Paul Oddo vs. Electric Boat Corporation, ALJ McGrath

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2012/ODDO_PAUL_v_ELECTRIC_BOAT_CORP_2012LHC00207_(MAY_21_2012)_133015_CADEC_SD.PDF

ALJ McGrath Awards Second Injury Fund relief in hearing loss claim

Introduction to the Longshore Act Presentation, Prezi.

Introduction to the Longshore Act Prezi from June, 2010

Longshoreman has kept cargo moving for 56 years

When he started on the Stockton docks in 1956, Johnie Thomas was 23. When he retires this coming August from the International Longshore and Warehouse Union, he will have worked 56 years on the waterfront.

Thomas, 79, was born and reared in Stockton. He lives in Piedmont with his wife, Margaret. He has three children, 10 grandchildren and two great-grandchildren.....  ... more ...

New Book!  The Longshoreman Philosopher about San Francisco Longshoreman and author, Eric Hoffer.

The Longshoreman Philosopher

 ... Eric Hoffer was, if anything, even more remarkable than his book. When “The True Believer” was published in 1951, he was a largely self-educated longshoremen, aged 50 or thereabouts (there is doubt about his actual birth date), a barrel-chested guy who earned his living by loading and unloading ships on the docks of San Francisco. more...

Darin Bryant vs. Ceres Marine Terminal, ALJ Krantz

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2010/BRYANT_DARIN_v_CERES_MARINE_TERMINA_2010LHC01191_(MAY_17_2012)_122901_CADEC_SD.PDF

Excerpts


The issues remaining to be resolved are (TR 14-19):
1. Whether Claimant must submit to a second independent medical examination (IME) at
Employer’s request, and
2. Whether Employer must authorize the medical treatment (surgery) recommended by Dr. Raphael
Roybal.

...


B. Law and Discussion
Section 907(d) governs when a claimant under the Act shall be reimbursed by his or her employer
when he or she has paid his or her own expenses. Section (d)(1), states, in pertinent part:
(d) Request of treatment or services prerequisite to recovery of expenses; formal report of
injury and treatment; suspension of compensation for refusal of treatment or examination;
justification
(4) If at any time the employee unreasonably refuses to submit to medical or surgical
treatment, or to an examination by a physician selected by the employer, the Secretary
or administrative law judge may, by order, suspend the payment of further compensation
during such time as such refusal continues, and no compensation shall be paid at any time
during the period of such suspension, unless the circumstances justified the refusal.
33 U.S.C. § 907(d) (emphasis added). The Benefits Review Board (“Board”) has held that the analysis
under § 907(d)(4) consists of two prongs. Under § 907(d)(4), the claimant’s refusal to submit to medical
treatment or examination must be both (1) unreasonable, and (2) unjustified by the circumstances.
Pittsburg & Conneaut Dock Co. v. Director, Office of Workers Compensation Programs, 473 F.3d 253,
261 (6th Cir. 2007); citing Malone v. Int'l Terminal Operating Co., 29 BRBS 109 (1995); Hrycyk v. Bath
Iron Works Corp., 11 BRBS 238, 240-41 (1979). This analysis is commonly known as the “Hrycyk test.”


Under the test, the initial burden of proof is on Employer to show that Claimant’s refusal was
unreasonable. Hrycyk, 11 BRBS at 241-42. If Employer carries its burden, the burden shifts to Claimant
to show that the circumstances justify the refusal. Id. The “reasonableness” of a particular refusal is an
objective inquiry. Id. The principle question is: “what course would an ordinary person in the claimant's
position pursue?” Id. On the other hand, “justification under the circumstances” is a subjective inquiry,
focusing on the individual claimant's particular reasons for refusal. Id. The ALJ’s determination of
whether the refusal is reasonable or unreasonable is an issue of fact which will be upheld so long as it is
“supported by substantial evidence in light of the whole record.” Pittsburg & Conneaut Dock Co., 473
F.3d at 261; see also Gulf Best Elec. Inc. v. Methe, 396 F.3d 601, 604-605 (5th Cir. 2004).

