Petition for Writ of Certiorari — The Dutra Group, Inc., et al., Petitioners v. Kelly Zaradnik, et al.
Supreme Court briefApr 19, 2023
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Memorandum Opinion of the United States
Court of Appeals for the Ninth Circuit
(January 20, 2023) ...................................................... 1a
Order of the Benefits Review Board of the
United States Department of Labor
(July 27, 2021) ............................................................. 6a
Administrative Judge Order Approving
Stipulations and Vacating Hearing
(March 12, 2021) ....................................................... 11a
DOL OWCP Correspondence
(March 17, 2021) ................................................. 14a
Stipulations of Claimant and Respondent
and Request for Order (March 11, 2021) ......... 23a
Order of the United States Court of Appeals for
the Ninth Circuit (May 22, 2018) ............................ 29a
Decision and Order of the Benefits Review Board
(December 9, 2016) ................................................... 31a
Concurring and Dissenting Opinion of
Justice Boggs ...................................................... 54a
Administrative Judge’s Decision and Order
Granting Benefits (August 25, 2015) ...................... 58a
Benefits Review Board Order on Motion for
Reconsideration (November 23, 2021) .................. 160a
APPENDIX TABLE OF CONTENTS (Cont.)
Benefits Review Board Order on Motion for
Reconsideration En Banc (September 22, 2017) .. 162a
Concurring and Dissenting Opinion of
Justice Boggs .................................................... 171a
Administrative Law Judge Order Granting
Reconsideration (October 15, 2015) ...................... 172a
DOL OWCP Correspondence
(October 22, 2015) ............................................ 189a
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Statutory and Regulatory Provisions................... 194a
33 U.S.C. § 921 ................................................. 194a
20 C.F.R. § 802.205 .......................................... 198a
20 C.F.R. § 802.207 .......................................... 199a
20 C.F.R. § 802.208 .......................................... 200a
OTHER DOCUMENTS
Petitioner’s Opening Brief in the Ninth Circuit
(March 1, 2018) ....................................................... 202a
App.1a
MEMORANDUM* OPINION OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
(JANUARY 20, 2023)
NOT FOR P UBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________
THE DUTRA GROUP, INC.;
ENSTAR (US) INC., DBA Enstar Administrators for
Seabright Insurance Company,
Petitioners,
v.
KELLY ZARADNIK; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents.
________________________
No. 21-71411
BRB No. 26-0128
On Petition for Review of an Order
of the Benefits Review Board
Before: BERZON, R. NELSON, and
BADE, Circuit Judges.
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
App.2a
MEMORANDUM
The Dutra Group and Enstar (US) Inc.
(collectively “Dutra”) petition for review from a decision
of the Benefits Review Board (“Board”) concluding
that the Board lacked jurisdiction to grant a motion
filed by Dutra in the absence of a timely-filed appeal.
“We review the Board’s decision for errors of law,”
Nealon v. Cal. Stevedore & Ballast Co., 996 F.2d 966,
969 (9th Cir. 1993) (citing Chavez v. Dir., Off. of
Workers Comp. Programs, 961 F.2d 1409, 1413 (9th
Cir.1992)), applying a de novo standard of review to
the legal questions Dutra raises in this petition,
including questions involving the interpretation of
the Longshore and Harbor Workers’ Compensation
Act (“Longshore Act”), see Jordan v. SSA Terminals,
LLC, 973 F.3d 930, 936 (9th Cir. 2020). We deny the
petition.
1. The Board correctly held that it lacked
jurisdiction to grant Dutra’s motion. The Longshore
Act provides that “unless proceedings for the suspension
or setting aside of” a compensation order “are instituted” in an appeal to the Board, the order “shall
become final at the expiration of the thirtieth day”
after it is filed. 33 U.S.C. § 921(a); see also 33 U.S.C.
§ 921(b)(3). Thus, a party “has a thirty-day period
within which an appeal” to the Board “must be taken,
or it is lost.” Nealon, 996 F.2d at 969. Accordingly,
“[a]ny untimely appeal will be summarily dismissed
by the Board for lack of jurisdiction.” 20 C.F.R.
§ 802.205(c).
As the Act specifies that the court of appeals has
jurisdiction to review “final order[s] of the Board,” 33
U.S.C. § 921(c), a party seeking judicial review under
the Longshore Act ordinarily must first file a timely
App.3a
appeal to the Board. Where there is a remand to the
Administrative Law Judge (“ALJ”) for resolution of
specified issues, an aggrieved party may file a petition
for review in the court of appeals after the Board
issues a final order following the ALJ’s resolution of
the remanded issues. See Rhine v. Stevedoring Servs.
of Am., 596 F.3d 1161, 1165 (9th Cir. 2010); see also
Nat’l Steel & Shipbuilding Co., Inc. v. Dir., Off. of
Workers’ Comp. Programs (“McGregor”), 703 F.2d
417, 419 n.3 (9th Cir. 1983). So here, after the ALJ
issued its order resolving the issues on remand, Dutra
could have preserved its ability to obtain judicial
review of the Board’s 2016 order by timely obtaining
a final order from the Board. But Dutra did not take
any action before the Board until after the 30-day
deadline for a Board appeal had expired. See 33
U.S.C. § 921(a).
Dutra also could have filed a timely petition for
review in this court directly from the ALJ’s order on
remand but did not do that either. A party aggrieved
by an earlier Board order after remand to an ALJ
may bypass Board review and file a petition for
review in the court of appeals within 60 days from
the ALJ’s final order on remand. See McGregor, 703
F.2d at 418-19; 33 U.S.C. § 921(c). Where the Board
has already determined the contested issue in an
earlier decision, “requiring an appeal to the [Board]”
after the ALJ’s remand order “would [be] futile; a
summary affirmance adhering to a previous ruling in
the same case may properly be viewed as a purely
ministerial act.” McGregor, 703 F.2d at 418. In such
circumstances—which are those here—we have
jurisdiction where a party timely petitions for review
App.4a
directly from the ALJ’s order on remand. See id. at
418-19.
Rather than filing an appeal to the Board within
30 days of the ALJ’s decision or petitioning for
review in this court within 60 days, Dutra waited
until both deadlines had passed to file its motion
asking the Board to deem its 2016 order “final.”
Because the Board’s decision had already become
final under the statute 30 days after the ALJ order
on remand, see 33 U.S.C. § 921(a), (b)(3), the Board
correctly determined that it lacked jurisdiction to
grant Dutra’s motion.
2. Dutra’s arguments to the contrary do not
change our conclusion. Dutra contends that it could
not have appealed the ALJ’s order to the Board
because it was not aggrieved by the order. But Dutra
was aggrieved by the overall result of the ALJ order
combined with the earlier 2016 Board order, and so
it could have appealed. Dutra also could have filed,
within 30 days of the ALJ order, the motion it did file
and asked that it be considered an appeal. Or it
could have proceeded directly to our court pursuant
to the procedure we approved in McGregor. Regardless,
absent any form of a timely appeal, the Board did not
err in denying Dutra’s motion.
Nor could the Board appropriately have treated
the joint stipulation the parties filed with the ALJ as
a notice of appeal to the Board. Dutra relies on Board
regulations that allow “any written communication
which reasonably permits identification of the decision
from which an appeal is sought” to satisfy the
requirement of a notice of appeal to the Board, 20
C.F.R. § 802.208(b), even where the notice is filed
with the wrong entity, 20 C.F.R. § 802.207(a)(2). But
App.5a
although the joint stipulation discussed Dutra’s intent
to proceed to the Ninth Circuit, it said nothing about
any intent to appeal to the Board. See Porter v.
Kwajalein Servs., Inc., 31 Ben. Rev. Bd. Serv. 112
(1997).
Dutra also asserts that, because Zaradnik agreed
in the stipulation that it could proceed to the Ninth
Circuit and did not oppose Dutra’s motion to declare
the Board’s 2016 decision “final,” she has waived any
argument that Dutra’s Board appeal was untimely.
As noted, Dutra indeed could have proceeded to the
Ninth Circuit directly, had it done so within 60 days
of the ALJ decision; Zaradnik’s agreement to that
effect did not waive the issue of the timeliness of
Dutra’s motion to the Board. And regardless, the
Board had authority to “raise and decide [] sua
sponte” the jurisdictional question whether it had
authority to act on Dutra’s motion after the ALJ
decision had become final under the statute. See
Perkins v. Marine Terminals Corp., 673 F.2d 1097,
1100 (9th Cir. 1982).
PETITION DENIED.
App.6a
ORDER OF THE
BENEFITS REVIEW BOARD OF THE UNITED
STATES DEPARTMENT OF LABOR
(JULY 27, 2021)
NOT-PUBLISHED
U.S. DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
200 C ONSTITUTION AVE. NW
WASHINGTON, DC 20210-0001
________________________
KELLY ZARADNIK,
Claimant-Respondent
Cross-Petitioner,
v.
THE DUTRA GROUP, INCORPORATED
and
SEABRIGHT INSURANCE COMPANY,
Employer/
Carrier-Petitioners
Cross-Respondents.
________________________
BRB Nos. 16-0128 and 16-0128A
Date Issued: 07/27/2021
Before: Judith S. BOGGS, Chief Administrative
Appeals Judge, Jonathan ROLFE, Daniel T. GRESH,
Administrative Appeals Judges.
App.7a
ORDER
On June 1, 2021, Employer filed a motion
requesting the Benefits Review Board declare its
decision in Zaradnik v. The Dutra Group, Inc., BRB
Nos. 16-0128/A (Dec. 9, 2016) (Boggs, J., concurring
and dissenting), aff’d on recon. (Sept. 22, 2017) to be
“final,” thereby enabling it to appeal that decision to
the United States Court of Appeals for the Ninth
Circuit. Claimant has not responded. We deny Employer’s motion.
After the administrative law judge issued a
decision awarding Claimant benefits in 2015, both
parties appealed to the Board. The Board, inter alia,
affirmed the administrative law judge’s findings that
Claimant’s orthopedic and respiratory injuries are
work-related but remanded the case for him to
reconsider the nature of Claimant’s disability. The
Board denied Employer’s subsequent motion for reconsideration en banc. Employer appealed to the Ninth
Circuit, and Claimant filed a motion to dismiss the
appeal because the Board’s decision was not final.
The court granted Claimant’s motion to dismiss for
lack of jurisdiction. The Dutra Group, Inc. v. Zaradnik,
No. 17-73093 (9th Cir. May 22, 2018).
While the case was on remand to the administrative law judge, the parties stipulated Claimant
is permanently totally disabled and her condition
reached maximum medical improvement on January
28, 2012. With input from the Director, Office of
Workers’ Compensation, the stipulations also included
Employer’s entitlement to Section 8(f), 33 U.S.C.
§ 908(f), relief from the Special Fund, commencing
App.8a
104 weeks after January 28, 2012. The administrative
law judge canceled the scheduled hearing and approved
the parties’ stipulations. Emp. Motion at Exh. B
(Order dated March 12, 2021). The district director
filed the administrative law judge’s Order Approving
Stipulations on March 17, 2021. No party appealed
this Order.
With the issues on remand resolved, Employer
asserts the stipulations also included an agreement
that it would proceed with its appeal of the causation
issue, which the Board had affirmed, to the Ninth
Circuit. Emp. Motion at Exh. A. 1 To do so, it asks the
Board to issue an order declaring its prior decision
“final.”
Contrary to Employer’s assertion, an agreement
between the parties does not give the Board authority
or discretion to bypass statutory rules of procedure.
See Hamer v. Neighborhood Housing Srvcs. of Chicago,
___ U.S. ___, 138 S.Ct. 13 (2017). The Board obtains
jurisdiction over a case upon receipt of a timely
notice of appeal. The timeliness of a notice of appeal
is jurisdictional. 33 U.S.C. § 921(a); Jeffboat, Inc. v.
Mann, 875 F.2d 660, 22 BRBS 79(CRT) (7th Cir.
1989); Ins. Co. of N. Am. v. Gee, 702 F.2d 411, 15
BRBS 107(CRT) (2d Cir. 1983); 20 C.F.R. § 802.205.
The Board obtains jurisdiction if an aggrieved party
files an appeal within 30 days of the date that the
district director files the administrative law judge’s
decision or order. 33 U.S.C. §§ 919(e), 921(a); 20
C.F.R. § 802.205(a). Failure to file a notice of appeal
1 The stipulations state, “The parties acknowledge that the
Respondent may now proceed on the causation issue to the 9th
Circuit.”
App.9a
with the Board within the 30-day period “shall foreclose
all rights to review by the Board with respect to the
case or matter in question.” 20 C.F.R. § 802.205(c).
In this case, the administrative law judge’s
Order Approving Stipulations resolved all remaining
issues on remand. It was filed in the district director’s
office on March 17, 2021. Therefore, Employer had
until April 16, 2021, to file an appeal with the Board.
33 U.S.C. § 921(a); 20 C.F.R. § 802.205(a). Employer
did not file a timely notice of appeal, or any document
that could be perceived as a timely notice of appeal.
Its motion to the Board is dated May 28, 2021.
Consequently, the administrative law judge’s order,
and the non-final orders preceding it, became final as
of April 16, 2021, and the Board cannot address
matters determined therein. 2 33 U.S.C. § 921(a); 20
C.F.R. § 802.205(c). Because the Board now lacks
jurisdiction to address the administrative law judge’s
order, and by extension the prior non-final orders, we
cannot issue a decision or order declaring the prior
decision “final.”
Accordingly, we deny Employer’s motion.
2 Employer should have filed a timely appeal of the administrative
law judge’s Order Approving Stipulations seeking summary
affirmance of this decision and noting the appeal was for the
purpose of preserving its right to appeal the underlying Board
decision. See, e.g., Morganti v. Lockheed Martin Corp., BRB No.
04-0407 (Feb. 17, 2004) (unpub.) (affirming underlying decision
based on law of the case doctrine and granting motion for
summary affirmance of decision after remand, so that further
appeal could be taken).
App.10a
SO ORDERED.
/s/ Judith S. Boggs
Chief Administrative Appeals Judge
/s/ Jonathan Rolfe
Administrative Appeals Judge
/s/ Daniel T. Gresh
Administrative Appeals Judge
App.11a
ADMINISTRATIVE JUDGE ORDER
APPROVING STIPULATIONS AND
VACATING HEARING
(MARCH 12, 2021)
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200 (415) 625-2201 (FAX)
oalj-sanfrancisco@dol.gov
________________________
In the Matter of
KELLY ZARADNIK,
Claimant,
v.
THE DUTRA GROUP, INC., and
SEABRIGHT INSURANCE COMPANY
Employer and Carrier,
and
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Party-in-Interest.
________________________
Case No.: 2012-LHC-00988
OWCP NO.: 18-099601
Issue Date: 12 March 2021
App.12a
Before: Christopher LARSEN,
Administrative Law Judge.
ORDER APPROVING STIPULATIONS
AND VACATING HEARING
This is a claim for benefits under the Longshore
Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et
seq. (“the Act” or “LHWCA”). This matter is currently
set for further hearing by video on April 7, 2021.
Claimant and Employer/Carrier have filed written
stipulations executed by counsel on their behalf on
March 11, 2021. Those stipulations are approved,
and incorporated by this reference into this Order.
The parties stipulate:
1. The claimant, Kelly Zaradnik, is permanently
and totally disabled.
2. The claimant reached maximum medical
improvement on January 28, 2012.
3. Pursuant to agreement with the Director,
confirmed by e-mail dated March 3, 2021, Employer/
Carrier will receive Special Fund relief, with interest,
commencing 104 weeks after the maximum-medicalimprovement date of January 28, 2012.
Because these stipulations dispose of the issues
before me on remand from the Benefits Review Board,
the videoconference hearing on July 10, 2021, is
vacated.
SO ORDERED.
Digitally Signed by John C. Larsen
DN:CN=John C. Larsen
App.13a
OU=Administrative Law Judge, O=US
DOL Office of Administrative Law
Judges, L=San Francisco, S=CA, C=US
Location: San Francisco CA
CHRISTOPHER LARSEN
Administrative Law Judge
App.14a
DOL OWCP CORRESPONDENCE
(MARCH 17, 2021)
U.S. DEPARTMENT OF LABOR
OFFICE OF WORKERS’ C OMPENSATION PROGRAM
DIVISION OF LONGSHORE AND
HARBOR WORKERS’ COMPENSATION
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
________________________
OALJ File No: 2OL2-LHC-00988
OWCP Case: LS-18099601
OWCP Office:
Long Beach Suboffice of the Western District
Injured Employee: Kelly Zaradnik
Date of Injury: 09/01/2010
Employer: Dutra Group
Act: LHWCA
Dutra Group
2350 Kerner Blvd. #200
San Rafael, CA 94901
Barry W Ponticello, Esq.
Law Offices of England, Ponticello & St. Clair
701 “B” Street, # 1790
San Diego, CA 92101
SeaBright Insurance Company
P.O. Box 91107
Seattle, WA 98111
App.15a
Kelly Zaradnik
P.O. Box 863
Carlsbad, CA 92018
Eric A Dupree, Esq.
The Law Offices of Eric Dupree
1715 Strand Way, Ste. 203
Coronado, CA 92118
Dear Ladies and Gentlemen:
The enclosed Order Approving Stipulations and
Vacating Hearing (“Order”) of the Administrative
Law Judge is hereby served upon the parties to whom
this letter is addressed. The decision was based on
all of the evidence of record, including testimony
taken at formal hearing, and on the assumption that
all available evidence has been submitted.
The Order have been dated and filed in the
District Director’s Office. Procedures for appealing
are described below.
The employer/insurance carrier is hereby advised
that if the order awards compensation benefits, the
filing of a motion for reconsideration or an appeal
does not relieve that party of the obligation of paying
compensation as directed in this order. The employer/
insurance carrier is also advised that an additional
20 percent is added to the amount of compensation
due if not paid within 10 days, notwithstanding the
filing of a motion for reconsideration or an appeal,
unless an order staying payments has been issued by
the Benefits Review Board.
App.16a
Sincerely,
/s/ Marco A. Adame, II
District Director
Western Compensation District
A petition for reconsideration of a decision and
order must be filed with the Office of the Administrative Law Judges, which issued the attached decision
and order, within 10 days from the date the District
Director files the decision and order in his/her office.
Any notice of appeal must be sent by mail or
otherwise presented to the Clerk of the Benefits Review
Board in Washington, D.C., within 30 days from the
date upon which the decision and order or an order
deciding a timely filed petition for reconsideration
has been filed in the Office of the District Director. If
you file a notice of appeal by mail, the address for the
Benefits Review Board is: U.S. Department of Labor,
Benefits Review Board, ATTN: Office of the Clerk of
the Appellate Boards (OCAB), Suite S-5220, 200
Constitution Ave. NW, Washington, DC 20210-001.
You may file a notice of appeal electronically
through the Board’s electronic filing system. For details
on electronic filing, please see the enclosed information
sheet.
If a timely notice of appeal is filed by a party, any
other party may initiate cross-appeal or protective
appeal by filing a notice of appeal within 14 days of
the date on which the first notice of appeal was filed
or within the 30 day period described above, whichever
period last expires. A copy must be served upon the
App.17a
District Director and on all other parties by the party
who files a notice of appeal. Proof of Service shall be
included with the notice of appeal.
The date compensation is due is the date the
District Director files the decision and order in his/her
office.
Re: Kelly Zaradnik
OWCP Case: LS-18099601
OALJ Case: 2012-LHC-00988
CERTIFICATE OF FILING AND SERVICE
I certify that on 03/17/2021, the foregoing Order
Approving Stipulations and Vacating Hearing was filed
in the Office of the District Director, 18 Compensation District, and a copy thereof was mailed on said
date by certified mail to the parties and their representative at the last known address of each as follows:
Dutra Group
2350 Kerner Blvd. #200
San Rafael, CA 94901
Barry W Ponticello, Esq.
