United States Department of Labor
Office of Administrative Law Judges Law Library
UNITED STATES DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
LONGSHORE DESKBOOK
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SECTIONS 19, 23 and 27
Digests
The claim
The Board notes that the purpose behind the requirement in Section
13 that the claim be filed with the deputy commissioner is to ensure that
employer will receive prompt notification of the claim through forwarding
by the deputy commissioner of the written claim to employer. The Board
did not strictly construe this reporting requirement in the instant case
where its purpose was fulfilled. Employer received written notification
of updated hearing loss at the formal hearing, and was given the opportunity
post-hearing to submit evidence challenging the claim. Downey v. General
Dynamics Corp., 22 BRBS 203 (1989).
The Board limits Brown, 14 BRBS 460 (1981), to its specific facts, and
holds that the administrative law judge did not abuse her discretion in
dismissing the request for a hearing and the concurrent refusal to remand
the case to the deputy commissioner resulted in a de facto dismissal of
the claim, which was found to have been abandoned. The Board notes that
Brown was decided prior to the promulgation of the 29 C.F.R. Part 18 regulations.
Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989).
The administrative law judge has the authority to dismiss a claim with
prejudice where claimant fails to prosecute his claim, given all the circumstances.
Fed. R. Civ. P. 41(b) provides for the involuntary dismissal of a case
for failure to prosecute or comply with the orders of the court only where
there is a clear record of delay or contumacious conduct or when less drastic
sanctions have been unsuccessful. The Board vacates the administrative
law judge's dismissal and remands the case for the administrative law judge
to consider whether less drastic sanctions, including those provided in
Section 27 of the Act, are available and whether claimant's conduct was
contumacious in light of the offered explanations as to why claimant did
not attend depositions and medical examinations. The administrative law
judge also must address whether claimant was represented by counsel and
whether employer was prejudiced by the delay. Twigg v. Maryland Shipbuilding
& Dry Dock Co., 23 BRBS 118 (1989).
The Board vacates the dismissal of the claim and remands the case for
a hearing on the merits. The Board notes that dismissal is an extreme sanction
and the fact-finder must consider whether lesser sanctions would better
serve the interests of justice. In this case, claimant missed only the
last scheduled hearing and had been ready to proceed at prior scheduled
hearings which were continued at employer's request and at claimant's request
because of the unavailability of claimant's physician. Bogdis v. Marine
Terminals Corp., 23 BRBS 136 (1989).
The right to disability compensation survives the employee's death and
the widow has standing to file a lifetime claim under the Act on the decedent's
behalf. Maddon v. Western Asbestos Co., 23 BRBS 55 (1989).
On the unique facts of this case, claimant, the widow of a deceased
employee, had the option of filing under Section 9 as it existed prior
to the 1984 Amendments based on either her husband's death from an asbestos-related
condition or his having been permanently totally disabled at the time of
his death due to a work-related back injury. She filed a timely claim,
based on her husband's death due to an asbestos-related condition, and
almost three years after her husband's death, indicated in writing that
she also sought death benefits based on decedent's having been permanently
totally disabled at the time of his death. The Board affirmed the administrative
law judge's determination that claimant's raising of a new theory of recovery
under Section 9 constituted a timely amendment of her original claim, noting
that the amendment's timeliness is determined by that of the original claim
and that the U.S. Supreme Court has indicated that liberal amendment of
pleadings is to be allowed. Mikell v. Savannah Shipyard Co., 24 BRBS 100
(1990), aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom. Argonaut
Ins. Co. v. Mikell, 14 F.3d 58 (11th Cir. 1994).
The Board affirms the administrative law judge's decision to grant claimant's
request to withdraw his claim under the Act pursuant to 20 C.F.R. §702.225,
claimant having elected to exclusively pursue his claim under the state
workers' compensation statute. Claimant is entitled to pursue his claim
under either applicable federal or state statue, or both, where federal
and state jurisdiction run concurrently; it is claimant's decision as to
where to pursue his remedy. Langley v. Kellers' Peoria Harbor Fleeting,
27 BRBS 140 (1993) (Brown, J., concurring and dissenting).
The Fifth Circuit reversed the Board's holding that the district director's
granting claimant's motion to withdraw did not aggrieve employer, and the
Board's consequent dismissal of employer's appeal. The district director's
failure to forward the cases to the Office of Administrative Law Judges
upon employer's request for a formal hearing is a ministerial and nondiscretionary
duty. Once a party requests a hearing, the district director loses any
authority to act on the claim. The court stated that after the claim was
transferred, the administrative law judge could act on claimants' motions
to withdraw their claims while safeguarding employer's procedural rights.
Ingalls Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1
(CRT)(5th Cir. 1996), vacating on reh'g 81 F.3d 561, 30 BRBS 39(CRT) (5th
Cir. 1996)(court reached the same result based on district director's failure
to follow mandamus order, later determined to be inapplicable to this group
of cases), rev'g Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994)
(en banc) (Brown, J., concurring), aff'g on recon. 27 BRBS 250 (1993)(en
banc (Brown, J., concurring).
Deputy Commissioner Proceedings
The Board held that the deputy commissioner did not have authority
to issue a compensation order subsequent to November 26, 1972, the effective
date of the 1972 Amendments to the Act, pursuant to 33 U.S.C. §919(d),
and Neal, 1 BRBS 279 (1974). Thus, the Board held that the compensation
order issued in 1973 by the deputy commissioner was not valid, and employer's
compensation payments made under that order must therefore be considered
voluntary. O'Berry v. Jacksonville Shipyards, Inc., 21 BRBS 355 (1988),
aff'd and modified on recon., 22 BRBS 430 (1989).
On reconsideration, the Board rejects the Director's contention that
the deputy commissioner's 1973 compensation order was valid because it
became final and binding when it was not appealed within thirty days. Unlike
in Downs, 803 F.2d 193, 19 BRBS 36 (CRT) (5th Cir. 1986), the deputy commissioner
had no authority to issue a compensation order in 1973, so it was void
from its inception. In Downs, the administrative law judge's authority
to approve settlements was valid at the time the action was taken. O'Berry
v. Jacksonville Shipyards, Inc., 22 BRBS 430 (1989), aff'g and modifying
on recon. 21 BRBS 355 (1988).
The deputy commissioner erred in modifying the administrative law judge's
decision. The deputy commissioner does not have the power to modify the
decisions of administrative law judges. The deputy commissioner performs
only administrative and pre-hearing investigative matters. Thus, it was
also error for the deputy commissioner to engage in factfinding regarding
the responsible carrier issue. The deputy commissioner acted irrationally
in assessing a Section 14(f) penalty against Hanover Insurance Company
for failure to pay the administrative law judge's award within 10 days
since Hanover was not even a party before the administrative law judge
and was not found liable until the deputy commissioner's subsequent order.
Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986).
The Board viewed the deputy commissioner's letter purporting to alter
language contained in an administrative law judge's Decision and Order
as an impermissible modification, pursuant to Sans, 19 BRBS 24 (1986),
and Penoyer, 9 BLR 1-12 (1986). Accordingly, reasoning that the deputy
commissioner possessed no authority to issue this letter, the Board held
that both the letter and the administrative law judge's second Decision
and Order issued in response to it were of no legal effect, and that the
period for filing an appeal with the Board thus began when the administrative
law judge's first Decision and Order was filed. The Director's appeal,
submitted some six months after this Decision and Order was filed in the
deputy commissioner's office, was thus dismissed as untimely. Hernandez
v. Bethlehem Steel Corp., 20 BRBS 49 (1987).
The deputy commissioner exceeded his authority by vacating the administrative
law judge's Decision awarding permanent total disability benefits based
on his apparent finding that claimant is not partially disabled. It was
error for the deputy commissioner to engage in factfinding on the disability
issue as no agreement had been reached between the parties. Carter v. Merritt
Ship Repair, 19 BRBS 94 (1986).
The Board affirms the administrative law judge's finding that the deputy
commissioner had no authority to issue a Notice of Modification of an administrative
law judge award in a black lung case. The Board sets out history of modification
proceedings, through the Longshore Act, and reiterates its holdings that
a deputy commissioner can only modify a decision of a deputy commissioner.
The Board further notes that when, as here, no appeal is pending before
the Board and new evidence is discovered, the deputy commissioner investigates
the grounds for modification and forwards evidence to the administrative
law judge. In this case, the administrative law judge did not consider
the new evidence, and the case is accordingly remanded. Yates v. Armco
Steel Corp., 10 BLR 1-132 (1987) (black lung case).
When a party requests that the case be transferred to the OALJ for a
hearing, the district director has a clear, ministerial and non-discretionary
duty to transfer the case for a hearing under Section 19(c). In this case,
where employer repeatedly requested transfer and there was little likelihood
that the cases would be resolved through informal means, the district court
did not err in granting a writ of mandamus ordering the district director
to transfer the cases. Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants,
17 F.3d 130, 28 BRBS 12 (CRT)(5th Cir. 1994).
The Board noted that Section 19 specifically requires the district director
to investigate claims and order hearings upon the request of a party, but
the Act does not specify the time period for carrying out that duty or
the consequences or effects of a delay by the district director's office.
