BRB No. 93-0661
HUEY C. LEWIS )
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Claimant-Respondent )
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v. )
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TODD PACIFIC SHIPYARDS ) DATE ISSUED: 09/12/1996
CORPORATION )
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and )
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AETNA CASUALTY AND SURETY )
COMPANY )
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Employer/Carrier- )
Petitioners )
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DUWAMISH SHIPYARDS )
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and )
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INDUSTRIAL INDEMNITY )
INSURANCE COMPANY )
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Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits, Amended Decision and
Order Awarding Benefits, Order Awarding Attorney Fees and Costs and
Denying Motion To Set Aside Decision and Reopen Record, and Order
Denying Reconsideration and Awarding Additional Attorneys Fees of Henry
B. Lasky, Administrative Law Judge, United States Department of Labor.
Joel J. Delman (Levinson, Friedman, Vhugen, Duggan & Bland), Seattle,
Washington, for claimant.
Thomas G. Hall (Hall & Keehn), Seattle, Washington, for Todd Pacific
Shipyards Corporation and Aetna Casualty and Surety Company.
Robert L. Brousseau (Brousseau, Jankovich & Ormiston), Seattle,
Washington, for Duwamish Shipyards and Industrial Indemnity Insurance
Company.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Todd Pacific Shipyards Corporation (Todd) appeals the Order Awarding Benefits,
Amended Decision and Order Awarding Benefits, Order Awarding Attorney Fees and
Costs and Denying Motion To Set Aside Decision and Reopen Record, and Order Denying
Reconsideration and Awarding Additional Attorneys Fees (91-LHC-1552) of
Administrative Law Judge Henry B. Lasky 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, a general laborer, worked the last ten to fifteen years prior to his
retirement in 1984 in the Seattle shipyards. He worked intermittently for Todd
between 1974 and 1983, where he was exposed to asbestos, but his last maritime
employment was with Duwamish Shipyards (Duwamish), where he worked from July 10,
1984, until July 19, 1984. Claimant, who suffered from numerous pre-existing
physical maladies, including bronchopulmonary respiratory disease, heart disease,
alcoholism, asthma and seizures, filed a claim under the Act on September 22, 1988,
for asbestosis, and an amended claim on January 25, 1990, for occupational lung
disease, against both employers. No benefits were voluntarily paid.
In his Decision and Order dated September 14, 1992, the administrative law
judge found that the claim was timely filed under Sections 12 and 13 of the Act,
33 U.S.C. §§912, 913, and that Todd was liable as the responsible
employer. He awarded benefits based on a 25 percent whole person impairment
commencing January 27, 1992, pursuant to Section 8(c)(23), 33 U.S.C.
§908(c)(23)(1988). In addition, the administrative law judge granted employer
relief under Section 8(f) of the Act, 33 U.S.C. §908(f), and found that the
compensation owed was subject to a credit for payments previously made and any
other credit to which employer is entitled. In an amended Decision and Order dated
September 25, 1992, the language pertaining to the credit was modified to clarify
that the credit to which employer is entitled under the Act includes that
recognized under Section 33(f), 33 U.S.C. §933(f), if applicable. In
subsequent orders, the administrative law judge denied employer's September 29,
1992, Motion to Set Aside the Decision and Order and the amended Decision and Order
and To Reopen the Record For Consideration of New Issues and Admission of New
Evidence, in which Todd attempted to raise for the first time the Section 33(g)(1),
33 U.S.C. §933(g)(1)(1988), bar, in light of the United States Supreme Court's
decision in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS
49 (CRT)(1992).
On appeal, Todd argues that the administrative law judge erred in concluding
that claimant gave timely notice and filed a timely claim, in determining that it
is liable as the responsible employer, and in refusing to reopen the record and
entertain its arguments relating to Section 33(g)(1) in light of Cowart.
Claimant responds, urging affirmance. Duwamish responds, urging that the
administrative law judge's finding that Todd is the responsible employer be
affirmed, but otherwise expressing agreement with Todd's contentions. Todd has
filed two reply briefs. Claimant has submitted a statement of additional
authorities relating to the applicability of the Section 33(g) bar, citing Glenn
v. Todd Pacific Shipyards Corp., 27 BRBS 112 (1993).
SECTIONS 12 AND 13
Todd first argues that the administrative law judge erred in finding that the
September 22, 1988, notice and claim were timely under Sections 12 and 13. Section
13(b)(2) provides that in the case of an occupational disease that does not
immediately result in disability or death, the statute of limitations does not
begin to run until the employee is aware or should have been aware of the
relationship between his employment, the disease, and the disability. 33 U.S.C.
