Tony L. Terry v. Electric Boat Corporation (Board decision, October 31, 2022)

BRB interlocutory order. This unpublished decision is not precedent. The Benefits Review Board vacated the denial of Tony Terry's Longshore claim and sent it back for a benefits calculation. The amount of any additional benefits remains unresolved.

Plain-English summary

Tony Terry, a pipefitter for Electric Boat, had received compensation for work-related hand injuries in 2004. He later sought additional benefits, saying years of work with vibrating tools had worsened his hand symptoms. The judge dismissed the claim because Terry's medical impairment ratings had not increased. A two-member Board majority held that increased symptoms can constitute a new work injury even without a higher impairment rating. It found the worsening hand symptoms work-related because the only medical evidence tied them to Terry's work and the employer offered no contrary evidence. The Board sent the case back to calculate any additional benefits using Terry's pay at the time of the later injury, with credit for the employer's earlier payment. Chief Judge Boggs agreed that remand was needed but would have left the causation findings to the judge.

Decision snapshot

• Authority: Work injury presumption under 33 U.S.C. § 920(a), scheduled hand compensation under 33 U.S.C. § 908(c)(3), and average weekly wage under 33 U.S.C. § 910.
• Outcome: Denial vacated, work causation established by the majority, and case remanded for benefits calculation.
• Key point: Work-related worsening of symptoms can be a new injury even if the measured impairment percentage stays the same.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 21-0567

TONY L. TERRY
)
)
Claimant
)
) DATE ISSUED: 10/31/2022
v. )
)
ELECTRIC BOAT CORPORATION
)
)
Self-Insured
)
Employer-Respondent
)
DECISION and ORDER
Appeal of the Order Denying Claimant’s Motion for Summary Decision, Granting Employer’s Cross-Motion for Summary Decision and Dismissing Claim of Jonathan C. Calianos, Administrative Law Judge, United States Department of Labor.

Scott N. Roberts (The Law Office of Scott Roberts, LLC), Groton, Connecticut, for Claimant.

Edward W. Murphy (Morrison Mahoney LLP), Boston, Massachusetts, for Self-Insured Employer.

Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and GRESH, Administrative Appeals Judges.

BUZZARD and GRESH, Administrative Appeals Judges:

Claimant appeals Administrative Law Judge (ALJ) Jonathan C. Calianos’ Order Denying Claimant’s Motion for Summary Decision, Granting Employer’s Cross-Motion for Summary Decision and Dismissing Claim (2021-LHC-00463) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C.
§901 et seq. (Act). We must affirm the ALJ’s findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant has worked as a pipefitter for Employer since 1980. In 2004, he filed a claim for benefits relating to work-related neuropathy and carpal tunnel syndrome in both hands. Claimant’s Exhibit (CX) 3 at 4; CX 4 at 8. Employer accepted liability and voluntarily paid Claimant permanent partial disability benefits under 33 U.S.C. §908(c)(3) in the amount of $9,336.72. Claimant’s Motion for Summary Decision (Cl. M/SD.) at 5. Employer based its payment on Dr. Philo Willets’s 2004 impairment ratings of four and five percent respectively to Claimant’s left and right hands. Id.; see also CX 4. On February 11, 2020, Claimant filed a new claim for benefits, arguing his ongoing 16 years of work has aggravated his 2004 work-related bi-lateral hand condition. CX 1 at 2. Subsequently, he filed a motion for summary decision alleging there is no issue of material fact in dispute. Cl. M/SD. at 1. Employer filed a cross motion for summary decision.

The ALJ held a conference call on June 22, 2021, during which he issued a bench decision denying Claimant’s M/SD, granting Employer’s cross M/SD, and denying Claimant benefits. Transcript (TR) at 8-9. He specifically found, looking at the totality of the evidence, that Claimant showed no change in condition to warrant a causal connection between his work and his alleged aggravation of his prior injury. TR at 7. Furthermore, even assuming causation was met, the ALJ found Claimant had not established a disability because there was no increase in his impairment. TR at 6-9. He issued a short, written order on August 4, 2021, incorporating his bench decision. Order at 1. Claimant appeals, urging the Benefits Review Board to reverse the ALJ’s denial. Claimant’s Brief (Cl. Br.) at 4-5. Employer responds, urging affirmance.

Claimant contends the ALJ misrepresented Dr. Willets’s 2020 and 2021 reports by concluding that “while [Claimant] may be reporting increased symptoms, it’s not clear…and the findings of his own physician are that they’re no worse and he can’t find any increased impairment.” TR at 8; Cl. Br. at 4. He argues this is error because Dr. Willets ultimately reported Claimant’s symptoms were “a little worse.” Id. Secondly, Claimant contends the ALJ misapplied the Section 20(a) presumption because Dr. Willets’s 2021 report attributes the increase in symptoms to the nature of Claimant’s work. Cl. Br. at 5. He further argues the ALJ erred in concluding Employer met its rebuttal burden despite it putting forth no rebuttal evidence. Id.