Relying on the Fifth Circuit's opinion in Asbestos Health Claimants, 17
F.3d 130, 28 BRBS 12 (CRT) as controlling, the Board determined that the
district director's duty to transfer the case to the OALJ under Section
19 upon the request of a party is mandatory. Where the district director
dismissed the case upon claimant's request for withdrawal three years after
employer requested a hearing, the Board, relying on Asbestos Health Claimants,
determined that the district director failed to perform her mandatory duty
under Section 19 to transfer the case to the OALJ. However, despite the
derogation of duty, and in the interest of judicial efficiency, the Board
concluded that the failure to refer the case constituted harmless error,
as claimant had no claim to pursue and could have withdrawn his case at
any time subject to the regulations. Boone v. Ingalls Shipbuilding, Inc.,
28 BRBS 119 (1994) (en banc) (Brown, J., concurring), aff'g on recon. 27
BRBS 250 (1993) (en banc) Brown, J., concurring), rev'd sub nom. Ingalls
Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1 (CRT), vacating
on reh'g 81 F.3d 501, 30 BRBS 39 (CRT)(5th Cir. 1996).
The Fifth Circuit reversed the Board's holding that the district director's
granting claimant's motion to withdraw did not aggrieve employer, and the
Board's consequent dismissal of employer's appeal. The district director's
failure to forward the cases to the Office of Administrative Law Judges
upon employer's request for a formal hearing is a ministerial and nondiscretionary
duty. Once a party requests a hearing, the district director loses any
authority to act on the claim. The court stated that after the claim was
transferred, the administrative law judge could act on claimants' motions
to withdraw their claims while safeguarding employer's procedural rights.
Ingalls Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1
(CRT)(5th Cir. 1996), vacating on reh'g 81 F.3d 561, 30 BRBS 39(CRT) (5th
Cir. 1996)(court reached the same result based on district director's failure
to follow mandamus order, later determined to be inapplicable to this group
of cases), rev'g Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994)
(en banc) (Brown, J., concurring), aff'g on recon. 27 BRBS 250 (1993)(en
banc (Brown, J., concurring).
In the instant case, claimant filed a claim in 1987 due to harmful exposure
to asbestos, although no disability was alleged. In 1992, employer requested
that the district director refer the case to the OALJ for a hearing. After
the district director denied employer's request, employer appealed the
district director's denial to the Board. Following the Fifth Circuit's
holding in Asbestos Health Claimants, 17 F.3d 130, 28 BRBS 12 (CRT)(5th
Cir. 1994), and its decision in Black, 16 BRBS 138 (1984), the Board held
that Section 19(c) imposes a mandatory duty on the district director to
order a hearing upon the application of any interested party. Eneberg v.
Todd Pacific Shipyards, 30 BRBS 59 (1996) (McGranery, J., dissenting).
Where the deputy commissioner had rendered a previous accounting of
the amounts which employer still owed, the Board instructed employer to
present any remaining issues pertaining to employer's alleged overpayments
to the deputy commissioner, rather than to the Board. Williams v. Halter
Marine Service, Inc., 19 BRBS 248 (1987).
Administrative Law Judge Adjudication
Powers of the Administrative Law Judge in General
The regulations provide that, prior to the transfer of a case to the
Office of Administrative Law Judges for hearing, each party must file a
pre-hearing statement. Section 702.317(e) allows the administrative law
judge to consider a party's failure to file a pre-hearing statement with
the deputy commissioner where this failure is relevant. Scott v. S.E.L.
Maduro, Inc., 22 BRBS 259 (1989).
The Board holds the administrative law judge did not err in this case
by considering updated evidence for hearing loss presented for the first
time at the formal hearing, although the Act (Section 19(c) and regulations
(Sections 702.301, 702.316) indicate that claims must first be referred
to the deputy commissioner. Whether or not his new evidence constitutes
a separate "claim," the administrative law judge did not prejudice employer's
procedural and substantive rights, and the administrative law judge acted
in the most judicially efficient manner in providing for claimant's interest
in securing an award. Downey v. General Dynamics Corp., 22 BRBS 203 (1989).
The administrative law judge properly allowed intervention of pension
fund, which had paid out medical and loss of time benefits to claimant
under the mistaken belief that his injuries were not work-related, to recover
amounts paid. MacDonald v. Trailer Marine Transport Corp., 18 BRBS 259
(1986), aff'd mem. sub nom. Trailer Marine Transport Corp. v. Benefits
Review Board, 819 F.2d 1148 (11th Cir. 1987).
The Board declines to address the issue of whether the administrative
law judge's failure to issue a decision within twenty days of the hearing,
as required by 20 C.F.R. §702.349, constituted reversible error in
light of the decision to remand the claim on other grounds. Leone v. Sealand
Terminal Corp., 19 BRBS 100 (1986).
The Board noted that the administrative law judge, in deciding a case
on remand from the United States Court of Appeals, had not been bound by
his previous findings, given that his earlier dispositions of the case
had been reversed by the court. Geddes v. Washington Metropolitan Area
Transit Authority, 19 BRBS 261 (1987), aff'd sub nom. Geddes v. Director,
OWCP, 851 F.2d 440, 21 BRBS 103 (CRT)(D.C. Cir. 1988).
An administrative law judge may remand a case to the deputy commissioner
for consideration of a new issue only when evidence not considered by the
deputy commissioner is likely to resolve the case without a hearing. 20
C.F.R. §702.336. In this case, the administrative law judge abdicated
his responsibility to resolve disputed issues of fact regarding the responsible
carrier issue by remanding the case, as the administrative law judge is
empowered to resolve any issue arising at the hearing. The administrative
law judge should have notified a potentially liable carrier of the proceedings,
added the carrier as a party, and held the record open for further evidence
regarding the date of last exposure and the carrier on the risk at that
time. Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986).
The regulation at 29 C.F.R. §18.6(b) expressly provides ten days
for a party to respond to a motion in administrative law judge proceedings
before the Department of Labor. By issuing his Order to Compel prior to
the expiration of the ten day period, the administrative law judge violated
the due process rights of the petitioner. Niazy v. The Capitol Hilton Hotel,
19 BRBS 266 (1987).
The Sixth Circuit stated that adverse rulings in the proceedings are
not by themselves sufficient to show bias on the part of the administrative
law judge. Orange v. Island Creek Coal Co., 786 F.2d 724, 8 BLR 2-192 (6th
Cir. 1986).
The Board held that claimant failed to show that the administrative
law judge was biased. Adverse rulings, alone, are insufficient to show
bias. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988).
In order to avoid piecemeal review, the administrative law judge was
instructed that, in the future, he should obtain the facts necessary to
resolve all issues prior to deciding the issue of jurisdiction, so that
a single compensation order may issue. Jackson v. Straus Systems, Inc.,
21 BRBS 266 (1988).
The Board limits Brown, 14 BRBS 460 (1981), to its specific facts, and
holds that the administrative law judge did not abuse her discretion in
dismissing the request for a hearing and the concurrent refusal to remand
the case to the deputy commissioner resulted in a de facto dismissal of
the claim, which was found to have been abandoned. The Board notes that
Brown was decided prior to the promulgation of the 29 C.F.R. Part 18 regulations.
Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989).
The administrative law judge has the authority to dismiss a claim with
prejudice where claimant fails to prosecute his claim, given all the circumstances.
Fed. R. Civ. P. 41(b) provides for the involuntary dismissal of a case
for failure to prosecute or comply with the orders of the court only where
there is a clear record of delay or contumacious conduct or when less drastic
sanctions have been unsuccessful. The Board vacates the administrative
law judge's dismissal and remands the case for the administrative law judge
to consider whether less drastic sanctions are available, including those
in Section 27 of the Act, and whether claimant's conduct was contumacious
in light of the offered explanations as to why claimant did not attend
depositions and medical examinations. The administrative law judge also
must address whether claimant was represented by counsel and whether employer
was prejudiced by the delay. Twigg v. Maryland Shipbuilding & Dry Dock
Co., 23 BRBS 118 (1989).
The Board vacates the dismissal of the claim and remands the case for
a hearing on the merits. The Board notes that dismissal is an extreme sanction
and the fact-finder must consider whether lesser sanctions would better
serve the interests of justice. In this case, claimant missed only the
last scheduled hearing and had been ready to proceed at prior scheduled
hearings which were continued at employer's request and at claimant's request
because of the unavailability of claimant's physician. The Board further
holds that there is no provision in the Act or regulations requiring service
on the parties before a document is considered filed. Thus, claimant's
motion for reconsideration was timely filed with the administrative law
judge even though it was not served on employer within the ten-day filing
limit. Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989). See also Hamilton
v. Ingalls Shipbuilding, Inc., 30 BRBS 84 (1996)(time for filing motion
for reconsideration with administrative law judge commences on the date
district director certifies he filed the administrative law judge's decision.
