Longshore Act Proceeding Remanded

trative law judge's (alj) grant of disability benefits to les- hensive enough to sever the potential connection between the in determining that ogawa was restricted to employment that ently incredible or patently unreasonable," see todd pac. [1] our circuit has in substance undertaken harmless error shipyards corp., 914 f.2d at 1321 (citation omitted), and we compensation act (longshore act), 33 u.s.c. §§ 901-950. oped over the previous few days, and ogawa later testified tion claim. the office of workers' compensation programs was not supported by substantial evidence. tial countervailing evidence to rebut the presumption. hawaii 9110 hawaii stevedores v. ogawa recommendation, and that the work restrictions, including the stevedores, is that dr. keller admitted to strengthening the lie ogawa under the longshore and harbor workers' excuses late notice under several circumstances, including brb so that it may be returned to the alj for additional fact- way, we will not disturb the decision of an alj because of a grams, 543 f.3d 755, 761 (5th cir. 2008). if the claimant suc- determining that hawaii stevedores did not submit substantial that left him with mild expressive aphasia and limited fine dure act, including the directive that "due account shall be medical improvement (mmi), the date which triggers a office of workers' comp. programs, 888 f.2d 14, 17 (3d cir. he regularly reported job stress to the doctor he saw for treat- preserve a compensation claim must give the employer notice u.s.c. § 910(f). because the mmi date may affect the calcu- at 1330. moreover, a later mmi date delays the onset of the annual id. at 55 (citing st. mary's honor ctr. v. hicks, 509 u.s. 502, upward adjustments to ogawa's benefit award that apply to ing the evidence as a whole "to determine whether the claim- ing the stage of the inquiry that supported her conclusion, we 2010). if the employer carries its evidentiary burden at step motor skills in his right hand and arm. the stroke had devel- of the injury within "thirty days after the date of such injury" hawaii stevedores contends, third, that the alj erred in on whether ogawa's stroke occurred at work, whether the walked slower than before and was not able to work at his duncanson-harrelson co. v. dir., office of workers' comp. change in the classification of a claimant's disability from [17] nor was this error harmless. the alj capped hawaii joshua t. gillelan ii, longshore claimants' national law longshore act. see id. at 968-69. office of workers' comp. programs, 629 f.2d 1327, 1329-30 center, washington, dc, and steven m. birnbaum, san v hawaii stevedores met its burden of production at step two. f.3d 1273, 1275 (9th cir. 1998). here, the alj found that programs, hawaii stevedores does not dispute the alj's finding that including treating neurologist dr. kevin kimata and examin- for publication stress may have come from stock and mutual fund losses case] can involve no credibility assessment.")). instead, at the her] unable to return to prior employment, and (2) the grant the petition in part, deny the petition in part, and remand caused, aggravated, or accelerated the harm. see ramey v. who had replaced ogawa after the stroke. although he gradu- on grounds supported by substantial evidence. see, e.g., am. "total" under the longshore act when "(1) a claimant demon- [10] in declining to credit this evidence, the alj cited to dence. the presumption that his disability is work-related by present- workplace stress can accelerate a stroke. this is precisely the workers' comp. programs, 58 f.3d 419, 422 (9th cir. 1995) related injury prevents him or her from returning to the former stevedores that ogawa believed his stroke to be work-related. turb the alj's determination that ogawa's stroke qualifies as review of brb decisions, we apply the administrative proce- ogawa's post-trial brief argued that dr. scaff should be if the error . . . prejudicially affected a substantial right of a testimony that he changed the language to reflect more accu- office of worker's comp. programs, 237 f.3d 404, 408 (5th 248 f.3d 54, 65-66 (2d cir. 2001); staftex staffing v. dir., sufficient; a conclusory allegation of prejudice is not."). the party's lawyer and then altered his or her opinion language, identified. because the work restrictions were supported by benefits review board programs, 686 f.2d 1336, 1341-43 (9th cir. 1982), vacated conclusions in his report after he talked with ogawa's attor- 9115hawaii stevedores v. ogawa of the benefits review board (brb) affirming an adminis- 703, 713 (6th cir. 2002); am. stevedoring ltd. v. marinelli, 9116 hawaii stevedores v. ogawa reasonable factfinder that the claimant's injury was not work- terminal in honolulu, hawaii. ogawa's position as the sole or "thirty days after the employee or beneficiary is aware, or diate medical exam might have provided more or different mmi before dr. keller ever saw him. see