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.”).