33 U.S.C. §919(e); 20 C.F.R. §§702.349-350, 802.206).
The administrative law judge acquired jurisdiction over the claim following
the Board's denial of claimant's motion for reconsideration. The administrative
law judge did not abuse his discretion in dismissing claimant's' claims
with prejudice pursuant to 29 C.F.R. §18.29(a) based on claimant's
repeated and numerous abuses of the administrative process over the entire
course of the case including claimant's refusal to comply with discovery
requests and to submit to a medical examination. The case sets forth the
back letter law regarding the standards to be considered before an administrative
law judge may dismiss a claim with prejudice, specifically FRCP 37, 41.
Harrison v. Barrett Smith, Inc., 24 BRBS 257 (1991), aff'd mem. sub nom.
Harrison v. Rogers, No. 92-1250 (D.C. Cir. March 19, 1993).
The Board held that the administrative law judge's dismissal of a claim
by Permanente Medical Group/Kaiser Foundation Hospital an intervenor-petitioner,
constituted an abuse of discretion. Initially, the Board indicated that
the administrative law judge erred in failing to state the grounds upon
which he based his dismissal of the claim. Moreover, there was no indication
that the administrative law judge based his dismissal on Kaiser's alleged
failure to comply with his pre-trial order. The Board further held that
Kaiser's failure to appear at the hearing was not a sufficient ground on
which to base the dismissal of its claim. The Board noted that dismissal
for failing to appear at a hearing, deposition, or medical appointment
is an extreme sanction, and stated that the administrative law judge must
consider whether lesser sanctions would better serve the interests of justice.
The Board also found that the administrative law judge erred in dismissing
Kaiser's claim in view of the misleading language used by the administrative
law judge in his decision. French v. California Stevedore & Ballast,
27 BRBS 1 (1993).
The Board affirms the administrative law judge's determination that
29 C.F.R. §18.36 grants him the authority to exclude a representative
from appearing in a proceeding before him if that representative refuses
to adhere to reasonable standards of ethical conduct. Furthermore, as claimant's
counsel practices law in Washington state, and the rules at 29 C.F.R. Part
18 do not delineate what constitutes ethical conduct, the Board holds that
the administrative law judge rationally relied on state rules of professional
conduct to establish the ethical standard to be applied. However, the Board
reverses the administrative law judge's decision to disqualify counsel,
based upon the uncontradicted evidence of record that a "Chinese Wall"
had been established to protect employer's confidences, and the administrative
law judge's own findings that the record is devoid of evidence establishing
that confidences were exchanged between employer's former counsel and claimant's
counsel's firm. Baroumes v. Eagle Marine Services, 23 BRBS 80 (1989).
Where an attorney who represents claimant also represents employer's
insurance plan administrator, a conflict exists even though the attorney
did not represent the administrator in a dispute between claimant and employer.
An administrative law judge has the authority to disqualify counsel because
of conflict of interest. In this case, the administrative law judge was
fully aware of the conflict, and he failed to disqualify counsel. As claimant
appealed the conflict issue as well as whether counsel represented her
competently, the court reversed the administrative law judge's finding
of no permanent disability and remanded the case for further fact-finding.
Smiley v. Director, OWCP, 984 F.2d 278 (9th Cir. 1993), superseding 973
F.2d 1463, 26 BRBS 37 (CRT) (9th Cir. 1992).
The Board rejects the argument that the administrative law judge erred
by remanding this case to the deputy commissioner for calculating the amount
of employer's Section 33(f) credit, and for entry of an award. The Board
holds that in this case the administrative law judge made the necessary
findings of fact and conclusions of law so that the deputy commissioner
was charged with making purely ministerial calculations. Cretan v. Bethlehem
Steel Corp., 24 BRBS 35 (1990), aff'd in part and rev'd in part, 1 F.3d
843, 27 BRBS 93 (CRT) (9th Cir. 1993), cert. denied, U.S. , 114 S.Ct. 2705
(1994).
The Board holds that the administrative law judge was not bound by the
"law of the case" doctrine from addressing the Director's Section 8(f)(3)
contention inasmuch as the doctrine does not prevent review of the same
tribunal's interlocutory order. As the administrative law judge clarified
that he had not remanded the case to the deputy commissioner for dispositive
findings on the Section 8(f)(3) bar, he properly addressed the issue in
his second decision. Ortiz v. Todd Shipyards Corp., 25 BRBS 228 (1991).
An administrative law judge's denial of reconsideration is reviewed
to determine if there was an abuse of discretion. In this case, the administrative
law judge did not abuse his discretion to deny employer's motions for reconsideration
and discovery. Due to its admitted negligence, employer failed to participate
in the resolution of this claim for over three and one-half years and it
failed to attend the formal hearing. Duran v. Interport Maintenance Corp.,
27 BRBS 8 (1993).
The Board rejected employer's argument that, as Section 19(d) only vests
in administrative law judges the authority contained in the Act, administrative
law judges do not have the powers conferred on the district court by 28
U.S.C. §1961 and cannot award interest. The Board acknowledged that
Section 1961 does not give the administrative law judge the authority to
award interest, but it noted its previous reliance on Section 1961 was
limited to using that section as a guide in setting the interest rate and
not as authority to award interest. Brown v. Alabama Dry Dock & Shipbuilding
Corp., 28 BRBS 160 (1994)(Dolder, C.J., concurring and dissenting).
The Board rejected contention of the borrowing employer that the administrative
law judge lacked the authority to order it to reimburse the lending employer
for claimant's compensation because claimant did not file a claim against
borrowing employer. Pursuant to Rule 14(c) of the FRCP in maritime and
admiralty claims a defendant may implead another party against whom the
claimant has not asserted a claim and demand that that party be found liable
to both the original defendant and to the claimant. Moreover, the Board
noted that an administrative law judge has all powers, duties and responsibilities
necessary to resolve claims under the Act and that claims for reimbursement
of an employer or carrier raise questions in respect to compensation claims.
Vodanovich v. Fishing Vessel Owners Marine Ways, Inc., 27 BRBS 286 (1994).
The Board holds that the administrative law judge erred in relying on
Busby, 13 BRBS 222, and Rodman, 16 BRBS 123, to find that he did not have
jurisdiction to determine whether Omega's carrier, INA, is entitled to
reimbursement from the alleged borrowing employer, Elf, because claimant
was no longer an active litigant, having settled a third-party suit and
relinquishing any rights for compensation from Omega pursuant thereto.
The Board holds that the administrative law judge erred in viewing this
case as involving solely contractual issues between INA and Elf, when in
fact it is a responsible employer case involving application of the borrowed
employee principles. This is an issue arising under the Act which an administrative
law judge is empowered to resolve; any contractual issues are ancillary
issues raised by Elf in response to Omega's responsible employer claim.
Moreover, the case is distinguishable from Busby and Rodman, as it involves
a meritorious claim for benefits, as evidenced by the fact that claimant
has been fully paid for his work-related injury to a scheduled member.
Schaubert v. Omega Services Industries, Inc., 31 BRBS 24 (1997).
The Board vacates as premature the administrative law judge's findings
concerning the proper method of calculating the amount of employer's Section
33(f) setoff against any possible future third-party settlements, inasmuch
as there have not yet been any settlements to credit. Chavez v. Todd Shipyards
Corp., 24 BRBS 71 (1990), aff'd in part and rev'd in pert. part sub nom.
Chavez v. Director, OWCP, 961 F.2d 1409, 25 BRBS 134 (CRT) (9th Cir. 1992).
The Board rejected employer's contention that the administrative law
judge erred in remanding a case to the district director without instructions
to officially close or dismiss it. The Board held that a 1985 settlement
constituted the final disposition of the only claim filed in this case
and that employer's argument is one of semantics only, as, there is no
pending claim to address and employer cannot be aggrieved unless or until
claimant formally files a claim for medical benefits. Moreover, the Board
held that as there are no issues to adjudicate, employer is not denied
due process by the administrative law judge's denial of its request for
a hearing. Parker v. Ingalls Shipbuilding, Inc., 28 BRBS 339 (1994).
The Board rejected employer's contention that the administrative law
judge erred in remanding a case to the district director without instructions
to officially close or dismiss it. The Board held that a 1983 settlement
constituted the final disposition of the only claim filed in this case
and that employer's argument is one of semantics only, as, given the administrative
law judge's finding that no future claims can be filed in this case due
to claimant's death and to the failure of his survivors to file a timely
claim for death benefits, there is no pending claim to address. Deakle
v. Ingalls Shipbuilding, Inc., 28 BRBS 343 (1994).
The administrative law judge erred in advising the parties at the hearing
that he would not resolve the issue of LIGA's liability, and then ruling
on the issue in the decision. The administrative law judge has the power
to hear and resolve insurance issues which are necessary to the resolution
of a claim under the Act. The Board holds, however, that a new hearing
on LIGA's liability is unnecessary in this case as state law mandates its
liability. Abbott v. Universal Iron Works, Inc., 23 BRBS 196 (1990), modified
on other grounds on recon., 24 BRBS 169 (1991).
The administrative law judge has the power to hear and resolve insurance
issues which are necessary to the resolution of a claim under the Act,
but the administrative law judge's failure to do so in this case is harmless
error, as the contract here provides for liability consistent with the
exposure rule of Cardillo. Barnes v. Alabama Dry Dock & Shipbuilding
Corp., 27 BRBS 188 (1993).