gen. constr. co., decertified dr. scaff because, as the brb put it, decertifica- and denied in part with respect to all other issues. the cal reports are used in litigation--something with which dr. vii ** the honorable james s. gwin, united states district judge for the set of standards for this case" and "had the right standard in stevedoring ltd. v. marinelli, 248 f.3d 54, 65-66 (2d cir. excused the late notice, however, finding that hawaii steve- though it might be considered relevant, does not require a i redetermined mmi date. able." todd pac. shipyards corp. v. dir., office of workers' we have jurisdiction pursuant to 33 u.s.c. § 921(c), and we suitable alternative employment within the geographic area of the compensation award that prove necessary in light of the [11] although we conclude that the alj erred in mislabel- jackson, full faith and credit--the lawyer's clause of the cir. 1999) (per curiam), the alj is free to credit a witness's gist who did not purport to offer an opinion about ogawa's circuit judges, and james s. gwin, district judge.** pre-stroke pace. in june 2003, during the course of downsiz- opinion banc); big horn coal co. v. office of workers' comp. pro- that a path is a beaten one, justice jackson long ago storeroom maintenance clerk at hawaii stevedores' marina by this court if it is rational and supported by substantial evi- opinion. just as "[i]t is within the alj's prerogative, as finder alj's credibility finding, so any error in decertifying dr. point. instead, the alj reasoned that "dr. keller would have conjectural theory of prejudice, however, is insufficient as a in the exercise of reasonable diligence . . . should have been report accommodate all of the work restrictions the alj second step the alj's task is to decide, as a legal matter, recovery continues to occur more than two years after a our practice to that of at least nine other circuits. see, e.g., constitution, 45 colum. l. rev. 1, 26 (1945). lation of the compensation award, we remand this issue to the [3] the alj's prejudice finding was supported by substan- petitioners, brb no. restriction from the report of dr. palozzi, a clinical psycholo- or dexterity with the right hand, and is not intellectually sti- comp. programs, 181 f.3d 810, 819 (7th cir. 1999) (en how its investigation was prejudiced by the late notice, the claimant's residence, which the claimant can perform con- [5] the alj found dr. keller credible and accepted his related. id. the evidence submitted by hawaii stevedores was despite dr. keller's testimony and dr. kimata's report, both disability and the work environment." ramey, 134 f.3d at 959 substantial evidence, we see no error in the alj's conclusion claimant's part." gen. constr. co. v. castro, 401 f.3d 963, to provide timely notice that his stroke was work-related. labeling the conclusion a step-two conclusion rather than a claimant reaches mmi, the employer remains liable for tem- step-three conclusion was harmless. see am. grain trimmers, aware, of a relationship between the injury or death and the whether substantial rebuttal evidence has been presented. ness in ogawa's emergency room records, dr. scaff's testi- blood pressure and stroke, ogawa filed a disability compensa- efforts. ogawa was diagnosed with hypertension in 1987 and position as the storeroom maintenance clerk, the burden shifts restrictions through her considered evaluation of the opinions nal punctuation omitted). finally, in considering petitions for dence of dr. keller's lack of credibility, according to hawaii ing, dr. keller testified that he altered the language in his proper notice. id. § 912(d)(2). the burden falls on the employment. the longshore act creates a presumption that other reasons). believing that job stress caused or contributed to his high clude that the alj did not err in concurring with dr. palozzi's request, and dr. jack scaff, a cardiologist who examined determine the nature and extent of the injury or illness . . . is evidence." rhine v. stevedoring servs. of am., 596 f.3d 1161, less where the alj had earlier "articulated exactly the right [14] we are not persuaded by hawaii stevedores' argu- of doctors keller, goodyear, palozzi, and scaff. while dr. association, ltd., insurance on other grounds, 462 u.s. 1101 (1983). we did not, how- 13, 2002, after suffering a slow-developing left parietal stroke (citation omitted). the alj determines as a matter of law walker v. rothschild int'l stevedoring co., 526 f.2d 1137, (9th cir. 1997) (concluding that late notice was properly a question of fact. id. at 54-55. two, the presumption in favor of the claimant "falls out of the that he first noticed symptoms of right arm numbness and ever, refer to our review as "harmless error" analysis. we now ment of his high blood pressure. error for relief, see 5 u.s.c. § 706, and following our related and thus compensable. 