§913(b)(2); Martin v. Kaiser Company, Inc., 24 BRBS 112 (1990).
Section 12(a) of the Act requires a notice of injury, in a case involving an
occupational disease, to be filed "within one year after the employee . . . becomes
aware, or in the exercise of reasonable diligence or by reason of medical advice
should have been aware, of the relationship between the employment, the disease,
and the . . . disability." 33 U.S.C. §912(a) (1988). Thus, in an
occupational disease case, the filing period does not begin to run under Sections
12 and 13 until claimant is actually disabled, or in the case of a voluntarily
retired employee, until a permanent impairment exists. See Curit v. Bath Iron
Works Corp., 22 BRBS 100 (1988); Lindsay v. Bethlehem Steel Corp., 18
BRBS 20 (1986); 20 C.F.R. §§702.212(b), 702.222. Section 20(b), 33
U.S.C. §920(b), provides claimant with a presumption, applicable to both
Sections 12 and 13, placing the burden of proof on employer to produce substantial
evidence that the claim was not timely filed or notice timely given. Shaller v.
Cramp Shipbuilding & Dry Dock Co., 23 BRBS 140 (1989).
We affirm the administrative law judge's finding that the September 22, 1988,
notice and claim were timely. Employer argues that claimant was aware or should
have been aware that he was disabled due to a work-related lung condition at
various dates between 1983 and 1986. The administrative law judge, however,
rationally found, based on the record before him, that although claimant had been
advised by a physician in 1983 of the "possibility" that he had work-related lung
disease,[1] he was not aware nor should he have
been aware at any time prior to the fall of 1988, when Dr. Barnhart diagnosed work-related asbestosis or "asbestos-related pleural disease," that he had an
employment-related lung condition. In so concluding, the administrative law judge
specifically noted that all of claimant's symptoms were consistent with his pre-existing non-work-related chronic diseases, that the medical opinions regarding the
cause of claimant's respiratory problems prior to Dr. Barnhart's definitive
diagnosis were inconclusive, and that at least one physician had informed claimant
that his condition was not work-related. Finally, the administrative law judge
determined that there was no indication that claimant had any permanent impairment,
as is required to commence the time limitations of Sections 12 or 13 where the
claim involves a voluntary retiree, until Dr. Barnhardt's rating on January 23,
1992. Cx. 15 at 285, 286. See Decision and Order at 12; Lombardi v.
General Dynamics Corp., 22 BRBS 323 (1989). The administrative law judge's
findings that claimant did not become aware that he had an occupational lung
disease prior to Dr. Barnhardt's fall 1988 diagnosis and had no evidence of
permanent impairment necessary to commence the Sections 12 and 13 statute of
limitations until January 23, 1992, are rational, in accordance with applicable
law, and supported by substantial evidence in the record. We therefore affirm the
administrative law judge's determination that the September 28, 1988, notice and
claim were timely under Sections 12 and 13. See generally Love v. Owens-Corning
Fiberglass Co., 27 BRBS 148 (1993).
RESPONSIBLE EMPLOYER
Todd next challenges the administrative law judge's determination that it is
the responsible employer. The standard for determining the responsible employer was
enunciated in Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.),
cert. denied, 350 U.S. 913 (1955), which held that the last employer to
expose the employee to injurious stimuli prior to his awareness of his occupational
disease is liable for compensation. Employer bears the burden of demonstrating it
is not the responsible employer, which it can do by establishing that claimant was
exposed to injurious stimuli while performing work covered under the Act for a
subsequent employer. General Ship Service v. Director, OWCP, 938 F.2d 960,
25 BRBS 22 (CRT) (9th Cir. 1991); Maes v. Barrett & Hilp, 27 BRBS 128, 131
(1993).
The administrative law judge found that Todd is liable as the responsible
employer because Todd failed to establish that claimant received subsequent
exposure while working for Duwamish in 1984. Todd argues that the testimony of Mr.
