RICHARD MCBRIDE ) BRB Nos. 97-1226
) and 97-1226A
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
HALTER MARINE, INCORPORATED ) DATE ISSUED: 06/05/1998
)
and )
)
RELIANCE NATIONAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners )
)
)
RICHARD MCBRIDE ) BRB No. 97-1491
)
Claimant-Respondent )
)
v. )
)
HALTER MARINE, INCORPORATED ) )
)
and )
)
RELIANCE NATIONAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeals of the Decision and Order Awarding Benefits and Supplemental
Decision and Order Granting Fee of David W. DiNardi, Administrative Law
Judge, United States Department of Labor, and the Compensation Order -
Award of Attorney's Fee of Jeana F. Jackson, District Director, United
States Department of Labor.
Curtis Hays, Biloxi, Mississippi, for claimant.
Donald P. Moore (Franke, Rainey & Salloum, PLLC), Gulfport, Mississippi,
for employer/carrier.
Before: HALL. Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Awarding Benefits, and employer
appeals the Supplemental Decision and Order Granting Fee (95-LHC-1175), of
Administrative Law Judge David W. DiNardi. BRB Nos. 97-1226/A. Employer
additionally appeals the Compensation Order - Award of Attorney's Fee (Case No. 6-159199) of District Director Jeana F. Jackson. BRB No. 97-1491. These decisions
were 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 if they 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). The amount of an
attorney's fee award is discretionary and may be set aside only if shown by the
challenging party to be arbitrary, capricious, an abuse of discretion, or not in
accordance with law.[1] See, e.g. Muscella v.
Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
Claimant sustained injures to his neck and back on two occasions while working
for employer. On March 3, 1994, claimant was involved in a physical altercation
with his supervisor during which time it is alleged that the supervisor grabbed
claimant's neck.[2] On April 13, 1994, claimant
sustained similar injuries to his neck and back when, while he was holding onto
a large metal plate, the plate was lifted off the ground by a crane and suddenly
dropped.[3] Following these incidents, claimant
was diagnosed as suffering from acute and chronic ligamentous muscular injury to
his neck and lower back; additionally, claimant alleged various psychological
conditions. Claimant returned to work on September 19, 1994, but was terminated
on September 22, 1994, for violating a company rule. EX 9.
In his Decision and Order, the administrative law judge found that claimant's
physical injuries were related to his employment with employer, but that any
psychological problems from which claimant may suffer were not aggravated,
accelerated or exacerbated by either of the two incidents described above.
Accordingly, the administrative law judge awarded claimant temporary total
disability compensation for the disability which arose out of his physical injuries
from April 14, 1994, to September 18, 1994, at which time the administrative law
judge determined that employer had established the availability of suitable
alternate employment within its own facility.[4]
33 U.S.C. §908(b). Thereafter, in a Supplemental Decision and Order, the
administrative law judge awarded claimant's attorney at the time of the hearing,
Mr. Hess, a fee of $7,075.30. Lastly, in a Compensation Order, the district
director awarded claimant's prior attorney, Mr. Hasser, a fee of $3,072.15, for
work performed at that level.
On appeal, claimant challenges the administrative law judge's finding that
his current psychological condition is unrelated to the two work incidents which
he experienced while working for employer, and the administrative law judge's
consequent denial of medical treatment and compensation under the Act for that
condition. Employer responds, urging affirmance of the administrative law judge's
decision. Employer has additionally appealed the fees awarded to claimant by both
the administrative law judge and the district director.
Causation
We first address claimant's contentions regarding the administrative law
judge's denial of his claim for compensation based on a work-related psychological
injury. BRB No. 97-1226. Claimant bears the burden of proving that he has
sustained a harm or pain, and that working conditions existed or an accident
occurred which could have caused the harm or pain. See Sinclair v. United Food
and Commercial Workers, 23 BRBS 148 (1990). Once claimant establishes these
two elements of his prima facie case, the Section 20(a), 33 U.S.C.
§920(a), presumption applies to link the harm or pain with claimant's
employment. See Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990);
Perry v. Carolina Shipping Co., 20 BRBS 90 (1987). The Section 20(a)
presumption is applicable in psychological injury cases. Cotton v. Newport News
Shipbuilding & Dry Dock Co., 23 BRBS 380, 384 n.2 (1990). An employment injury
need not be the sole cause of a disability; rather, if the employment injury
aggravates, accelerates or combines with an underlying condition, the entire
resultant condition is compensable. See Independent Stevedore Co. v.