Employer argues Claimant “must prove (1) that there was an increase in impairment to his hands and (2) it is due to his employment from the time of the prior payment in 2004 until the recent date of injury in this case.” Employer’s Response Brief (Emp. Br.) at 5. It asserts allowing a claimant who has had no increase in disability percentage to be awarded higher benefits because his salary has increased since the time of the original injury would lead to a chilling effect, discouraging employers from employing or retaining injured workers. Emp. Br. at 8.

To be entitled to the Section 20(a) presumption linking his injuries to his employment, a claimant must prove both: 1) he has sustained a harm; and 2) an accident occurred or working conditions existed which could have caused or aggravated the harm. See, e.g., Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000); Brown v. I.T.T/Cont’l Baking Co., 921 F.2d 289, 24 BRBS 75(CRT) (D.C. Cir. 1990); O’Kelley v. Dep’t of the Army/NAF, 34 BRBS 39 (2000). An “accidental injury” includes one occurring gradually as a result of continuing exposure to conditions of employment and is sufficient to sustain an award if the employment “aggravates the symptoms of the process.” Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986); Gardner v. Bath Iron Works Corp., 11 BRBS 556 (1979), aff’d sub nom. Gardner v. Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981) (an aggravation or progression of an underlying condition is not necessary for there to be a compensable injury; an increase in symptoms resulting in disability is sufficient).

If the claimant proves the elements of a prima facie case, the Section 20(a) presumption is invoked, connecting his harm with his established accident or working conditions. To rebut the Section 20(a) presumption, the employer must produce substantial evidence that the injury was not caused or aggravated by the claimant’s employment. See, e.g., Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004). If it does, the presumption drops from the case, and the ALJ must weigh the relevant causation evidence on the record with the claimant bearing the burden of persuasion. When there is no evidence contradicting a claimant’s testimony regarding the work he performed, and the employer does not present substantial evidence rebutting the presumption, the ALJ may properly find the Section 20(a) presumption was invoked and not rebutted. Obadiaru v. ITT Corp., 45 BRBS 17 (2011).

We agree with Claimant’s argument that the ALJ erred in finding his condition, originally caused by his 2004 injury, was not aggravated by his continued work for Employer. During the hearing, the ALJ stated “causation is not met just because when I get to the weighing prong, I think that the better weight of the evidence, which is Claimant’s own medical expert, reports on this gentleman’s symptoms as being the same in 2020.” TR at 7. More specifically, the ALJ stated, “[s]o if I weigh the evidence, which I will get to, I would weigh the evidence in finding that causation is not met, that [Employer] has provided substantial evidence in rebuttal, being the Claimant’s own expert, that he really has not changed in the years that have intervened.” Id. He therefore concluded “causation

3
[is] not met based on the substantial rebuttal evidence and weighing that evidence.” 1 Id. at 8.

Based on these statements, we conclude the ALJ did not appropriately address causation in terms of the Section 20(a) presumption.2 The only medical evidence of record are the reports from Dr. Willets. On May 20, 2004, he found Claimant had a four percent impairment of his left hand and a five percent impairment of his right hand. CX 4 at 14-

15. In 2020, Dr. Willets re-examined Claimant and opined “there is no evidence of
    worsening impairment now, compared to 16 years ago, despite some increase in symptoms.” CX 3 at 4-5 (emphasis added). In 2021, Dr. Willets stated Claimant’s impairments had not increased as of his 2020 reevaluation; thus, Claimant’s symptoms had increased but his impairment ratings did not. CX 2 at 1. At that time, Dr. Willets also opined that Claimant’s work duties “over the many years since 2004 did contribute to the hand symptoms for which I evaluated him in June 2020.” Id.