...


Employer did not consult with Claimant on the choice of physician, nor did it suggest three
options. Very clearly, “the parties” did not “submit three names of physicians that could be used” to
resolve the issue. Instead, Employer unilaterally scheduled Claimant for an IME with a doctor of its own
choosing, who is located 70 miles away from Claimant. The recommendation from the District Office
had the intention of creating a pool of three mutually-agreed-upon doctors for the IME, in an attempt to
both resolve the issue and eliminate the problem of bias. Employer’s one-sided actions did not serve this
purpose, in letter or in spirit. Therefore the argument that Employer was complying with the
recommendations of the District Office is unsupported and unpersuasive.

...

Taking all of the above into consideration, I find that Employer has failed to carry its burden to
show that Claimant’s refusal was objectively unreasonable. An ordinary person in Claimant's position
would pursue the course of avoiding an IME that shows a strong possibility of bias against him,
especially when the Board recommended a more balanced approach. The burden need not shift to Claimant, and he is not required to show that, subjectively, the circumstances justified the refusal.
In conclusion, Employer has failed the Hrycyk test and Claimant’s refusal to submit to the IME
with Dr. Brooks is not unreasonable. Under Section 907(d), I will not order the suspension of the
payment of further compensation during such time as such refusal continues. Further, any suspension of
such compensation that may have occurred at any time during the period of refusal was not justified under
§907(d). Therefore, I deny the motion to compel.

Stallworth vs. Northrop Grumman, ALJ Price

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/STALLWORTH_CARLA_v_NORTHROP_GRUMMAN_SHI_2011LHC01249_(APR_11_2012)_104252_CADEC_SD.PDF

Administrative Law Judge Larry Price


Shoulder injury that developed into RSD and psych injuries results in ruling that: 1) Claimant cannot return to her usual work; 2) Employer has not established alternative employment; 3) Claimant has not reached MMI so award is TTD, not PTD; 4) AWW is established using Seciton 10(c).

EXCERPTS

Claimant sustained a work injury to her shoulder, arm and neck on December 11, 2008 when she fell through a floorboard. Later, she developed RSD (Reflex Sympathetic Dystrophy), as a result of those injuries. Claimant also allegedly developed psychological injuries flowing from her constant pain. She has treated with multiple doctors, and asserts that she is totally disabled. Employer argues Claimant is only partially disabled.

...


Employer urges that this Court ignore Dr. Tsang’s work restrictions and instead look to Drs. Fontana, Black, and Smith. First, Drs. Black and Smith have not recently examined Claimant, thus any work restrictions and opinions are not current. Even though Dr. Fontana agreed that Claimant could return to light duty work, most doctors with current knowledge of Claimant do not believe she can work at this time. Dr. Tsang has restricted Claimant from work. Dr. Massong, Claimant’s psychologist, stated that she would not be capable in her current major clinical depressive state with chronic pain to secure competitive employment. Dr. Davis, Employer’s choice for a second medical psychological opinion, opined there was no way
Claimant could work on her current medications. Thus, given the great weight of the current medical opinions, this Court finds no suitable alternative employment, and finds Claimant to be temporarily totally disabled. This Court notes that with psychological and physical treatment,
Claimant should be able to return to some type of work in the future.

Barry Cosgrove v. Todd Shipyard Corporation, ALJ Clark

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/COSGROVE_BARRY_v_TODD_SHIPYARD_CORPOR_2011LHC00060_(MAY_14_2012)_135817_CADEC_SD.PDF

With thorough analysis, Administrative Law Judge Clark (San Francisco) denies Section 48 claim of discrimination. --

Excerpt:

  Even if Claimant were able to demonstrate that his suspension by Employer was a
discriminatory act made with discriminatory animus or intent, there is no indication that the
suspension was motivated, even in part, by Claimant’s filing of the compensation claim. To be
actionable, “the discrimination must have been motivated by animus against the employee due to
his pursuit of compensation under the Act.” Holliman, 852 F.2d at 761 (emphasis added).
Logically, for the animus to be motivated due to the claimant’s pursuit of compensation under
the Act, the discriminatory act must have occurred after the claimant’s claim for compensation.
Geddes II, 851 F.2d at 442-43. Employer argues that Claimant has not established that his
suspension was the result of filing his workers’ compensation claim, because the suspension was
implemented prior to the filing of the compensation claim on February 9, 2010. ALJX 2 at 10.
The evidence clearly established that Claimant did not file his compensation claim until after he
received his three day suspension for the scaffolding accident. F.F. ¶¶ 1.

There is no evidence to show any compensation claim was made prior to Claimant’s
suspension date of February 1, 2010. Thus, even assuming arguendo that there was a
discriminatory act and discriminatory animus against the Claimant, Claimant has failed to show
that Employer’s actions were motivated, even in part, by Claimant’s pursuit of compensation
under the Act. 33 U.S.C. § 948(a); Holliman, 852 F.2d at 751; Geddes II, 851 F.2d at 443.

Kerwinn Temple v. Global Construction, ALJ Avery

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/TEMPLE_KERWINN_v_GLOBAL_CONSTRUCTION__2011LHC01848_(MAY_14_2012)_101514_CADEC_SD.PDF

ALJ Avery denies situs and status in construction case.

The maritime environment that Claimant worked in did not convert Claimant’s activities into maritime employment.

In this instance, Claimant argues that both the status and situs requirements are
satisfied in his case as he was engaged in construction related to maritime activities, and
therefore, coverage under the Act should extend to his injuries. Employer, on the other
hand, contends that Claimant does not meet the occupational criteria of Section 2(3)
because the work in which he was involved was not related to loading, unloading,
building, repairing, or breaking a vessel. Employer also urges that Claimant does not
meet the pre-1972 amendment test because he was on framework and supports of the
wharf and not upon navigable waters at the time of his injury.
- 8 -
If Claimant had been injured on the barge adjacent to his work area under the
wharf, he may have been able to establish that he was injured “on navigable waters,”
thereby establishing situs and status. Instead, he was injured by hitting the cement slab
after falling on the pick boards, neither of which floats in the water. The cement slab is
attached to the pilings embedded in the river bank, to which the pick board is attached
allowing Claimant to walk above the water to do his work. Neither the pick board nor the
cement slab can be analogized to the floating cargo barge in Perini. The gangplank
injury in Kennedy is also distinguishable from Claimant’s injury as he was not injured on
the pick board attached to the barge. 30 BRBS 1. The facts of Claimant’s case instead
are very similar to those in Trotti where Claimant was injured while working on pilings
embedded in the river bed. The origination of his injury was on a structure attached to
the land, not attached to something floating on navigable waters. Therefore, Claimant
has not established situs according to the pre-1972 amendment test or Perini. He was not
“on navigable waters” at the time of his injury.

Additionally, situs is not established by Claimant as per the requirements in
Section 3(a). While the Mandeville Street Wharf at one time was the site of maritime
commerce activities, this was no longer the case at the time of Claimant’s injury. The
wharf was abandoned. It was no longer used for maritime commerce. (Tr. 87). The
purpose of Claimant’s work was to convert the wharf into a recreational area. It lacked a
functional relationship to maritime work, as did the putative situs in Thibodeaux. 370
F.3d at 494.
Even if the situs test of Section 3(a) was met merely because the Mandeville Street
Wharf had at one time been used as a commercial wharf, Claimant nevertheless failed to
establish that he was engaged in “maritime employment.” Duties such as repairing and
maintaining a wharf fall under the duties of a harborworker. However, as in Silva and
Dickerson, I find Claimant’s job was not maritime work because it was admittedly not
related to the loading, unloading, building, or repairing of vessels, or to building or
repairing a harbor facility used for such activity. Claimant was repairing what was once
used as a harbor facility so that it could be used as a recreational facility. Claimant’s
work in no way would facilitate shipping or commerce at that site. This particular wharf
no longer had a maritime connection, and as a result, Claimant’s employment activities
there did not either.