Meberg, which the administrative law judge relied upon in finding that claimant was
not exposed to asbestos while working for Duwamish in 1984, does not provide
substantial evidence to support this finding, because Mr. Meberg conceded that he
did not know whether asbestos was present on the Silas Bent, the vessel
claimant worked upon during his employment at Duwamish. After noting that Duwamish
did not test for asbestos on the Silas Bent, and Mr. Meberg's testimony that
he did not know for certain if asbestos was present on the ship, the administrative
law judge nonetheless credited Mr. Meberg's testimony that it had been Duwamish's
policy since 1976 to contract out asbestos-related work, Tr. at 50-51, and that
claimant was not involved in any asbestos work and no asbestos work was being done
on the Silas Bent prior to, or at the time, claimant was assigned to work
there, Tr. at 48-49, 59, 73. Accordingly, he determined that Duwamish had
presented convincing evidence that claimant was not exposed to asbestos at Duwamish
in 1984. We affirm this finding, as it is rational based on the evidence.
Moreover, any error the administrative law judge may have made in stating that Mr.
Meberg's testimony was not contradicted by claimant's testimony is harmless on the
facts presented, as he specifically considered the portions of claimant's testimony
which Todd asserts contradict Mr. Meberg's testimony and found this testimony to
be muddled and contradictory. Decision and Order at 13, 16. Inasmuch as the
administrative law judge's finding that claimant did not receive subsequent
injurious exposure to asbestos while working for Duwamish in 1984 based on Mr.
Meberg's testimony is rational, supported by substantial evidence, and in
accordance with applicable law, his determination that Todd is liable as the
responsible employer is affirmed. See Lins v. Ingalls Shipbuilding, Inc.,
26 BRBS 62, 64-65 (1992).
REOPENING THE RECORD
We next direct our attention to Todd's argument that the administrative law
judge abused his discretion in refusing to grant its request to reopen the hearing
record regarding the applicability of Section 33(g)(1) in light of the United
States Supreme Court's decision in Cowart.[2] On September 29, 1992, subsequent to the issuance of the
administrative law judge's Decision and Order of September 14, 1992, and amended
Decision and Order of September 25, 1992, Todd filed a motion to set aside both
Decisions and to reopen the record for consideration of this issue. In support of
its motion, employer asserted that on September 22, 1992, it received documentation
from claimant of receipt of total net settlement proceeds of $6,596.50; that
claimant did not secure written approval of the third- party settlements prior to
the hearing; and that it was unaware of the extent of claimant's total net recovery
until several days after issuance of the administrative law judge's initial
Decision and Order. Employer further asserted that because it had no prior
information to confirm that claimant had reached any settlements in his third-party
cases, it was precluded from asserting the Section 33(g) defense at the hearing,
which would likely have a tremendous bearing on the outcome of the case in light
of Cowart, and that accordingly the record should be reopened to determine
the resolution of "four new issues" relating to the applicability of the Section
33(g)(1) bar in light in Cowart.
On October 22, 1992, the administrative law judge denied employer's motion.
The administrative law judge determined that based on his review of the existing
record, employer had notice of the third-party settlements prior to the hearing,
by virtue of the pre-trial exchange of exhibits; at the hearing, by virtue of
claimant's introduction of Claimant's Exhibit 11; and after the hearing by virtue
of the parties' exchange of their Proposed Findings. Accordingly, he determined
that inasmuch as Todd had ample notice at the hearing of the third-party
settlements, but did not raise the Section 33(g)(1) defense until after an adverse
decision was issued, its raising of this issue was clearly untimely. Finally, the
administrative law judge found that because Claimant's Exhibit 11 documented
receipt of total net settlement proceeds of $6,596.50, which exceeded employer's
total liability of $6,065.30 under his decision, the prior written approval
requirement of Section 33(g)(1), as interpreted in Cowart, would not be
applicable, in any event. Thereafter, he issued an Order rejecting employer's
request for reconsideration of his October 22, 1992, Order, based on its assertion
that under O'Leary v. Southeast Stevedoring Co., 7 BRBS 144 (1977), aff'd
mem., 622 F.2d 595 (9th Cir. 1980), the controlling decisional law of the
United States Court of Appeals for the Ninth Circuit at the time of the hearing,
it had no legal basis to assert a defense premised on the forfeiture provision of
Section 33(g)(1).
On appeal, Todd reiterates the argument made below that the forfeiture defense
afforded by Section 33(g)(1) was not available as of the time of the hearing under
O'Leary. In addition, Todd asserts that the applicability of Cowart
was timely raised in its September 29, 1992, motion seeking reopening. Todd also
asserts that several errors were made by the administrative law judge in finding
the Section 33(g)(1) bar was not applicable in any event, including his
impermissible consideration of new evidence in the form of a post-hearing letter
from employer. Claimant responds that the administrative law judge correctly ruled
that the hearing should not be reopened to hear evidence on the Section 33(g)
forfeiture provision, which could have been, but was not, raised at the original
hearing. Moreover, claimant asserts that the figures employed by the administrative
law judge in determining that the prior written approval requirement would not be
applicable under Cowart are correct and are readily discernable from
Claimant's Exhibit 11.