    Contrary to the ALJ’s conclusion that Dr. Willets’s opinion constitutes evidence
    rebutting the Section 20(a) presumption, Claimant complained of worsening symptoms and Dr. Willets attributed those increased symptoms to Claimant’s additional 16 years of work with pneumatic tools.3 CX 3 at 4-5. Claimant was not, as the ALJ found, required to prove an increase in his impairment rating, as an increase in symptoms is sufficient to constitute an injury under the Act. Pittman, 18 BRBS 212; Gardner, 11 BRBS 556. In this regard, the undisputed evidence establishes the harm and working conditions necessary to invoke the 20(a) presumption: Claimant complained of increased hand symptoms since his 2004 work-related injury, he testified about his subsequent work activities with vibrational tools such as Murphy’s, whirlybirds, burr tools and grinders, and Dr. Willets concluded in his 2021 report that Claimant’s “ongoing hand-intensive activities at work between 2004 and

    1 The ALJ further stated to Claimant’s counsel, “I don’t think you have enough here

to overcome the causation analysis initially, and I think even assuming if you do, I get stuck on disability.” TR at 11.
2 The ALJ’s August 4, 2021 Order merely adopts and incorporates his “findings of

fact and conclusions of law” as articulated in his bench decision. Order at 1-2; TR at 7.
3 Dr. Willets reached this conclusion after reviewing the type of vibrational work Claimant was exposed to, the type of tools he used, the amount of time he spent working with the vibrational tools, and the approximate number of years he spent using those tools. CX 3 at 17. Moreover, Dr. Willets identified Claimant’s specific symptom complaints which included problems gripping, pinching, tool usage, cold exposure, and driving. CX 3 at 18.

4
2020” contributed “to increased symptoms.” CX 2 at 1; CX 3 at 1; see Welch v. Pennzoil Co., 23 BRBS 395 (1990) (a claimant’s complaints of subjective symptoms can be sufficient to establish the harm element). Consequently, we hold Claimant, as a matter of law, invoked the Section 20(a) presumption that his increased bilateral hand symptoms experienced in 2020 and 2021 are work-related.4 See generally Myshka v. Elec. Boat Corp., 48 BRBS 79 (2015).

As for rebuttal, Employer, in this case, did not present any evidence showing Claimant’s 2020 hand symptoms are not related to his ongoing work for Employer since 2004. Instead, relying on Dr. Willets’s reports,5 Employer argues it rebutted the Section 20(a) presumption because Claimant’s impairment to his hands has not changed since 2004.6 However, as noted above, Employer’s argument relies on a misunderstanding of the law. Dr. Willets’s reports support both that Claimant suffered an aggravation to his 2004 waterfront injury, in the form of increased symptoms, and his work for Employer caused the increased symptoms. As Employer has not produced any evidence showing Claimant’s increased hand symptoms are not the result of his continued work for Employer, we hold Claimant’s 2020 bilateral hand condition is work-related as a matter of law. See generally Bath Iron Works Corp. v. Preston, 380 F.3d 597, 38 BRBS 60(CRT) (1st Cir. 2004); Obadiaru, 45 BRBS 17; Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).

As Claimant has established a causal relationship between his present bilateral hand symptoms and his employment by operation of the unrebutted Section 20(a) presumption, we remand this case to the ALJ for a determination as to Claimant’s entitlement, if any, to

4 Employer accepts that the ALJ found Claimant’s evidence sufficient to invoke the

20(a) presumption “at least for purposes of summary decision.” Emp. Br. at 5. While Employer summarily states it is “unlikely” that Claimant’s evidence could invoke the Section 20(a) presumption, it provides no specific argument on that issue. Id. Instead, Employer focuses its arguments on its incorrect belief that increased symptoms are non- compensable in the absence of an increased impairment, i.e., “assuming he [invoked the presumption], claimant cannot prove the required increase in his impairment or that the increase is causally related to his interim employment[.]” Id.
5 Based on Dr. Willets’s “clear opinion,” Employer maintains Claimant cannot prove by a preponderance of the evidence that he sustained an additional impairment to his hands. Emp. Opp. to Cl. M/SD at 5.
6 This rationale, which served as the underlying basis for the ALJ’s denial of benefits, strongly suggests the ALJ conflated causation with disability and found Claimant did not establish causation merely because he did not have any increased impairment.

5 additional benefits. In this regard, Claimant seeks additional compensation based on an allegedly higher average weekly wage as of the date of his increased symptoms in 2020. An employee’s average weekly wage is calculated as of the time of injury. 33 U.S.C. §910; Hastings v. v. Earth Satellite Corp., 628 F.2d 85, 14 BRBS 345 (D.C. Cir.), cert. denied, 449 U.S. 905 (1980); see generally Giacalone v. Matson Terminals, Inc., 37 BRBS 87 (2003). Because an aggravation of a prior condition is considered a new injury, 7 average weekly wage is calculated at the time of the aggravation. Id. For this reason, on remand, the ALJ must determine Claimant’s average weekly wage at the time of his 2020 injury and calculate his scheduled award pursuant to that figure. 33 U.S.C. §908(c)(3). Employer is entitled to a dollar-for-dollar credit of $9,336.72 for the permanent partial disability compensation it previously paid to Claimant for his hand injuries under the schedule in this case.8 Director, OWCP v. Bethlehem Steel Corp. [Brown], 868 F.2d 759, 22 BRBS 47(CRT) (5th Cir. 1989); Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc); see also Myshka, 48 BRBS at 81-82.