701 “B” Street, # 1790
San Diego, CA 92101
SeaBright Insurance Company
P.O, Box 91107
Seattle, WA 98111
Kelly Zaradnik
P.O. Box 863
App.18a
Carlsbad, CA 92018
A copy was also served electronically to the
following:
Dupree Law
EDupree@DupreeLaw.com
CBentley@dupreelaw.com
/s/ Marco A. Adame II
District Director
Long Beach Suboffice of the Western District
U. S. Department of Labor
Office of Workers’ Compensation Programs
Mailed: 03/17/2021
IMPORTANT INFORMATION ABOUT FILING
APPEALS ELECTRONICALLY
The Benefits Review Board’s former Electronic
File and Service Request (EFSR) system at https://
dol-appeals.entellitrak.com is offline permanently. A
new electronic filing system is deployed, so please
plan your filings accordingly.
Beginning Monday, December 7, 2020, the U.S.
Department of Labor made available for use a new
upgraded eFile/eServe system (EFS) at https://efile.
dol.gov. If you attempt to use the website link, https:
//dol-appeals.entellitrak.com, you will be directed to the
new upgraded system, Information on how to register
for EFS, as well as user guides, video tutorials, and
FAQs, is available at https://efile.dol.gov/support.
App.19a
You must register with EFS to use the system,
by setting up an account and a user profile. First, all
users will need to create an account at login.gov.
(You may already have an account if you are a
registered user of the former EFSR system.). Second,
users who have not previously registered with the
EFSR system will need to create a profile with EFS
using their login.gov username and password.
Existing EFSR system users will not have to create a
new EFS profile. All users can learn how to file an
appeal to the Board using EFS by consulting the
written guide at https://efile.dol.gov/system/files/202011/file-new-appeal-brb.pdf and the video tutorial at
https://efile.dol.gov/support/boards/new-appeal-brb .
BE SURE TO REGISTER AS SOON AS POSSIBLE! The deadline for filing an appeal is jurisdictional and cannot be waived. We recommend
that you set up your EFS profile to be able to file
your appeal on time. It should take you less than
an hour to set up your EFS profile, but you should
allow more time to review the user guides and
training materials. If you have trouble setting up
your profile, you can find contact information for
login.gov and EFS at https://efile.dol.gov/contact.
The Department will provide webinars on the
new e-filing system. Dates for the webinars will be
announced on the websites of the Office of Administrative Law Judges (www.dol.gov/agencies/oalj),
Benefits Review Board (www.dol.gov/agencies/brb), and
the upgraded Electronic Filing System (https://efile.
dol.gov).
If you file your appeal online, you do not need to
also file paper copies. The Board will electronically
serve a copy of the notice of appeal on the district
App.20a
director who filed the decision or order being appealed
and the Associate Solicitor for Black Lung and Longshore Legal Services. You are still responsible for
serving the notice of appeal and other documents on
the other parties to the case. Proof of service of the
notice of appeal on the other parties must be included
with the notice of appeal. See 20 C.F.R. § 802.204.
After an appeal is filed, the Board will issue a
notice to all parties acknowledging receipt of the appeal
and advising them as to any further action needed.
Once an appeal is filed, all inquiries and correspondence should be directed to the Board.
Registered users of EFS will be electronically
served with Board-issued documents via EFS; they will
not be served by regular mail. If you file your appeal
by regular mail, you will be served with Board-issued
documents by regular mail; however, on or after
December 7, 2020, you may opt into electronic service
by establishing an EFS account, even if you initially
filed your appeal by regular mail.
App.21a
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200 (415) 625-2201 (FAX)
________________________
MEMORANDUM FOR:
Long Beach District Director
Long Beach, CA
FROM
John C. Larsen
Administrative Law Judge
SUBJECT:
ZARADNIK KELLY V . DUTRA GROUP
Case No. 2012LHC00988, OWCP No. l8-099601
In accordance with the Regulations implementing
the Longshore and Harbor Workers’ Compensation
Act, I am transmitting herewith my signed document
this 12th day of March, 2021.
Five (5) Business Days from today, this Decision
and Order will be posted on our website (www.oalj.
dol.gov); however, under the Act and regulations
such posting will NOT constitute official service,
which is to be effected by your office.
FORWARDED:
Digitally Signed by Maryanne B. Ballard
DN:CN= Maryanne B. Ballard
OU=Legal Assistant, O=US DOL Office of
Administrative Law Judges,
App.22a
L=San Francisco, S=CA, C=US
Location: San Francisco CA
MARYANNE B. BALLARD
Legal Assistant
Enclosure
cc: Clm Atty (w/o encl)
Emp Atty (w/o encl)
Sol (w/o encl)
*THE OFFICE OF ADMINISTRATIVE LAW JUDGES
SHOULD NOT BE CONTACTED REGARDING
SERVICE OF THE ABOVE DOCUMENT.
App.23a
STIPULATIONS OF CLAIMANT AND
RESPONDENT AND REQUEST FOR ORDER
(MARCH 11, 2021)
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
________________________
KELLY ZARADNIK,
Claimant,
v.
THE DUTRA GROUP; ENSTAR (US) INC., DBA
ENSTAR ADMINISTRATORS FOR SEABRIGHT
INSURANCE COMPANY
Respondent.
________________________
OALJ No: 2012-LHC-00988
OWCP No:18-099601
BRB Docket No. 2016-0128; 2016-0128A
Ninth Cir. No.:18-72307
SE000801715
Comes Now CLAIMANT ZARADNIK and
RESPONDENT THE DUTRA GROUP/ENSTAR (“The
parties”) and STIPULATE as follows, and REQUEST
and ORDER consistent with these STIPULATIONS:
PROCEDURAL POSTURE
This matter proceeded to Trial, at which time
the assigned ALJ made a finding of industrial injury.
App.24a
The matter was appealed to the BRB on a number of
issues, with the BRB affirming the industrial injury
finding. RESPONDENT appealed the causation issue
to the 9th Circuit, who found the issue premature, as
the BRB had remanded issues back to the Trial level.
It is the parties’ understanding that the Trial level
issues need to be resolved before the 9th Circuit can
take up the causation appeal. The parties’ come forth
and stipulate as to the pending Trial level issues.
STIPULATIONS
1. CLAIMANT ZARADNIK is permanently and
totally disabled.
2. CLAIMANT ZARADNIK was MMI (maximum
medical improvement) on January 28, 2012 (01/28/
2012).
3. The parties have both discussed the Special
Fund issue with the Solicitor and Director, and the
Solicitor has advised (including via email of 03/03/2021)
that the Director would NOT oppose Special Fund
relief if the parties stipulated to permanent and total
disability and an MMI date of 1/28/12. The parties
have considered this representation as to Special
Fund relief in reaching these stipulations.
4. The parties acknowledge that the Respondent
may now proceed on the causation issue to the 9th
Circuit.
REQUESTED ORDER
The Parties request an Order as follows:
I. CLAIMANT ZARADNIK is permanently and
totally disabled.
App.25a
II. CLAIMANT ZARADNIK was MMI (maximum
medical improvement) on January 28, 2012 (01/28/
2012).
III. RESPONDENT THE DUTRA GROUP/
ENSTAR shall receive Special Fund relief, with
interest, commencing 104 weeks after the MMI date
of January 28, 2012 (01/28/2012).
IV. With the conclusion of remand issues, the
Trial level issues are complete such that the previously
filed appeals can proceed.
V. IT IS SO STIPULATED
DUPREE LAW
By: /s/ Eric A. Dupree
Attorney for Claimant
Dated: 03/11/2021
ENGLAND, PONTICELLO & ST. CLAIR
By: /s/ Barry W. Ponticello
Attorney for Respondent
Dated: 03/11/2021
App.26a
PROOF OF SERVICE
COURT: U.S. Department of Labor, Office of
Administrative Law Judges
CASE TITLE: Kelly Zaradnik v. The Dutra Group;
SeaBright Insurance Company
OWCP NO.:
18-99601
OALJ NO:
2012-LHC-00988
BRB NO.:
2018-0124
NINTH CIR. NO.: 17-73093
I, the undersigned, an employee of ENGLAND
PONTICELLO & ST.CLAIR, located at 701 B Street, Suite
1790, San Diego, California, 92101 declare under
penalty of perjury that I am over the age of eighteen
(18) and not a party to this matter, action or proceeding.
On March 12, 2021, I served the foregoing document(s),
described as:
STIPULATIONS OF CLAIMANT AND
RESPONDENT AND REQUEST FOR ORDER
dated 03/11/2021
in this action by placing true copies of the document(s) addressed to the following party(ies) in this
matter at the following address(es):
HONORABLE CHRISTOPHER LARSEN
OFFICE OF ADMINISTRATIVE LAW JUDGES
(Via Email:OALJ-SanFrancisco@dol.gov)
STEVE WIPER
ENSTAR (US) INC., DBA ENSTAR
ADMINISTRATORS FOR
SEABRIGHT INSURANCE COMPANY
(Via Email & U.S. Mail Only)
App.27a
ERIC A. DUPREE, ESQ.
DUPREE LAW
(Attorney for Claimant, Kelly Zaradnik)
(Via Facsimile Only: (619) 522-8787)
DANIEL CHASEK, E SQ.
OFFICE OF THE SOLICITOR
350 SOUTH FIGUEROA STREET
SUITE 370
LOS ANGELES, CA 90071
(Via U.S. Mail Only)
BY EMAIL. I caused the above-referenced document to be transmitted via email to the parties
as listed on this Proof of Service.
BY U.S. MAIL. I deposited such envelope in the
mail at San Diego, California. The envelopes
were mailed with postage thereon fully prepaid.
I am readily familiar with ENGLAND PONTICELLO
& ST.CLAIR’s practice of collection and processing
correspondence for mailing. Under that practice,
documents are deposited with the U.S. Postal
Service on the same day which is stated in the
proof of service, with postage fully prepaid at
San Diego, California in the ordinary course of
business. I am aware that on motion of party
served, service is presumed invalid if the postal
cancellation date or postage meter date is more
than one day after the date stated in this proof
of service.
App.28a
BY FACSIMILE. I caused the above-referenced
document to be transmitted via facsimile to the
parties as listed on this Proof of Service.
I declare under penalty of perjury under the laws
of the state of California, that the above is true and
correct.
Executed March 12, 2021 in San Diego, CA
/s/ Leanne Sun
Leanne Sun
App.29a
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
(MAY 22, 2018)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
THE DUTRA GROUP, INC. and
SEABRIGHT INSURANCE COMPANY,
Petitioners,
v.
KELLY ZARADNIK and DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAM,
Respondents.
________________________
No. 17-73093
BRB No. 16-0128
Benefits Review Board
Before: THOMAS, Chief Judge, W. FLETCHER
and CALLAHAN, Circuit Judges.
ORDER
Appellee’s motion to dismiss this appeal for lack
of jurisdiction (Docket Entry No. 11) is granted. See
33 U.S.C. 921(c); Bish v. Brady-Hamilton Stevedore
Co., 880 F.2d 1135, 1138 (9th Cir. 1989) (the court
lacks jurisdiction over an appeal of a Benefit Review
App.30a
Board order remanding to an administrative law
judge for further proceedings).
DISMISSED.
App.31a
DECISION AND ORDER OF THE
BENEFITS REVIEW BOARD
(DECEMBER 9, 2016)
NOT PUBLISHED
U.S. DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
200 Constitution Ave. NW
Washington, DC 20210-0001
________________________
KELLY ZARADNIK,
Claimant-Respondent
Cross-Petitioner,
v.
THE DUTRA GROUP, INCORPORATED
and
SEABRIGHT INSURANCE COMPANY,
Employer/CarrierPetitioners
Cross-Respondents.
________________________
BRB Nos. 16-0128 and 16-0128A
Date Issued: Dec 9 2016
Appeals of the Decision and Order Granting Benefits
and Order Granting Reconsideration of William
Dorsey, Administrative Law Judge, United States
Department of Labor, and the Order Ruling on
App.32a
Claimant’s Motion to Continue and Employer/
Carrier’s Motion to Change Location of Hearing of
Steven B. Berlin, Administrative Law Judge,
United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge,
BOGGS and GILLIGAN,
Administrative Appeals Judges.
HALL, Chief Administrative Appeals Judge:
Employer appeals, and claimant cross-appeals,
the Decision and Order Granting Benefits and Order
Granting Reconsideration (2012-LHC-00988) of Administrative Law Judge William Dorsey, and claimant
challenges the Order Ruling on Claimant’s Motion to
Continue and Employer/Carrier’s Motion to Change
Location of Hearing of Administrative Law Judge
Steven B. Berlin rendered on a claim filed pursuant
to the provisions of the Longshore and Harbor Workers’
Compensation Act, as amended, 33 U.S.C. § 901 et
seq. (the Act). We must affirm the administrative law
judge’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 alleged that she sustained cumulative
injuries to her left hip, back, hands, and lungs, over
the course of her work as a union pile driver which
began in 1991. Prior to her work for employer, claimant
had been diagnosed with several pulmonary and ortho-
App.33a
pedic conditions. 1 See HT at 47-50, 199-201, 232-233,
236-237; CX 23. Claimant worked for employer for
parts of 48 days, from July 23 until September 20,
2010,2 when her entire crew was laid off due to the
completion of the job. HT at 56. Claimant subsequently
worked in non-covered employment for Stone &
Webster (S & W) on two separate occasions, 3 with
the second job ending with a lay-off on or around
January 27, 2012. Claimant stated she thereafter
unsuccessfully looked for work until September 2012,
when she received notice that she would receive
1 ‘Claimant’s prior health concerns included diagnoses of asthma,
bilateral hip osteoarthritis, multiple back strains and two
hospitalizations for silica exposure. CX 23.
2 Claimant’s duties for employer included lifting and carrying
objects, such as 50-pound sand jacks, sheets of plywood, and
supporting timbers, across uneven ground; loading and unloading
trucks; operating forklifts; and operating and refueling other
equipment such as compressors, Hole-Hawg drills, welders,
chainsaws and beam saws. HT at 81, 88, 100-102, 106, 112,
124-125, 285; CX 24. Claimant stated she typically wore a tool
belt, weighing roughly 30 pounds, all day, and that she occasionally
carried an additional tool bag which might weigh between 60-65
pounds. HT at 110, EX 3 at 40-43, 49-50. Claimant further
stated that she was regularly exposed to airborne particulate
matter in her work with employer, including dust generated
from sandblasting and concrete pours, and fumes from glues
used to laminate the plies of plywood, and from diesel fuel
expelled from various tools and vehicles. HT at 88-90, 92-92, 9599, 123.
3 Claimant served as a lead person for S & W, doing concrete
and form work at the San Onofre Nuclear Power Facility, in
October and November of 2010. Claimant returned to work for
S & W in late October 2011, assembling office furniture, until
she was laid off.
App.34a
Social Security disability benefits. She retired from
the union that same month.
Claimant filed a claim for benefits under the Act
against employer on October 12, 2011, seeking
compensation for cumulative trauma injuries to her
hips, back, and hands, and for her pulmonary conditions, alleging that her work for employer contributed
to, aggravated and/or accelerated her underlying
orthopedic and respiratory conditions. Employer controverted the claim.
In his decision, the administrative law judge
found that claimant provided timely notice to employer
of her injuries under Section 12 of the Act, 33 U.S.C.
§ 912, and that the claim was timely filed under
Section 13 of the Act, 33 U.S.C. § 913. The administrative law judge found claimant entitled to the
Section 20(a) presumption that all of her claimed
orthopedic and respiratory conditions are related to
her work for employer, and that employer established
rebuttal thereof. 33 U.S.C. § 920(a). Addressing the
evidence as whole, the administrative law judge found
that claimant’s work for employer as a pile driver
aggravated, accelerated, and/or contributed to her
overall orthopedic and respiratory conditions. The
administrative law judge rejected e mployer’s
contention that claimant’s subsequent employment
with S & W is the cause of her disabling conditions.
Thus, the administrative law judge found claimant
entitled to, and employer liable for, ongoing temporary
total disability benefits commencing January 28,
2012, 33 U.S.C. § 908(b), and medical benefits for her
work-related conditions. 33 U.S.C. § 907(a). The administrative law judge denied employer’s motion for
reconsideration.
App.35a
On appeal, employer challenges the administrative
law judge’s findings that claimant provided timely
notice of her injuries, that she timely filed her claim
for benefits, and that, on the merits, claimant’s orthopedic and respiratory conditions are related to her work
with employer. BRB No. 16-0128. Claimant responds,
urging affirmance of the administrative law judge’s
award of benefits. Employer has filed a reply brief
On cross-appeal, claimant challenges the administrative law judge’s finding that her total disability
is temporary rather than permanent. Claimant
also challenges Judge Berlin’s pre-hearing Order
denying an attorney’s fee for claimant’s response to
employer’s motion for a change in venue. BRB No.
16-0128A. Employer responds, urging rejection of
claimant’s contentions. Claimant has filed a reply
brief
Timeliness
Employer contends that claimant’s notice of
injury and claim for compensation dated October 12,
2011, were untimely filed. Employer maintains that
the administrative law judge’s findings that claimant
became “aware” of her hip injury on August 29, 2011,
and her respiratory condition on November 9, 2012,
are contrary to the evidence and law. Employer
states that the record is replete with statements
from claimant that she was aware of the relationship
between her work activities with employer and her
allegedly worsening hip and respiratory conditions
prior to her last day of work in that job on September
20, 2010.
Section 12(a) of the Act, 33 U.S.C. § 912(a),
requires that claimant must, in a traumatic injury
App.36a
case, give employer written notice of her injury
within 30 days of the injury or of the date claimant is
aware, or in the exercise of reasonable diligence or by
reason of medical advice should have been aware, of
the relationship between the injury and her
employment. Todd Shipyards Corp. v. Allan, 666 F.2d
399, 14 BRBS 427 (9th Cir.), cert. denied, 459 U.S.
1034 (1982); Bivens v. Newport News Shipbuilding &
Dry Dock Co., 23 BRBS 233 (1990). In the absence of
substantial evidence to the contrary, it is presumed,
pursuant to Section 20(b) of the Act, 33 U.S.C. § 920(b),
that employer has been given sufficient notice of the
injury pursuant to Section 12(a). See Lucas v. Louisiana Ins. Guaranty Ass’n, 28 BRBS 1 (1994). “Awareness” in a traumatic injury case occurs when the
claimant is aware, or should have been aware, of the
relationship between the injury, the employment,
and an impairment of her earning power, and not
necessarily on the date of the accident, or in this
repetitive trauma case, the date of the last trauma.
See Abel v. Director, OWCP, 932 F.2d 819, 24 BRBS
130(CRT) (9th Cir. 1991); J.M Martinac Shipbuilding
v. Director, OWCP, 900 F.2d 180, 23 BRBS 127(CRT)
(9th Cir. 1990) (discussing same standard in 33 U.S.C.
§ 913). In a case involving an occupational respiratory
disease which does not immediately result in disability,
claimant must give employer notice of her injury
within one year of her awareness of the relationship
between the employment, the disease and the disability. 33 U.S.C. § 912(a).
The administrative law judge found that it was
only after Dr. Ezzet, on August 29, 2011, explained
that claimant’s hip problems were work-related and
advised her to leave her career as a pile driver, that
App.37a
claimant became aware of the full extent, character,
and impact of her hip injury. Decision and Order at
25; Order on Recon. at 2. Specifically, the administrative law judge found that by August 29, 2011,
claimant knew she had a hip injury, that her work
over the years had made it worse, and that her
symptoms had increased while working for employer.