Under 20 C.F.R. §702.336(b), the administrative law judge has the
discretion to consider a new issue at any time prior to the filing of the
compensation order.[3] In Taylor v. Plant
Shipyards Corp., 30 BRBS 90 (1996), the Board recently held that it was an
abuse of discretion under this regulation for an administrative law judge to refuse
to consider a Section 33(g) issue raised post-hearing, but prior to issuance of his
decision. In that case, employer raised the issue in light of the holding of the
United States Court of Appeals for the Ninth Circuit in Cretan v. Bethlehem
Steel Corp., 1 F.3d 843, 27 BRBS 93 (CRT) (9th Cir. 1993), cert. denied,
114 S. Ct. 2705 (1994), that a potential widow was "a person entitled to
compensation," and employer's letter raising the applicability of Cretan was
dated two days after Cretan was issued and was received by the
administrative law judge prior to the filing of his compensation order.
The facts in this case, however, are distinguishable from those in
Taylor, and lead us to the opposite conclusion. As stated previously in
Taylor, the applicability of Cretan was raised two days after its
issuance and prior to issuance of the administrative law judge's compensation
order. In contrast, in the present case, although Cowart was issued prior
to the administrative law judge's decision, Todd waited more than three months
after its issuance and until after the administrative law judge's adverse
decision[4] before attempting to raise the
applicability of Section 33(g)(1) in light of Cowart. Employer thus raised
for the first time a wholly new issue in its September 29, 1992, motion. Moreover,
the administrative law judge rationally found that as there were different
interpretations of Section 33(g)(1) by the courts at the time of the hearing, and
the Supreme Court's decision in Cowart was imminent, Todd's failure to
preserve the Section 33(g) defense for appeal was not excusable, justifiable, or
understandable.[5] In addition, the
administrative law judge noted that even if on June 2, 1992, the date of the
hearing, the law in the Ninth Circuit under O'Leary was contrary to
Cowart, Cowart was issued on June 22, 1992, and published in August
1992, prior to the issuance of the administrative law judge's decision, yet Todd
did not assert the Section 33(g) defense until September 29, 1992, and that its
raising of this issue accordingly was not timely.
We affirm the administrative law judge's determination that the applicability
of Cowart was not timely raised. Initially, it is consistent with 20 C.F.R.
§702.336, which permits a new issue to be raised only prior to the issuance
of the administrative law judge's decision. Moreover, the administrative law
judge's reasoning that employer could and should have raised this issue earlier in
time is rational and supported by the record. Employer had notice of the third-party settlements prior to the hearing, yet it did not raise the issue despite the
fact that a decision in Cowart was clearly imminent. Once Cowart was
issued, moreover, employer did not take timely action to raise the issue prior to
the administrative law judge's decision. Accordingly, we hold that the
administrative law judge's refusal to reopen the record and entertain Todd's
Section 33(g)(1) arguments did not involve an abuse of his discretionary authority
and reject Todd's assertions to the contrary. See generally Pimpinella v.
Universal Maritime Service, Inc., 27 BRBS 154, 158 (1993); Smith v. Ingalls
Shipbuilding Division, Litton Systems, Inc., 22 BRBS 46, 50 (1989). In light
of our affirmance of the administrative law judge's determination that Todd did not
timely raise Section 33(g) and the applicability of Cowart, we need not
address Todd's arguments relating to the administrative law judge's consideration
of Section 33(g)(1) on the merits.
ATTORNEY'S FEE
Claimant submitted a petition for attorney's fees before the Board for
services rendered between December 1, 1992, and January 29, 1993, for $1,828,
representing 12 hours of attorney time at $150 per hour, and .7 hours for legal
assistant time at $40 per hour. Todd objects to the first eight entries, with
exception of the entry dated December 1, 1992,[6]
arguing that they are clearly unrelated to work performed in connection with this
appeal. Based on our review of counsel's fee petition, we disagree. As Todd's
objections are unfounded, we award counsel the entire requested fee of $1,828,
which we view as reasonable for the necessary work done before the Board in
defending against Todd's appeal. Mikell v. Savannah Shipyard Co., 24 BRBS
100 (1990), aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom.
