CLAIMANT AWARDED TEMPORARY TOTAL DISABILITY BENEFITS (ALJ DORSEY)

JERRY HILL v. CLD PACIFIC GRAIN and AMERICAN HOME ASSURANCE COMPANY 
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At trial and in their briefs, the parties agreed the Claimant hurt his left groin while working for the Employer on June 19, 2008. He then was a B-list registered ILWU longshoreman working on the Portland docks; he had been since November 18, 2006. They agree the PMA records 6 accurately reflect the Claimant’s work for the year before his injury. The Employer admits the Claimant’s injury is compensable under the Act,and the Employer has already paid the Claimant some compensation based on its own AWW calculation. Based on the Proposed Partial Order submitted,the parties agree the Employer is liable for temporary total disability payments from June 20, 2008 to January 7, 2009.If I determine the Claimant is a five day worker, his AWW determined under § 10(a) is $1,740.41;if he is not a five day worker, they agree his AWW determined under § 10(c) is $1,372.25 or $1,359.98. The sole issue is whether the Claimant is a five day per week worker whose AWW should be determined under § 10(a) of the Act.

Conclusion

The Claimant worked more than five days more often than he worked fewer than five days per week.The Employer’s position is tantamount to arguing he isn’t a five day per week worker because he often worked six or seven days per week, and this means he is entitled to less disability compensation than if he had simply worked five days per week during those weeks. It doesn’t make sense. If anything, the Claimant might have argued he was a six day per week worker, because he worked at least six days per week more often than 
he worked any other number of days per week, and because he averaged more than five-and-a-half days per week in the weeks he worked. It is hard to see how finding the Claimant is a five day per week worker treats the Employer unfairly, when he averaged more than five days per week in the weeks he worked, and when he worked at least five days per week in over 70% of the weeks he worked.The weight of the evidence shows the Claimant ought to be categorized as a five day per week worker whose AWW should be determined under § 10(a). The parties appear to agree the calculation results in an AWW of $1,740.41.Because 66.6% of that number is more than twice the national average weekly wage for 2008, when the Claimant was injured, he is due compensation at the maximum rate of $1,160.36.

ALJ CLARK AWARDS COMPENSATION AND BENEFITS TO CLAIMANT

ROBERT AMEZCUA v. YUSEN TERMINALS
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Excerpts

Unlike the nature of disability, the extent of disability is a legal and economic
determination. Since the extent of disability is not a medical determination, a medical opinion
on the extent of disability is not determinative. The burden is initially on the claimant to
demonstrate total disability by showing that he cannot return to his regular employment due to
his work-related injury.  Bumble Bee Seafoods v. Dir., OWCP, 629 F.2d 1327 (9th Cir.
1980); Trask, 17 BRBS at 59.  If the claimant shows that he cannot return to his past job due to a
work-related injury, the claimant is presumed to be totally disabled unless the employer
demonstrates the existence of suitable alternate employment in the geographical area where the
claimant resides. See, e.g., Hairston, 849 F.2d at 1196; Bumble Bee, 629 F.2d at 1327. A
claimant who can return to his usual employment has suffered no loss of wage earning capacity
and is not disabled under the Act. A claimant must show a loss in wage-earning capacity in
order to demonstrate the extent of his disability.  See Johnson v. Newport News Shipbuilding &
Dry Dock Co., 25 BRBS 340 (1992).  If the employer succeeds in establishing suitable alternate
employment, the claimant may still prevail by showing an inability to secure employment despite
a diligent effort.  Stevens, 909 F.2d at 1258.

Conclusion

Claimant had a temporary total disability from January 24, 2009, until the date suitable
alternative employment was shown, which was June 8, 2010.  He had a temporary partial
disability from June 9, 2010, until October 7, 2010, the day before his third surgery.  He had a
temporary total disability from October 8, 2010, the date of his third surgery, until January 5,
2011, the day Yusen again showed suitable alternative employment was available.  He had a
temporary partial disability from January 6, 2011, until he returned to regular longshore work on
January 15, 2011.  Claimant was working in his usual and customary work and no longer had a
disability because there was no economic loss related to his injury.