Issues at Hearings/Stipulations
The administrative law judge erred in failing to resolve the disputed
responsible carrier issue and in remanding the case to the deputy commissioner
for findings of fact and to modify his decision. When an issue is in dispute,
only the administrative law judge can hold a formal hearing and make findings
to resolve the dispute. The responsible carrier issue was unresolved before
the administrative law judge and there was no agreement between the parties
as to the issue; therefore, the administrative law judge abdicated his
responsibility to resolve disputed questions of fact by remanding the case
to the deputy commissioner rather than resolving this issue himself. Sans
v. Todd Shipyards Corp., 19 BRBS 24 (1986).
The Board rejects claimant's argument that employer was precluded from
raising Section 13 and Section 33(g) at the hearing before the administrative
law judge, even though employer had not raised these issues before the
deputy commissioner, on the rationale that both these issues were raised
in employer's pre-hearing statement and at the hearing of the claim before
the administrative law judge. See 20 C.F.R. §§702.317, 702.336.
Lewis v. Norfolk Shipbuilding & Dry Dock Corp., 20 BRBS 126 (1987).
Where employer attempted to withdraw its controversion at the hearing,
but the parties were not in agreement, the administrative law judge properly
retained jurisdiction and made findings on the disputed issues. Falcone
v. General Dynamics Corp., 21 BRBS 145 (1988).
The Board holds that administrative law judge erred in addressing, sua
sponte, the issue of D.C. Act jurisdiction, given that the parties had
previously achieved a Section 8(i) settlement of the substantive aspects
of the claim and that the settlement had previously been approved by a
deputy commissioner. Because the deputy commissioner's approval of the
settlement had become final, the administrative law judge was empowered
only to decide, pursuant to Section 18 of the Act and Section 702.372(a)
of the regulations, a factual issue pertaining to employer's liability
for paying certain medical expenses. The Board accordingly reverses the
administrative law judge's finding of no D.C. Act jurisdiction. Kelley
v. Bureau of National Affairs, 20 BRBS 169 (1988).
Where employer's amended Form LS-18, listing Section 22 among the contested
issues, was filed more than one month prior to the hearing, claimant was
provided with timely notice of the new issue. Thus, it was an abuse of
discretion for the administrative law judge to refuse to consider employer's
request for modification. Claimant, who had been awarded permanent partial
disability benefits for a 1978 injury, was seeking permanent total disability
benefits for a second injury. Thus, the issue of claimant's residual wage-earning
capacity subsequent to the 1978 injury was implicitly raised at the hearing.
Finch v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989).
In a footnote, the Board upheld an administrative law judge's determination
that 29 C.F.R. §18.20, which deems a matter addressed by a Request
for Admissions conceded if a party fails to respond to the Request, did
not divest the administrative law judge of authority to decide Section
8(f) issues in this case. The Board holds that the "law of the case" doctrine
does not preclude an administrative law judge from reopening the previously-decided
issue of Section 8(f) relief where the case is before him pursuant to a
request for modification, even where Section 8(f) has not been specifically
raised as an issue in the modification request, if the administrative law
judge finds that a "mistake in fact" is contained in the previous Section
8(f) determination. Board nonetheless remands, since the administrative
law judge did not afford the parties an adequate opportunity to present
evidence and arguments relevant to Section 8(f) once he notified them that
he would address this issue in his decision on modification. Coats v. Newport
News Shipbuilding & Dry Dock Co., 21 BRBS 77 (1988).
The First Circuit vacates Board's determination that issue of Section
8(f) applicability was improperly considered by the administrative law
judge, reasoning that although the Section 8(f) issue was not raised by
the parties, it was within the administrative law judge's discretion to
consider this issue under 20 C.F.R. §702.336(b), which affords administrative
law judges authority to raise issues on their own initiative. The court
accordingly remands the case for reconsideration of the issue of Section
8(f) applicability, indicating that since the administrative law judge
did not provide the parties with adequate notice that this issue would
be addressed, the parties are entitled to submit evidence relevant to Section
8(f) on remand. Cornell University v. Velez, 856 F.2d 402, 21 BRBS 155
(CRT)(1st Cir. 1988).
It is within the administrative law judge's discretion to allow parties
to raise new issues at the hearing, 20 C.F.R. §702.336. The administrative
law judge in this case, however, did not abuse his discretion by refusing
to allow employer to raise the issue of Section 8(f) given the absence
of notice to the Director, the representative of the Special Fund. Moreover,
employer was given an opportunity to raise the Section 8(f) issue in a
post-hearing motion which would have given Director notice, but employer
failed to take advantage of this opportunity. Scott v. S.E.L. Maduro, Inc.,
22 BRBS 259 (1989).
An administrative law judge may expand the hearing to include new issues
or new evidence provided the parties are provided with fair notice, under
20 C.F.R. §702.336. In this case, the parties were given adequate
notice and the chance for a further evidentiary hearing on the issue of
future medical benefits and thus due process rights were not violated.
Cowart v. Nicklos Drilling Co., 23 BRBS 42 (1989), rev'd on other grounds,
907 F.2d 1552, 24 BRBS 1 (CRT) (5th Cir. 1990), aff'd, 927 F.2d 828, 24
BRBS 93 (CRT) (5th Cir. 1991) (en banc), aff'd, ___ U.S. ___, 112 S.Ct.
2589, 26 BRBS 49 (CRT) (1992).
In an occupational disease case before the Board for the second time,
the Board held it was proper for the administrative law judge to reevaluate
the issue of claimant's awareness of the relationship between his disease,
disability, and employment for purposes of determining whether the claim
was timely since the issue of whether the claim was untimely had not been
explicitly considered in the original Decision and Order, although raised
by employer. Although the administrative law judge previously had made
an awareness finding pursuant to Aduddell, employer had no basis for filing
a cross-appeal of this finding since it had no significance with respect
to the timeliness of the claim until the enactment of the 1984 Amendments.
Board notes that first awareness finding was not "final" since the Decision
and Order containing it had been appealed. Lombardi v. General Dynamics
Corp., 22 BRBS 323 (1989).
The Board held that because the issues of nature and extent of claimant's
disability were properly before the administrative law judge, the administrative
law judge erred by failing to make a determination regarding claimant's
right to an award of "continuing" temporary total disability benefits.
The Act and its regulations mandate that an administrative law judge set
forth findings of fact and conclusions of law in his compensation order,
and that the order either make an award to the claimant or reject the claim.
See 33 U.S.C. §919(c); 20 C.F.R. §702.348. Hoodye v. Empire/United
Stevedores, 23 BRBS 341 (1990).
Although a deceased employee's claim for disability compensation had
not yet been referred to the Office of Administrative Law Judges, and the
only formal claim before the administrative law judge was for death benefits,
the administrative law judge had jurisdiction to rule on the disability
claim, since consideration of the extent of decedent's disability was integral
to deciding the claim for death benefits pursuant to pre-amendment Section
9. The Board noted that declining to adjudicate the disability and death
benefits claims together would have resulted in an unnecessary bifurcation
of proceedings. Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990), aff'd
on recon., 26 BRBS 32 (1992), aff'd mem. sub nom. Argonaut Ins. Co. v.
Mikell, 14 F.3d 58 (1994).
Failure to contest coverage under the Act at the deputy commissioner
level does not preclude employer's raising jurisdiction as an issue after
referral to the Office of Administrative Law Judges, as 20 C.F.R. §702.336
provides for the raising of new issues before the administrative law judge.
Moreover, employer's voluntary payment of benefits does not estop it from
raising jurisdiction as an issue. Hall v. Newport News Shipbuilding &
Dry Dock Co., 24 BRBS 1 (1990).
The Board rejects claimant's contention that the administrative law
judge erred in allowing LIGA to raise Section 33(g), inasmuch as LIGA was
not notified of its potential liability until after the first hearing on
this case. The administrative law judge thus afforded LIGA its first opportunity
for a fair hearing on this issue. Deville v. Oilfield Industries, 26 BRBS
123 (1992).
Claimant was not denied due process when the Director raised post-hearing
the affirmative defense that claimant failed to cooperate with OWCP's vocational
rehabilitation efforts. Failure to cooperate is per se raised whenever
termination of a vocational rehabilitation plan is contested. 20 C.F.R.
§702.506(c). Claimant therefore should have been aware that his cooperation
was at issue prior to the Director's post-hearing participation and he
was afforded an opportunity to submit relevant evidence in response. Olsen
v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom.
Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993).
It was within the administrative law judge's discretion to address whether
claimant's disability is permanent, which was raised for the first time
at the formal hearing. Employer was not entitled to further notice of the
new issue because claimant raised temporary total disability in his pre-hearing
statement and there is no significant difference in the burdens of proof
required to challenge a claim for permanent rather than temporary total
disability. Moreover, the administrative law judge was not obliged to address
the issue of jurisdiction, which was raised by claimant in his pre-hearing
statement. When employer failed to appear at the formal hearing without
good cause, the administrative law judge was authorized under 29 C.F.R.
§18.5(b) to find facts as alleged by claimant - the appearing party.