Additionally, the administrative law judge found that
August 29, 2011, represents the first time claimant
became aware that she suffered an “impairment of
earning power,” as that is when Dr. Ezzet told her to
quit working as a pile driver. He thus concluded that
claimant’s inability to return to her usual work as a
pile driver on August 29, 2011, initiated the Section
12(a) statute of limitations. With regard to claimant’s
respiratory conditions, the administrative law judge
found there was nothing during claimant’s work for
employer which alerted her to the possibility that her
work may have aggravated or accelerated her preexisting respiratory conditions until she received a
medical opinion to that effect from Dr. Harrison on
November 9, 2012.
Substantial evidence supports the administrative
law judge’s findings that claimant first became aware
of the relationship between her hip and respiratory
injuries, her work for employer, and an impairment
to earning power on August 29, 2011 and November
9, 2012, respectively. In his report dated August 29,
2011, Dr. Ezzet diagnosed osteoarthritis and “had a
lengthy and frank discussion” with claimant informing
her that he “does not think construction work is in
her best interest any longer,” because of her left hip
condition. CX 23. Specifically, Dr. Ezzet stated that
claimant “does not tolerate [construction work] well
App.38a
with her arthritic hips and would not be a good
candidate for that kind of work if she has her hip
replaced.” Id. Drs. Harrison and Greenfield each agreed
that Dr. Ezzet’s August 29, 2011 report represents
the first time any doctor declared claimant disabled
as a result of her hip condition. CX 21 at 59; PostHearing Dep. of Dr. Greenfield at 25. The opinions of
Drs. Ezzet, Harrison and Greenfield thus support the
administrative law judge’s finding that claimant first
became aware, or should have been aware, of the
relationship between her hip injury, her work for
employer, and an impairment in her earning capacity,
on August 29, 2011. See SSA Terminals v. Carrion,
821 F.3d 1168, 50 BRBS 61(CRT) (9th Cir. 2016); 932
F.2d 819, 24 BRBS 130(CRT); see also E.M. [Mechler]
v. Dyncorp Int’l, 42 BRBS 73 (2008), aff’d sub nom.
Dyncorp Int’l v. Director, OWCP, 658 F.3d 133, 45
BRBS 61(CRT) (2d Cir. 2011); Hodges v. Caliper, Inc.,
36 BRBS 73 (2002).
Moreover, Dr. Harrison’s November 9, 2012 report,
in which he diagnosed asthma/chronic obstructive
pulmonary disease (COPD) and opined that claimant’s
occupational exposures, specifically to diesel exhaust,
silica, welding fumes, and construction dust, contributed to her respiratory conditions,4 CX 14, represents
the first medical opinion tying claimant’s respiratory
conditions specifically to her work for employer. Martin
v. Kaiser Co., Inc., 24 BRBS 112 (1990) (Dolder, J.,
4 Dr. Harrison reiterated in his testimony that claimant’s asthma
and COPD are “a result of cumulative exposure” to respiratory
toxins while on the job, and specifically, that claimant’s work
for employer “contributed to the cumulative injury to her lung
that occurred over the duration of her employment as a pile
butt.” CX 21 at 13.
App.39a
concurring in the result only) (in occupational disease
cases the time limitations do not begin to run until
the claimant is aware of the relationship between
covered employment, the disease, and the disability).
The administrative law judge’s date of awareness
findings are, therefore, affirmed as they are supported
by substantial evidence. J.M. Martinac Shipbuilding,
900 F.2d 180, 23 BRBS 127(CRT). Consequently, we
affirm the administrative law judge’s finding that
claimant’s notice to employer, filed on October 12,
2011, of her respiratory condition was timely. Id.
Because claimant did not gain “awareness” of her
hip condition until August 29, 2011, the administrative
law judge, on reconsideration, correctly determined
that claimant’s notice to employer, which occurred as
a result of the filing of her claim on October 12, 2011,
was 14 days late and, thus, untimely. As such, he
considered, but rejected, employer’s arguments that
it was prejudiced by that untimely notice. Claimant’s
failure to give her employer timely notice of her
injury pursuant to Section 12(a) of the Act is excused
if the employer had knowledge of the injury or was
not prejudiced by the claimant’s failure to give proper
notice or if the district director excuses the failure to
file on grounds provided by the statute. 33 U.S.C.
§ 912(d). Pursuant to Section 20(b) of the Act, the
employer bears the burden of producing substantial
evidence that it did not have knowledge of the injury
and was prejudiced by the late notice. Kashuba v. v.
Legion Ins. Co., 139 F.3d 1273, 32 BRBS 62(CRT)
(9th Cir. 1998), cert. denied, 525 U.S. 1102 (1999);
Cox v. Brady-Hamilton Stevedore Co., 25 BRBS 203
(1991); Bivens, 23 BRBS 233. Prejudice under Section
12(d)(2) may be established where the employer pro-
App.40a
vides substantial evidence that due to the claimant’s
failure to provide timely written notice, it was unable
to effectively investigate to determine the nature and
extent of the illness or to provide medical services.
See Kashuba, 139 F.3d 1273, 32 BRBS 62(CRT);
Vinson v. Resolve Marine Services, 37 BRBS 103 (2003);
Bustillo v. Southwest Marine, Inc., 33 BRBS 15 (1999).
Contrary to employer’s contention, the administrative law judge correctly determined that the
prejudice inquiry is limited to the period between
claimant’s date of awareness and the employer’s
receipt of notice or knowledge of the injury. Thus,
prejudice cannot be established by the fact that
claimant worked for S & W in 2010 after she left
employer, because this employment was before her
date of awareness. Nonetheless, we reject employer’s
contention that the opinion of its expert, Dr. Greenfield,
was adversely affected by claimant’s late notice
because he could not garner sufficient information on
claimant’s hip condition prior to the start of her work
for S & W. The record establishes that Dr. Greenfield
did not find a lack of this information hindered his
ability to provide an opinion regarding the cause of
claimant’s hip condition. In this regard, Dr. Greenfield
testified at deposition that while a medical examination
of claimant immediately after she stopped working
for employer “would have” provided him with more
“insight into [claimant’s] condition at that time,” he was
able to use “secondary information, such as [claimant’s]
complaints and the actual functional capacity she
demonstrated at these jobs for consideration” in
forming his opinion that claimant’s orthopedic conditions are related to activities of daily living and the
continuing trauma of her last work with S & W.
App.41a
Greenfield’s Dep. at 24-25. Employer’s conclusory
allegation of an inability to investigate the claim
when it was fresh is insufficient to establish prejudice.
Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 44
BRBS 47(CRT) (9th Cir. 2010); Kashuba, 139 F.3d
1273, 32 BRBS 62(CRT); Vinson, 37 BRBS 103;
Bustillo, 33 BRBS 15; see also Jones Stevedoring Co.
v. Director, OWCP [Taylor], 133 F.3d 683, 31 BRBS
178(CRT) (9th Cir. 1997). As the administrative law
judge’s finding that claimant’s untimely notice to
employer did not prejudice employer is rational,
supported by substantial evidence, and in accordance
with law, we affirm his conclusion that claimant’s
failure to comply with Section 12(a) does not bar the
claim for her hip injury. 5 Id.
Section 20(a): Causation
Orthopedic Injuries
Employer contends the administrative law judge
erred by not requiring claimant to establish, based
on the evidence as a whole, that her orthopedic
conditions are work-related. Employer maintains that
the administrative law judge, instead, erroneously
5 Moreover, we reject employer’s general contention that claimant’s
claim is barred pursuant to Section 13 of the Act as the record
establishes that claimant’s October 12, 2011 claim, filed within
one-year of her date of awareness, i.e., August 29, 2011, for the
hip condition and November 8, 2012, for the respiratory conditions,
is timely pursuant to Section 13(a), (b)(2) of the Act, 33 U.S.C.
§ 913(a), (b)(2). SSA Terminals v. Carrion, 821 F.3d 1168, 50
BRBS 61(CRT) (9th Cir. 2016); J.M. Martinac Shipbuilding v.
Director, OWCP, 900 F.2d 180, 23 BRBS 127(CRT) (9th Cir.
1990); Abel v. Director, OWCP, 932 F.2d 819, 24 BRBS 130(CRT)
(9th Cir. 1991); Todd Shipyards Corp. v. Allan, 666 F.2d 399, 14
BRBS 427 (9th Cir.), cert. denied, 459 U.S. 1034 (1982).
App.42a
treated this case as a two-injury, multiple-employer
matter, by applying Metropolitan Stevedore Co. v.
Crescent Wharf & Warehouse Co. [Price], 339 F.3d
1102, 37 BRBS 89(CRT) (9th Cir. 2003), cert. denied,
543 U.S. 940 (2004), to resolve the causation issue. 6
Claimant asserted she sustained hip, back and
bilateral hand injuries from her work with employer.
Once, as here, the Section 20(a) presumption, 33
U.S.C. § 920(a), is invoked and rebutted, the Section
20(a) presumption drops out of the case, and the
administrative law judge must weigh all of the evidence
relevant to the causation issue, with the claimant
bearing the burden of proving on the record as a whole
that her injuries are work-related.7 Ogawa, 608 F.3d
642, 44 BRBS 47(CRT); Duhagon v. Metropolitan
Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT) (9th
Cir. 1999); see also Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
Under the aggravation rule, when the employment
injury aggravates, exacerbates or combines with a prior
condition, the entire resulting disability is compens6 Employer concedes that claimant’s work for employer could have
aggravated her degenerative, arthritic, orthopedic conditions
but asserts that there is no proof in the record that this work
did, in fact, aggravate claimant’s underlying conditions. In
particular, employer maintains that there is no evidence of any
change in claimant’s underlying conditions as a result of her
work for employer.
7 We affirm, as unchallenged on appeal, the administrative law
judge’s findings that claimant is entitled to the Section 20(a)
presumption that her orthopedic and respiratory conditions are
related to her covered employment, that employer rebutted the
presumption, and that claimant is totally disabled as a result of
her work-related conditions. Scalio v. Ceres Marine Terminals,
Inc., 41 BRBS 57 (2007).
App.43a
able. The relative contribution of the pre-existing
condition and the aggravating injury are not weighed
for purposes of this particular injury. Independent
Stevedore Co. v. O’Leary, 357 F.2d 812 (9th Cir. 1966).
We reject employer’s contention that the
administrative law judge failed to place the burden
on claimant of establishing the work-relatedness of
her orthopedic conditions. The administrative law
judge’s citation of Price was for the purpose of
recognizing that a work-related aggravation of an
underlying condition constitutes an “injury” under
the Act. See Decision and Order at 41, 44-45; Order
on Recon. at 5-6. Furthermore, the administrative
law judge correctly recognized that it is immaterial
to the causation inquiry whether claimant’s injuries
disabled her while she was working for employer. See
33 U.S.C. § 902(2); see generally Crawford v. Director,
OWCP, 932 F.2d 152, 24 BRBS 123(CRT) (2d Cir.
1991); 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). The
administrative law judge credited “much of claimant’s
account of her working conditions with employer,
finding that “she remains the best source of information
regarding the work she performed,” and that “[h]er
testimony is not so different from that of the managers.”
Decision and Order at 17. The administrative law
judge then rationally credited medical evidence that
claimant’s work for employer aggravated, accelerated
and/or contributed to her orthopedic conditions. In
this regard, the administrative law judge rationally
accorded greater weight to the opinions of Drs. Stark
and Harrison than to that of Dr. Greenfield. Ogawa,
608 F.3d 642, 44 BRBS 47(CRT). The administrative
App.44a
law judge found the opinions of Drs. Stark and
Harrison, that claimant’s work as a pile driver,
including her work with employer, in fact, caused,
aggravated or accelerated her back, bilateral hip and
carpal tunnel injuries, are better reasoned than Dr.
Greenfield’s. 8 Decision and Order at 47-48; CXs 3, 5,
7, 14 20 at 12-13, 21 at 28. As the administrative law
judge’s weighing of the evidence is rational and his
conclusion is supported by substantial evidence of
record, we affirm his finding that claimant sustained
cumulative orthopedic injuries to her hips, hands
and back as a result of her work with employer.
Ogawa, 608 F.3d 642, 44 BRBS 47(CRT).
Respiratory Conditions
Employer contends the administrative law erred
in finding that claimant sustained a respiratory
injury while in its employ.9 Employer maintains that
8 The administrative law judge rationally found that Dr.
Greenfield’s opinion is based on an “erroneous premise,” and his
“reasoning is inconsistent with the treatment of cumulative
trauma injuries.” Decision and Order at 48. In particular, the
administrative law judge found that Dr. Greenfield’s opinion
seems predicated on identifying the predominant cause of
claimant’s condition, rather than determining whether
claimant’s work with employer was a contributing factor to that
condition. The administrative law judge also found that Dr.
Greenfield’s general finding, that every time claimant “loaded”
her hip joint, which the administrative law judge found included
regular movement while at work, there would be additional
“fretting” of the cartilage cells, actually supports, rather than
detracts, from a finding that claimant’s work for employer
aggravated her injury. Id.
9 Employer contends the parties stipulated that claimant’s
respiratory condition did not worsen due to her work with
employer. This “stipulation” contention is based on the following
App.45a
the record contains no creditable evidence linking
claimant’s work for employer to any worsening of her
respiratory conditions. 10
Claimant stated that she was exposed to several
forms of airborne particulate matter while working
for employer, including sandblasting and concrete
dust, as well as to diesel fumes. HT at 88-89, 96-99.
Crediting this testimony, the administrative law judge
found that claimant “was exposed to potentially
harmful conditions” with employer, with the largest
contributor to claimant’s pulmonary problems being
“her exposure to the numerous sources of diesel
dialogue between attorneys during the cross-examination of Dr.
Harrison at his deposition. Claimant’s counsel, in an effort to
“speed it along,” stated that “I think [employer’s counsel’s]
question is there’s nothing in the medical record that identifies
a permanent worsening associated with work at [employer],” to
which employer’s counsel responded, “I’ll stipulate to that.” CX
21 at 50. Claimant’s counsel then replied, “I’ll stipulate there’s
no record that says that.” Id. This purported stipulation was
never formally raised before, or recognized by, the administrative
law judge either through pre-hearing filings or during the
hearing. See Decision and Order at 2. In any event, Dr.
Harrison’s testimony that claimant’s work for employer
“contributed to the cumulative injury to her lung that occurred
over the duration of her employment as a pile butt,” CX 21 at
13, contradicts this alleged stipulation. Employer’s “stipulation”
contention is therefore rejected.
10 Employer contends that Dr. Harrison’s opinion should be
accorded diminished weight because “every single time Dr.
Harrison has been an expert, he has found the worker’s condition
to be industrially” related. Emp. Br. at 39 (emphasis in original).
We reject employer’s contention. Employer has not established
the invalidity of this opinion nor does it establish bias. The
administrative law judge found that Dr. Harrison, in this case,
explained the underlying rationale for his opinion. CXs 14, 21.
App.46a
fumes at the work sites.” 11 Decision and Order at 11,
50.
The administrative law judge extensively reviewed
the medical evidence relevant to the cause of claimant’s
respiratory conditions, including the underlying
rationales provided by the physicians. See Decision
and Order at 32-36, 41-43, 49-51. The administrative
law judge credited Dr. Harrison’s opinion, that
claimant’s work with employer, in fact, contributed
to the cumulative injury to her lungs, CX 21 at 13,
over the contrary opinion of Dr. Bressler, that
claimant’s work for employer did not contribute to
her pulmonary disease, EX 1. Decision and Order at
51; Ogawa, 608 F.3d 642, 44 BRBS 47(CRT). In
reaching this conclusion, the administrative law judge
found that Dr. Bressler’s underlying reasoning is
“unconvincing.” Decision and Order at 50. Specifically,
the administrative law judge found that, in contrast
to Dr. Bressler’s position, it matters little that claimant
suffered no acute exacerbations or any worsening of
her respiratory condition while with employer, as
that does not preclude a finding that claimant’s
occupational exposures could have aggravated her
respiratory conditions. The administrative law judge
found that, by acknowledging that years of exposure
to working conditions like those she experienced with
employer could cause respiratory problems, Dr. Bressler
“effectively concedes that exposure to those conditions
for 48 days [while with employer] would also contribute
to [the] harm, even if in a small way.” Id. at 51; see
also Dr. Bressler’s Dep. at 40-41.
11 The administrative law judge found that claimant was
exposed to diesel fumes, though she likely overstated the degree
of that exposure. Decision and Order at 18-19.
App.47a
The Board is not empowered to reweigh the
evidence. Burns v. Director, OWCP, 41 F.3d 1555, 29
BRBS 28(CRT) (D.C. Cir. 1994). In this case, the
administrative law judge’s weighing of the evidence
is rational and his conclusion is supported by
substantial evidence of record in the form of Dr.
Harrison’s opinion. Therefore, we affirm the finding
that claimant’s asthma/COPD is related to her work
exposures with employer. Ogawa, 608 F.3d 642, 44
BRBS 47(CRT); Duhagon, 169 F.3d 615, 33 BRBS 1
(CRT).
Intervening Cause
Employer contends that claimant’s subsequent
work for S & W is the cause of her bilateral hand
condition. Employer avers that Dr. Harrison did not
address the effect of claimant’s work at S & W, and
thus maintains that Dr. Greenfield’s opinion, that
claimant’s work at S & W resulted in a change in,
and thus, contributed to, her bilateral hand condition,
is sufficient to establish that claimant’s work at S &
W caused the entirety of that injury.
If a claimant sustains a subsequent injury outside
of work or for a non-covered employer that is not the
natural or unavoidable result of the original work
injury, any disability attributable to that intervening
cause is not compensable. See J.T [Tracy] v. Global
Int’l Offshore, Ltd., 43 BRBS 92 (2009), aff’d sub
nom. Keller Found./Case Found. v. Tracy, 696 F.3d
835, 46 BRBS 69(CRT) (9th Cir. 2012), cert. denied,
133 S.Ct. 2825 (2013); Wright v. Connolly-Pacific Co.,
25 BRBS 161 (1991), aff’d mem. sub nom. Wright v.
Director, OWCP, 8 F.3d 34 (9th Cir. 1993); Merrill v.
Todd Pacific Shipyards Corp., 25 BRBS 140 (1991).
App.48a
However, the covered employer remains liable for
any disability attributable to the work injury, or for
the natural progression or unavoidable result of the
work injury, notwithstanding the supervening injury.
33 U.S.C. § 902(2); Leach v. Thompson’s Dairy, Inc.,
13 BRBS 231 (1981). If claimant’s disabling condition
is due to both the work injury and the subsequent
non-covered injury, the covered employer is relieved
of liability for disability caused by the subsequent
non-covered injury only if there is evidence apportioning
the claimant’s disability between the two injuries. Id.
However, if there is no evidence of apportionment
between the injuries, the covered employer is liable
for the claimant’s entire disabling condition. Plappert
v. Marine Corps Exchange, 31 BRBS 13 (1997), aff’d
on recon. en Banc, 31 BRBS 109 (1997).
Contrary to employer’s contention, Dr. Harrison
addressed the relationship between claimant’s bilateral
hand condition and her work for S & W. Dr. Harrison
conceded that claimant’s work assembling office
furniture at S & W might have contributed to her
hand problem, CX 21, Dep. at 68, but he also stated
that his “opinion doesn’t change that the [claimant’s]
employment at [employer] was a significant
contributing factor to the disability caused by her
bilateral carpal tunnel syndrome. It is a factor in the
cumulative trauma over a period of years.” 12 Id.,
Dep. at 69. Dr. Greenfield stated that claimant’s
work duties at S & W, “where she was putting
together steel-case cabinets would be an activity that
12 Dr. Harrison additionally stated, “I’m not arguing that
[claimant’s work with employer] is the sole cause of her carpal
tunnel, but [it] is a significant contributing factor in her carpal
tunnel.” CX 21, Dep. at 70.