ALJ PRICE DENIES CLAIMANT BENEFITS

NOLAN BARRIOS v. HUNTINGTON INGALLS LLC F/K/A INGALLS SHIPBUILDING, INC.
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Excerpts

Claimant worked for Employer for 20 days during 1972 and alleges he was exposed to asbestos at that time.  In addition, he has been exposed to asbestos at different jobs for the past 40 years.  However, Employer was his last maritime employment.  Claimant filed a claim for compensation on November 22, 2010, alleging date of injury as February 22, 2010, and describing the injury as “asbestosis with other possible complications.”  (CX-1, p. 1).  Employer argues that Claimant does not have asbestosis, and even if he does he is not owed compensation, because there is no economic injury; Employer avers Claimant has no work restrictions based on the condition. 

Conclusion

Claimant has multiple medical problems in this case, all contributing to his no-work
status.  Dr. Shamsnia found Claimant was totally disabled because of his neurological findings.
Dr. Kuebel was of the same opinion that Claimant should not be working due to his Binswanger
diagnosis, his neurological condition.  He opined that Claimant could return to work as long as
he refrained from exposure to asbestos or dusty environments.    Dr. Gomes was the only doctor
to suggest that Claimant should be taken out of work based on his pulmonary issues.  But Dr.
Gomes had diagnosed asbestosis, contrary to the finding of the Court. Dr. Jones believed that
based on Claimant’s pulmonary condition he could return to his former job with no restrictions.
At this time, his pleural plaques are not found to be an economically disabling injury.  I find that
based on the evidence, Claimant is not economically disabled from his pleural plaques at this
time.

ALJ MALAMPHY AWARDS BENEFIT TO CLAIMANT FOR HEARING LOSS

JOE  S.  RIDDICK,  SR. v. LAMBERT’S  POINT  DOCKS,  INC.NORFOLK  SOUTHERN  RAILWAY  COMPANY
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Excerpts

On July 2, 2010, Mr. Riddick underwent an ENT (Ear, Nose and Throat) consult with Dr. John Kalafsky, an otolaryngologist and an audiologic evaluation with Ms. Joan Wilson, MS, CCA. Dr. Kalafsky opined that the findings of the hearing evaluation appeared consistent with noise exposure and noise induced hearing loss which contributed to Mr. Riddick’s permanent hearing loss.  As a result, Mr. Riddick was assigned a 16.6% binaural hearing loss. The Employer argues that Mr. Riddick has a 4.063% hearing loss as assigned by Mr. Chris Zambas, an audiologist who performed an Independent Medical Evaluation (“IME”) at the request of the Employer.  Mr. Zambas opined that Mr. Riddick suffers from a  noise induced hearing loss,  but at a lower percentage than assigned by Dr. Kalafsky.  Thus, the sole issue to be addressed is which opinion is  entitled to greater weight in regards to the extent of Mr. Riddick’s hearing loss.

Conclusion

Mr. Riddick was seen today for a hearing aid evaluation.  He had an ENT consult with Dr. Kalafsky and an audiologic evaluation with Joan Wilson, MS, CCCA on July 2, 2010 at this clinic.  He presents with a history of occupational noise exposure, difficulty hearing, and tinnitus.   The results of the audiologic evaluation showed a borderline normal - to- moderate bilateral sensori-neural hearing loss.  [CX 1].

ALJ ROMERO AWARDS COMPENSATION TO CLAIMANT WHO WAS ASSAULTED ON THE JOB

ROBERT MOORE v. S & J DIVING, INC.
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Excerpts

Claimant contends  that he is not a seaman and is covered under the Act.  He argues there is no evidence that he spent at least 30 percent of his time performing the duties of a seaman.  He asserts that the altercation does not warrant exclusion of coverage because he did not have the willful intention to injure or kill himself or another. Claimant contends that the evidence establishes a  prima facie case of compensable injuries occurring on July 2, 2009, to his lower back.  He argues that he is entitled to reasonable and necessary medical treatment and should be reimbursed for medical expenses incurred.