Furthermore, as claimant sought an award of benefits, he per se did not
contest jurisdiction under the Act. Duran v. Interport Maintenance Corp.,
27 BRBS 8 (1993).
The Board concludes that the administrative law judge did not abuse
his discretion in refusing to entertain claimant's post-hearing request
for permanent total disability compensation based on claimant's failure
to exercise diligence in developing this issue, which should have been
anticipated prior to the hearing. Pimpinella v. Universal Maritime Service
Inc., 27 BRBS 154 (1993).
Where the administrative law judge accepts stipulations affecting the
Special Fund's liability that were submitted by claimant and employer without
Director's participation, the Board normally holds claimant and employer
bound by their stipulations and remands for adjudication of the Special
Fund's liability only. Under the circumstances of this case, however, where
the stipulations affect the Special Fund's liability under Sections 8(f)
and 10(h) and are based on the "last exposure" test of Dunn, which has
been disapproved by Congress through the 1984 Amendments, the Board will
permit a remand for readjudication of all issues, even those between claimant
and employer. Truitt v. Newport News Shipbuilding & Dry Dock Co., 20
BRBS 79 (1987).
The administrative law judge was not precluded from awarding permanent
partial disability by the fact that OWCP ordered employer to pay claimant
temporary total disability pending claimant's completion of a vocational
rehabilitation program. Because the deputy commissioner possesses no fact-finding
authority, OWCP's implicit temporary total disability determination is
not binding on an administrative law judge. Although the nature and extent
issues were not explicitly raised before or at the hearing, the parties'
stipulation regarding date of permanency and employer's request for Section
8(f) relief, suggested that the issue could permissibly be addressed. Price
v. Dravo Corp., 20 BRBS 94 (1987).
Administrative Law Judge acted within his discretion in refusing to
accept parties' stipulations agreed to at the informal conference where
claimant was represented by a different attorney. 29 C.F.R. §18.51
provides that the stipulations are not binding on the parties until received
in evidence. Warren v. National Steel & Shipbuilding Co., 21 BRBS 149
(1988).
The administrative law judge's error in rejecting the parties' stipulation
without giving them notice was harmless since the Director did not participate,
and the stipulation affected the Special Fund. However, since the date
of maximum medical improvement agreed to by the parties was supported by
the evidence of record, the Board modified the date of permanency to that
date. Phillips v. Marine Concrete Structures, Inc., 21 BRBS 233 (1988),
aff'd, 877 F.2d 1231, 22 BRBS 83 (CRT)(5th Cir. 1989), vacated on other
grounds, 895 F.2d 1033, 23 BRBS 36 (CRT) (5th Cir. 1990) (en banc).
Board held that where a stipulation entered into by the parties in a
former claim, that claimant had no viable disability claim at that time,
manifested no intention by the parties to be bound in future cases, the
administrative law judge erred by finding that the parties were bound by
the stipulation. Donnell v. Bath Iron Works Corp., 22 BRBS 136 (1989).
An administrative law judge may not reject stipulations without giving
the parties prior notice that he will not automatically accept the stipulations.
On remand, the administrative law judge must give the parties the opportunity
to submit evidence in support of their positions on the average weekly
wage issue. Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS
245 (1989).
The Board holds that the administrative law judge acted within his discretion
in rejecting the parties' stipulation to Defense Base Act jurisdiction.
Casey v. Chapman College, Pace Program, 23 BRBS 7 (1989).
An administrative law judge may discount an alleged agreement regarding
claimant's average weekly wage at the informal hearing because it could
merely have been a factor in attempting to negotiate a settlement at the
informal level. McCullough v. Marathon Letourneau Co., 22 BRBS 359 (1989).
The Board permitted Director to challenge stipulations agreed to by
claimant and employer because a) stipulations are non-binding where they
evince an incorrect application of law; b) the stipulations potentially
violated Section 15(b) because they constituted an agreement under which
claimant was effectively waiving his right to compensation by accepting
less compensation than that to which he was entitled; c) the issue contained
in the stipulations, the proper maximum compensation rate, was a legal
one and could therefore be raised at any time. Puccetti v. Ceres Gulf,
24 BRBS 25 (1990).
The administrative law judge acted within his discretion in holding
employer bound to its stipulation of claimant's annual earnings in the
year prior to the injury for purposes of calculating average weekly wage.
Simonds v. Pittman Mechanical Contractors, Inc., 27 BRBS 120 (1993), aff'd
sub nom. Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d
122, 28 BRBS 89 (CRT) (4th Cir. 1994).
At the hearing regarding claimant's death benefits case, employer conceded
that claimant's failure obtain written approval of third-party settlements
she entered into with decedent did not bar claimant's claim for death benefits
under Section 33(g)(1). Subsequent to the hearing, and prior to the issuance
of the administrative law judge's decision, the Ninth Circuit issued Cretan,
1 F.3d 843, 27 BRBS 93(CRT), wherein the court held that potential widows
are subject to the provisions of Sections 33(f) and (g) of the Act. Thereafter,
in a letter to the administrative law judge, employer stated that it had
changed its position with regard to Section 33(g) and requested that the
administrative law judge consider Section 33(g) as a new issue, pursuant
to 20 C.F.R. §702.336(b). The administrative law judge denied employer's
request. The Board held that it was reasonable for employer to raise the
issue of Section 33(g) post-hearing based on the holding in Cretan, and
that the administrative law judge's failure to consider the Section 33(g)
issue post-hearing constituted an abuse of discretion under Section 702.336(b).
Thus, the Board remanded the case for further findings. Taylor v. Plant
Shipyards Corp., 30 BRBS 90, 94 (1996).
The administrative law judge acted within his discretion under 20 C.F.R.
§702.336(b), when he refused to consider the Section 33(g) issue raised
by employer after the administrative law judge's adverse decision, where
employer waited more than three months after the issuance of the applicable
Supreme Court case, even though the decision was published prior to the
issuance of the administrative law judge's decision. Moreover, the administrative
law judge rationally found that as there were different interpretations
of the section at issue by the courts at the time of the hearing and a
Supreme Court decision was imminent, employer's failure to preserve the
Section 33(g) defense for appeal was not excusable, justifiable or understandable.
This case is thus distinguishable from Taylor, 30 BRBS 90 (1996). Lewis
v. Todd Pacific Shipyards Corp., 30 BRBS 154, 157 (1992).
If, during the course of a hearing, the evidence presented warrants
consideration of an issue or issues not previously considered, the hearing
may be expanded to include the new issue. 20 C.F.R. §702.366(a). In
this case, the administrative law judge properly considered the issue of
coverage inasmuch as employer listed this issue in its pre-hearing statement
that was submitted to the administrative law judge and raised this issue
at the formal hearing. Nelson v. American Dredging Co., 30 BRBS 205, 206
(1996).
The Board rejected employer's contention that the administrative law
judge improperly allowed claimant and the Director to raise a new issue
at the hearing on remand. Initially, the administrative law judge found
that claimant was not "a person entitled to compensation" under Section
33(g)(1), and therefore, his claim was not barred. Subsequently, the Supreme
Court issued Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26
BRBS 49 (CRT)(1992). Based on the change of law, claimant and the Director
advanced a different theory before the Board as to why claimant's claim
should not barred: that since claimant suffered two distinct injuries asbestosis,
contracted while employed at Electric Boat, and chronic obstructive pulmonary
disease while working for employer employer's written approval of the third-party
settlements concerning his asbestosis was not required. Since the administrative
law judge had not addressed this theory, the Board had specifically directed
him to address this theory on remand, and the administrative law judge
committed no error by doing so. Goody v. Thames Valley Steel Corp., 31
BRBS 29 (1997)
Administrative Procedure Act, Section 23 and Section 27
If claimant cannot be located because he has failed to notify the Office
of Administrative Law Judges or his attorney of his whereabouts, it is
not a violation of claimant's right to testify in his own behalf or to
confront witnesses, 5 U.S.C. §556(d), for the administrative law judge
to close the record more than five months after the second hearing without
such testimony; claimant has waived his rights. Walker v. Sun Shipbuilding
& Dry Dock Co., 19 BRBS 171 (1986).
The administrative law judge's mere statement that each medical exhibit
"although perhaps not specifically mentioned in this decision, has been
carefully reviewed and given thoughtful consideration," does not satisfy
the requirements of the APA. The administrative law judge must independently
analyze and discuss the medical evidence; the administrative law judge's
failure to explicitly accept or reject the medical evidence of record makes
it impossible for the Board to apply its standard of review. Ballesteros
v. Willamette Western Corp., 20 BRBS 184 (1988).
Although employer allegedly discharged claimant for falsifying information
on his pre-employment application, the administrative law judge's failure
to consider that employer discharged claimant only a few weeks after he
filed his workers compensation claim (possible violation of Section 49)
violates the Administrative Procedure Act and requires remand. Jaros v.
Nat'l Steel & Shipbuilding Co., 21 BRBS 26 (1988).
Where administrative law judge provided only a cursory discussion of
his determination that employer was not entitled to Section 8(f) relief,
Board remanded for additional findings pertaining to the Section 8(f) issue.