While Claimant did spend some time on a barge adjacent to his work area, that
time was also insufficient to trigger status under the Act. He stored his tools on the
barge, but the Fifth Circuit has explicitly held that loading and unloading one’s tools does
not constitute “meaningful work responsibilities.” Bienvenu v. Texaco, Inc., 164 F.3d
901 (5th Cir. 1999). Each morning, Claimant attended a short safety meeting on the
barge; on the day of his injury the meeting lasted 10 minutes. (Tr. 23). Claimant testified
that he worked on a project on the barge doing welding on a pipe to be placed in the
water, but his supervisor, Mr. Rink, did not recall anything about such a project. (Tr. 53;
- 9 -
83-84). Claimant also stated that “a couple of times” he worked on the barge the whole
day, “loading stuff on the barge.” There is not enough evidence in the record to support
the notion that Claimant participated in longshoring activities vis á vis his time on the
barge. Ultimately, the presence of the barge at the worksite and the activities Claimant
did upon the barge were not related to the purpose of furthering any activities related to
shipping, loading, or unloading. As previously discussed, the whole purpose of the work
being done by Claimant at the former Mandeville Street Wharf, whether it was on the
barge or below the wharf, was to create a recreational and tourism area. The maritime
environment that Claimant worked in did not convert Claimant’s activities into maritime
employment.

Leonard Simonson vs. Maher Terminals, Inc., ALJ Odegard

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/SIMONSON_LEONARD_L_v_MAHER_TERMINALS_INC_2011LHC00876_(MAY_11_2012)_100356_CADEC_SD.PDF

In fact-based decision, ALJ Odegard grants pro se claimant very limited temporary total disability, and denies other aspects of the claim.

George Lynn vs. Knight INCF-K-A-KIN, ALJ Berlin

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2009/LYNN_GEORGE_W_v_KNIGHT_INCF-K-A-_KIN_2009LHC00287_(MAY_10_2012)_172731_CADEC_SD.PDF

ALJ Berlin


Excerpts:

Nature of the Claim

Claimant alleges that he is permanently partially disabled from four specific traumatic injuries
and also cumulative trauma to his lower back, legs, left elbow, right shoulder, hands, and neck.
Employer/Carrier disputes liability, arguing that the injuries did not arise out of and in the course
of employment and that Claimant is able to return to his usual employment without wage loss.

ALJ Berlin found the low back and legs cumulative trauma claim to be compensable:


As Employer has failed to rebut the section 20(a) presumption of compensability, I find that
Claimant’s cumulative trauma injury to his lower back and legs arose in the course and scope of
his employment for Employer. The injury is compensable, and Employer/Carrier is liable for it.

The Right Shoulder injury was round to be time-barred and without evidence of cumulative trauma:



This specific injury is time-barred, and there is no evidence of a cumulative trauma injury to Claimant’s right shoulder. This is not a viable claim

The Right Elbow Claim was found to be a continuing trauma, and ALJ Berlin found the Section 20(a) presumption to have been invoked:



This is sufficient to make out a prima facie case and raise the Section 20(a) presumption.

Again, Dr. Farris fails to offer substantial evidence to rebut the presumption. He concedes that
Claimant’s work activities could have contributed to the lateral epicondylitis, although not as
“the major contributing cause.” As he testified at a deposition, “Anything that involves
repetitive use of the wrist, especially resistive extension, would certainly aggravate tennis elbow
or common extensor tendinitis.” J.Ex. 15 at 496. Again, this supports the claim and does not
refute it because the standard is whether the trauma contributed to the condition, not whether it
was “the major contributing cause.”


Accordingly, I find that Employer has failed to rebut the § 20(a) presumption as to the lateral
epicondylitis of Claimant’s left elbow, and I therefore that Employer/Carrier is liable for this
injury.


Similarly, ALJ Berlin found a prima facie case for carpal tunnel and that the Section 20(a) presumption had been invoked.  He also deemed it to be a workplace injury.

