Filed: Jan. 14, 2010
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2376 NORTHROP GRUMMAN SHIPBUILDING INCORPORATED, f/k/a Newport News Shipbuilding and Dry Dock Company, Petitioner, v. JAMES KEA; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petition for Review of an Order of the Benefits Review Board. (BRB-0504) Submitted: November 19, 2009 Decided: January 14, 2010 Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit Judges. Affirmed by unpublished per curiam o
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2376 NORTHROP GRUMMAN SHIPBUILDING INCORPORATED, f/k/a Newport News Shipbuilding and Dry Dock Company, Petitioner, v. JAMES KEA; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petition for Review of an Order of the Benefits Review Board. (BRB-0504) Submitted: November 19, 2009 Decided: January 14, 2010 Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit Judges. Affirmed by unpublished per curiam op..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2376
NORTHROP GRUMMAN SHIPBUILDING INCORPORATED, f/k/a Newport
News Shipbuilding and Dry Dock Company,
Petitioner,
v.
JAMES KEA; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(BRB-0504)
Submitted: November 19, 2009 Decided: January 14, 2010
Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Jonathan H. Walker, MASON, MASON, WALKER & HEDRICK, PC, Newport
News, Virginia, for Petitioner. Gregory E. Camden, MONTAGNA
KLEIN CAMDEN, LLP, Norfolk, Virginia, for Respondent James Kea.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Northrop Grumman Shipbuilding, Inc., formerly known as
Newport News Shipbuilding and Dry Dock Company (the “Employer”),
petitions for review of the Decision and Order of the Benefits
Review Board (the “Board”), affirming an Administrative Law
Judge’s (ALJ) award of permanent partial disability benefits to
employee James Kea under § 908(c) of the Longshore and Harbor
Workers’ Compensation Act (the “Act”), 33 U.S.C.A. § 908(c)
(West 2001). For the following reasons, we affirm.
I.
On April 6, 1995, James Kea injured his right leg while
working as a shipbuilder for the Employer. The injury consisted
of a serious laceration that resulted in neurological sensory
and motor compromise, measurable atrophy of the leg, and limited
range of motion. Kea received an award of temporary total
disability benefits from April 7, 1995, to August 27, 1995, and
temporary partial disability benefits from August 28, 1995, to
December 31, 1998. Kea subsequently sought modification of his
compensation award, alleging that he had also sustained a
permanent loss of wage earning capacity as a result of the
injury, entitling him to additional compensation in the form of
permanent partial disability benefits under § 908(c) of the Act.
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Dr. Alvin Bryant was Kea’s treating physician, and the
record contains a number of his treatment records. In April
2003, after an extended delay in obtaining his response to a
request for an opinion on permanent disability resulting from
the injury, Dr. Bryant assigned a permanent partial disability
rating of 35% to Kea’s right leg. In conjunction therewith, Dr.
Bryant described the nature of the injury, including the
accompanying injuries to the “veins, small arteries, fascia of
muscles, and nerves in [Kea’s] right lower leg,” and the
resulting permanent abnormalities, including neurological
injuries, nodular fascitis, swelling, and abnormalities of gait.
J.A. 46. Dr. Bryant also noted that Kea suffered from “severe
motor sensory neuropathy” and had “clinical evidence of
peripheral venus and arterial disease of his right lower leg
which ha[d] exacerbated his injuries.” J.A. 46. * Although Dr.
Bryant described the injuries and the permanent disabilities
resulting therefrom, he did not identify the specific source
relied upon for determining the percentage of disability.
On May 14, 2003, Dr. Mark Ross performed an independent
medical examination at the request of the Employer and assigned
*
The record also contains a report of Dr. Mark M. Levy,
opining that as of June 14, 1999, Kea suffered from “chronic
pain syndrome in his right leg” and “recommend[ing] that he see
rehabilitation doctors for what [would likely] be a chronic
problem.” J.A. 53.
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an impairment rating of 14% to Kea’s right leg pursuant to the
American Medical Association’s Guides to the Evaluation of
Permanent Impairment. Dr. Ross noted that Kea’s “situation
[was] complicated by the fact that he has a severe sensorimotor
peripheral neuropathy that represents the basis for the majority
of his deficits.” J.A. 9. Accordingly, Dr. Ross opined that
“Mr. Kea’s total impairments [were] higher than [14%],” but that
these impairments were “primarily due to his diabetic neuropathy
and not [to] the work related injury.” J.A. 9.