Dugas v. Durwood Dunn, Inc., 21 BRBS 277 (1988).
Because the record contained conflicting evidence as to the cause of
claimant's back problems and his chronic pain syndrome, which the administrative
law judge failed to consider in concluding that these conditions were not
work-related, the Board remanded for the administrative law judge to reconsider
this evidence in light of the Section 20(a) presumption and the Administrative
Procedure Act. Frye v. Potomac Electric Power Co., 21 BRBS 194 (1988).
Where administrative law judge denied claimant medical benefits under
the Longshore Act because he found no evidence upon which to determine
whether the medical expenses paid under the state act were reasonable,
and where it was not apparent from the administrative law judge's Decision
and Order what evidence he considered and relied upon in reaching this
determination, the Board remanded for reconsideration on Administrative
Procedure Act grounds. McDougall v. E.P. Paup Co., 21 BRBS 204 (1988),
aff'd and modified sub nom. E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341,
27 BRBS 41 (CRT) (9th Cir. 1993).
The Board holds that the administrative law judge erred in failing to
address all of the medical evidence of record, as well as the post-hearing
motions made by both parties. Such an omission violates the Administrative
Procedure Act. McCurley v. Kiewest Co., 22 BRBS 115 (1989).
The administrative law judge's disposition of a petition for modification
must comport with the requirements of the Administrative Procedure Act.
Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989).
The Board remands the case for the administrative law judge to render
new findings consistent with the APA where he summarily concluded that
employer presented substantial evidence to rebut the Section 20(a) presumption.
Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 245 (1989).
The administrative law judge violated the APA by failing to discuss
voluminous and relevant medical evidence relating to claimant's physical
and mental conditions. Instead, the administrative law judge relied on
the reports of two doctors whom he, without adequate discussion, found
to be independent experts under Section 7(e). Cotton v. Newport News Shipbuilding
& Dry Dock Co., 23 BRBS 380 (1990).
While a work-related aggravation of a prior condition may establish
contribution for Section 8(f) purposes, where administrative law judge
found that claimant's continued exposure to asbestos at the workplace resulted
in further impairment, but failed to analyze or discuss the relevant evidence
and to identify the evidentiary basis for his conclusion, he violated the
APA, 5 U.S.C. §557(c)(3)(A), and case must be remanded. Shrout v.
General Dynamics Corp., 27 BRBS 160 (1993) (Brown, J., dissenting).
The Board remands the case to the administrative law judge to address
applicable average weekly wage for claimant's permanent benefits. Without
explanation, in violation of the APA, the administrative law judge awarded
permanent total disability for a 1986 knee injury on the average weekly
wage applicable to a temporarily disabling 1988 ankle injury. Hawthorne
v. Ingalls Shipbuilding, Inc., 28 BRBS 73 (1994), modified on other grounds
on recon., 29 BRBS 103 (1995).
The Board vacates the summary denial of Section 8(f) relief and remands
the case for findings on all elements consistent with the requirements
of the APA. Goody v. Thames Valley Steel Corp., 28 BRBS 167 (1994) (McGranery,
J., dissenting).
The Board holds that the administrative law judge erred in remanding
the case to the deputy commissioner so that a direct appeal to the Board
on the issue of Section 8(f) relief could be taken. The administrative
law judge abdicated his responsibility to resolve disputed issues by remanding
the case without making the required factual findings regarding claimant's
entitlement as well as the applicability of Section 8(f) and liability
of the Special Fund. Champagne v. Main Iron Works, Inc., 20 BRBS 84 (1987).
The Rules of Practice and Procedure for Administrative Hearings Before
the Office of Administrative Law Judges do not apply to the extent they
are inconsistent with a rule of special application as provided by statute
or regulation. Adams v. Newport News Shipbuilding and Dry Dock Co., 22
BRBS 78 (1989).
Section 23(a) of the Act and the regulations at 20 C.F.R. §§702.338,
702.339, provide that the administrative law judge is not bound by formal
or technical rules of procedure except for those provided for in the Act.
In this case, the administrative law judge did not abuse her discretion
in using 29 C.F.R. Part 18 and Fed. R. Civ. P. 41(b) to, in effect, dismiss
a case for failure to pursue the claim, as use of these provisions is not
inconsistent with the Act. Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989).
The administrative law judge may rely on the Federal Rules where they
do not conflict with the Act or regulations to dismiss a case where warranted
by the specific circumstances. However, Rule 81(a)(6) of the Fed. R. Civ.
P., which states that the Federal Rules are applicable, does not apply
in this case as its application is limited to a proceeding for review or
enforcement of compensation orders under the Act. As no compensation order
was issued in this case because the case was dismissed, Rule 81(a)(6) does
not apply. Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118
(1989).
The administrative law judge is not bound by formal rules of procedure
except those provided for in the Act, and under certain circumstances,
the administrative law judge may rely on the Federal Rules in taking an
action. However, in this case, the Board reverses the administrative law
judge's reliance on Rule 59(e) to find a motion for reconsideration untimely
because it was not served on employer because use of the Federal Rules
to provide for an additional requirement not required under the Act is
inconsistent with Section 23, particularly where claimant is not represented
by counsel. The Board also notes that Rule 81(a)(6) is inapplicable. Bogdis
v. Marine Terminals Corp., 23 BRBS 136 (1989).
The Rules of Practice and Procedure for Administrative Hearings before
the Office of Administrative Law Judges, 29 C.F.R. Subtitle A, Part 18,
§18.40(a), Motion for Summary Decision, are analogous to Rule 56 of
the Federal Rules of Civil Procedure. The administrative law judge did
not act prematurely in deciding the status issue in a summary decision.
There was no dispute as to the nature of claimant's work duties, only as
to the legal significance of those duties. Thus, as there was no genuine
issue as to any material fact, the administrative law judge could rule
on employer's motion for summary decision. Hall v. Newport News Shipbuilding
& Dry Dock Co., 24 BRBS 1 (1990).
The Eleventh Circuit grants the employer's motion for summary judgment
under FRCP 56(c); the movant has established the absence of genuine issues
of material fact when all reasonable inferences are made in favor of the
nonmovant. In this case, the employer has established that the employee's
connection with maritime employment was de minimis such that there is not
coverage under the Longshore Act. Brockington v. Certified Electric, Inc.,
903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991).
The Board held that the administrative law judges erred in granting
summary decisions in favor of the employers since the cases presented contested
issues of material fact which affected the application of Section 33(g).
Harris v. Todd Pacific Shipyards Corp., 28 BRBS 254 (1994), aff'd and modified
on recon. en banc, 30 BRBS 5 (1996) (Brown and McGranery, J.J., concurring
and dissenting).
The Board affirmed the administrative law judge's denial of employer's
motion for summary judgment. In this case, the compensation claims were
settled under Section 8(i), and employer is contesting claimants' right
to medical benefits in view of alleged third-party settlements entered
into without employer's approval. As the administrative law judge found
that there is no evidence in the case from which he could determine whether
the claimants were entitled to medical benefits under the Act, a material
issue of fact, or the amount of the third-party settlements, he properly
denied the motion for summary judgment. Green v. Ingalls Shipbuilding,
Inc., 29 BRBS 81 (1995).
The Board holds that the administrative law judge did not violate the
APA where he discussed only the relevant parts of vocational testimony
in determining whether employer established suitable alternate employment.
Similarly, the administrative law judge did not err in not discussing certain
medical testimony as part of this Section 8(f) findings, since the substance
of the testimony actually supported his denial of Section 8(f) relief,
and the testimony was irrelevant towards determining whether the pre-existing
disability was manifest, because the physician did not treat claimant until
after the work injury. Hayes v. P & M Crane Co., 23 BRBS 389 (1990),
rev'd on other grounds, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g denied,
935 F.2d 1293 (5th Cir. 1991).
In this case, before the Board after remand from the Supreme Court's
decision in Greenwich Collieries, ___ U.S. ___, 114 S.Ct. 2251, 28 BRBS
43(CRT) (1994), the Board held that, as the administrative law judge discussed
the only two pertinent medical opinions of record, he did not violate the
APA by not discussing every medical opinion of record. Moreover, the Board
determined that it was within the administrative law judge's discretion
to credit Dr. Derby's opinion over that of Dr. Yazdan, and it was rational
for him to conclude that decedent's condition and death were not work-related.
Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).
Because claimant, who was employed to perform work under a contract
between employer and Saudi Arabia, to service Saudi aircraft including
C-130s, must prove that he was injured while performing services under
a subcontract or subordinate contract entered into by the U.S. in order
to establish Defense Base Act jurisdiction and because production of the
sales contracts could conclusively establish the extent of U.S. Government
involvement in the sales of C-130s, the administrative law judge's failure
to compel production of this highly relevant evidence was so prejudicial
as to result in a denial of due process by depriving him of the opportunity
for a fair hearing. Cornell v. Lockheed Aircraft Int'l, 23 BRBS 253 (1990).