Employer/Carrier argue that  Claimant is a seaman, and is not covered under the Act.   They argue that Claimant had a substantial connection to the vessel in terms of duration because he worked more than 30 percent of his time aboard the Deep Sea Champion.  They base this argument on Claimant’s deposition testimony that he worked aboard the vessel for at least two months in the year preceding his accident and that the July 2009 assignment would have lasted at least two additional months.  

Conclusion

The Employer is liable for all medical expenses which are the natural and unavoidable result of the work injury.  For medical expenses to be assessed against the Employer, the expense must be both reasonable and necessary.   Pernell v. Capitol Hill Masonry, 11 BRBS 532, 539 (1979).  Medical care must also be appropriate for the injury.  20 C.F.R. § 702.402. A claimant has established a  prima facie case for compensable medical treatment where a qualified physician indicates treatment was necessary for a work-related condition.  Turner v. Chesapeake & Potomac Tel. Co., 16 BRBS 255, 257-258 
(1984).

ALJ BERGSTROM DENIES CLAIMANT BENEFITS

FRANCIS R. FITZGERALD v. VIRGINIA INTERNATIONAL TERMINALS, INC SIGNAL MUTUAL INDEMNITY ASSN. LTD., c/o ABERCROMBIE, SIMMONS & GILLETTE,
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Excerpts

Claimant’s counsel argues the Claimant is entitled to temporary total disability benefits from
August 7, 2010 to May 10, 2011 and permanent partial disability benefits from May 11, 2011 to
present and continuing.  Claimant injured his back in a work-related injury on May 5, 2010,
however he did not realized the extent of his injury until he saw a doctor in August.  At this point
he reported his injury to his Employer.  Claimant admits this notice to Employer was not timely,
but asserts the Employer has not been prejudiced by this delay in notice as they were able to
effectively investigate the Claimant’s claim.  Claimant then suffered a cumulative injury on
August 20, 2010.  Counsel argues his work for Employer over several years has contributed to
his back condition.

Employer’s counsel highlights inconsistencies in the Claimant’s reports of pain.  At his first visit
to Dr. Wardell on June 9, 2010 the doctor noted the Claimant had back pain since April without
any injury.  On the initial form filled out regarding this claim the Claimant indicated the pain
started on May 1, 2010, several days before the alleged injury.  Claimant then returned to Dr.
Wardell on August 9th, 20th, and September 9th, but did not alter his intake report until September 3, 2010.  Counsel notes this was after Claimant received Dr. Wardell’s August 31, 2010 letter.
Additionally, Claimant testified he decided to file a workers compensation claim in August when
his back did not get any better.  However, medical records show that the Claimant’s back was
improving in August and September, and he had begun making retirement inquiries in July.
Employer argues that Claimant’s false statements on his medical records destroy the weight of
his entire testimony.

Conclusion

The Claimant’s statements of events and extent of injury are not corroborated by other
witness statements, clinical findings, or well-reasoned medical opinions.  Dr. Skidmore reviewed
the Claimant’s medical history and concluded, contrary to the Claimant’s assertions, “It does not
appear that the patient has sustained a specific injury” (EX 3).  Even Dr. Wardell’s off-work
restrictions are based mainly on the Claimant’s subjective complaints of pain and self-reports of
limitations.  The Claimant’s assertion that he began investigating the cause of his back pain after
he failed to improve is without merit.
After deliberation on the evidence of record, this Administrative Law Judge finds that the
Claimant is not credible and has failed to establish by a preponderance of the evidence that a
workplace back injury occurred as alleged.  Accordingly, he is not entitled to benefits under the
Act

San Fran. Mayor Names Longshoreman Willie Adams to Port Commission

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