O'Leary, 357 F.2d 812 (9th Cir. 1966). Thus, claimant's psychological injury
need only be due in part to work-related conditions to be compensable under the
Act. See Peterson v. General Dynamics Corp., 25 BRBS 78 (1991), aff'd sub
nom. Ins. Co. of North America v. U.S.Dept. of Labor, OWCP, 969 F.2d 1400, 26
BRBS 14 (CRT)(2d Cir. 1992), cert. denied, 507 U.S. 909 (1993). Upon
invocation of the presumption, the burden shifts to employer to present specific
and comprehensive evidence sufficient to sever the causal connection between the
injury and the employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d
1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 20 (1976). If the
presumption is rebutted, the administrative law judge must weigh all of the
evidence contained in the record and resolve the causation issue based on the
record as a whole. See Devine v. Atlantic Container Lines, G.I.E., 23 BRBS
279 (1990); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267,
28 BRBS 43 (CRT)(1994).
In the instant case, the administrative law judge invoked the Section 20(a)
presumption linking claimant's psychological condition to his employment with
employer since claimant's psychological condition constituted a harm and the
occurrence of two work incidents was not in dispute. The administrative law judge
next relied on the opinion of Dr. Maggio to find that employer severed the
connection between claimant's psychological condition and his maritime employment.
See Decision and Order at 23. The administrative law judge thereafter
evaluated the evidence of record as a whole and found that claimant's psychological
condition is not work-related. Accordingly, the administrative law judge denied
claimant's claim for compensation based upon his psychological condition.
In reviewing claimant's appeal, the relevant evidence of record addressing the
cause of claimant's psychological condition are the medical records and opinions
of Drs. Gupta, Hearne and Maggio.[5] Dr. Maggio,
based upon a three-hour examination of claimant and his review of claimant's
medical and social history, acknowledged that claimant suffers from anxiety,
depression and a substance-induced psychosis and thereafter opined that claimant
has undergone no episode sufficient to justify a diagnosis of Post-Traumatic Shock
Syndrome Disorder. Dr. Maggio additionally concluded that claimant is neither
mentally retarded nor psychotic and is capable of returning to his usual
employment. See EX 14 at 6.
In concluding that claimant's psychological condition is not work-related, the
administrative law judge found rebuttal of the Section 20(a) presumption based upon
the testimony of Dr. Maggio. In order to establish rebuttal, however, a medical
opinion must unequivocally state that no relationship exists between an injury and
claimant's employment; thus, Dr. Maggio's opinion, in order to be sufficient to
rebut the Section 20(a) presumption, must establish that claimant's employment did
not cause claimant's condition nor aggravate, accelerate, or combine with an
underlying condition. See O'Leary, 357 F.2d at 812. In the instant case,
however, Dr. Maggio's opinion does not sever such a potential relationship.
Rather, while diagnosing claimant with multiple conditions including anxiety and
depression, Dr. Maggio's opinion is silent as to the effects of claimant's
employment with employer on these conditions. Dr. Maggio did state that claimant
did not experience an episode sufficient to justify a diagnosis of Post-Traumatic
Shock Syndrome Disorder. Dr. Maggio also discussed the effect of other factors,
i.e., substance abuse and/or underlying personality components, on
claimant's conditions. However, his opinion does not discuss the working condition
asserted as affecting his condition and thus does not sever the presumed causal
connection between claimant's condition and his employment. As Dr. Maggio at no
point stated that claimant's psychological condition was not caused or aggravated
by the work incidents at issue here, as a matter of law his opinion cannot support
a finding that the Section 20(a) presumption was rebutted. As Dr. Maggio's opinion
is the only relevant evidence proffered by employer on rebuttal, there is no need
to remand this case for reconsideration of the issue of causation. Since employer
offered no other evidence, the administrative law judge's finding that Section
20(a) was rebutted is not supported by substantial evidence in the record and is
reversed. Consequently, the administrative law judge's conclusion that claimant's
psychological condition is not work-related is also reversed. Accordingly, the
case must be remanded for consideration of the remaining issues.
Administrative Law Judge's Fee Award
Employer challenges the attorney fee award of $7,075.30 made by the
administrative law judge to Attorney Hays. Specifically, employer asserts that,
since it tendered a settlement offer to claimant in excess of any additional
compensation gained by claimant, it should not be held liable for a fee;
alternatively, employer contends that the awarded fee is excessive when it is
compared to the additional amount of benefits gained by claimant. BRB No. 97-1226A.
Pursuant to Section 28(b) of the Act, 33 U.S.C. §928(b), when an employer
voluntarily pays or tenders benefits and thereafter a controversy arises over
additional compensation due, the employer will be liable for an attorney's fee if
the claimant succeeds in obtaining greater compensation than that agreed to by the
employer. See, e.g., Tait v. Ingalls Shipbuilding, Inc., 24 BRBS 59 (1990).
In this regard, the Board has held that a valid offer to settle a case can
constitute a "tender" for purposes of Section 28(b). See Kaczmarek v. I.T.O.
