ALJ LEVIN RULES ON CROSS MOTIONS FOR SUMMARY JUDGEMENT IN CLAIM THAT ALL PAYMENTS WERE NOT TIMELY PAID

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Excerpts


This matter involves a claim for benefits filed under the Longshore Act by Mark
Wainwright, a former employee of Jacksonville Shipyards. Claimant injured his back at work on
August 22, 1980. In this proceeding, Claimant challenges the amount and the timeliness of
compensation payments he has been receiving pursuant to prior orders that have issued in this
matter. On April 6, 2012, he filed a Motion for Summary Decision seeking a lump sum for
alleged underpayments of past due compensation, plus interest and penalties. Thereafter,
following an extension of time to respond, Employer filed Objections to Claimant’s Motion and
a Cross Motion for Summary Decision. Employer contends that Claimant has failed to identify a
single specific compensation payment that was unpaid, underpaid, or paid late. In addition, Employer moves for Summary Decision dismissing this matter on the ground that it has timely paid Claimant everything he is owed under the compensation orders that are applicable to this
claim.
 ......

CONCLUSION

For all of the foregoing reasons, Claimant has failed to establish, pursuant to Rule
18.40(d), that he is, as a matter of law, entitled to summary decision awarding him unpaid,
underpaid or untimely paid compensation, interest, or penalties. Accordingly, his Motion for
Summary Decision will be denied. Sections 18.40(d) and 18.41(a); Anderson, supra; see also,
Celotex, supra at 322.

Turning to Employer’s Cross Motion for Summary Decision, I have construed all
evidence and factual inferences in Claimant’s favor, Matsushita Elec. Indus. Co., Ltd., , supra;
Diebold, Inc., supra ; Held, supra, and have applied the principle that summary decision should
be entered only when no genuine issue of material fact need be litigated. Poller, supra; Rogers,
supra. In this instance, the essential facts are not in dispute. Claimant was timely paid $29.65 per
week in compliance with the stipulation and order applicable to his claim. The uncontroverted
evidence shows he was timely paid everything he was owed. For all of the foregoing reasons, I,
therefore, conclude that Employer has satisfied its burden of establishing, pursuant to Rule
18.40(d), that no genuine issue of material fact exists for hearing and that it is, as a matter of law,
entitled to summary decision dismissing this matter. Accordingly;
ORDER
IT IS ORDERED that Claimant’s Motion for Summary decision be, and it hereby is,
denied, and;
IT IS FURTHER ORDERED that Employer’s Cross Motion for Summary Decision be,
and it hereby is, granted, and;
IT IS FURTHER ORDERED that the claim filed in this matter be, and it hereby is,
dismissed.