In August 2003, the parties executed a Stipulation of Facts
setting forth the temporary total disability and temporary
partial disability benefits paid to date, as well as a
stipulation that Kea had sustained permanent partial disability
equivalent to 14% loss of use of the right lower extremity.
However, the Employer subsequently sought to withdraw the
stipulation and advised that it would not pay the stipulated
amount because it believed Kea’s request for additional benefits
was time-barred. The ALJ agreed and denied additional benefits,
and the Board affirmed. On appeal, we reversed the Board’s
denial of additional benefits as being time-barred and remanded
for a determination of the merits of Kea’s request for permanent
partial disability benefits under the Act. See Kea v. Newport
News Shipbuilding & Dry Dock Co., 488 F.3d 606, 613 (4th Cir.
2007).
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On remand, the ALJ considered the disability ratings
assigned by Dr. Bryant and Dr. Ross, and awarded permanent
partial disability benefits based upon an impairment of 24.5% to
the right leg, which also represented an average of the
disability ratings assigned by the two physicians who had
evaluated him.
With regard to Dr. Bryant, the ALJ observed that “Dr.
Bryant found Claimant suffered from neurologic injuries, nodular
fascitis, swelling and abnormalities of gait, all of which were
related to the work related injury to his right leg,” and
assigned a 35% permanent disability rating to the right lower
leg, but that Dr. Bryant had “not indicate[d] what source he
relied upon to determine the percentage of disability.” J.A.
104. However, the ALJ felt that “Dr. Bryant’s opinion [was
entitled to] additional weight because of [his] continued
treatment” of Kea. Id. With regard to the evaluation performed
by Dr. Ross, the ALJ observed that “Dr. Ross, in contrast [to
Dr. Bryant], only saw Claimant on one occasion at the request of
the Employer.” Id. However, the ALJ felt that the thoroughness
of Dr. Ross’s opinion entitled it to “additional weight” as
well. Id. Also, “[i]n contrast to Dr. Bryant, Dr. Ross was
very clear as to the factors he considered in assessing the
percentage of disability under AMA guidelines.” Id.
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Having considered and identified the relative strengths and
weaknesses of the respective ratings assigned by the two
physicians, the ALJ ultimately noted and accepted Kea’s
“suggest[ion] that the Court average the two ratings and assign
[Kea] a disability rating of 24.5% based upon the two
physicians’ opinions.” Id. “Based on the facts of th[e] case,
and considering Dr. Bryant’s status as a treating physician and
the thoroughness of Dr. Ross’s disability assessment,” the ALJ
explicitly found “this approach [to be a] reasonable one.” Id.
The Board affirmed, holding that the Employer had “not
demonstrated error in the [ALJ’s] decision to accord weight both
to the opinion of Dr. Bryant based on his long-time treatment of
the claimant, and to that of Dr. Ross on the basis that his
examination was thorough and his explanation clear.” J.A. 109
(citations omitted).
II.
On appeal, we review the Board's decisions for errors of
law and to ascertain whether the Board adhered to its
statutorily mandated standard for reviewing the ALJ's factual
findings. See Gilchrist v. Newport News Shipbuilding & Dry Dock
Co., 135 F.3d 915, 918 (4th Cir. 1998); Zapata Haynie Corp. v.
Barnard,
933 F.2d 256, 258 (4th Cir. 1991). Our review of legal
questions “is de novo and no deference is accorded the [Board's]
6
legal interpretations.” Gilchrist, 135 F.3d at 918. The
factual findings of the ALJ must be affirmed if supported by
substantial evidence. See 33 U.S.C.A. § 921(b)(3) (West 2001).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). “On review,
the ALJ’s findings “may not be disregarded on the basis that
other inferences might have been more reasonable. Deference
must be given the fact-finder’s inferences and credibility
assessments, and we have emphasized the scope of review of ALJ
findings is limited.” Newport News Shipbuilding & Dry Dock Co.
