Ssa Marine v. James Lopez , 377 F. App'x 640 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SSA MARINE; HOMEPORT No. 08-72267
INSURANCE CO.,
OWCP Nos.: 07-277; 05-0160;
Petitioners, 05-0160S; 18-079385; 18-079501;
18-079821; 18-081112
v.
JAMES M. LOPEZ; EAGLE MARINE MEMORANDUM*
SERVICES; MAERSK PACIFIC
LIMITED; SIGNAL MUTUAL
INDEMNITY ASSOCIATION, LTD.;
OFFICE OF WORKERS’
COMPENSATION PROGRAM;
ILWU-PMA WELFARE PLAN,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted October 9, 2009
Pasadena, California
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON,**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Honorable James K. Singleton, Jr., Senior District Judge, District of
Alaska, sitting by designation.
Senior District Judge.
Respondent James Lopez (“Lopez”) filed four claims for compensation
under the Workers’ Compensation Program, U.S. Department of Labor, alleging
industrial injuries to the bilateral shoulders, knees, and elbows. The four claims
were consolidated and a hearing was held before the Administrative Law Judge
(“ALJ”). The ALJ found that: (1) SSA was the “last responsible employer”; (2)
Lopez had provided timely notice under § 12(a) of the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”) or, alternatively, if notice was untimely,
SSA had suffered no prejudice and the untimeliness was excused under § 12(d) of
the LHWCA; and (3) SSA was liable for compensation for temporary total
disability from and after April 9, 2003, and all outstanding medical bills related to
Lopez’s disability. The ALJ also granted the request of counsel for Lopez for
attorney’s fees. SSA appealed both decisions to the Benefits Review Board
(“BRB”).
On appeal, the BRB consolidated the two appeals and upheld the
determinations that SSA was the last responsible employer, that Lopez’s claim was
timely filed, and that the award of attorney’s fees was correct. The BRB vacated
the award of medical benefits and remanded for further consideration of whether
the first report of the treating physician was timely filed under 33 U.S.C. § 907(d)
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(§ 7(d) of the LHWCA) and the extent of the medical expenses for which SSA was
liable.
On remand, the parties settled their differences on the remanded issues and
the ALJ entered his Decision and Order on Remand in accordance with the
stipulation of the parties. SSA did not appeal this decision of the ALJ to the BRB,
but timely filed its petition for review in this Court.
The rest of the facts of this case are well known to the parties and, therefore,
will not be restated here.
The ALJ had jurisdiction under 33 U.S.C. § 919(d) and the BRB had
jurisdiction under 33 U.S.C. § 921(b)(3). We have jurisdiction under 33 U.S.C.
§ 921(c).1
On appeal, SSA contends that the BRB erred in affirming: (1) the ALJ’s
award of pre-controversion attorney fees against SSA; (2) the ALJ’s finding that
SSA was the last responsible employer; and (3) the ALJ’s finding that Lopez’s
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We have considered and find unpersuasive the arguments of Respondents
that this Court lacks jurisdiction. None of the issues before this court are affected
by the ALJ’s decision on remand, and the BRB would have had no basis for
altering its first decision if Petitioners had appealed the ALJ’s second decision to
the BRB. See Nat’l Steel & Shipbuilding Co. v. Dir., Office of Workers’ Comp.
Programs, U.S. Dep’t of Labor (McGregor II), 703 F.2d 417, 418-19 (9th Cir.
1983).
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notice of injury was timely and that, even if notice were untimely, SSA was not
prejudiced by Lopez’s failure to provide timely notice.
The decision of the BRB is reviewed for substantial evidence
and errors of law. The ALJ’s findings of fact must be accepted by the
BRB unless they are contrary to law, irrational, or unsupported by
substantial evidence. An appellate court must conduct an independent
review of the administrative record to determine whether the BRB
adhered to this standard of review. A decision by the BRB is
supported by substantial evidence if there exists such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. No special deference is accorded to the BRB’s
interpretation of the LHWCA, but reasonable interpretations are
respected.
Van Skike v. Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041, 1045-46
(9th Cir. 2009) (internal quotation marks and citations omitted).
SSA conceded in its reply brief that the attorney’s fees awarded did not
include any attorney’s fees for pre-controversion services. Accordingly, as there is
no present controversy as to which effective relief may be granted, the issue is
rendered moot. See Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d
545, 559 (9th Cir. 2009); see also Dyer v. Cenex Harvest States Coop., 563 F.3d
1044 (9th Cir. 2009).
Applying Metropolitan Stevedore Co. v. Crescent Wharf and Warehouse Co.
(Price), 339 F.3d 1102, 1104-05 (9th Cir. 2003), the ALJ found that Lopez’s
activities during the time he was employed by SSA contributed to and aggravated
Lopez’s orthopedic condition sufficiently that SSA was the “last responsible
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employer.” The BRB found that there was credible evidence to support the ALJ’s
decision and affirmed.
The ALJ also found that Lopez did not become aware of the relationship
between his disability and the work performed for SSA until the day he filed his
claim. See 33 U.S.C. § 912(a). The BRB found that the determination by the ALJ
was supported by substantial evidence and affirmed. The BRB also affirmed the
alternative finding that, even if the claim were filed untimely, SSA had not shown
any prejudice. See 33 U.S.C. § 912(d).
We have reviewed the record and find that the BRB committed no errors of
law, gave appropriate deference to the findings of the ALJ, and the findings were
supported by substantial evidence, i.e., “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Van Skike, 557 F.3d at
1046. The petition for review is
DENIED.
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