This establishes a prima facie case sufficient to raise the section 20(a) presumption.

Dr. Farris conceded in his report that Claimant’s work may have contributed to his carpal tunnel.
In a later deposition Dr. Farris modified his opinion, but not sufficiently to rebut the section
20(a) presumption. He opined that a connection to work was unlikely unless Claimant spent
more than two or three hours per day typing. Claimant admitted that he spent “over half” of his
time in the yard, but the remainder would exceed two or three hours and consisted only of office
work. Given that there is significant evidence that Claimant’s duties involved more than two
hours of typing daily, Dr. Farris’ modification of his opinion to require that much typing has no
effect on the analysis. The rest of Employer/Carrier’s witnesses only offered testimony that
Claimant probably spent more, not less, time in the office, making the prolonged, frequent typing
all the more likely – again not rebutting the presumption.

I therefore find that the carpal tunnel was a covered workplace injury for which Employer/
Carrier is liable.

Continuing injuries to the neck were similarly found to be work related.


The ALJ found the Claimant had failed to establish his claim for Section 48 discrimination.




Claimant here has not met his burden. Both Sharpless’ testimony and Employer’s internal
emails show that Employer decided to terminate the employment before Claimant mentioned
filing a claim under the Act.





The ALJ found the Claimant permanently and totally disabled, and awarded the Employer Section 8(f) relief



During the last year of his employment with Employer, Claimant sustained compensable
cumulative traumatic injuries to his lower back and legs, to his left elbow, and to his hands
(carpal tunnel). He became temporarily totally disabled and left work as of October 23, 2006.
On October 26, 2007, he reached maximum medical improvement and became permanently totally disabled. Although unable to return to his prior job, on November 18, 2009, Claimant
became able to work with a retained earning capacity of $360 per week. As of that date, he
became permanently partially disabled. Employer is entitled to relief from the Special Fund, and
is not liable for penalties for discrimination under section 48a of the Act.

Rene M. Darby vs. Ingalls Shipbuilding, ALJ Rosenow

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2010/DARBY_RENE_M_v_INGALLS_SHIPBUILDING_2010LHC02275_(MAY_08_2012)_095545_CADEC_SD.PDF

ALJ Rosenow 


Excerpts



ISSUES IN DISPUTE AND POSITIONS OF THE PARTIES
Claimant asserts that he has been totally and permanently disabled since 7 Oct 03, as a
result of the worsening of his cervical condition and the onset of a chronic pain condition
secondary to the injury, and should be compensated according to his change in circumstances.7
Claimant also asserts that he should receive an additional disability payment for permanent
disability to his left arm above the 15% disability that was initially established. Employer
counters that Claimant’s motion for modification of the award for his left arm injury was
untimely and is barred, and in the alternative, that there is no evidence of an increase in disability
for that arm. Employer also argues that Claimant has not experienced a change in conditions that
qualifies the later order for modification. Alternatively, Employer argues that any change in
conditions is due to causes other than the work injury, such as intervening health problems. ...

...  the real issue here is Claimant’s Request for Modification of Judge Mills’ 1998
compensation order, which addressed the 1992 cervical injury. Employer concedes that any
motion for modification of the award for the 1992 injury is not time-barred.66 There has been no
denial of benefits to start the clock running, nor has Employer made a last payment of
compensation. Employer has continued to pay permanent partial disability benefits, so the statute
of limitations on a modification request has not begun to run. The question then becomes
whether or not Claimant has met his threshold burden of showing a right to a modification of the
1998 Order.

... For the 2011 follow-up labor market survey reports, Mr. Stewart relied upon his previous
employability profiles of Claimant, the medical report of Dr. Kesterson, the restrictions assigned
by Dr. Jackson in 2005, and a Social Security FCE. Mr. Stewart found that all the jobs identified
previously were still in keeping with Claimant’s various limitations.
Ultimately, however, it is the weight of the probative evidence that determines whether
Employer carried its burden to show Claimant has the physical capacity to do the jobs Mr.
Stewart identified.