v. Tann,
841 F.2d 540, 543 (4th Cir. 1988).
Here, the Employer asserts that Dr. Bryant’s impairment
rating of 35% was “wholly conclusory” and offered “without
explanation,” rendering it insufficient for consideration by the
ALJ as matter of law. See Dir., OWCP v. Newport News
Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140 (4th
Cir. 1998) (“[T]o be sufficient the evidence must be such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. The ALJ may not merely credulously
accept the assertions of the parties or their representatives,
but must examine the logic of their conclusions and evaluate the
evidence upon which their conclusions are based.” (internal
quotation marks, citations and footnote omitted)). The Employer
7
also contends that the ALJ erred as a matter of law in affording
any weight to Dr. Bryant’s 35% impairment rating solely because
he was Kea’s treating physician. Finally, the Employer asserts
that the ALJ erred as a matter of law by accepting Kea’s
suggestion that the two impairment ratings be averaged together
and that, by doing so, the Board’s decision was rendered without
logical, rational or legal basis.
We disagree. First, we do not find Dr. Bryant’s rating to
be wholly conclusory or without explanation. On the contrary,
Dr. Bryant explained that Kea’s work-related injury involved
injuries to Kea’s “veins, small arteries, fascia of muscles and
nerves” and that, as a result, Kea suffered from “neurologic
injuries, nodular fascitis, swelling, . . . abnormalities of
gait,” “severe motor sensory neuropathy in th[e] right lower
leg,” and “peripheral venus and arterial disease of his right
lower leg which ha[d] exacerbated his injuries.” J.A. 46.
Accordingly, while Dr. Bryant’s opinion is not as detailed as
Dr. Ross’s report, or even as detailed as we might prefer, it
falls far short of being a conclusory assignment of an
impairment rating wholly devoid of basis. Second, the ALJ’s
decision did not afford weight to Dr. Bryant’s impairment rating
solely because he was the claimant’s treating physician, nor did
the ALJ credit his opinion to the exclusion of all other
pertinent evidence. The ALJ gave Dr. Bryant’s opinion
8
“additional,” but not controlling, weight based upon Dr.
Bryant’s continued treatment. See Grigg v. Dir., OWCP, 28 F.3d
416, 420 (4th Cir. 1994) (noting that physician’s “status as
treating physician entitles his opinion to great, though not
necessarily dispositive, weight”); Milburn Colliery Co. v.
Hicks,
138 F.3d 524, 533 (4th Cir. 1998) (“[A]n ALJ should not
mechanistically credit, to the exclusion of all other testimony,
the testimony of an examining or treating physician solely
because the doctor personally examined the claimant.”) (internal
quotation marks and alteration omitted). In sum, Dr. Bryant’s
final opinion was not a conclusory one. And, while the ALJ may
have legitimately criticized Dr. Bryant’s failure to identify a
specific source (such as the AMA Guides) for his disability
assignment, the ALJ did not err in taking note of the medical
basis that was articulated in Dr. Bryant’s report or in giving
Dr. Bryant’s opinion additional weight based upon his long-term
treatment of Kea.
Finally, we disagree with the contention that the ALJ’s
averaging of impairment ratings by evaluating and treating
physicians indicates a baseless decision. On the contrary, the
ALJ discussed the findings of both physicians, discussed the
pros and cons of each, and explained when and why he specially
credited one or the other. Ultimately, the ALJ made a finding
of 24.5% disability based upon the facts of the case, which
9
included the specific findings of both Dr. Bryant and Dr. Ross,
and concluded that averaging their assignments of disability was
a reasonable approach to the evidence. It is well within the
province of an ALJ to assign a disability award that is higher
or lower than any disability rating suggested by any party. Dr.
Bryant’s opinion noted that Kea’s injuries had been exacerbated
by his “severe motor sensory neuropathy,” as well as his
“peripheral venus and arterial disease.” J.A. 46. Likewise,
Dr. Ross acknowledged that “Kea’s total impairments [were]
higher than [14%],” although this was, in his opinion,
“primarily due to [Kea’s] diabetic neuropathy and not the work
related injury.” J.A. 9. Under the circumstances, we cannot
say that the ALJ’s decision to award disability based upon a
24.5% permanent partial disability rating was arbitrary,
unsupported by substantial evidence on the record, or otherwise
erroneous as a matter of law simply because it also represented
an average of the ratings assigned by the physicians who had
evaluated Kea.
III.
For the foregoing reasons, we affirm the decision of the
Board. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
10
before the court and argument would not aid the decisional
process.
AFFIRMED
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