of the Act provides that if any compensation payable under an award is not paid within 10 days, there shall be added to the unpaid compensation, an amount equal to 20 percent thereof.

. . .

Unlike compensation provided by the statute, awards of interest are not provided by the Act itself, but have been granted by the courts to ensure that claimants are fully compensated for their work-related injuries.

. . .

As interest is not awarded under a provision of the Act, it cannot be considered "compensation" as defined under Section 2(12). Since a Section 14(f) penalty is due only on "compensation," we agree with employer that the failure to timely pay interest cannot properly serve as a basis for imposing a penalty under Section 14(f).

[ 14.4, Section 14(f) penalty not apply to overdue interest ]

In Branch v. Ceres Corp., ___ B.L.R. ___, BRB No. 91- 0445 (May 27, 1995)(published), the Board held that there was no evidence that the holiday/vacation and container royalty payments made during claimant's disability were intended as compensation, as is required for a credit under Section 14(j), and found that the employer was not entitled to credit for these payments. The Board also found error in the administrative law judge's treatment of the holiday/vacation and container royalty payments claimant earned while he was temporarily disabled as indicative of a post-injury wage-earning capacity. The Board noted that "although the payments at issue here may be properly included in the definition of wages in Section 2(13) of the Act, the post-injury receipt of such payments does not create a wage earning capacity or establish that claimant is less than totally disabled ..."

Thus, the holding in this case contains an important change of the law in this area in that the Board now states that treatment of the holiday/vacation and container royalty payments, which a claimant earns while he is temporarily disabled, are not indicative of a post-injury wage-earning capacity and should not be included in the calculation of claimant's post-injury average weekly wage. Moreover, in order to determine whether an employer is entitled to a credit for holiday pay, one must determine whether that pay was intended in lieu of compensation.

[ 10.2.5, computation of average weekly wage ]

The case of Perry v. Bath Iron Works Corp., ___ B.R.B.S. ___, BRB No. 92-1670 (Mar. 29, 1995)(published), presents an issue of first impression. The administrative law judge awarded benefits for permanent and total disability on the initial application and on the survivor's claim. Section 8(f) relief was granted on both claims after Employer had already paid 104 weeks of compensation. However, on the death claim, the administrative law judge found that Employer was not liable for a new period of 104 weeks.

Claimant and decedent received third-party settlements totalling $125,900. All parties, including the Fund, agreed that the lien on the settlement proceeds would be limited to 40 percent, or $50,360. Decedent paid Carrier $25,225.63 for the first 104 weeks of decedent's disability. The balance of $20,734.37 was transferred to the Fund to cover the benefits it paid. A credit of $4,400 (which is $50,360 - $45,960) was to be applied against future benefits. The administrative law judge found Employer liable for medical and funeral expenses in the amount of $21,930.50 and, deducting the $4,400 credit from that, found this amount owed, he found that Employer remained liable for $17,530.50.

Consequently, the administrative law judge ordered that this amount be returned by the Fund to the carrier because the Fund's lien was to be satisfied only after Employer and Carrier's liability was satisfied. Accordingly, the administrative law judge ordered the Fund to reimburse the carrier in the amount of $17,530.50 from the $20,734.37 the Fund had received as its share of the lien on the third-party settlement proceeds.

On appeal, the Director challenged the judge's order that the Fund pay $17,530.50 to Employer. The Board vacated the order and held that the Fund's lien rights to reimbursement for the payments made to Claimant take priority over the Employer's credit rights. The Board reasoned that "common sense dictates that lien rights, representing amounts already paid, should take priority against the settlement proceeds as a lien represents a statutory 'debt' to employer and the Special Fund." Distinguishing a lien - a claim to reimbursement for payments made - from credit rights which reflect liability for future compensation, the Board stated that after the lien rights of Employer and the Fund are satisfied, Employer's credit rights are to be satisfied prior to the credit rights of the Special Fund.

[ 14.5, credit for prior payments; 33.6, lien of Special Fund ]

RECENT SIGNIFICANT DECISIONS

Longshore

Office of Administrative Law Judges United States Department of Labor

Office of Administrative Law Judges
United States Department of Labor