App.49a
would potentially aggravate her carpal tunnel.” Dr.
Greenfield’s Dep. at 20. Dr. Greenfield, however, also
stated that carpal tunnel is “most likely” related to
genetics and a predisposition to develop it, particularly
where, as in this case, there is nothing to suggest
traumatic carpal tunnel syndrome. Id., Dep. at 20-21.
Nonetheless, Dr. Greenfield agreed that repetitive
tasks could aggravate or worsen an individual’s carpal
tunnel syndrome. Id. The administrative law judge
found, based on this evidence, that claimant’s carpal
tunnel syndrome is likely due to her work both with
employer and with S & W. Decision and Order at 53.
The administrative law judge thus properly
found that employer’s intervening cause argument is
flawed because a necessary element of its defense is
missing, i.e., evidence apportioning claimant’s disability
between her covered and non-covered employment.
Decision and Order at 53; Order on Recon. at 6-8;
Plappert, 31 BRBS at 15-16, 31 BRBS at 109-110. In
the absence of such evidence, the last covered employer
in whose employ the claimant sustained a disabling
injury remains liable for claimant’s entire orthopedic
disability. Tracy, 696 F.3d at 838, 46 BRBS at
70(CRT). Therefore, we affirm the administrative
law judge’s finding that claimant’s work with S & W
after she left employer is not an intervening cause of
claimant’s orthopedic disability that relieves employer
of liability. See generally Jones v. Director, OWCP,
977 F.2d 1106, 26 BRBS 64(CRT) (7th Cir. 1992);
Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 15
BRBS 120 (CRT) (5th Cir. 1983); Cyr v. Crescent
Wharf & Warehouse Co., 211 F.2d 454 (9th Cir. 1954).
App.50a
BRB No. 16-0128A
Nature of Claimant’s Disability
Claimant contends the administrative law judge
erred in finding that the nature of her disability is
temporary rather than permanent. A disability is
considered permanent as of the date claimant’s
condition reaches maximum medical improvement,
Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS
89(CRT) (9th Cir. 1990), cent. denied, 498 U.S. 1073
(1991), or when it has continued for a lengthy period
and appears to be of lasting and indefinite duration,
as opposed to one in which recovery merely awaits a
normal healing period. SSA Terminals v. Carrion,
821 F.3d 1168, 50 BRBS 61(CRT) (9th Cir. 2016);
Ogawa, 608 F.3d 642, 44 BRBS 47(CRT). The United
States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this case arises, has recently addressed
the nature of a claimant’s disability in a case like
this one, where potential surgery is involved. In
Carrion, the Ninth Circuit stated that the crux of the
permanent versus temporary nature of a claimant’s
injury is “whether the disability will resolve after a
normal and natural healing period. If the answer is
yes, the disability is temporary. If the answer is no,
the disability is permanent.” Carrion, 821 F.3d at
1173, 50 BRBS at 63(CRT). In reaching a conclusion
on this issue, the Ninth Circuit articulated, “the
appropriate question to ask is not whether a future
surgery would ameliorate [claimant’s] knee condition,
but whether there was actual or expected improvement
to his knee after a normal and natural healing
period. The impact of a future knee replacement
should be assessed after the surgery, not in anticipation of such a contingency.” Id., 821 F.3d at 1174,
App.51a
50 BRBS at 64(CRT); see also Pacific Ship Repair &
Fabrication, Inc. v. Director, OWCP [Benge], 687 F.3d
1182, 46 BRBS 35(CRT) (9th Cir. 2012).
Finding claimant has been “universally advised”
that she requires a left hip replacement at some
point, that claimant plans to undergo the procedure
as soon as she is able, and that the surgery has the
potential to substantially improve claimant’s condition,
the administrative law judge determined that claimant
continues to seek treatment with a view toward
improving her condition. The administrative law
judge thus concluded claimant’s disability remains
temporary in nature. Decision and Order at 56. Given
the Ninth Circuit’s decision in Carrion, we vacate the
administrative law judge’s finding that claimant’s
disability remains temporary, and we remand this
case for reconsideration of the nature of claimant’s
disability pursuant to Carrion. 13 Carrion, 821 F.3d
1168, 50 BRBS 61(CRT).
Judge Berlin’s August 13, 2012 Order
Claimant challenges Judge Berlin’s pre-hearing
Order dated August 13, 2012, imposing attorney’s fee
sanctions against claimant’s counsel for alleged
“inconsistencies” in, as well as “frivolous” and
“manipulative purposes” behind, claimant’s opposition
to employer’s motion for a change of venue and her
motion for a brief continuance.
13 The administrative law judge did not separately address
whether claimant’s work-related respiratory condition is permanent. On remand, the administrative law judge should address
this issue. See Misho v. Global Linguist Solutions, 48 BRBS 13
(2014).
App.52a
At claimant’s counsel’s request, this case was
originally set for a hearing in San Francisco, California,
on September 20, 2012. Employer, on August 9,
2012, moved to change the location for the hearing to
San Diego, California. Claimant opposed employer’s
motion and simultaneously moved to continue the
San Francisco hearing to a later date. Citing 20
C.F.R. § 702.337(a),14 and noting that the only location
on the record for claimant’s residence is Encinitas,
California, that the distance from claimant’s residence
to the OALJ’s hearing location in San Diego is
approximately 30 miles, and that the distance from
claimant’s residence to the OALJ’s hearing location
in San Francisco is about 476 miles, Judge Berlin
stated that “the hearing must be set in San Diego
unless Claimant can show good cause for the San
Francisco location.” Berlin Order date August 13,
2012 at 2. Judge Berlin, however, found claimant did
not show good cause for holding the hearing more
than 75 miles from her residence and thus, granted
employer’s motion to change the location to San
Diego. Id. at 3. Judge Berlin then added that “given
the inconsistencies in Claimant’s counsel’s arguments
and his manipulative purposes, no fees will be awarded
to Claimant’s counsel for work performed on either of
these two motions.” Id.
We reject claimant’s contention of error.
Irrespective of Judge Berlin’s imposition of a sanction,
claimant’s counsel is not entitled to a fee for his work
opposing employer’s change of venue motion because
14 Section 702.337(a) of the Act’s regulations states: “Except for
good cause shown, hearings shall be held at convenient locations
no more than 75 miles from the claimant’s residence.” 20 C.F.R.
§ 702.337(a).
App.53a
claimant’s motions were entirely unsuccessful. See
Hensley v. Eckerhart, 461 U.S. 424 (1983); George
Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 25 BRBS
161(CRT) (D.C. Cir. 1992) (the adjudicator may sever
the services on the unsuccessful claims from those on
the successful claims).
Accordingly, the administrative law judge’s finding
that claimant’s disability is temporary in nature is
vacated, and the case is remanded for further
consideration consistent with this opinion. In all
other regards, the administrative law judge’s Decision
and Order Granting Benefits and Order Granting
Reconsideration are affirmed. Judge Berlin’s Order
Ruling on Claimant’s Motion to Continue and
Employer/Carrier’s Motion to Change Location of
Hearing, including his denial of attorney’s fees for
work performed by claimant’s counsel on the motions
for a change in venue and for a continuance, is
affirmed.
SO ORDERED.
/s/ Betty Jean Hall
Chief Administrative Appeals Judge
I concur:
/s/ Ryan Gilligan
Administrative Appeals Judge
App.54a
CONCURRING AND DISSENTING OPINION
OF JUSTICE BOGGS
BOGGS, Administrative Appeals Judge, concurring
and dissenting:
I concur with my colleagues’ decision to affirm
the administrative law judge’s findings that claimant’s
failure to comply with Section 12(a) does not bar the
claim for her hip injury and that claimant sustained
cumulative orthopedic injuries to her hips, hands
and back as a result of her work with employer. I
also concur with my colleagues’ decisions to vacate
the administrative law judge’s finding that claimant’s
disability is temporary in nature, and to affirm
Judge Berlin’s Order ruling on Claimant’s Motion to
Continue and Employer/Carrier’s Motion to Change
Location of Hearing, including his denial of attorney’s
fees for work performed by claimant’s counsel on the
unsuccessful motions for a change of venue and for a
continuance. However, I respectfully dissent from
their decision to affirm the administrative law judge’s
findings that claimant’s asthma/COPD is related to
her work exposures with employer and that claimant’s
work with S & W after she left employer is not an
intervening cause of claimant’s bilateral hand condition.
For the reasons set forth below, I would vacate these
two determinations and have the administrative law
judge, on remand, reconsider these issues in terms of
the relevant evidence and applicable standard. Volpe
v. Northeast Marine Terminals, 671 F.2d 697, 14
BRBS 538 (2d Cir. 1982).
The administrative law judge correctly determined
that claimant was entitled to the Section 20(a)
presumption that her respiratory conditions are related
App.55a
to her work for employer and that employer established
rebuttal thereof. Addressing the evidence as a whole,
the administrative law judge credited claimant’s
testimony regarding her airborne work exposures, as
well as Dr. Harrison’s opinion,15 that claimant’s work
with employer contributed to the cumulative injury
to her lungs, to conclude that claimant “was exposed
to potentially harmful conditions” with employer.
Decision and Order at 11, 50. Thus, he concluded
that claimant’s respiratory injury is related to her
work with employer.
In reaching this conclusion, the administrative
law judge did not address whether the record
establishes that claimant’s work for employer actually
aggravated her underlying respiratory conditions.
Specifically, while the administrative law judge credited
evidence showing that airborne exposures consistent
with those claimant experienced with employer might
aggravate her underlying respiratory conditions, he
did not assess whether this evidence establishes that
claimant’s exposures actually aggravated her respiratory conditions. After the Section 20(a) presumption
is rebutted, it is claimant’s burden to establish “the
necessary causal link between the injury and
employment.” Hawaii Stevedores, Inc. v. Ogawa, 608
F.3d 642, 651, 44 BRBS 47, 50(CRT) (9th Cir. 2010)
(quoting Bath Iron Works Corp. v. Fields, 599 F.3d
47, 53, 44 BRBS 13, 15 (CRT) (1st Cir. 2010)). I would,
therefore, vacate the administrative law judge’s finding
that claimant’s asthma/COPD is related to her work
15 The administrative law judge also rejected Dr. Bressler’s
opinion, that claimant’s work for employer did not contribute to
her pulmonary disease, because the underlying reasoning of
that opinion is “unconvincing.” Decision and Order at 50.
App.56a
for employer and require, on remand, that the administrative law judge analyze all of the evidence and
make a specific determination, with claimant bearing
the burden of persuasion, as to whether she sustained
an actual respiratory injury due to her exposures
with employer.
With regard to the issue of whether claimant’s
post-employer work with S & W constituted an
intervening cause of claimant’s bilateral hand condition,
I believe the administrative law judge failed to address
Dr. Greenfield’s opinion that claimant’s post-employer
work with S & W, and not her work for employer,
resulted in a change in her carpal tunnel syndrome.
See Dr. Greenfield’s Dep. at 20-21, 29-30. Because
the administrative law judge did not address and
weigh this evidence in relation to whether claimant’s
work at S & W alone caused her bilateral carpal
tunnel syndrome, I would vacate the administrative
law judge’s finding that claimant’s work with S & W
is not an intervening cause of her bilateral hand
condition and remand the case for further findings.
See generally Volpe, 671 F.2d 697, 14 BRBS 538.
Since claimant was not disabled prior to her work
stints with S & W, the proper inquiry is whether
claimant’s bilateral hand disability and/or need for
medical benefits is due to the natural progression of
the condition caused by her work with employer, or
whether the disabling injury is due solely to an
intervening injury at S & W. See 33 U.S.C. § 902(2);
Admiralty Coatings Corp. v. Emery, 228 F.3d 513, 34
BRBS 91(CRT) (4th Cir. 2000). As the administrative
law judge did not address Dr. Greenfield’s opinion
under this standard, I would remand the case for
further findings.
App.57a
For the foregoing reasons, I would vacate the
administrative law judge’s causation finding with
regard to claimant’s respiratory condition, and the
finding that claimant’s S & W employment is not the
intervening cause of claimant’s bilateral hand condition,
and remand the case for the administrative law
judge to make specific findings with regard to these
issues.
/s/ Judith S. Boggs
Administrative Appeals Judge
App.58a
ADMINISTRATIVE JUDGE’S DECISION AND
ORDER GRANTING BENEFITS
(AUGUST 25, 2015)
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (fax)
________________________
In the Matter of:
KELLY ZARADNIK,,
Claimant,
v.
DUTRA GROUOP, INC.,
SEABRIGHT INSURANCE CO.,
Employer/Carrier.
________________________
OALJ Case No: 2012-LHC-00988
OWCP Case No: 18-099601
Issue Date: 25 August 2015
Before: WILLIAM DORSEY,
Administrative Law Judge.
App.59a
DECISION AND ORDER
GRANTING BENEFITS
Kelley Zaradnik seeks compensation under the
Longshore and Harbor Workers’ Compensation Act1
(“Act”) for cumulative trauma injuries to her bilateral
hips, back, bilateral upper extremities, bilateral lower
extremities, and lungs aggravated or accelerated by
48 days of work at Dutra Group, Inc. (“Dutra”) between
July 23 and September 20, 2010.2 Though she worked
for Dutra only briefly, she performed arduous labor
that contributed to injuries caused, in part, by her
long career as a pile driver. Dutra, her last maritime
employer, is liable for disability benefits and medical
care under the Act.
I.
Stipulations
1.
Ms. Zaradnik was employed by Dutra Group
at the time of her alleged injuries. 3
2.
The situs of the alleged injuries was maritime and Ms. Zaradnik was a maritime
employee.4
3.
Ms. Zaradnik’s average weekly wage was
$1,301.58. 5
1 33 U.S.C. §§ 901–950.
2 Judge Russell Pulver heard this case on January 25, 2012 and
December 14, 2012, but he was unable to issue a decision before
his retirement.
3 Tr. at 7–8.
4 R. Pre-Hearing Statement at ¶ 4(a).
5 Tr. at 234.
App.60a
II. Findings of Fact
Ms. Zaradnik was 49 years old at the time of
trial.6 She first became a union pile driver in 1991. 7
She completed her apprenticeship and became a
journeyman pile driver around 1994 or 1995. 8
Before her work for Dutra, the Claimant had a
number of medical problems, many but not all of
which were related to her profession. They included
pulmonary impairments from airborne irritants
(including cigarette smoke), drug and alcohol abuse,
and orthopedic injuries to her hip and back.
A. Pulmonary History
1. Medications
Ms. Zaradnik has been diagnosed with asthma,
bronchitis, and early-stage emphysema. 9 She has
taken some form of medication for respiratory problems
since she was first hospitalized for an asthma attack
in 2000.10 Medications she has been prescribed include
Zithromax, Asthmacort, Albuterol nebulizers, Prednisone,
Advair, Singulair, Combivent, and Proair. 11 She has
also taken pleurisy root (an herbal supplement) for
6 Tr. at 40.
7 Tr. at 44.
8 Tr. at 44.
9 C. Ex.-23 at 406, 448; Tr. at 198.
10 Tr. at 199.
11 Tr. at 252, 261; C. Ex.-23 at 156.
App.61a
breathing issues.12 Ms. Zaradnik has carried an inhaler
since her second asthma attack in 2005. 13
2. Cigarette Use
Ms. Zaradnik testified at trial that she has smoked
since her “early 20s.”14 Her medical records, however,
say she smoked at age 14.15 She testified that, at her
peak, she was smoking up to two packs per day. 16
Medical records describe her as a “heavy smoker”
who had, as of September 2005, already accumulated
45 pack-years.17 Her doctors have consistently, and
unsurprisingly, told her to quit. 18
I see no reason for Ms. Zaradnik to lie about her
smoking history to her treating physicians, which
would only serve to hinder their ability to effectively
diagnose and treat her. She does, however, have an
incentive in this case to downplay the effect that
smoking has had on her current lung condition. The
medical records convince me Ms. Zaradnik began
smoking as a teenager, somewhat earlier than she
testified to at trial.
12 Tr. at 262.
13 Tr. at 202.
14 Tr. at 198.
15 C. Ex.-23 at 192, 255.
16 Tr. at 198.
17 C. Ex.-23 at 245.
18 Tr. at 242.
App.62a
3. Alcohol Use
Ms. Zaradnik uses alcohol, a risk factor for acid
reflux, which in turn is a risk factor for asthma. 19
A September 2003 medical report indicated Ms.
Zaradnik had consumed three or four glasses of wine
before her appointment “due to severe anxiety.”20 Although Ms. Zaradnik told the doctor her last drink
had been about five hours earlier, and Ms. Zaradnik
did not appear intoxicated at the appointment, the
doctor nevertheless encouraged Ms. Zaradnik to spend
two or three hours eating and shopping before driving
home.21
An April 2005 medical record indicated Ms.
Zaradnik was drinking “one to one and a half bottles
of wine per day, sometimes more.” 22 Another record
that month noted Ms. Zaradnik was “not drinking as
much during the day but is certainly drinking too
much at night; and she is aware that is adversely
affecting her health.” 23 The record also noted she
had recently been convicted of driving under the
influence. 24 Yet another record from that month documented a diagnosis of alcoholism. 25 It indicated Ms.
Zaradnik had “markedly reduced her alcohol intake,”
19 Bressler Dep. at 14.
20 C. Ex.-23 at 259.
21 C. Ex.-23 at 360.
22 C. Ex.-23 at 334–35.
23 C. Ex.-23 at 332.
24 C. Ex.-23 at 332; Tr. at 254.
25 C. Ex.-23 at 330.
App.63a
but the doctor encouraged total abstinence.26 A record
from August 2005 indicated she was drinking one-half
to one bottles of wine per day. 27
A September 2009 medical record indicated she
was having “2 drinks per day, and at times will binge
on 4 to 10 a day.”28 A December 2010 record indicated
she was drinking the same amount at that time. 29
In October 2012, Ms. Zaradnik reported to Daniel
Bressler, M.D. that she was drinking about two or
three glasses of wine per month, and had consumed
about the same amount in the past.30 In November
2012, she reported to Robert Harrison, M.D. that she
was drinking about eight glasses of wine per week. 31
Ms. Zaradnik has attended Alcoholics Anonymous
meetings and discussed her drinking with a psychologist or psychiatrist. 32
Again, I see no reason for Ms. Zaradnik to
overstate her alcohol consumption to her treating
physicians. Doing so would undermine their ability
to effectively treat her. While Ms. Zaradnik’s alcohol
use has varied over time, she sometimes consumed
unhealthy quantities of alcohol. It’s unclear whether
her statement to Dr. Bressler was meant to convey
26 C. Ex.-23 at 330.
27 C. Ex.-23 at 317.
28 C. Ex.-23 at 167.
29 C. Ex.-23 at 75.
30 R. Ex.-1 at 4; Bressler Dep. at 14
31 C. Ex.-14 at 670D.
32 Tr. at 254.
App.64a
that she has consistently consumed around three
glasses of wine per month throughout her entire
adult life, but I am convinced she drank substantially
more at times.