Corp. of Baltimore, Inc., 23 BRBS 376 (1990).
In the instant case, the record reflects that claimant agreed to, but
subsequently withdrew from, a settlement agreement with employer. In response to
employer's objection to its fee liability based upon this agreement, the
administrative law judge summarily stated that he was "not persuaded" by employer's
argument. See Supplemental Decision and Order at 1. This statement is
insufficient to address employer's argument, since the tender of greater
compensation than claimant ultimately obtained relieves employer of liability for
a fee as a matter of law. See, e.g., Kaczmarek, 23 BRBS at 379. Moreover,
where employer objects on the basis of claimant's limited success, the
administrative law judge must address this factor. See, e.g., Hensley v.
Eckerhart, 461 U.S. 424 (1983). In the instant case, the administrative
law judge's failure to analyze and discuss employer's specific objections makes it
impossible for the Board to apply its standard of review. See Ballesteros v.
Willamette W. Corp., 20 BRBS 184 (1988). We therefore vacate the
administrative law judge's fee award, and remand the case for the administrative
law judge to address employer's objections, consistent with claimant's success in
obtaining benefits in light of our remand of this case for reconsideration.
District Director's Fee Award
Employer additionally challenges the fee awarded to Attorney Hasser by the
district director. BRB No. 97-1491. The district director awarded Attorney Hasser
a fee of $3,072.15, representing 22.6 hours of services rendered at $125 per hour,
plus expenses of $247.15.
Initially, we reject employer's contention that the district director's fee
award is premature. Fee awards do not become effective and thus are not
enforceable until all appeals have been exhausted. See, e.g., Bruce v. Atlantic
Marine, Inc., 12 BRBS 65 (1980), aff'd, 661 F.2d 898, 14 BRBS 63 (5th
Cir. 1981). Thus, the district director may enter her award while an appeal is
pending.
Next, employer has not demonstrated that the district director abused her
discretion in making this award or that the $3,000 fee is excessive given the
benefits awarded.[6] See Clophus v. Amoco
Production Co., 21 BRBS 201 (1988). The district director considered
employer's objections when awarding counsel a fee, and employer's assertions on
appeal are insufficient to meet its burden of proving that the district director
abused her discretion in her award of a fee; thus, we decline to reduce or disallow
the hours or hourly rate approved by the district director. See Maddon v.
Western Asbestos Co, 23 BRBS 55 (1989). Accordingly, the district director's
award of a fee to Attorney Hasser is affirmed. See generally Welch v. Pennzoil
Co., 23 BRBS 395 (1990).
Accordingly, the administrative law judge's finding that claimant's
psychological condition is not work-related is reversed, and the case is remanded
for consideration of the remaining issues. BRB No. 97-1226. The administrative
law judge's Supplemental Decision and Order Granting Fee is vacated, and the case
is remanded for further consideration. BRB No. 97-1226A. The Compensation Order -
Award of Attorney Fees of the district director is affirmed. BRB No. 97-1491.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)In an Order dated August 6, 1997, the Board consolidated these appeals for purposes of decision.
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2)Claimant filed charges against his supervisor as a result of this incident; although the supervisor
was convicted of committing a battery against claimant, the district attorney subsequently dropped all charges. See
Smith depo. at 24-25.
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3)Regarding this second incident, the administrative law judge found and concluded that claimant's
co-worker was "certainly playing' with the controls of the crane as if to send a message to the Claimant or at least to scare
him to be a more compliant and docile employee." See Decision and Order at 24-25.
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4)The administrative law judge's findings regarding claimant's physical injuries are not challenged
on appeal.
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5)The administrative law judge discounted the opinions of claimant's long-term treating physicians,
Drs. Gupta and Hearne, as based on inaccurate medical and employment histories; moreover, the administrative law judge
determined that these physicians relied primarily on claimant's subjective complaints. The record reflects, however, that
both physicians maintained their diagnoses, which are supportive of claimant's claim, even when made aware of claimant's
complete history. Moreover, we note that claimant's "subjective" complaints were both of a long-standing nature and were
documented by his health care providers. In this regard, the United States Court of Appeals for the Second Circuit has
recently noted that the distinction between subjective and objective complaints in cases involving a psychological condition
has reduced relevance. See Pietrunti v. Director, OWCP, 119 F.3d 1033, 31 BRBS 84 (CRT)(2d Cir. 1997).
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6)We note that this work was performed by claimant's former counsel prior to the alleged tender
offer. Moreover, claimant obtained approximately $4,300 in additional benefits for his physical injuries alone. Thus, the
fee is not unreasonable given the degree of success.
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NOTE: This is an UNPUBLISHED LHCA Document.
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