I found Dr. Danielson’s May 2005 report to be vague and contrary to most of his own
prior medical assessments, Dr. Wu did not opine on Claimant’s abilities to work, and Dr. Vives
testified that Claimant could do some sort of light duty work, as long as he avoided repetitive
motions, heavy lifting, and working with tools. Those restrictions are no greater than those
placed on Claimant by his treating doctors, and are generally consistent with the predicate
applied by Mr. Stewart’s labor market surveys as a result of his application of Dr. Kesterson’s
evaluation and the Social Security Administration FCE....


... Nonetheless, I find that the jobs do not adequately meet Employer’s burden to find
suitable alternate employment for Claimant, because though they allegedly incorporate the
restrictions placed on Claimant by his treating physicians, they are all full-time positions.69
Claimant’s doctors clearly stated they thought a functional capacity evaluation would be the best
measure of his capabilities, but none was undertaken for this case. The skeletal Social Security
FCE report, although admissible evidence, provides little probative value.


In sum, I find that the record does not show it is more likely than not that Claimant could
reasonably do any of the jobs identified and consequently, Employer failed to establish suitable
alternative employment. Claimant has therefore been totally disabled since 29 Aug 05.

Patrick Cox vs. Bath Iron Works Corp., ALJ Calianos

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/COX_PATRICK_M_v_BATH_IRON_WORKS_CORP_2011LHC01979_(MAY_04_2012)_100251_CADEC_SD.PDF

ALJ Calianos awards permanent total disability to welder with smoking history for pulmonary/orthopedic claim and grants Section 8f relief.



Accordingly, it is hereby ORDERED that:
1. Pursuant to 33 U.S.C. § 908(a), Bath Iron Works Corporation shall pay
Patrick Cox permanent and total disability compensation benefits in the
amount of $531.97 per week commencing on January 31, 2009 to the present
and continuing, plus annual adjustments pursuant to section 10(f) of the Act,
33 U.S.C. § 910(f);
2. Bath Iron Works Corporation shall pay Patrick Cox interest on any past due
compensation benefits at the Treasury Bill rate applicable under 28 U.S.C. §
1961, computed from the date each payment was originally due until paid;
3. Pursuant to 33 U.S.C. § 907, Bath Iron Works Corporation shall pay all
reasonable and necessary medical care for treatment of all of Cox’s workrelated
injuries;
4. In its post-trial brief, the Employer argued for section 8(f) relief from the
Special Fund. Should the Director, Office of Workers’ Compensation
Programs object to Special Fund relief under section 8(f), it shall file its
objection no later than 30 days from the date of this Decision and Order. I
will issue a supplemental decision dealing with the Employer’s request for
Special Fund relief;
5. If the Claimant seeks an award of attorney’s fees and costs pursuant to 33
U.S.C. § 928, an application conforming to the requirements of 20 C.F.R. §
702.132(a) (2010) shall be filed within 30 days of the date on which this
Decision and Order is filed in the office of the District Director. Should the
Employer object to any fees or costs requested in the application, the parties
shall discuss and attempt to informally resol

Richardo Bailey vs. Ellerito Stevedoring, ALJ Solomon

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/BAILEY_RICHARDO_v_ELLER-ITO_STEVEDORIN_2011LHC01867_(MAY_02_2012)_152744_CADEC_SD.PDF

ALJ Solomon (Washington, DC)

VERY INTERESTING DISCUSSION OF WHO MAY (OR MAY NOT) SUBSTITUTE ON BEHALF OF A CLAIMANT'S ESTATE  - read entire case

ALJ ULTIMATELY REMANDS THE CASE TO THE DISTRICT DIRECTOR

     -  Denies Motion to Strike Claim for Failure to Comply with PreHearing Order


MOTION TO STRIKE
As to the request that I strike the claim based on counsel’s failure to comply with my
Order, that request is denied, as there is a dispute as to the facts. See 29 C.F.R. §§ 18.40(d),
18.41(a). Although I held a telephone conference that may have provided more clarity, a review
of the transcript shows that the parties argued simultaneously, so that part of the colloquy is lost.
The standard for granting summary decision is essentially the same as that found in the rule
governing summary judgment in the federal courts. While all of the evidence must be viewed in
the light most favorable to the nonmoving party, the mere existence of some evidence in support
of the non-moving party’s position is insufficient; there must be evidence on which the fact
finder could reasonably find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 262
(1986).