4. Illicit Drug Use
Inhaled recreational drugs can cause pulmonary
damage.33 At trial, Ms. Zaradnik initially denied ever
having used illicit drugs.34 She then admitted to experimenting with drugs “once or twice” in high school,
but claimed she had not used drugs since then. 35
Several medical records contradict Ms. Zaradnik’s
testimony, however. A January 2000 medical record
notes a history of “seizures with illicit drug use in the
past.”36 A December 2001 medical record again noted
a “history of ‘seizures,’ body flopped & could not
control it–“10 years ago while on methamphetamine.”37
At trial, Ms. Zaradnik testified that she could not
recall ever having a seizure or taking illicit drugs. 38
A September 2003 medical record indicated Ms.
Zaradnik was “apparently back to doing drugs.”39
When questioned about that record, Ms. Zaradnik
explained that, at that time, she was—trying to get
33 Bressler Dep. at 15.
34 Tr. at 250.
35 Tr. at 250.
36 C. Ex.-23 at 446.
37 C. Ex.23 at 386.
38 Tr. at 248–49.
39 C. Ex.-23 at 359.
App.65a
pregnant so I—I wasn’t even drinking coffee at that
time. I think they mean the ex-boyfriend.”40 She testified that any Scripps medical records indicating she
had used illicit drugs were incorrect.41
Once again, I doubt that Ms. Zaradnik would
overstate her illicit drug use to her treating physicians.
Doing so would not only undermine the effectiveness
of her treatment, but also implicate her in illegal
activity. Were she to lie to her doctors, she would be
more likely to underrepresent her drug use than
overstate it. Ms. Zaradnik claims the comments in
medical records referenced above were erroneous. I
do not believe, however, that her treating physicians
made multiple references to seizures and illicit drug
use by mistake. Such information is an important
part of her medical history. I find that she engaged
in illicit drug use more recently than high school.
5. Earlier Occupational Exposures
Ms. Zaradnik experienced several occupational
exposures to airborne toxins before her employment
at Dutra.
Sometime around 1992, Ms. Zaradnik suffered
from “galvanized poisoning ” after inhaling vapors
while cutting galvanized steel with a torch. 42 She
reported her condition to her supervisor when she
began having trouble breathing, but her supervisor
just told her to “go home and drink milk, buttered
40 Tr. at 245.
41 Tr. at 251.
42 Tr. at 199–201.
App.66a
milk, if you can.”43 She told the project manager about
her symptoms around a month later, and was provided medical treatment.44 She felt weak for about a
month after the incident. 45
In 2000, Ms. Zaradnik was hospitalized for about
a week after sandblasting with silica while 46 she wore
a bandana over her face, not proper respiratory protection.47 At the hospital, she received “aggressive
pulmonary care, including nebulized albuterol treatments regularly, intravenous steroids, and intravenous
antibiotics.” 48 She also initially required oxygen. 49
In 2005, Ms. Zaradnik experienced breathing
problems while working with “spun glass,” which
produced small plastic fibers as she cut, drilled, and
screwed items into hardened plastic. 50 Ms. Zaradnik
“recognized the signs, I was having problems breathing.” 51 Nevertheless, she “continued to go to work
and keep it incognito. But I was having problems
climbing up the ladders and the stair towers, climbing
the walls.” 52 After five months of exposure to the
43 Tr. at 200–01.
44 Tr. at 200–01.
45 Tr. at 201.
46 Tr. at 49.
47 Tr. at 48–49.
48 C. Ex.-23 at 413; Tr. at 236–37.
49 C. Ex.-23 at 406.
50 Tr. at 50.
51 Tr. at 50.
52 Tr. at 50.
App.67a
spun glass, Ms. Zaradnik’s asthma flared up 53 and
she was admitted to a hospital for one or two weeks
for “[o]ccupational lung exposure with silica and
fiberglass, probably causing bronchitis.”54 She received
“aggressive bronchodilator therapy.”55 Treatment
included “[a]ggressive corticosteroid therapy both
intravenous and inhaled.”56 Her doctor discussed with
her “changing jobs to avoid toxic exposures.”57 She
was also advised to use a respirator when exposed to
particulate matter at work, given her medical history.58
Ms. Zaradnik acknowledged that, by 2005, a doctor
a doctor had told her that her working conditions
were contributing to her lung problems:59 “We talked
about it, but it wasn’t presented that, because of the
working conditions, that that was making my lungs
worse.”60
In 2006, Ms. Zaradnik experienced an exacerbation
of her breathing problems, which may have been
related to her work with cement.61 She twice presented
53 C. Ex.-23 at 252–53, 255.
54 C. Ex.-23 at 264.
55 C. Ex.-23 at 317.
56 C. Ex.-23 at 264.
57 C. Ex-23 at 318.
58 C. Ex.-23 at 253.
59 Tr. at 205.
60 Tr. at 205.
61 C. Ex.-232–33.
App.68a
to doctors “almost covered head to toe in dirt,” on
July 14 and July 21, 2006. 62
In 2008, Ms. Zaradnik experienced increased
tightness and wheezing after finishing a job which
exposed her to metal fumes and treated wood. 63 She
was diagnosed with an exacerbation of her asthma
following occupational exposure and was again advised
to wear a mask for respiratory protection.64
In 2008, medical records noted that Ms. Zaradnik
had a history of “[a]sthma, likely exacerbated by her
job inhaling concrete dust.”65
B. Orthopedic History
1. Hips
Ms. Zaradnik has had left hip pain since at least
2007.66 Before her work at Dutra, she had already
been diagnosed with mild osteoarthritis of her left
hip.67 X-rays taken November 17, 2009 showed mild
bilateral hip osteoarthritis, left greater than right. 68
In April 2010, Ms. Zaradnik complained to her
doctor of left side sciatica, which she attributed to
“the long 4-hour car drive each way [to work for
62 C. Ex.-23 at 229, 233.
63 C. Ex.-23 at 205.
64 C. Ex.-23 at 206.
65 C. Ex.-23 at 192.
66 Tr. at 207.
67 Tr. at 341.
68 C. Ex.-23 at 147.
App.69a
Flatiron in Big Bear, in San Bernadino County, California,] as it is intensely worse after each drive. She
states she has an old truck with a clutch, which is
why her left leg hurts.”69 The drive caused back and
left hip pain. 70
On July 16, 2010 (still before her work at
Dutra), Ms. Zaradnik reported to a doctor that she
had been experiencing pain in left hip and hip flexor
area for around the past year.71 In July 2010, Claimant
also advised doctors at Scripps that lifting at work
was contributing to her hip and back pain. 72
Ms. Zaradnik had also developed a limp. 73 She
explained that she started limping “quite a bit” while
working for Flatiron. 74
Ms. Zaradnik knew that her work prior to Dutra
was aggravating her hip problem, which doctors had
informed her. 75
2. Back
Ms. Zaradnik has been involved in two motor
vehicle accidents, and was injured in the first. 76 In
69 C. Ex.-23 at 144.
70 Tr. at 274
71 C. Ex.-23 at 142.
72 Tr. at 274.
73 Tr. at 366.
74 Tr. at 366.
75 Tr. at 341–42.
76 Tr. at 205–06.
App.70a
her early 20s, Ms. Zaradnik was ejected from a car
during a collision. 77 She injured her back, head, and
elbows.78
Ms. Zaradnik suffered a back strain at work in
2003.79 In 2006, she again injured her back at work
while carrying a heavy piece of lumber. 80 She saw a
chiropractor for about three months after the incident,
but did not miss any work.81
C. Employment at Dutra
During the 48 days Ms. Zaradnik worked for
Dutra between July 23 and September 20, 2010,82
she worked at Dutra’s Berth 102 jobsite. 83 Located in
the Long Beach/San Pedro area, 84 the Berth 102
project expanded a pier used to unload containers
from ships. 85 She left Dutra when her entire crew
was laid off because the job was coming to an end.86
77 Tr. at 206.
78 Tr. at 205–06.
79 C. Ex.-23 at 346–47.
80 Tr. at 47.
81 Tr. at 47–48.
82 R. Ex.7.
83 Tr. at 69.
84 O’Sullivan Dep. at 5.
85 Tr. at 69.
86 Tr. at 56.
App.71a
She would have continued working for Dutra if she
had been given the option. 87
Ms. Zaradnik did not have a well-defined set of
duties while working for Dutra. She floated between
different crews and assisted with tasks as needed. As
a result, there is considerable disagreement and
ambiguity regarding the specific physical activities
she performed and the how long she spent doing
various types of work. Even Ms. Zaradnik struggled
to explain the full range work she had performed in a
coherent manner.
1. Ms. Zaradnik’s Testimony About Her
Work for Dutra
Pile driving is heavy work. It involves preparation
in a yard, as well as the act of driving piling. The testimony of Ms. Zaradnik confirms this. She initially
reported to the yard crew for work,88 but She “floated
87 Tr. at 296.
88 Tr. at 290. Dutra seems eager to point out that Ms. Zaradnik
was dating the foreman of the yard crew, Jack Kellison, during
her employment at Dutra, and maintained a relationship with
him through the time of trial. R. Post-Trial Brief at 6–7. Mr.
Kellison assigned Ms. Zaradnik work in the yard and generally
determined when she would work with other crews. Tr. at 285,
291. Dutra also notes Mr. Kellison has alleged that he too
suffered lung and orthopedic injuries while working for Dutra,
that he never reported any injuries, and that he is represented
by the same counsel as Ms. Zaradnik. Tr. at 159, 345–46. I find
little significance in these facts. There is no evidence to suggest
Ms. Zardnik received lighter assignments because she was
dating her foreman. Had he testified in this case, his credibility
may have been suspect, but he did not. If his work duties were
similar to those of Ms. Zaradnik, similar working conditions
could well lead to similar injuries. His claim neither strengthens
nor weakens Ms. Zaradnick’s case.
App.72a
between crews. So of course, if we’re pouring and
they needed something, needed an extra person, then
I would go—whatever was more important.”89 Her
specific assignments would typically come from the
foreman she worked for at the time. 90 She estimated
she spent about a third of her time in the yard. 91 She
recalled also working with the false work crew,
probably for less than five days; the deck crew, for
more than a third of her employment at Dutra; and
the wall crew, for an unspecified amount of time. 92
Ms. Zaradnik spent most of her time on her feet,
and estimated that she had walked on uneven surfaces
around 70 percent of her time at Dutra. 93 She often
had to walk on top of rebar poles, which had frequent
changes in elevation. 94
Her work led Ms. Zaradnik to carry a tool belt
that she estimated weighed 30 pounds;95 she also
sometimes carried an additional tool bag (or bucket)
weighing 60 to 65 pounds. 96 She would carry both
her tool bag and tool belt, along with a canvass bag,
and harness when transferring from crew to crew, all
89 Tr. at 289.
90 Tr. at 289–90.
91 Tr. at 284.
92 Tr. at 287–89.
93 Tr. at 88.
94 Tr. at 100–02.
95 Zaradnik Dep. at 40–41, Dep. Ex.-3.
96 Tr. at 110.
App.73a
of which had a combined weight of over 100 pounds.97
She stored the items she didn’t need for her current
assignment close by where she was working. 98 Ms.
Zaradnik typically wore the tool belt all day, 99 except
when riding a forklift. 100 She sometimes carried the
tool bag with her while working as well. 101
While in the yard, part of Ms. Zaradnik’s job was
to ensure that other workers had the supplies they
needed, but she would also
go run and fuel the equipment, meaning
like compressor, welder, things that took
fuel, offloading trucks, fixing tools that were
broken, skill saws and cords. Sometimes
taking inventory of the materials that we
had left to see if we needed to reorder.
Possibly putting together for our—when we
need concrete pours for our wash up, putting
together our forms with plastic, Visqueen
for the washouts. 102
Ms. Zaradnik sometimes had to lift and carry
50-pound sand jacks across uneven ground. 103 She
also sometimes operated Hole-Hawg drills, which
97 Zaradnik Dep. at 49.
98 Zaradnik Dep. at 50.
99 Zaradnik Dep. at 43.
100 Zaradnik Dep. at 49.
101 Zaradnik Dep. at 42.
102 Tr. at 285.
103 Tr. at 102, 124–25.
App.74a
required a lot of physical strength to control. 104
Operating such drills is hard on the user’s hands.105
She also used chainsaws and beam saws, which require
forceful gripping. 106
Her duties also included loading or unloading
trucks.107 Sometimes she would use a forklift, but
other times she had to use “either a burke bar or two
by six, whatever is laying around, a piece of dunnage,
to pry up things, to get underneath, so you can actually pick it or even to pick with the crane.”108 She
explained that she had to climb onto the flatbeds of
trucks and then jump off. 109 Sometimes she used
ladders, but most of the time she would climb up the
back of the truck, over the tires. 110 Unloading trucks
also involved using hand tools, or simply her hands,
to tighten bolts. 111
Ms. Zaradnik also did rigging with slings, which
involved placing steel cables or ropes around heavy
loads so a crane or forklift could move them. 112 The
slings were generally about 20 to 30 feet in length
and between a quarter of an inch and two inches
104 Tr. at 100–01.
105 Tr. at 101.
106 Tr. at 110–111.
107 Tr. at 81.
108 Tr. at 81.
109 Tr. at 81.
110 Tr. at 82.
111 Tr. at 85.
112 Tr. at 82.
App.75a
thick.113 Ms. Zaradnik could carry smaller slings, but
heavier ones had to be dragged or carried by two
people.114
Ms. Zaradnik also operated a forklift as part of
her job in the yard, and sometimes had to climb on
and off a forklift all day long to stack dunnage under
loads, attach rigging, load and unload materials, and
fuel machinery. 115
She regularly carried two or three 4×8 plywood
sheets, two or three twenty-foot 2×4s, or four or five
four-foot 4×4s from the yard to various work areas.116
Work in the yard is a less demanding aspect of
the work than the traditional crew work when driving
the piling. 117
Ms. Zaradnik’s work with the deck crew involved
lifting and carrying support timber for use as fill-in
around piles.118 She generally carried only cut
segments of the timber, but sometimes had to move
full 20-foot beams, either by driving them or carrying
them with the help of another worker.119 While on
the deck crew, she also spent entire days handling
plywood sheets that she placed on top of stringers.120
113 Tr. at 83.
114 Tr. at 83.
115 Tr. at 87–88.
116 C. Ex.-24 at 4.
117 Tr. at 286.
118 Tr. at 106, 112.
119 Tr. at 112.
120 Tr. at 112–113.
App.76a
Adjusting the location of heavy timber and plywood
sheets sometimes involved beating them with a
sledgehammer. 121 On the wall crew, Ms. Zaradnik
also cut and placed portions of timber.122
On both the deck and wall crews, Ms. Zaradnik
spent considerable time sinking nails. 123 In the trade
it is customary to hammer while bending over, rather
than getting down on one’s knees. 124 She sometimes
spent several consecutive hours hammering. 125 She
also sometimes had to hammer in small, confined
spaces.126
Ms. Zaradnik was exposed to several forms of
airborne particulate matter in her work at Dutra.
She was around dust in the yard all day long. 127 She
was exposed to particles while sandblasting before
concrete pours, and to concrete dust from frames
after pours.128 She was also exposed to fumes from the
glues that laminate the plies of plywood while driving
pile because the plywood cushion blocks would become
heated. 129
121 Tr. at 119–20; C. Ex.-24 at 5.
122 Tr. at 116.
123 Tr. at 108.
124 Tr. at 108.
125 Tr. at 110.
126 Tr. at 114–15.
127 Tr. at 88.
128 Tr. at 88–89.
129 Tr. at 123.
App.77a
The largest contributor to Ms. Zaradnik’s
pulmonary problems seems to have been her exposure
to the numerous sources of diesel fumes at the work
sites. These included welders, pile drivers, power
packs, air compressors, forklifts, two crawler cranes,
a third crane on a floating barge, generators (also
known as “light plants”),130 chain saws, impact tools,
and trucks.131 Ms. Zaradnik worked in close proximity
to many of these sources. She believes she worked
1.
within 20 feet of welders around 50 percent
of the time;132
2.
near air compressors round 35 to 40 percent
of the time;133
3.
within 20 feet of the exhaust of cranes about
50 to 75 percent of the time;134
4.
within 20 feet of a generator between 40 to
60 percent of the time;135
5.
near someone using a chainsaw about 30 to
50 percent of the time;136
6.
within 20 feet of concrete pumps about 50
percent of the time;137 and
130 Tr. at 96–97.
131 Tr. at 89–90.
132 Tr. at 91.
133 Tr. at 91–92.
134 Tr. at 95–96.
135 Tr. at 97.
136 Tr. at 97.
App.78a
7.
occasionally within 20 to 25 feet of concrete
trucks.138
The jobsite generally had six or more concrete
trucks present at one time during a concrete pour.139
The trucks would not shut down their engines because
they had to keep their barrels turning to prevent the
concrete from solidifying. 140
She was also exposed to diesel fumes while
operating a pile driver,141 and while operating a
forklift. 142 She claimed to have been only three to
four feet away from the forklift’s exhaust stack while
operating it. 143
Ms. Zaradnik also testified that diesel fumes
were typically visible in the air, 144 but she could not
point out any diesel fumes in a number of photographs
of the Dutra jobsite shown to her at trial. 145
During Ms. Zaradnik’s employment at Dutra,
her hip symptoms increased about 20 to 25 percent.146
137 Tr. at 99.
138 Tr. at 98.
139 Tr. at 99.
140 Tr. at 99.
141 Tr. at 123.
142 Tr. at 92.
143 Tr. at 92–93.
144 Tr. at 164.
145 Tr. at 164–65, 179–80.
146 Tr. at 56.
App.79a
She claimed she was nicknamed “Hippity Hop” by
her coworkers there because she was always “limping
around.” 147
Despite her increased pain, Ms. Zaradnik never
reported a work injury to her managers at Dutra.148
In fact, she tried to hide her injuries from them. 149
2. Testimony of Ronald Lindsey About
Her Work for Dutra
Ronald Lindsey was a field superintendent for
the Berth 102 project,150 responsible for supervising
a total of 98 people, both foremen and workers. 151 As
Mr. Lindsey explained it, he
pretty much ran the whole job for the field
aspect of it. I was overseeing all of the false
work being put in on the piles that were
driven. Oversaw some of the pile driving. At
that point, we came in and built a false work
plan to install all the collars, all the steel
beams that would hold all the concrete rebar
that we were going to pour on top of it.