7 The aggravation rule provides an employer is liable for the totality of the claimant’s disability if the work injury aggravates a pre-existing condition. See Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc). If the work accident or conditions causes the claimant to become symptomatic, the fact that the underlying disease process is not accelerated is immaterial. Gardner v. Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981); see also Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986).
8 The credit doctrine was developed as a limit on the aggravation rule, which provides that an employer is liable for the entirety of a disability if a work injury aggravates a pre-existing disability. Director, OWCP v. Bethlehem Steel Corp. [Brown], 868 F.2d 759, 22 BRBS 47(CRT) (5th Cir. 1989); Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986) (en banc). Application of this credit doctrine prevents a double recovery to a claimant. Id.

6
Accordingly, we vacate the ALJ’s denial of benefits, reverse his finding that Claimant’s 2020 increased symptoms are not work-related, and remand the case for him to calculate Claimant’s benefits and Employer’s credit in accordance with this decision.

SO ORDERED.

GREG J. BUZZARD
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

BOGGS, Chief Administrative Appeals Judge, concurring and dissenting:

While I concur with my colleagues that the case should be remanded to the ALJ because he incorrectly considered disability when he was addressing causation, I respectfully dissent from their decision to hold Claimant is entitled to the Section 20(a) presumption as a matter of law. Instead, I would remand for the ALJ to properly address the entire Section 20(a) analysis.

In this case, the ALJ did not properly discuss whether Claimant invoked the Section 20(a) presumption but instead conflated invocation, rebuttal, and weighing of the evidence. During the hearing, the ALJ stated “causation is not met just because when I get to the weighing prong, I think that the better weight of the evidence, which is Claimant’s own medical expert, reports on this gentleman’s symptoms as being the same in 2020 […] [s]o if I weigh the evidence, which I will get to, I would weigh the evidence in finding that causation is not met, that [Employer] has provided substantial evidence in rebuttal, being the Claimant’s own expert, that he really has not changed in the years that have intervened.” TR at 7-8. The ALJ concluded “causation [is] not met based on the substantial rebuttal evidence and weighing that evidence.”9 Id. at 8.

For a claimant to be entitled to the Section 20(a) presumption he must prove he has sustained a harm and working conditions existed which could have caused or aggravated

9 The ALJ further stated to Claimant’s counsel, “I don’t think you have enough here

to overcome the causation analysis initially, and I think even assuming if you do, I get 7 the harm. See, e.g., Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000); Brown v. I.T.T/Cont’l Baking Co., 921 F.2d 289, 24 BRBS 75(CRT) (D.C. Cir. 1990); O’Kelley v. Dep’t of the Army/NAF, 34 BRBS 39 (2000). If this presumption is invoked and employer rebuts the presumption with substantial evidence establishing the injury is not work-related, then the ALJ must weigh the evidence presented to him. It is an error of law for the ALJ to fail to address the Section 20(a) presumption where it is applicable. Rajotte v. Gen. Dynamics Corp., 18 BRBS 85 (1986); Adams v. Gen. Dynamics Corp., 17 BRBS 258 (1985); Dower v. Gen. Dynamics Corp., 14 BRBS 324 (1981).

Here, the ALJ, in his bench decision, did not properly discuss whether Claimant established entitlement to the presumption nor whether Employer rebutted it but instead determined causation based on the cursory discussion and weight he gave to Dr. Willets’s report. TR at 6-7. The ALJ made an unsupported and broad statement from the bench of “I question whether you even meet causation. But assuming you do, then I get to disability, and I don’t know how we get over that analysis because there’s clearly no increase in impairment.” TR at 6.

As it is the ALJ’s job to make factual findings, apply the proper Section 20(a) analysis, and credit and weigh the evidence if he gets that far into the analysis, 10 I would remand for the ALJ to first properly address whether there has been invocation of the presumption, and if so, whether there has been rebuttal, and, if he finds rebuttal to consider the evidence as a whole.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

stuck on disability.” TR at 11. This demonstrates, as we all agree, he also conflated causation with disability.
10 In this case there is evidence, including Claimant’s own reported statement, from

which the ALJ could find that Claimant was the same (in which case no harm) or worse (in which case harm). It is up to the ALJ to make findings of fact, not the Board. Director, OWCP v. Jaffe New York Decorating, 25 F.3d 1080, 28 BRBS 30(CRT) (D.C. Cir. 1994); LaFaille v. Benefits Review Board, 884 F.2d 54, 22 BRBS 108(CRT) (2d Cir. 1989).

8