     -  Remands case to District Director 



Based on the record before me, the existence of a party with a standing to proceed with
one or both aspects of this claim (i.e., Section 7 attendant care benefits and Section 8 disability
compensation) has emerged as a central issue after this matter had been referred to the OALJ for
a formal hearing. I have previously rejected Claimant’s counsel’s assertion that Mr. Smith has
established an adequate basis for proceeding with Claimant’s claim for Section 8 compensation.
I have also recognized Employer’s valid concern with Mr. Smith’s failure to provide adequate
notice of the basis for his claim for attendant care. Both these issues emanating from Claimant’s
passing crystallized after this matter had been referred for hearing; and counsel of record appear
to have been talking past each other in attempting to clarify these issues before me. Based on the
foregoing, I find that a remand to the district director is the most appropriate course of action at
this time. See 20 C.F.R. § 702.336 (“Formal hearings; new issues.”); see also 20 C.F.R. §
702.333 (“Formal hearings; parties.”).

Diron Williams vs. Lebeouf Brothers Tow, ALJ Rosenow

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/WILLIAMS_DIRON_v_LEBEOUF_BROTHERS_TOW_2011LHC01467_(MAY_01_2012)_092531_CADEC_SD.PDF

ALJ Rosenow  applies Section 10(c) to calculate AWW, and finds continuing hyperhidrosis condition to be related to work..

Excerpts


AWW

Claimant urges that his AWW should be calculated based on the $20 per hour he
was being paid by Employer at the time of his injury. He states that because Claimant did
not work substantially the whole year prior to his accident, Section 10(c) is the proper
framework for calculating AWW. Employer agrees that using Section 10(c) is proper, but
that Claimant’s AWW should be based on his earnings during 2007 prior to the injury,
which totaled $11,922.75, for an AWW of $243.39. In the alternative, Employer argues
that I should average Claimant’s earnings for 2005-2007 in order to find the appropriate
AWW. Claimant has received TTD benefits in the amount of $493.34 since 25 Feb 08,
based on an AWW of $740.00.

Claimant only worked for Employer on eleven days prior to the accident, and was
paid $20 per hour, for a gross income of $1,380 from that position. Due to the nature of
his employment as a contract electrician, he worked for numerous employers during the
previous year, had some self-employment earnings, and also collected unemployment for
a time. I agree with Employer that due to Claimant’s unique employment history, the
most accurate way to calculate AWW is to survey his earnings in multiple previous years.
According to a Social Security statement of earnings records, in calendar year 2005,
Claimant earned $39,942.61. In 2006, not including $1,967 received as unemployment
compensation, Claimant earned $47,934.10. In calendar year 2007, not including $5,482
received as unemployment compensation, Claimant earned $22,628.75. Averaging the
AWWs of those three years yields a figure of $707.73 and a compensation rate of
$471.82.
86

Allan Parkman vs. Marine Repair Service - ALJ Kenneth A. Krantz

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/PARKMAN_ALLAN_V_v_MARINE_REPAIR_SERVIC_2011LHC00079_(APR_24_2012)_110304_CADEC_SD.PDF

Factual dispute over whether longstanding low back condition was aggravated by work causing continuing TTD.  ALJ Kranz rules in Claimant's favor.

Stephen Fielder vs. Sea Ray Boats, Inc. - ALJ Stuart A. Levine

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2011/FIELDER_STEPHEN_v_SEA_RAY_BOATS_INC_2011LHC01719_(APR_24_2012)_154258_CADEC_SD.PDF