Would oversee that. Help with the scheduling
and manpower and crews to do the individual job sites. 152
147 Tr. at 58.
148 Tr. at 56–57.
149 Tr. at 57.
150 Lindsey Dep. at 6.
151 Lindsey Dep. at 6–7, 25–26.
152 Lindsey Dep. at 7.
App.80a
He saw Ms. Zaradnik at times while she
worked.153 On occasion, he personally assigned her
tasks,154 although normally the crew foremen did
that.155 He could not dispute Ms. Zaradnik’s account
of what she was doing on several specific days because he could not remember.156 Mr. Lindsey could
have determined which crew Ms. Zaradnik had worked
with each day by looking at her time sheets. He did
not do so. 157
According to Mr. Lindsey, Ms. Zaradnik was a
member of the yard crew and spent 80 to 85 percent
of her time working in the yard. 158 He described the
yard crew’s responsibilities as “[r]eceiving material
coming in off of semitrucks, small trucks. Getting it
unloaded, positioning it, staging it, and getting it
ready to go out into the field.” 159 Ms. Zaradnik’s job
description was really just
[t]o fill in. She was going to be a fill-in to
help move and help with the light-duty work
that we had going on, fill-in with crews that
needed extra help here and there, just to
help and just fill in with the light-duty work
153 Lindsey Dep. at 14.
154 Lindsey Dep. at 77.
155 Lindsey Dep. at 77–78.
156 Lindsey Dep. at 45–47.
157 Lindsey Dep. at 25.
158 Lindsey Dep. at 13–14, 72–73.
159 Lindsey Dep. at 7.
App.81a
we had in the backlands. 160
Mr. Lindsey characterized her as a “helper.”161 Her
specific responsibilities included assisting pile drivers
involved in moving steel beams with forklifts and
moving 6×12 timbers. 162 Mr. Lindsey thought about
75 percent of Ms. Zaradnik’s time on the job would
have been spent lifting, carrying, and placing six to
eight foot long pieces of 4×4s and spotting for
forklifts. 163
There were also times that Ms. Zaradnik filled
in on other crews to help them if they were falling
behind. 164 Ms. Zaradnik spent 15 to 20 percent of
the time doing more traditional pile driver work outside the yard, while helping out the other crews as
needed.165
In Mr. Lindsey’s opinion, the work of the yard
crew was lighter than the work of other pile drivers
on site.166 Nevertheless, her job still involved physical
labor, requiring her to lift, carry, bend, and tote.167
He acknowledged that workers wore tool belts, but
estimated that they weighed only 20 to 25 pounds because workers could change out the tools they carried
160 Lindsey Dep. at 10.
161 Lindsey Dep. at 10.
162 Lindsey Dep. at 12–13.
163 Lindsey Dep. at 74–75.
164 Lindsey Dep. at 13.
165 Lindsey Dep. at 14.
166 Lindsey Dep. at 8.
167 Lindsey Dep. at 39.
App.82a
to fit the needs of their particular assignment.168
This does not cause me to doubt Ms. Zaradnik’s testimony her tool belt was closer to 30 pounds. There
were tool storage locations around the jobsite, where
workers could store tools they did not need that
day.169
Mr. Linsey agreed that there were numerous
sources of diesel fumes at the jobsite. According to
him, machinery and equipment on the jobsite included
three cranes, two forklifts, somewhere between two
and six generators, around four compressors, around
three diesel powered welders, and a loader.170 Concrete
pours were conducted at the jobsite approximately
once per month.171 Close to 100 concrete trucks would
come to the jobsite on days with a large pour, 172 and
it was normal to have four or five mixer trucks at the
jobsite at one time during a pour. 173 The trucks did
not shut off their engines while on the jobsite. 174 Mr.
Lindsey did note, however, that all of Ms. Zaradnik’s
work was done in the open air. 175
Mr. Lindsey disputed some of the specific claims
that Ms. Zaradnik made regarding her proximity to
168 Lindsey Dep. at 17.
169 Lindsey Dep. at 17.
170 Lindsey Dep. at 29–30.
171 Lindsey Dep. at 31.
172 Lindsey Dep. at 30.
173 Lindsey Dep. at 75–76.
174 Lindsey Dep. at 31.
175 Lindsey Dep. at 21.
App.83a
diesel fumes. He explained that the exhaust pipes on
the two crawler cranes have engines behind the
operator’s seat. 176 The exhaust pipes run up through
the roofs of the cranes, around 20 to 30 feet above
ground level. 177 It’s not possible for a worker on the
ground to work within 20 feet of the exhaust of a
crawler crane. 178 The exhaust of the smaller crane
on the jobsite was 13 to 15 feet off the ground. 179
Furthermore, although there were generators on
site, they were mobile and could be used up to 300
feet away with an extension cord (or even further
with the use of a “spider box”).180 The generators
were rarely close to the workers because the rebar on
the deck prevented workers from moving the generators
too close.181 The exhaust from the generators could
also be positioned in different directions.182 Mr. Lindsey
did not think it sounded accurate for Ms. Zaradnik to
have spent 40 to 60 percent of her time within 20 feet
of a generator.183
Mr. Lindsey also disputed other specific points of
Ms. Zaradnik’s testimony. According to him, workers
very rarely climbed on top of a truck’s load.184 Drivers
176 Lindsey Dep. at 18–19.
177 Lindsey Dep. at 19.
178 Lindsey Dep. at 19.
179 Lindsey Dep. at 49–50; C. Ex.-13 at 533.
180 Lindsey Dep. at 19–20.
181 Lindsey Dep. at 20.
182 Lindsey Dep. at 20.
183 Lindsey Dep. at 21.
184 Lindsey Dep. at 32–33.
App.84a
who delivered lumber unlashed their own loads; the
yard workers removed the lumber with forklifts and
spotted the forklifts. 185 If the load was to be removed
by a crane, the workers fed cables underneath the
load and hooked the cables to the crane hooks. 186
Finally, Mr. Lindsey never saw Ms. Zaradnik
limping on the jobsite. 187 If he had, he would have
asked her if she had been injured. 188 He explained
that Dutra has an injury reporting requirement,189
but Mr. Lindsey was never told that Ms. Zaradnik
had suffered an injury. 190
3. Testimony of Bryan O’Sullivan About
Her Work for Dutra
Bryan O’Sullivan worked for Dutra as a project
engineer at Berth 102. 191 Project engineers “do the
initial submittal, order the materials, work plans,
basically getting the superintendent everything they
need to get the job done and interacting with the
owner.”192 Mr. O’Sullivan was present at the jobsite
on a day-to-day basis and was able to observe workers
in action; occasionally he observed Ms. Zaradnik’s
185 Lindsey Dep. at 32.
186 Lindsey Dep. at 32–33.
187 Lindsey Dep. at 14.
188 Lindsey Dep. at 14.
189 Lindsey Dep. at 14–15.
190 Lindsey Dep. at 16.
191 O’Sullivan Dep. at 5–6.
192 O’Sullivan Dep. at 6.
App.85a
work.193 He was familiar with the kinds of assignments
given to various types of workers.194 Mr. O’Sullivan
did not assign workers tasks on a daily basis. 195 He
did, however, receive time cards every day with job
codes indicating where the employees had worked.196
Ms. Zaradnik’s time cards would indicate which
crews she worked with on different days. 197 Mr.
O’Sullivan did not testify about the information
contained in Ms. Zaradnik’s time cards, however.
Mr. O’Sullivan stated that Ms. Zaradnik was
hired as a pile driver to work in the yard. 198 He
explained that a large portion of work in the yard
consisted of moving materials around the jobsite,
keeping crews supplied, and helping out various
crews.199 He acknowledged that work in the yard
would require bending, lifting, and carrying materials,
including 4×4s, wire slings, cables, and rigging. 200
Overall, however, he thought work in the yard was
lighter than normal pile driver work.201
Mr. O’Sullivan contradicted Ms. Zaradnik’s testimony on a few points. First, he estimated that
193 O’Sullivan Dep. at 6–8.
194 O’Sullivan Dep. at 7.
195 O’Sullivan Dep. at 17.
196 O’Sullivan Dep. at 17.
197 O’Sullivan Dep. at 18.
198 O’Sullivan Dep. at 7.
199 O’Sullivan Dep. at 7–8.
200 O’Sullivan Dep. at 17.
201 O’Sullivan Dep. at 8.
App.86a
workers’ tool belts typically weighed only 15 to 20
pounds.202 Apparently the higher up the chain of
command you go, the less the supervisor thinks a
worker carriers on the belt. Next, he explained that
Ms. Zaradnik did not spend most of her time working
within twenty feet of the exhaust of a crawler crane
because the exhaust pipe is 15 to 20 feet off the
ground, and there is generally a 20 to 30 foot perimeter
set up around those cranes.203 He also explained
that the generators on the jobsite were mobile and
could be moved out of the way. Alternatively, workers
could plug tools in with an extension cord to get further away, or at least turn the exhaust stack away
from them.204 Finally, he explained that not all trucks
on the jobsite kept their engines running. Trucks
were required by law to shut down within five minutes
of arriving on the jobsite unless they needed power
for some reason.205 The Port of L.A. was strict about
such environmental regulations.206 Mr. O’Sullivan did
acknowledge that cement trucks kept running to
power their mixers. 207 He noted, however, that Ms.
Zaradnik and the other employees would not have
been stationed near the cement trucks because that
202 O’Sullivan Dep. at 12.
203 O’Sullivan Dep. at 12.
204 O’Sullivan Dep. at 12–13.
205 O’Sullivan Dep. at 13.
206 O’Sullivan Dep. at 13.
207 O’Sullivan Dep. at 14.
App.87a
would have been unsafe.208 Mr. O’Sullivan also noted
that Ms. Zaradnik worked in a large open space. 209
Mr. O’Sullivan further explained that Dutra has
injury reporting requirements.210 He also thought it
was “standard knowledge” that injuries should be
reported.211 Nevertheless, he was not aware of any
injury reports by Ms. Zaradnik. 212
4. Injurious Conditions at Dutra
I accept much of Ms. Zaradnik’s account of her
working conditions at Dutra as true. However unreliable she may have been about her tobacco, alcohol,
and illicit drug use, she remains the best source of
information regarding the work she performed on the
Berth 102 project. Her testimony is not so different
from that of the managers.
I don’t question that Mr. Lindsey offered his best
recollection of Ms. Zaradnik’s duties, but with responsibility for supervising up to 98 workers for that
project,213 he could not have monitored her daily tasks,
nor was he responsible to do so. Unsurprisingly, he
could not dispute Ms. Zaradnik’s account of what she
was doing on several specific days because he could
not remember.214 Had Mr. Lindsey used the data
208 O’Sullivan Dep. at 14.
209 O’Sullivan Dep. at 13.
210 O’Sullivan Dep. at 9.
211 O’Sullivan Dep. at 9–10.
212 O’Sullivan Dep. at 10.
213 Lindsey Dep. at 25–26.
214 Lindsey Dep. at 45–47.
App.88a
from timesheets to determine which crew Ms. Zaradnik
had worked with each day, I might have given more
weight to his testimony. But for whatever reason, he
elected not to do so.215
Similarly, Mr. O’Sullivan occasionally saw Ms.
Zaradnik at work,216 but it was not his responsibility
to directly supervise her. I do not doubt that Mr.
O’Sullivan testified honestly, but as a project engineer,
he was more responsible for project as a whole than
tracking assignments of individual workers.217 He was
not particularly familiar with Ms. Zaradnik’s work.
And like Mr. Lindsey, Mr. O’Sullivan acknowledged
that Ms. Zaradnik’s time cards would show which
crews she had worked with at any given time.218 Also
like Mr. Lindsey, he offered no information about
what her time cards show. Without examining the
available time card data, Mr. O’Sullivan’s testimony
amounted to a broad generalization of the types of
work he would have expected Ms. Zaradnik to have
performed.
I do, however, accept that Ms. Zaradnik overstated
her exposure to diesel fumes. For example, both Mr.
Lindsey and Mr. O’Sullivan testified that the generators
at the Berth 102 jobsite were mobile, could be used
from significant distances with the aid of an extension
cord, and were designed so that their exhaust could
be directed away from workers.219 That information
215 Lindsey Dep. at 25.
216 O’Sullivan Dep. at 8.
217 O’Sullivan Dep. at 6.
218 O’Sullivan Dep. at 17–18.
219 Lindsey Dep. at 19–20; O’Sullivan Dep. at 12–13.
App.89a
does not change on an employee-to-employee basis.
Mr. Lindsey and Mr. O’Sullivan did not need to closely
supervise Ms. Zaradnik to know the functionality of
the equipment on their jobsite. Accordingly, I find it
implausible that Ms. Zaradnik worked within 20 feet
of a generator between 40 to 60 percent of the time at
Dutra, as Ms. Zaradnik claims. 220
But this matters little. Ms. Zaradnik’s claims are
based on cumulative trauma and occupational disease.
Cumulative trauma—which occurs through repetitive
motions—can occur with the kinds of physical activities
both Mr. Lindsey and Mr. O’Sullivan described.
Similarly, though Ms. Zaradnik was exposed to fewer
diesel fumes than she thinks, everyone agreed there
were consistently numerous diesel powered engines
running at the jobsite. There is no fixed quantity of
particulate matter required for respiratory damage
to occur, especially when the ultimate injury is
alleged to have occurred over a lifetime.
D. Work after Dutra and Medical Evaluations
Ms. Zaradnik saw her pulmonologist, Jacqueline
Chang, M.D., for her annual check-up on October 7,
2010.221 Dr. Change noted that Ms. Zaradnik had
“actually been doing quite well” on Symbicort (an
asthma medication). 222 She was taking ProAir
(another asthma medication) infrequently, generally
when she forgot to take her medications or when she
220 Tr. at 97.
221 C. Ex.-23 at 120–21.
222 C. Ex.-23 at 120.
App.90a
was around a lot of pollen. 223 During physical examination, Dr. Chang found Ms. Zaradnik’s chest
“[s]urprisingly clear to auscultation” with “[n]o active
wheezing and [g]ood breath sounds.” 224 Dr. Chang
diagnosed Ms. Zaradnik with asthma, though she
also noted that Ms. Zaradnik was “doing reasonably
well on the current program of Singular, Symbicort,
and ProAir. . . . ” 225 Dr. Chang also assessed tobacco
abuse, noting Ms. Zaradnik was smoking one pack of
cigarettes per day. 226
In October 2010, about two weeks after being
laid off at Dutra, Ms. Zaradnik began working at
Stone & Webster as a lead person doing concrete and
form work at the San Onofre Nuclear Power Facility.227
She worked on a crew that did sidewalk repair. 228
Ms. Zaradnik was involved in the layout, grade,
elevation, and forming up of new sidewalks. 229 The
layout work involved holding up 2×4s and nailing
them to stakes. 230 She also had to pound in stakes
with a sledgehammer and cut plant roots out with a
skill saw. 231 She spent most of the day standing,
223 C. Ex.-23 at 120.
224 C. Ex.-23 at 121.
225 C. Ex.-23 at 121.
226 C. Ex.-23 at 120–21.
227 Tr. at 60, 296, 301; C. Ex.-10 at 439–46.
228 Tr. at 63.
229 Tr. at 63.
230 Tr. at 63–64.
231 Tr. at 64.
App.91a
squatting, or kneeling.232 Her work also involved using
a hammer and nails, a small sledgehammer, a skill
saw, sawzalls, drills, pry bars, a shovel, a cat’s paw
(nail puller), and a chainsaw. 233 She used her hands
all day long. 234 The work at Stone & Webster was
slower and lighter than her work at Dutra. 235 She
was also able to take breaks when needed.236 Overall,
her job was “[m]uch easier at Stone & Webster.”237
Nevertheless, Ms. Zaradnik felt increased pain
in her back and hip while working for Stone &
Webster, and the tools she used caused problems
with her hands.238 Because of the pain, she sometimes
worked in a “lunge position,” with one leg behind her
so she could reach down lower.239 She explained that
she felt less pain while working at Stone & Webster
than at Dutra because, at Stone & Webster, she was
better able to adjust the positioning of her body when
she felt pain. 240 She elaborated, however, that her
injury “progressively was getting worse, that I felt
more—more pain [at Stone & Webster], but I was
able to adjust with it. So, it was, maybe, more a
232 Tr. at 299–300, 311.
233 Tr. at 299, 309.
234 Tr. at 300.
235 Tr. at 65.
236 Tr. at 360.
237 Tr. at 65.
238 Tr. at 310–11.
239 Tr. at 309–10.
240 Tr. at 66.
App.92a
constant, but not as severe, when I was physically
doing the work.”241
Ms. Zaradnik’s employment with Stone & Webster
ended in November 2010 when her portion of the
project concluded.242 She would have kept working
on that project if her role had gone on longer: “If
there was more sidewalks to build, yes, I would have
built more sidewalks.”243 She continued to seek pile
driving and carpentry work.244
Ms. Zaradnik testified that her symptoms did
not lessen after she left Stone & Webster in November
2010.245 “It almost got worse.”246 She went on to
testify, somewhat confusingly, that her symptoms
were “[n]ot better. Not worse. Not the same. I mean,
it has good days and bad days.”247
Ms. Zaradnik underwent a complete physical
examination with Debra Bement, M.D., on December
21, 2010. 248 Dr. Bement noted Ms. Zaradnik had a
good range of motion in her extremities, a normal
gait, and normal strength. 249 Dr. Bement also noted
241 Tr. at 66.
242 Tr. at 318–19.
243 Tr. at 318–19.
244 Tr. at 319.
245 Tr. at 312–13.
246 Tr. at 313.
247 Tr. at 314.
248 C. Ex.-23 at 74–75.
249 C. Ex.-23 at 75.
App.93a
that a recent chest x-ray and chest CT with Dr.
Chang showed some abnormalities, early emphysema,
and an asymmetric thyroid. 250
X-rays of Ms. Zaradnik’s pelvis and left hip done
May 10, 2011 were interpreted to show worsening
osteoarthritis in her left hip. 251
Adam Rosen, D.O., administered a left hip injection under fluoroscopy to treat Ms. Zaradnik’s left
hip osteoarthritis on August 3, 2011. 252
Ms. Zaradnik saw Kace Ezzet, M.D., on August
29, 2011 for a second opinion on her left hip. 253 Dr.
Ezzet interpreted x-rays of Ms. Zaradnik’s hip to
show “advanced left hip arthritis and what looks to
be mild acetabular dysplasia.” 254 He diagnosed
osteoarthritis in her left hip. 255 Dr. Ezzet had a
“lengthy and frank discussion” with Ms. Zaradnik
and informed her that he did not “think that heavy
construction work is in her best interest any longer.
She does not tolerate it well with her arthritic hips
and would not be a good candidate for that kind of
work if she has her hip replaced.” 256 Ms. Zaradnik
contends she first became disabled within the meaning
of the Act (i.e., she first suffered a loss in earning
250 C. Ex.-23 at 74.
251 C. Ex.-23 at 47.
252 C. Ex.-23 at 34.
253 C. Ex.-23 at 20.
254 C. Ex.-23 at 21.
255 C. Ex.-23 at 21.
256 C. Ex.-23 at 21.
App.94a
capacity) and that she first became aware of the full
extent and nature of her injury at the time of this
appointment with Dr. Ezzet.257
Ms. Zaradnik began work for Stone & Webster a
second time in late October, 2011.258 The job involved
assembling office furniture, sometimes for up to 11
hours per day. 259 Ms. Zaradnik also sometimes had
to transport furniture, cables, and hardware on a
dolly, and unload items from the dolly.260 She worked
in a variety of positions, including sitting, kneeling,
standing, lying on her back, and bent over. 261 Her
work involved the use of several hand tools, including
screw guns, manual tools, nut drivers, and pry bars.”262
Ms. Zaradnik could not sit “normally” with her legs
crossed.263 She had to position her body creatively to
accomplish her tasks: “I used to have my little
cheating ways, using my legs to like hold things up.