The Board notes that the administrative law judge should fully instruct
the deputy commissioner as to which rates should be utilized when calculating
compensation rate adjustments pursuant to Sections 6 and 10(f) in order
to avoid confusion and possibly default orders. The APA requires that the
administrative law judge resolve all factual and legal issues necessary
to an award. This insures that a deputy commissioner's actions are purely
ministerial. Marko v. Morris Boney Co., 23 BRBS 353 (1990).
The Board, citing SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434,
23 BRBS 113 (CRT)(9th Cir. 1990) and Todd Shipyards Corp. v. Black, 717
F.2d 1280, 16 BRBS 13 (CRT)(9th Cir. 1983), cert. denied, 466 U.S. 937
(1984), held that the term "injury" as it is used in Section 23(a) of the
Act refers to the harm manifested as the result of an occupational disease
rather than to the exposure to the injurious stimuli which allegedly caused
the disease. The Board therefore rejected employer's arguments that decedent's
exposure to asbestos constituted his injury, and that pursuant to Section
23(a), the declaration of a decedent alone was insufficient to establish
that he was exposed to asbestos in the course of his covered employment.
Because the "injury" means the lung cancer that resulted from the exposure,
and there is ample corroboration that decedent suffered from cancer, Section
23(a) does not defeat the claim. Martin v. Kaiser Co., Inc., 24 BRBS 112
(1990)(Dolder, J., concurring in the result only).
The Board grants reconsideration regarding LIGA's right to a new hearing
on the merits of the claim. The Board holds that the administrative law
judge's actions at the hearing deprived LIGA of the opportunity to contest
claimant's entitlement to benefits and accordingly remands the case to
the administrative law judge to allow LIGA the opportunity to participate
in a new hearing limited solely to consideration of issues regarding claimant's
entitlement to benefits under the Act. Abbott v. Universal Iron Works,
Inc., 24 BRBS 169 (1991), modifying in part on recon. 23 BRBS 196 (1990).
The administrative law judge properly declined to recuse himself after
he characterized claimant's letters to the Office of Administrative Law
Judges criticizing him as "possibly defamatory." Written remarks regarding
a judge's conduct are insufficient to establish judicial bias towards the
author, as are adverse rulings. Moreover, the administrative law judge
did not err by declining to advise claimant how to respond to the Director's
post-hearing brief. The Act does not require the administrative law judge
to provide legal advice to a pro se claimant. Olsen v. Triple A Machine
Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen v. Director,
OWCP, 996 F.2d 1226 (9th Cir. 1993).
Admission of Evidence
Since Hanover Insurance Company was not a party before the administrative
law judge, none of the administrative law judge's findings is binding on
Hanover. Hanover must have the opportunity for a rehearing to present its
own evidence on the issue of date of last exposure. Sans v. Todd Shipyards
Corp., 19 BRBS 24 (1986).
The Board holds that the administrative law judge abused his discretion
in denying employer's motion to reopen the record where the court of appeals,
in remanding the case, specifically stated the administrative law judge
could admit evidence relating to the applicability of Section 8(f), but
not to the issue of causation. Without reopening the record, the administrative
law judge could not realistically consider the Section 8(f) issue. Champion
v. S & M Traylor Bros., 19 BRBS 36 (1986).
The administrative law judge's hearing is de novo, and he is not bound
by the deputy commissioner's opinion or recommendation. Moreover, the administrative
law judge has great discretion concerning the admission of evidence and
his refusal to admit certain exhibits does not demonstrate prejudice or
hostility. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988).
The administrative law judge has great discretion concerning the admission
of evidence and any decisions regarding the admission or exclusion of evidence
are reversible only if arbitrary, capricious, or an abuse of discretion.
Here, the administrative law judge misapplied the terms of his own Pre-Hearing
Order; the Board therefore vacated the administrative law judge's decision
to exclude employer's videotapes and reports and remanded the case for
the administrative law judge to consider the admissibility of this evidence.
The administrative law judge also erred in utilizing an assistant deputy
commissioner's compensation rate recommendation which was erroneously transferred
to the Office of Administrative Law Judge in violation of 20 C.F.R. §702.317(c).
McCurley v. Kiewest Co., 22 BRBS 115 (1989).
The administrative law judge has discretion to exclude even relevant
and material testimony for failure to comply with terms of pre-hearing
order warning that failure to exchange names of witnesses at least 10 days
before the hearing could result in their exclusion. This is true despite
20 C.F.R. §702.338, requiring the administrative law judge to receive
relevant and material evidence. Durham v. Embassy Dairy, 19 BRBS 105 (1986).
The Board affirms the administrative law judge's decision to admit evidence
offered in violation of a pre-hearing discovery order. The order stated
that evidence offered in violation of the order may be excluded. The administrative
law judge therefore did not abuse his discretion in admitting the evidence.
Administrative law judge's decision is further supported by 20 C.F.R. §702.338
which provides that administrative law judge has a duty to inquire fully
into matters at issue and to receive all relevant evidence. Picinich v.
Seattle Stevedore Co., 19 BRBS 63 (1986).
Where employer has failed to exercise due diligence in obtaining evidence
prior to the hearing, the Board held that the administrative law judge
acted within his discretion in declining to hold the record open after
the hearing for the receipt of that evidence. Sam v. Loffland Bros. Co.,
19 BRBS 228 (1987).
The Board holds that since Section 702.338 indicates that an administrative
law judge may reopen a record at any time prior to issuing a compensation
order, the administrative law judge in this case acted within his discretion
in ordering claimant to submit new evidence. Although the extent of the
discussion in the order suggests that the administrative law judge could
have concluded his consideration of the claim at that time, his decision
to instead supplement the existing record did not constitute reversible
error. The Board also notes that 29 C.F.R. §18.54, which is more restrictive
than 20 C.F.R. §§702.338, 702.339, is not applicable in reviewing
the administrative law judge's determination pertaining to admission of
evidence in this case, given that they are inconsistent with the more specialized
regulatory provisions. Wayland v. Moore Dry Dock, 21 BRBS 177 (1988).
The administrative law judge did not abuse his discretion by refusing
admission of post-hearing evidence when counsel waited 2 1/2 months before
requesting an extension of time in which to make its post-hearing submission.
Brown v. Bethlehem Steel Corp., 19 BRBS 200, aff'd on recon., 20 BRBS 26
(1987), aff'd and rev'd on other grounds sub nom. Director, OWCP v. Bethlehem
Steel Corp., 868 F.2d 759, 22 BRBS 47 (CRT)(5th Cir. 1989).
Although the administrative law judge may hold the record open after
the hearing for the receipt of additional evidence, the party seeking to
admit evidence must exercise diligence in developing the claim prior to
the hearing. The administrative law judge did not abuse his discretion
by refusing to reopen the record for the submission of evidence regarding
the extent of claimant's disability as he had previously held the record
open and had granted two extensions of time for the submission of such
evidence. Smith v. Ingalls Shipbuilding Div., Litton Systems Inc., 22 BRBS
46 (1989).
The administrative law judge erroneously determined that he did not
retain jurisdiction to admit or consider relevant evidence on reconsideration.
While the Board would ordinarily remand to consider admitting this evidence,
to avoid further delay, the Board interpreted submission of new evidence
as a post-decision Motion for Modification and instructed the administrative
law judge to consider all post-hearing evidence. Williams v. Nicole Enterprises,
Inc., 19 BRBS 66 (1986).
An administrative law judge may draw an adverse inference against a
party, concluding that where a party does not submit evidence within his
control, that evidence is unfavorable. In this case, the administrative
law judge declined to draw such an inference regarding claimant's refusal
to only partially waive the attorney-client privilege with regard to the
attorney who handled her separation proceeding. The Board affirms the administrative
law judge's finding that even if an adverse inference was drawn, there
was substantial evidence that claimant and decedent were husband and wife
at the time of his death. Denton v. Northrop Corp., 21 BRBS 37 (1988).
It is well-established that when a party has relevant evidence within
its control which it fails to produce, that failure gives rise to an inference
that the evidence is unfavorable to it. The administrative law judge's
denial of claimant's request for an adverse inference because it was not
made at the beginning of the hearing as a preliminary matter is harmless
error since claimant failed to establish facts which would indicate that
the evidence requested provided relevant information to assist in the disposition
of the issues in the case. Brown v. Pacific Dry Dock, 22 BRBS 284 (1989).
The administrative law judge has the discretion to order counsel at
the formal hearing to cease questioning a witness on a subject which is
not relevant to the matter at issue. Newby v. Newport News Shipbuilding
& Dry Dock Co., 20 BRBS 155 (1988).
Administrative law judge may rely on hearsay testimony, as he is not
bound by formal rules of evidence. Thus, the Board rejects the contention
that the administrative law judge erred in awarding claimant back pay for
a Section 49 violation for a number of days unsubstantiated by records
submitted into evidence. Powell v. Nacirema Operating Co., Inc., 19 BRBS
124 (1986).