Argonaut Ins. Co. v. Mikell, 14 F.3d 58 (11th Cir. 1994).
Claimant has also submitted a second fee petition/affidavit to the Board with
an Office of Workers' Compensation Programs heading, involving work performed
during the same time period as the aforementioned fee petition but which relates
to counsel's attempt to secure enforcement of the administrative law judge's award
of benefits. We agree with Todd, however, that inasmuch as enforcement issues fall
within the province of the district director, 33 U.S.C. §918, the Board lacks
jurisdiction to entertain this fee petition, which should be submitted to the
district director.
Accordingly, the administrative law judge's Decision and Order Awarding
Benefits, Amended Decision and Order Awarding Benefits, Order Awarding Attorney
Fees and Costs and Denying Motion To Set Aside Decision and Reopen Record, and
Order Denying Reconsideration and Awarding Additional Attorneys Fees are affirmed.
Claimant's counsel is awarded a fee of $1,828 for work performed before the Board,
payable directly to counsel by employer.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge was apparently referring to a
letter summarizing the results of claimant's December 17, 1983, evaluation written
by Dr. Linda Rosenstock. Ex. 17.
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2)Section 33(g)(1), as amended in 1984, states:
(1) If the person entitled to compensation (or the person's
representative) enters into a settlement with a third person
referred to in subsection (a) of this section for an amount
less than the compensation to which the person (or the
person's representative) would be entitled under this chapter,
the employer shall be liable for compensation as determined
under subsection (f) of this section only if written approval
of the settlement is obtained from the employer and the
employer's carrier, before the settlement is executed, and by
the person entitled to compensation (or the person's
representative). The approval shall be made on a form
provided by the Secretary and shall be filed in the office of
the deputy commissioner within thirty days after the
settlement is entered into.
33 U.S.C. §933(g)(1)(1988).
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3)Although the record may also be reopened and a new issue raised
pursuant to a Section 22, 33 U.S.C. §922, modification proceeding where
reopening is premised on a mistaken determination of fact or change in conditions,
modification is not available, where, as here, the basis for reopening is premised
on a subsequent change in law. See Pittston Coal Group v. Sebben, 488 U.S.
105, 12 BLR 2-89 (1988); Ryan v. Lane & Co., 28 BRBS 132 (1994).
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4)Although Todd contends that the Section 33(g) issue was raised
by the administrative law judge on his motion by virtue of his references in his
Amended Decision and Order to Todd's entitlement to the credit recognized under
Section 33(f), we disagree. Because Section 33(f) presumes that there is an award
of compensation against which employer's credit may attach, it cannot rationally
be viewed as raising the Section 33(g) bar.
We also find no merit to Todd's assertion that the administrative law judge
was compelled to take judicial notice of Cowart because it was issued while
this case was pending since employer had not raised the Section 33(g) bar in the
initial proceeding, and employer must raise this defense for it to apply.
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5)As of the time of the hearing, the only case on point from the
United States Court of Appeals for the Ninth Circuit was the memorandum affirmance
of the Board's interpretation of the phrase "person entitled to compensation" in
Section 33(g) as applying only to a person who is being paid compensation by
employer either pursuant to an award or voluntarily at the time of the third-party
settlement. O'Leary v. Southeast Stevedoring Co., 7 BRBS 144 (1977),
aff'd mem., 622 F.2d 595 (9th Cir. 1980). See also Dorsey v. Cooper
Stevedoring Co., 18 BRBS 25 (1986), appeal dismissed sub nom. Cooper
Stevedoring Co. v. Director, OWCP, 826 F.2d 1011, 20 BRBS 27 (CRT) (11th Cir.
1987). The United States Court of Appeals for the Fifth Circuit, however, rejected
application of Dorsey and held that the prior written approval requirement
of subsection (g)(1) applies regardless of whether the employer or its carrier is
paying benefits at the time of the settlement. See Nicklos Drilling Co. v.
Cowart, 907 F.2d 1552, 24 BRBS 1 (CRT) (5th Cir. 1990), aff'd on recon. en
banc, 927 F.2d 828, 24 BRBS 93 (CRT) (5th Cir. 1991). The United States
Supreme Court had granted certiorari in the case, resulting in its decision
in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS 49
(CRT)(1992).
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6)Claimant lists two entries on December 1, 1992. We assume that
the entry to which employer does not object is the .2 hours for receipt and review
of the Notice of Appeal.
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NOTE: This is a PUBLISHED LHCA Document.
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