So I often used what was around me to prop things
up so I would be able to assemble them. ”264 She had
to change positions because of pain in her hip and
back, and because of her hands “locking up.”265 She
257 C. Post-Trial Brief at 5–6.
258 C. Ex.-11 at 447–62; Tr. 321.
259 Tr. at 323.
260 Tr. at 323–24.
261 Tr. at 325.
262 Tr. at 328.
263 Tr. at 327.
264 Tr. at 326.
265 Tr. at 327.
App.95a
felt increased hip and back pain while working for
Stone & Webster. 266 Gripping was also difficult and
painful. 267 She felt worse at the end of her work
days.268 She used ice, heat, and medication to help
manage her pain. 269
Ms. Zaradnik worked for Stone & Webster the
second time until she was again laid off around
January 27, 2012. 270 She would have continued
working there if she had not been laid off. 271 She
considered her work at Stone & Webster to be a
“gravy job” compared to her work for Dutra.272 She
resumed looking for work from January to September,
2012:273 “[U]ntil I had gotten a medical disability
when I was still on unemployment, knowing that it
was going to run out, yes, I was looking for whatever
kind of work I could get, union and non-union.”274
She stopped looking for work in September 2012,
when she received notice that she would receive
social security disability benefits. 275 She retired from
266 Tr. at 310.
267 Tr. at 68.
268 Tr. at 327.
269 Tr. at 327-28.
270 Tr. at 321; C. Ex.-11 at 447.
271 Tr. at 330.
272 Tr. at 333–34.
273 Tr. at 335–37, 368–70.
274 Tr. at 335.
275 Tr. at 336–37.
App.96a
the union that same month. 276 Ms. Zaradnik has not
filed a workers’ compensation claim against Stone &
Webster. 277
Ms. Zaradnik’s pain has increased over time,
whether working or not. 278 Her breathing problems
have improved since she stopped working, however.279
Her lung condition was better at the time of trial
than it had been when working for either Stone &
Webster or Dutra. 280
III. Ms. Zaradnik Gave Dutra the Necessary
Notice of her Claims
Under § 12 of the Act, a claimant must give the
employer notice within 30 days of an injury, or
within 30 days after the claimant becomes aware of
the relationship between the injury and the
employment. 281 The Act presumes that “sufficient
notice of a claim has been given” by a claimant.282
“Therefore, the burden is on Employer to establish by
276 Tr. at 333.
277 Tr. at 348.
278 Tr. at 66–67.
279 Tr. at 271.
280 Tr. at 271–72.
281 33 U.S.C. § 912(a) (“Notice of an injury . . . shall be given within
thirty days after the date of such injury . . . or thirty days after the
employee or beneficiary is aware, or in the exercise of reasonable
diligence or by reason of medical advice should have been aware,
of a relationship between the injury . . . and the employment. . . . ”).
282 Kashuba v. Legion Ins. Co., 139 F.3d 1273, 1275 (9th Cir.
1998).
App.97a
substantial evidence that it was prejudiced by . . . failure to give timely notice of the injury.” 283 Once the
claimant knows his injury and employment are related,
§ 13 gives him one year to file the claim, or two years
if the claim is for an occupational disease. 284
The date of awareness matters to both the § 12
and § 13 analysis. The Act’s awareness standard
under both § 12 and § 13 is the same. 285 The way the
Ninth Circuit articulated the standard in Todd
Shipyards Corp. v. Allan,286 a claimant is not “‘injured’
for purposes of the statute of limitations until ‘he
be[comes] aware of the full character, extent, and
impact of the harm done to him.” 287 The claimant
283 Kashuba, 139 F.3d at 1275. See also 33 U.S.C. § 912(d).
284 33 U.S.C. § 913(a) (“Except as otherwise provided in this
section, the right to compensation for disability . . . under this
chapter shall be barred unless a claim therefore is filed within
one year after the injury. . . . The time for filing a claim shall
not begin to run until the employee or beneficiary is aware, or
by the exercise of reasonable diligence should have been aware,
of the relationship between the injury . . . and the employment”); 33 U.S.C. § 913(b)(2) (“[A] claim for compensation for
death or disability due to an occupational disease which does
not immediately result in such death or disability shall be
timely if filed within two years after the employee or claimant
becomes aware, or in the exercise of reasonable diligence or by
reason of medical advice should have been aware, of the relationship between the employment, the disease, and the death or
disability, or within one year of the date of the last payment of
compensation, whichever is later.”).
285 Bivens v. Newport News Shipbuilding & Dry Dock Co., 23
BRBS 233, 240 (1990).
286 Todd Shipyards Corp. v. Allan, 666 F.2d 399 (9th Cir. 1982).
287 Allan, 666 F.2d at 401 (emphasis removed) (quoting Stancil
v. Massey, 436 F.2d 274, 277 (D.C. Cir. 1970)).
App.98a
must know that the claim is compensable, and that
there is an “impairment of earning power.”288 Additionally, a claimant is not aware of the full extent of
the injury until he is properly diagnosed. 289
Dutra argues Ms. Zaradnik failed to give timely
notice because she filed her claim more than 30 days
after her last day of work on September 20, 2010; she
was aware she was injured by September 20, 2010;
and Dutra was prejudiced by the alleged lack of
notice.290 Similarly it argues the claim is untimely
(at least with respect to her orthopedic injuries) because it wasn’t filed until October 12, 2011, over a
year after she left employment at Dutra (though it
was within the two year time limit for occupational
diseases).291 I find no evidence that Ms. Zaradnik
was aware of the full character, extent, and impact of
injuries that occurred to her at Dutra within either
30 days or one year of her last work at Dutra. Dutra
argues “commonsense and facts dictate that claimant
knew or with reasonable diligence should have known
the relationship between her alleged injuries (if such
in fact existed) and employment during her employment with Dutra.”292 How much time passes between
the injury and claim is not what either § 12 or § 13
measure. The limitations periods did not begin to run
until Ms. Zaradnik was aware of the full character
288 Allan, 666 F.2d at 401–02.
289 J.M. Martinac Shipbuilding v. Dir., OWCP, 900 F.2d 180,
184 (9th Cir. 1990).
290 R. Post-Trial Brief at 20–23.
291 R. Post-Trial Brief at 19–23.
292 R. Post-Trial Brief at 20.
App.99a
and extent of the harm she suffered. 293 The Ninth
Circuit has recognized that “[p]ublic policy is served
by not discouraging workers’ attempts to return to
work and by not encouraging premature claims of
permanent disability.”294
Before beginning work at Dutra, in July 2010,
Ms. Zaradnik knew that her work as a pile driver
sometimes increased the pain in her back and hip. 295
The arduous work at Dutra was no exception; her hip
symptoms increased 20 to 25 percent during her time
there.296 That pain wasn’t career-ending, however,
and did not provide the requisite notice that her
symptoms of pain were work-related, as distinct from
normal aspects of wear and tear from aging. The
increase in symptoms did not alert Ms. Zaradnik
that permanent damage was occurring. She managed
to work through her pain until her employment at
Dutra came to its natural end when the project was
done. She managed to find work at Stone & Webster
afterward.
293 Allan, 666 F.2d at 401; Martinac, 900 F.2d at 183–84.
294 Martinac, 900 F.2d at 184.
295 Tr. at 274–75.
296 Tr. at 56. Dutra also argues that Ms. Zaradnik intentionally hid her injuries from Dutra management. R. Post-Trial
Brief at 21; Tr. at 57. While I certainly do not condone such
inaction, the question at issue here is not whether Ms. Zaradnik
knew she had pain. The question is whether she knew she had
an injury caused by her employment at Dutra. I find that she
knew she had pain, not that she knew she was injured, nor the
extent of any injury.
App.100a
Ms. Zaradnik was also diagnosed with osteoarthritis in her left hip by May 10, 2011, 297 but that
was likewise insufficient to trigger the notice and
filing deadlines. Lawyers adept in this field easily
recognize a claim for cumulative trauma. What is
obvious to them isn’t obvious to a construction
worker. She had no knowledge that her condition
had been caused, aggravated, or accelerated by her
work, and even less reason to suspect that her work
for Dutra, in particular, was responsible. It was only
on August 29, 2011, after Dr. Ezzet explained Ms.
Zaradnik’s hip problems were work-related and advised
her to leave her career as a pile driver, 298 that Ms.
Zaradnik became aware of the full extent, character,
and impact of her hip injury. Even then, it’s not clear
that she knew her specific employment at Dutra was
responsible for any identifiable part of her injury.
Furthermore, the limitations periods did not
begin to run until Ms. Zaradnik knew or reasonably
should have known that she had sustained an injury
likely to decrease her earning capacity. 299 Dr. Ezzet
was the first doctor to advise her to stop doing pile
driving work. 300 Because she went on to work for
Stone & Webster again after that, August 29, 2011 is
the earliest she could be found to have suffered a loss
in earning capacity.
297 C. Ex.-23 at 47.
298 C. Ex.-23 at 20–22.
299 Bath Iron Works Corp. v. Galen, 605 F.2d 583, 586 (1st Cir.
1979).
300 Tr. at 136, 329, 351.
App.101a
No doctor opined on the cause of Ms. Zaradnik’s
other orthopedic injuries until substantially later.
Similarly, Ms. Zaradnik knew, by 2005, that her
work as a pile driver was contributing in some way
to her respiratory problems. 301 As Dutra is eager to
point out elsewhere in its argument, however, she
did not experience any flare-up in her respiratory
problems during her time at Dutra. The §§ 12 and 13
time limitations do not begin until Ms. Zaradnik
knew or should have known that she had a compensable
claim against Dutra; knowledge that work for past
employers had caused increases in symptoms does
not suffice. Nothing alerted Ms. Zaradnik to the possibility that her specific employment at Dutra may have
aggravated or accelerated her respiratory problems
until she received a medical opinion to that affect
from Dr. Harrison on November 9, 2012.
Ms. Zaradnik therefore gave notice and filed her
claim before the limitations period even began to run
for her respiratory and other orthopedic claims. This
situation—a claimant giving notice of an injury and
filing a claim before he is definitively aware, for purposes of the Act, that he has suffered a work-related
injury—is not as odd as it may first seem. Precisely
because a claimant’s right to relief can be barred by
untimely filing, claimants often pre-emptively file
claims before they have medical confirmation that
they suffered a work-related injury.302 They do so to
avoid the argument Dutra makes that they should
have filed earlier. The Benefits Review Board has
301 Tr. at 205.
302 See, e.g., the reference to a protective claim in Roush v Bath
Iron Works, BRB No.14-0221, slip op. at 1–2 (BRB Mar. 24, 2015).
App.102a
agreed that this practice is appropriate when a claimant believes she might have suffered a work-related
injury, but doesn’t know because she hasn’t received
a medical opinion that explains whether there is a
causal connection.303
Neither § 12 nor § 13 bar Ms. Zaradnik’s claim.
Notice was timely, so I have no occasion to reach
Dutra’s prejudice arguments.
IV. Employment with Dutra Contributed to
Ms. Zaradnik’s Orthopedic Injuries and
Respiratory Impairments
To establish a prima facie case under the Act, a
claimant must show that she suffered harm or pain304
and that an accident occurred at work or working
conditions existed that could have caused the harm
or pain. 305 “Once claimant has met this dual burden
of establishing that [s]he has suffered harm and that
the alleged accident in fact occurred or the alleged
working condition existed, the Section 20(a) presumption of causal connection . . . applies.” 306
An employer rebuts the presumption “by evidence
specific and comprehensive enough to sever the
potential connection between the disability and the
work environment.”307 When evaluating whether the
303 See, e.g., Lopez v. Stevedoring Servs. of Am., 39 BRBS 85,
88–89 (2005).
304 Murphy v. SCA/Shane Bros., 7 BRBS 309, 314 (1977), aff’d
mem. 600 F.2d 280 (D.C. Cir. 1979).
305 Kelaita v. Triple A Mach. Shop, 13 BRBS 326, 330–31 (1981).
306 Kelaita, 13 BRBS at 331.
307 Parsons Corp. v. Dir., OWCP (Gunter), 619 F.2d 38, 41 (9th
App.103a
employer has rebutted the presumption, “the ALJ’s
task is to decide, as a legal matter, whether the
employer submitted evidence that could satisfy a reasonable factfinder that the claimant’s injury was not
work-related.”308 “The unequivocal testimony of a physician that no relationship exists between a claimant’s
disabling condition and the claimant’s employment is
sufficient to rebut the presumption.”309
1. Medical Evaluation of Physiatrist James
Stark, M.D.
Dr. Stark is a physician certified by the American
Board of Physical Medicine and Rehabilitation, i.e., a
physiatrist. 310 He attended medical school at Far
Eastern University in the Philippines and completed
his residency at the University of California, Irvine.311
He treats orthopedic and neurological conditions, but
does not perform surgery. 312
Cir. 1980). See also Dower v. Gen. Dynamics Corp., 14 BRBS 324,
326 (1981) (“The Section 20(a) presumption shifts the burden to
the employer to come forward with sub stantial evidence
countering the presumed relationship between the employee’s
injury and the work environment.”).
308 Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir.
2010).
309 Dearing v. Dir., OWCP, 27 BRBS 72, 75 (CRT) (4th Cir. 1993)
(unpublished) (citing Kier v. Bethlehem Steel Corp., 16 BRBS
128, 129–30 (1984)).
310 C. Ex.-8 at 392.
311 C. Ex.-8 at 392.
312 C. Ex.-20 at 5–6.
App.104a
Dr. Stark examined Ms. Zaradnik at her request
on April 19, 2012, took her medical history, and
reviewed her medical records before authoring a May
26, 2012 report.313 From his physical examination,
Dr. Stark saw that Ms. Zaradnik had “a Trendelenburg
type gait favoring the left hip with positive Trendelenburg testing on the left, negative on the right.”314
Ms. Zaradnik had a full range of motion in her
shoulders, elbows, wrists, and hands. 315 She experienced no finger triggering at the time of the exam.316
She reported sciatic pain with full extension of her
left knee.317 Her range of motion was more restricted
in her left hip than her right, and a Patrick’s test
(used to evaluate pathology of the hip joint or sacroiliac
joint) was positive, with greater limitation on the left
than the right.318 Abduction against resistance caused
pain bilaterally, greater on the left than the right. 319
Dr. Stark diagnosed:
1.
bilateral left greater than right hip
ostepoarthritis;
2.
lower back pain—chronic—rule out left-sided
intervertebral disc herniation versus stenosis;
313 C. Ex.-3 at 373.
314 C. Ex.-3 at 376.
315 C. Ex.-3 at 376–77.
316 C. Ex.-3 at 377.
317 C. Ex.-3 at 377.
318 C. Ex.-3 at 377.
319 C. Ex.-3 at 377.
App.105a
3.
bilateral, left greater than right carpal tunnel
syndrome (confirmed by electrodiagnostic
testing). 320
Dr. Stark opined that Ms. Zaradnik had developed
progressive bilateral hip pain from osteoarthritis
during the course of her career.321 “Early onset of
hip arthritis relates to mild congenital acetabulum
changes with aggravation as a result of heavy lifting
and probably extensive climbing activities.” 322 Dr.
Stark believed that, although Ms. Zaradnik was
predisposed to osteoarthritis because of congenital
hip dysplasia,
there can be no argument that Ms. Zaradnik
would be less symptomatic today had she
performed sedentary work as oppose[d] to
work requiring heavy lifting.
Said another way, work activity aggravated
and accelerated bilateral, left greater than
right, hip osteoarthritis through the last day
of work.323
At his deposition, Dr. Stark explained that he
had since retracted his finding of hip dysplasia after
performing measurements on Ms. Zaradnik’s x-rays.324
His earlier finding of dysplasia had relied on Dr.
320 C. Ex.-3 at 378.
321 C. Ex.-3 at 378.
322 C. Ex.-3 at 378.
323 C. Ex.-3 at 378.
324 C. Ex.-20 at 7–8.
App.106a
Ezzet’s report.325 Dr. Stark used a measurement called
the “center edge angle,” which involves marking the
center of the ball and socket of the femoral head and
drawing lines from that point vertically and to the
edge of the acetabulum, creating angles.326 The angle
measured 35 degrees on Ms. Zaradnik’s x-rays.327 The
angle would need to be less than 25 degrees to qualify
as dysplasia. 328 Dr. Stark explained that x-rays have
the appearance of a shallow acetabulum, which may
have led Dr. Ezzet to diagnose dysplasia, but that
appearance is misleading as proven by Dr. Stark’s
measurements. 329
Based on her hip condition, Dr. Stark would
prohibit Ms. Zaradnik’s from squatting, climbing,
pushing, pulling, and heavy lifting because those
activities “are injurious to already symptomatic arthritic
hips.” 330 In his opinion, Ms. Zaradnik could not work
as a pile driver with those restrictions. 331 Dr. Stark
thought Ms. Zaradnik would require left and probably
right total hip arthroplasties.332 He recommended Ms.
Zaradnik proceed with the left hip replacement immediately, partly because he thought her altered gait
325 C. Ex.-20 at 7–8.
326 C. Ex.-20 at 8.
327 C. Ex.-20 at 8.
328 C. Ex.-20 at 8.
329 C. Ex.-20 at 9–10.
330 C. Ex.-3 at 378.
331 C. Ex.-3 at 378.
332 C. Ex.-3 at 378.
App.107a
was contributing to her lower back pain.333 He thought
she should have an MRI done of her lower back. 334
Dr. Stark also thought Ms. Zaradnik’s carpal
tunnel syndrome was work-related “because of the
repetitive and forceful hand activities Ms. Zaradnik
has performed over the years.”335 He thought she
may need surgery in the future, and would prohibit her
from performing repetitive gripping, power gripping,
and more than four hours with manipulative activities such as data input.”336
He concluded his report by reiterating that, in
his opinion, the problems with Ms. Zaradnik’s lower
back, hips, and hands were caused, aggravated, or
accelerated by her employment activities through
her last day of work.337
Dr. Stark gave a supplemental opinion on August
9, 2012 after reviewing additional records, including
an MRI of Ms. Zaradnik’s lumbar spine done July 24,
2012 and the corresponding radiologic report. 338 The
lumbar spine scans showed multi-level degenerative
disc disease at L1 through S1, most marked at the
L4-5 level, with central and lateral stenosis. 339 He
described the L4-5 degenerative disc disease as “severe
333 C. Ex.-3 at 378.
334 C. Ex.-3 at 378.
335 C. Ex.-3 at 379.
336 C. Ex.-3 at 379.
337 C. Ex.-3 at 379.
338 C. Ex.-5 at 382.
339 C. Ex.-5 at 382.
App.108a
with reactive bone marrow formation.”340 He concluded
it was the L4-5 stenosis that had caused lower extremity symptoms.341 He believed her degenerative
changes had been aggravated “by years of hard work,
including repetitive bending, lifting and working in
awkward positions. Her chronic low back condition is
largely the result of cumulative trauma from years of
arduous work.”342
Dr. Stark opined on Ms. Zaradik’s work restrictions
in an October 24, 2012 letter, explaining she should
avoid sitting for more than 15 minutes at a time, and
avoid standing or walking for more than 15 to 30
minutes at a time. 343 He was not sure whether she
could work an eight-hour day without rest. 344
Dr. Stark reexamined Ms. Zaradnik on November
6, 2012. 345 Ms. Zaradnik reported constant left hip
pain causing difficulty sleeping, constant midline
lower back pain with radiation to the buttock
bilaterally, and bilateral thumb pain with a tendency
for the thumbs to lock.346 She was having trouble
performing a number of tasks, including walking,
climbing stairs, sitting for more than 15 to 30 minutes,
repetitive hand activity, kneeling, bending, squat340 C. Ex.-5 at 382.
341 C. Ex.-5 at 382.
342 C. Ex.-5 at 382.
343 C. Ex.-6.
344 C. Ex.-6.
345 C. Ex.-7 at 385.
346 C. Ex.-7 at 386.
App.109a
ting.347 She rated her pain between six and nine on a
scale of ten. 348
Dr. Stark diagnosed:
1.
Bilateral, left greater than right, hip osteoarthritis.
2.
Lower back pain—chronic with radicular
complaints, but without verifiable radiculopathy secondary to scan documented multilevel degenerative disc and joint disease with
L4-L5 severe disc space narrowing, broadbased posterior disc spurring indenting the
thecal sac causing mild spinal stenosis. The
left foraminal stenosis and foraminal
narrowing is moderate.
3.
Bilateral, left greater than right, carpal tunnel
syndrome.
4.
Bilateral hand arthritis. 349
Dr. Stark explained that “[b]y definition of osteoarthritis and its natural progression, even though not
working, there has been worsening of the left hip
condition because osteoarthritis is a progressive condition.” 350 He went on to state: “There is simply no
way of excluding the physical demands placed upon a
pile driver/construction worker as having contributed
to the hip arthritis.” 351 He came to the same conclu347 C. Ex.-7 at 386.