The parol evidence rule provides that when the parties to a contract
put their agreement in writing in a manner so that the terms of the agreement
are certain, those terms cannot be varied on the basis of extrinsic evidence,
unless the agreement is only partially integrated or is ambiguous. Then
additional terms not inconsistent with the written terms or the construction
of the terms may be established by extrinsic evidence. In this case, the
Board affirmed the administrative law judge's resort to extrinsic evidence
to determine if employer waived its Section 33(f) lien, as he rationally
found that the third-party settlements were not fully integrated and were
ambiguous. Sellman v. I.T.O. Corp. of Baltimore, 24 BRBS 11 (1990), aff'd
in part and rev'd in part, 954 F.2d 239, 25 BRBS 101 (CRT) (4th Cir.),
modified in part on reh'g, 967 F.2d 971, 26 BRBS 7 (CRT) (1992), cert.
denied, U.S. , 113 S.Ct. 1579 (1993).
The Board holds that it was within the administrative law judge's discretion
to allow hearing testimony and declarations which were not offered in compliance
with a pre-trial order requiring prior notice of proposed witnesses and
documents, in that he properly found good cause for noncompliance based
on the hearing witness's status as a rebuttal witness, and in that an opportunity
to take post-hearing depositions of the declarant was provided. The Board
further holds that the administrative law judge could properly rely on
these declarations and testimony, which constituted parol evidence, to
determine whether third-party settlements involving claimant had actually
occurred. The parol evidence was used not to attack the legal effect of
a state court judgment but, rather, to construe the effect of any settlement
agreement for purposes of the Longshore Act. Chavez v. Todd Shipyards Corp.,
24 BRBS 71 (1990), aff'd in part and rev'd in part sub nom. Chavez v. Director,
OWCP, 961 F.2d 1409, 25 BRBS 134 (CRT)(9th Cir. 1992).
The Board affirmed the administrative law judge's admission of employer's
evidence where three of the exhibits objected to were records of the Department
of Labor which were regularly kept in the course of its dealings with claimant,
the author of a fourth exhibit was subject to cross-examination due to
his presence at the hearing, and a fifth exhibit was not inconsistent on
its face or authored by anyone with an interest in the case. Vonthronsohnhaus
v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1990).
While the Board has recognized that parol evidence may be used in construing
settlements under Section 33, see, e.g., Chavez, 24 BRBS 71 (1990), the
use of parol evidence appears to be proscribed under Section 702.242(a)
in the case of Section 8(i) settlements applications. The administrative
law judge violated 20 C.F.R. §702.242(a) by considering an affidavit
submitted to him by an attorney from employer's legal department and relying
on it to find that employer was represented by counsel. McPherson v. National
Steel & Shipbuilding Co., 24 BRBS 224 (1991), aff'd on recon. en banc,
26 BRBS 71 (1992).
The administrative law judge has the duty to fully inquire into matters
at issue and receive into evidence all relevant and material testimony
and documents, and he may reopen the hearing to accomplish this duty. Accordingly,
the administrative law judge did not abridge claimant's due process rights
by seeking post-hearing the Director's participation and submission of
exhibits. The Director submitted relevant evidence, and claimant was afforded
the opportunity to respond. Olsen v. Triple A Machine Shops, Inc., 25 BRBS
40 (1991), aff'd mem. sub nom Olsen v. Director, OWCP, 996 F.2d 1226 (9th
Cir. 1993).
The Board held that the administrative law judge abused his discretion
and violated 20 C.F.R. §702.338 by refusing to reopen the record at
the close of the hearing and to formally consider evidence offered by employer
-- a labor market survey compiled by its vocational counselor -- and by
refusing to allow the counselor to testify regarding his survey. The Board
stated that the administrative law judge's denial precluded his consideration
of relevant evidence concerning the salient issue in this case, post-injury
wage-earning capacity, consisting of evidence of suitable alternate employment;
in addition, the administrative law judge denial violated notions of fundamental
fairness because he had previously allowed claimant to depose Dr. Cox post-hearing
regarding new restrictions placed on claimant. Ramirez v. Southern Stevedores,
25 BRBS 260 (1992).
In the context of discussing mistake in fact pursuant to Section 22,
the Board holds that the administrative law judge violated 20 C.F.R. §§702.336,
702.338 when he failed to resolve the issue of responsible carrier. In
the initial proceedings the administrative law judge dismissed Wausau,
finding that decedent was not exposed to asbestos while it was on the risk.
He thereafter did not resolve the issue, despite that employer was at all
relevant times insured, and he held employer liable. The Board notes the
similarity between this case and Sans, 19 BRBS 24 (1986), and, for this
reason, and several others the Board remands the case to the administrative
law judge for a new hearing on employer's petition for modification. Jourdan
v. Equitable Equipment Co., 25 BRBS 317 (1992)(Dolder, J., dissenting).
The Ninth Circuit rejected employer's contention that the administrative
law judge erred in rejecting its offer of additional evidence on remand,
as it held that the administrative law judge properly restricted the scope
of the remand proceedings to the terms of the Board's remand order. E.P.
Paup Co. v. Director, OWCP, 999 F.2d 1341, 27 BRBS 41 (CRT)(9th Cir. 1993),
aff'g and modifying McDougall v. E.P. Paup Co., 21 BRBS 204 (1988).
Discovery
The D.C. Circuit holds that the administrative law judge did not abuse
his discretion in denying a motion to produce certain reports, where the
reports would have been of only limited probative value. Stark v. Washington
Star Co., 833 F.2d 1025, 20 BRBS 40 (CRT)(D.C. Cir. 1987).
Section 27(a) provides that a motion to compel maybe issued where a
party refuses to be deposed or to answer interrogatories. If the order
is resisted, Section 27(b) provides that the matter shall be referred to
the appropriate U.S. district court for the imposition of sanctions. As
this sanction is less drastic than the dismissal of the claim pursuant
to Fed. R. Civ. P. 41(b), the administrative law judge erred in dismissing
the claim without considering the availability of less drastic sanctions.
Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989).
The Board states that a discovery ruling will constitute reversible
error only if it is so prejudicial as to result in a denial of due process.
In this case, the administrative law judge acted within his discretion
in denying employer's motion to remand the case for claimant to undergo
a second impartial medical examination where he found the report of the
first such exam to be unambiguous, contrary to employer's contention. Martiniano
v. Golten Marine Co., 23 BRBS 363 (1990).
Claimant was employed to work under a contract between employer and
the Kingdom of Saudi Arabia to service and maintain various aircraft of
the Royal Saudi Air Force, including C-130s. Board hold that the administrative
law judge erred in denying claimant's motion to compel production of the
contracts of sale of the C-130s, in this case in which claimant sought
to establish that his claim is covered under the Defense Base Act because
he was injured while performing services under a subcontract or subordinate
contract entered into by the United States. The administrative law judge's
reliance on the testimony of employer's experts does not justify his denial
of claimant's motion because neither expert was familiar with the sale
of all of the C-130s. Cornell v. Lockheed Aircraft Int'l, 23 BRBS 253 (1990).
The administrative law judge acted within his discretion when he declined
to schedule a formal hearing because claimant had repeatedly refused to
comply with outstanding discovery requests. The administrative law judge
also acted within his discretion to dismiss claimant's claims with prejudice
due to claimant's repeated and numerous abuses of the administrative process,
including claimant's failure to comply with discovery. Harrison v. Barrett
Smith, Inc., 24 BRBS 257 (1991), aff'd mem. sub nom. Harrison v. Rogers,
No. 92-1250 (D.C. Cir. March 19, 1993).
The administrative law judge's broad discretion to direct and authorize
discovery includes the limiting of document requests and testimony based
on relevance. The administrative law judge did not therefore abuse his
discretion by limiting post-hearing discovery to evidence relevant to the
sole issue in dispute. Furthermore, the administrative law judge acted
within his discretion and did not violate claimant's due process rights
by prohibiting claimant from testifying post-hearing, since the administrative
law judge admitted claimant's post-hearing sworn affidavits, which addressed
the relevant issue. Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991),
aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993).
Claimant's Motion for Certification to the district court under Section
27(b) of the Act, based on employer's refusal to comply with the administrative
law judge's discovery order is premature, as employer has appealed the
order to the Board and, therefore, has not yet resisted a lawful order.
Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994).
The Board held that as employer's complaint was not an action to enforce
compliance with a direct order of the administrative law judge, and claimant
did not disobey a lawful process, as he did not resist the administrative
law judge's jurisdiction or a discovery order, employer's attempt to recoup
benefits allegedly obtained by fraud must fail. Section 31(a) provides
the sole remedy for allegations of fraud. The Board therefore reversed
the administrative law judge's finding that Section 27(b) is applicable
and vacated his certification of facts to the district court and the recommendation
that claimant be made to repay employer. Phillips v. A-Z Int'l, BRBS ,
BRB No. 96-564 (Dec. 23, 1996).
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NOTICE: This Longshore Deskbook was created solely to assist the staff
of the Benefits Review Board in researching cases arising under the Longshore
Act, as amended. This Desk Book in no way constitutes the official opinion
of the Board or any of its Members on any subject. The Desk Book does not
necessarily contain an exhaustive or a current treatment of Board holdings,
and should, under no circumstances, substitute for a party's own research
into the statutory, regulatory, and case law authorities on any subject
referred to therein. It is intended simply as a research tool; and is not
intended as final legal authority and should not be cited or relied upon
as such. See Notice, 20 CFR.§802.211(b)
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