348 C. Ex.-7 at 386.
349 C. Ex.-7 at 389–90.
350 C. Ex.-7 at 390.
351 C. Ex.-7 at 390.
App.110a
sion with respect to Ms. Zaradnik’s carpal tunnel
syndrome in her hands. 352
In Dr. Stark’s opinion the only reliable treatment
for her hip condition was a total hip arthroplasty.353
He thought she was limited to sitting or standing a
maximum of 15 minutes at a time because of her
lumbar spine. 354 For her hands, he thought avoidance
of pain precipitating activity would be sufficient for
the time being, but she would at some point need
interpositional arthroplasties.355 Carpal tunnel release
surgery was also an option. 356
In his deposition, Dr. Stark addressed Ms. Zaradnik’s time at Dutra more specifically. He thought her
work at Dutra had contributed to the arthritis in her
hips because that work involved lifting, carrying, and
wearing a tool belt throughout her work shifts.357 He
explained that Ms. Zaradnik’s activities at Dutra
were “injurious activities. You can’t say that during
those months there was no contribution where in
other months, even subsequent to her employment,
there was contribution.” 358 “You can’t believe that
her hip arthritis was progressing, and miraculously
stopped progressing during those two months at Dutra,
352 C. Ex.-7 at 390.
353 C. Ex.-7 at 390.
354 C. Ex.-7 at 390.
355 C. Ex.-7 at 390.
356 C. Ex.-7 at 390.
357 C. Ex.-20 at 12–13.
358 C. Ex.-20 at 13.
App.111a
and then started progressing again. It progressed
during that timeframe.”359 “There’s no doubt [Ms.
Zaradnik’s arthritis would have progressed regardless
of her work at Dutra], but it would have progressed
slower had she got office-type work than the work
she did at Dutra.” 360
He also thought that her work at Dutra had
contributed to her back problems. 361
[T]he same answer applies to the lower back
with regard to injurious activities as with
the hip. With the addition of repetitive
bending and lifting, torqueing, twisting,
jarring, all of those activities are injurious.
There’s some indication that vibration is
injurious. And I know that she drove heavy
equipment and bounced and jarred in those.
That’s all injurious activity. 362
He thought her work with Stone & Webster would
have also contributed to her arthritis. 363
Dr. Stark was unaware that Ms. Zaradnik had
been willing to work longer at Dutra if work had
remained available, and that she continued to look
for work as a pile driver after September 2010.364
It’s not clear that that the type of work she looked
359 C. Ex.-20 at 54.
360 C. Ex.-20 at 54.
361 C. Ex.-20 at 18.
362 C. Ex.-20 at 18.
363 C. Ex.-20 at 13.
364 C. Ex.-20 at 41.
App.112a
for, rather than what she actually did, would have
altered his opinions in any way.
Dr. Stark also acknowledged that his opinions
might change if Ms. Zaradnik’s work at Dutra had
been lighter than the usual work of a pile driver, but
it would depend on how much lighter. 365 Nothing in
the record convinces me that Dr. Stark would have
changed his opinions even if he were to credit the
testimony of Mr. Lindsey and Mr. O’Sullivan over the
testimony of Ms. Zaradnik. The issue is academic, because I believe her testimony about the exertional requirement of her work for Dutra. The part I have
doubts about was the intensity of her exposure to
particulate matter. Dr. Stark’s admission that his
opinions may change based on new information does
not render his opinio ns “underdevelo ped and
incomplete” as Dutra argues. 366 If Dr. Stark had testified his opinions would not change with new information, Dutra would doubtlessly have used that
against as well.
365 C. Ex.-20 at 48. Dutra also notes that Dr. Stark “did not
note or consider claimant’s long-term steroid use in reaching his
diagnosis,” “did not address the impact of claimant’s tobacco
abuse on her orthopedic diagnosis,” “neglect[ed] to note that
claimant was ejected from [a] vehicle and required hospitalization” following her car accident, and did not address all of
her prior industrial injuries. R. Post-Trial Brief at 38. Dr. Stark
was hired to evaluate whether Ms. Zaradnik was injured at Dutra.
He took her medical history, but likely found it unnecessary to
address, in detail, all of the information he was provided, particularly if he thought certain information was irrelevant. I do
not fault him for that.
366 R. Post-Trial Brief at 38.
App.113a
Dr. Stark opined Ms. Zaradnik should not return
to work as a pile driver even after having a hip replacement performed for prophylactic reasons. 367 “The job
involves working dangerous heights at times and the
weights. Practically speaking she could do it, but it
would be against medical advice.”368 Based on the
medical record, Dr. Stark thought Ms. Zaradnik first
became unable to return to her usual work as a pile
driver after her August 29, 2011 evaluation with Dr.
Ezzet.369
Dr. Stark’s opinions are more than sufficient to
raise the § 20(a) presumption of industrial causation.
2. Medical Evaluation of Internist Robert
Harrison, M.D. 370
Dr. Harrison is board certified in internal medicine
by the American Board of Internal Medicine, and in
occupational medicine by the American Board of
Preventative Medicine.371 He attended medical school
367 C. Ex.-20 at 16.
368 C. Ex.-20 at 16.
369 C. Ex.-20 at 26.
370 Dutra argues Dr. Harrison’s testimony on orthopedic, nonpulmonary issues should be excluded as dupl icative and
cumulative because Dr. Stark opined on the same issues. R.
Post-Trial Brief at 40. Although Drs. Harrison and Stark both
discussed Ms. Zaradnik’s orthopedic conditions, their reports
and testimony differ sufficiently that I do not regard them as
cumulative.
371 C. Ex.-15 at 671.
App.114a
at Albert Einstein College of Medicine and completed
his residency at Mount Zion Hospital.372
Dr. Harrison evaluated Ms. Zaradnik at her
request on November 6, 2012. 373 He took her work
history, did a physical examination, and reviewed
records about her occupational and medical history
before preparing his November 9, 2012 report.374
Dr. Harrison heard that Ms. Zaradnik’s lungs
were “[c]lear to auscultation and percussion without
crackles, rhonchi, wheezes, or diminished breath
sounds.” 375 He diagnosed:
1.
asthma/chronic obstructive pulmonary
disorder (“COPD”);
2.
bilateral carpal tunnel syndrome;
3.
bilateral basilar thumb osteoarthritis;
4.
hip osteoarthritis; and
5.
lumbar degenerative disc disease. 376
Dr. Harrison opined that Ms. Zaradnik’s work
exposed her to “multiple ergonomic hazards including
forceful hand activities; repetitive bending, stooping,
and lifting; awkward postures; and exposure to
372 C. Ex.-15 at 671.
373 C. Ex.-14 at 670A.
374 C. Ex.-14 at 670A–L.
375 C. Ex.-14 at 670F.
376 C. Ex.-14 at 670L.
App.115a
vibrating hand tools. In addition, Ms. Zaradnik had
multiple exposures to particulates, dust, and fumes.”377
Dr. Harrison concluded that Ms. Zaradnik’s
working conditions, including those at Dutra, had
caused multiple orthopedic problems as well as
asthma/COPD. 378 Among the factors contributing to
her asthma/COPD were exposure to diesel exhaust,
silica, welding fumes, and construction dust. 379 He
explained at his deposition that medical literature
suggests that when those airborne toxins are breathed
into the lungs, they either cause or significantly contribute to lung disease, such as asthma or COPD.380
According to Dr. Harrison, exposure to diesel exhaust
increases the risk of respiratory problems, and specifically COPD.381 “It causes lung inflammation and,
over time, causes obstruction to the flow of air.”382
He explained that studies have shown diesel fumes
are harmful to workers in or around equipment
running on diesel, including workers who perform
their job outdoors. 383 The danger from diesel fumes
depends on “the quantity and magnitude, the direction
of the air flow, not just the absolute number of feet
that she’s away.”384 Dr. Harrison did not believe that
377 C. Ex.-14 at 670L–M.
378 C. Ex.-14 at 670M.
379 C. Ex.-14 at 670M.
380 C. Ex.-21 at 12–13.
381 C. Ex.-21 at 16.
382 C. Ex.-21 at 16–17.
383 C. Ex.-21 at 18.
384 C. Ex.-21 at 19.
App.116a
progression of Ms. Zaradnik’s lung disease was inevitable. 385 “There’s no evidence I could find that she
had progressive lung disease that was inevitable or
that was going to somehow wind up in the shape that
she’s in. There’s no evidence that that’s the case.”386
He did, however, acknowledge that part of her lung
disease had been cause by her smoking. 387 He did
not consider Ms. Zaradnik’s potential drug use relevant
to her respiratory or orthopedic problems. 388
Dr. Harrison believed Ms. Zaradnik required the
medical treatment recommended by Dr. Stark for her
orthopedic conditions (bilateral hip replacement and
carpal tunnel release), as well as treatment for her
respiratory problems, including “inhaled bronchodilators and corticosteroids, close monitoring of her
pulmonary function, and emergency treatment for
exacerbations with nebulizers, oral corticosteroids, and
hospital admission if necessary.”389
Dr. Harrison would prohibit Ms. Zaradnik from
exposure to airborne contaminants, including wood
dust, concrete dust, diesel exhaust, welding fumes,
paint vapors, and other airborne chemicals.390 “Those
exposures would undoubtedly exacerbate Miss
Zaradnik’s respiratory condition, would worsen her
problems breathing, could in fact cause her to go to
385 C. Ex.-21 at 48.
386 C. Ex.-21 at 48.
387 C. Ex.-21 at 48–49.
388 C. Ex.-21 at 68–69.
389 C. Ex.-14 at 670M–N.
390 C. Ex.-21 at 21.
App.117a
the hospital, be treated in the emergency room or
even be admitted.”391 In his opinion, Ms. Zaradnik is
unable to return to her usual employment in marine
construction because of her respiratory problems. 392
Dr. Harrison also concluded that Ms. Zaradnik’s
working conditions had contributed to her hip
osteoarthritis, lumbar degenerative disc disease,
bilateral carpal tunnel syndrome, and hand osteoarthritis. 393
According to Dr. Harrison, “[c]arpal tunnel is a
classic cumulative occupational disorder. . . . [A]ny job
that requires repetitive or forceful or awkward postures
using operating hand tools, for instance, Miss Zaradnik
had clearly that risk over time.”394 Dr. Harrison
thought that Ms. Zaradnik would need monitoring of
her condition, anti-inflammatory medications, and
wrist splints. 395 If her symptoms worsened, she may
also need steroid injections in her wrists or carpal
tunnel release. 396 In Dr. Harrison’s opinion, Ms.
Zaradnik’s carpal tunnel syndrome would prevent
her from returning to her usual work because that
work would worsen the carpal tunnel syndrome. 397
She may also be unable to carry certain items, she
could not perform repetitive gripping or grasping,
391 C. Ex.-21 at 21.
392 C. Ex.-21 at 22.
393 C. Ex.-14 at 670M.
394 C. Ex.-21 at 22.
395 C. Ex.-21 at 23.
396 C. Ex.-21 at 23.
397 C. Ex.-21 at 23.
App.118a
and she had problems with fine motor dexterity on
her left side. 398 She may even pose a danger to
herself or others if she returned to work as a pile
driver.399
Dr. Harrison thought the osteoarthritis in Ms.
Zaradnik’s hands had also been caused by a
combination of her age and her work.400 He explained
that the same type of cumulative trauma that causes
carpal tunnel syndrome and median nerve damage
also causes damage to the joint at the base of the
thumb.401 Dr. Harrison thought Ms. Zaradnik’s osteoarthritis in her hand would prevent her from returning
to her usual employment.402 He thought she would
require medical monitoring, anti-inflammatory medication, thumb splints, and, if her condition worsened,
cortisone injections at the base of the thumb. 403
She may even, at some point, require surgery to clean
out or fuse the joint. 404
Dr. Harrison also opined that repetitive trauma
from walking, climbing, stooping, and bending as a
pile driver “significantly contributed” to the degenerative condition in Ms. Zaradnik’s hips.405 He explained
398 C. Ex.-21 at 23–24.
399 C. Ex.-21 at 24.
400 C. Ex.-21 at 26.
401 C. Ex.-21 at 26.
402 C. Ex.-21 at 26.
403 C. Ex.-21 at 27.
404 C. Ex.-21 at 27.
405 C. Ex.-21 at 27–28.
App.119a
that she had sustained those types of forces while
working at Dutra, and he believed her time at Dutra
had contributed to her condition.406
Dr. Harrison attributed Ms. Zaradnik’s lumbar
degenerative disc disease and joint disease (central
and lateral foraminal stenosis) to cumulative trauma
“to the disks and surrounding structures of the lower
back caused by excessive forces from awkward postures,
stooping, lifting, slowly leading to cumulative injury
of the lower back.” 407
Dr. Harrison thought Ms. Zaradnik’s orthopedic
injuries precluded her from returning to work. 408
Finally, Dr. Harrison explained that the nature
of cumulative trauma means there may not be contemporary medical records during a period of time contributing the overall condition.409 In cumulative trauma
cases, it is common for the exposure to happen years
before disability arises. 410
3. Medical Opinions of Defense Examining
Orthopedist Richard Greenfield, M.D.
Dr. Greenfield is a board certified orthopedic
surgeon.411 He attended medical school at the Uni-
406 C. Ex.-21 at 28.
407 C. Ex.-21 at 29.
408 C. Ex.-21 at 30.
409 C. Ex.-21 at 62.
410 C. Ex.-21 at 76.
411 R. Ex.-4 at 53.
App.120a
versity of California, Los Angeles412 and completed his
residency at the University of California, San Diego.413
He has evaluated work injuries for over 30 years. 414
Dr. Greenfield evaluated Ms. Zaradnik on Dutra’s
behalf on two occasions. He first examined her on
April 2, 2012. 415 He diagnosed
1.
progressive degenerative osteoarthritis of the
left hip, nonindustrial;
2.
history of back injury August 2006;
3.
history of long-term steroid use;
4.
history of tobacco use/abuse;
5.
history of asthma;
6.
history of sciatica secondary to car drive of
April 2010; and
7.
history of left hip pain reported on May 3,
2011, of four years’ duration.416
Dr. Greenfield characterized Ms. Zaradnik’s
arthritis as “routine.” 417 He found no indication that
her hip problems were work-related.418 “[T]here is
no medical evidence submitted that indicates the
claimant’s condition arose out of her employment or
412 R. Ex.-4 at 53.
413 R. Ex.-4 at 53.
414 Greenfield Dep. at 23.
415 R. Ex.-3 at 46.
416 R. Ex.-3 at 50.
417 R. Ex.-3 at 50.
418 R. Ex.-3 at 50.
App.121a
in the course of her employment. . . . Her problem is
not a continuing trauma problem but is instead related
to degenerative osteoarthritis. ”419 Dr. Greenfield
noted that Ms. Zaradnik experienced increased hip
pain with certain activities, such as squatting, but
determined that her increased pain constituted only
an exacerbation of her underlying condition rather
than an injury:420 “This exacerbation would of course
resolve as soon as she ceased the activities that
produced the hip pain.”421 Dr. Greenfield thought Ms.
Zaradnik was a candidate for future hip surgery, but
was not ready for the procedure at that time. 422
Dr. Greenfield reevaluated Ms. Zaradnik on October 31, 2012, after Ms. Zaradnik filed her second
amended complaint alleging additional injuries.423 As
part of his examination of Ms. Zaradnik’s upper
extremities, Dr. Greenfield administered the Phalen
test, which Dr. Greenfield thought could aggravate
her median nerve.424 Dr. Greenfield expected Ms.
Zaradnik to experience “some sensory changes in the
thumb, the index, and the long finger and perhaps
part of the ring finger on the radial side. ”425 “Unfortunately, rather than just involving the median
nerve, [Ms. Zaradnik said] that the entirety of her
419 R. Ex.-3 at 50.
420 R. Ex.-3 at 51.
421 R. Ex.-3 at 51.
422 R. Ex.-3 at 51.
423 R. Ex.-3 at 33; R. Ex.-10 at 124.
424 Greenfield Dep. at 11.
425 Greenfield Dep. at 11.
App.122a
upper extremities to the elbows falls asleep with the
Phalen test.”426 Dr. Greenfield explained Ms. Zaradnik’s response was non-anatomic or non-physiologic.427
Dr. Greenfield explained that such a response is not
possible. 428 As a result, he thought Ms. Zaradnik
had displayed some level of symptom magnification
or embellishment. 429
Dr. Greenfield diagnosed
1.
progressive degenerative osteoarthritis of the
left hip, nonindustrial;
2.
history of back injury in 2006;
3.
developmental or congenital spinal stenosis
L4-5;
4.
history of long-term steroid use;
5.
history of tobacco use/abuse;
6.
history of asthma;
7.
history of left hip pain reported on May 3,
2011, of four years’ duration. 430
He later added to these diagnoses:
1.
complaints of mild hip pain with probable
early right hip degenerative arthritis, nonindustrial, developmental;
426 R. Ex.-3 at 40.
427 R. Ex.-3 at 40; Greenfield Dep. at 11–12.
428 Greenfield Dep. at 12.
429 Greenfield Dep. at 12.
430 R. Ex.-3 at 50.
App.123a
2.
normal examination of the bilateral feet and
ankles; and
3.
bilateral carpal tunnel syndrome and trigger
fingers of the ring and little finger related
to activities of daily living and the continuing
trauma of her last employment which would
be Stone & Webster. 431
During his deposition Dr. Greenfield clarified that
his diagnosis for Ms. Zaradnik’s left hip included
1.
mild congenital dysplasia (confirmed by xrays), and
2.
progressive degenerative osteoarthritis.432
Dr. Greenfield objected to Dr. Stark’s opinion
that Ms. Zaradnik did not have general dysplasia
(“CDH”). He thought Dr. Stark’s conclusion that Ms.
Zaradnik “didn’t get down under 25 degrees on the
hip” was wrong. 433 According to Dr. Greenfield, the
left hip was “just about 25 or 24 degrees.” 434 He
explained that he made his measurements with “special
rings that we use, circles, to go ahead and find the
exact center of the hip and measure in degrees.”435
Based on his measurements, he diagnosed mild CDH,
and the “[n]atural history of CDH is going to be
progressive degenerative arthritis of the hip.”436
431 R. Ex.-3 at 41.
432 Greenfield Dep. at 15.
433 Greenfield Dep. at 15–16.
434 Greenfield Dep. at 16.
435 Greenfield Dep. at 16.
436 Greenfield Dep. at 16.
App.124a
According to Dr. Greenfield, “it can be hard to make
these determinations if you don’t have skill in doing
it, number one. Number two, if you don’t have the
proper type of measuring device, a goniometer. . . . ”437
Dr. Greenfield noted that Dr. Stark, who did not
diagnose CDH, is not a surgeon and had reviewed
only a picture of Ms. Zaradnik’s pelvis instead of an
actual x-ray film. 438 Dr. Greenfield had “no question
whatsoever” that Ms. Zaradnik had hip dysplasia. 439
Dr. Greenfield opined that, according to the
medical literature, “the majority of hip arthritis is
related to a developmental anatomy of the hip
joints.” 440 He found no evidence of a specific injury
that could have caused her osteoarthritis, but explained
that “[h]er work as a pile driver or crane operator or
other jobs would probably be expected to produce osteoarthritis of the hip on the right and/or the left.”441
He maintained his opinion that there was no medical
evidence to indicate that Ms. Zaradnik’s condition arose
out of her employment or in the course of her employment.442 He explained that the bases for this
conclusion included the fact that
1.
Ms. Zaradnik reported no injuries;
437 Greenfield Dep. at 17.
438 G
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