33 u.s.c. § 920(a). an ing it a chance to respond in support of dr. scaff's qualifica- 401 f.3d at 968 (explaining that the mmi is the date after a compensable injury under the longshore act. alternative employment." gen. constr. co., 401 f.3d at 969. [2] hawaii stevedores, first, argues that the alj erred in case" and the alj moves to the third and final step of weigh- that its liability be limited under section 8(f) of the longshore dence, and ogawa's late notice was properly excused. see comp. programs, 914 f.2d 1317, 1321 (9th cir. 1990) (inter- between stressful work conditions and ogawa's stroke was information about ogawa's recovery. such a speculative and that ogawa is totally disabled within the meaning of the lack of timely notice did impede the employer's ability to defendant has met its burden of production [in a title vii employer takes the employee as he finds him." saif a contributing cause of the stroke. at the administrative hear- ii dores makes no allegation that it lacked evidence of ogawa's injury and employment." id. at 53. this final determination is carrier, no. 09-73041 taken of the rule of prejudicial error." 5 u.s.c. § 706; see also 8, 2002. when ogawa returned to hawaii stevedores six the general rule in administrative law requiring prejudicial allows for frequent breaks, does not require fine motor speed ogawa was admitted to the emergency room on november 1163 (9th cir. 2010). we, in turn, review the brb for "errors testimony in the face of one party's argument that the witness issue with the restriction requiring frequent breaks because viii that the claimant can perform. bumble bee seafoods v. dir., 1990). (10th cir. 2010) (internal punctuation omitted). stated another ing evidence that stressful work conditions could have aggra- 9111hawaii stevedores v. ogawa udiced by the late notice. kashuba v. legion ins. co., 139 tion for review followed. the issue of ogawa's maximum medical improvement date shifting framework--a framework the alj correctly articu- (9th cir. 1980). once the employer has pointed to one or tion carried "no legal effect." the decertification decision james p. aleccia, aleccia, conner & socha, long beach, fits at 104 weeks. the period of permanent disability begins 9108 hawaii stevedores v. ogawa the alj erred in determining the date of ogawa's maximum decertifying dr. scaff as an expert in cardiology. although instead of from work. ground, and with a diligent employment search on the determinations are inherently incredible or patently unreason- [12] hawaii stevedores contends, fifth, that the alj erred ees. although ogawa enjoyed his work, he also found it tion of the mmi was not supported by substantial evidence. 509 (1993) ("in the nature of things, the determination that a room maintenance clerk position is not stressful, the fact that keller, an internist who examined ogawa at his counsel's permanent, but not to temporary, disability payments. 33 to weigh the evidence and consider questions of credibility at related included ogawa's delay in reporting the stroke as employer to establish by substantial evidence that it was prej- vated or accelerated the onset of the stroke. the alj further employment." 33 u.s.c. § 912(a). the longshore act allowed for frequent breaks. a disability is classified as vices to shipping lines, including ordering and delivering 9112 hawaii stevedores v. ogawa with his co-workers resulting from ogawa's cost-cutting [7] hawaii stevedores argues, fourth, that the alj erred in that ogawa was restricted to employment that is sedentary, unexplained, the alj did not take additional evidence on this consolidation coal co. v. williams, 453 f.3d 609, 621-22 & at the end of june 2003 ogawa chose medical retirement over ments with the federal government taking over thereafter. the ogawa's notice was due by may 14, 2003, but that ogawa did dores suffered no prejudice as a result of it. suffered a harm, and (2) a workplace condition could have detailed analysis took into account all of the evidence bearing ant has established the necessary causal link between the [8] although the burden of persuasion remains on the dis- *the panel unanimously finds this case suitable for decision without 1139 (9th cir. 1975) (per curiam) (endorsing alj decision be responsible for 104 weeks of permanent disability pay- 2001) (concluding that even if it was error to discredit a state- endorsement of the harmless error doctrine, we may not dis- is work-related. the statutory presumption may be invoked by temporary to permanent. the mmi date is a question of fact more-credible, contradictory testimony offered by ogawa, related to hawaii stevedores' provision of maintenance ser- ability claimant throughout the administrative process, see the claimant upon a prima facie showing that (1) he or she 1292 (9th cir. 1979) (applying 5 u.s.c. § 706 to a petition for scaff was harmless; the alj had already rejected his opinion ix tions. n.6 (4th cir. 2006); jericol mining, inc. v. napier, 301 f.3d stevedoring servs. of am., 134 f.3d 954, 959 (9th cir. 1998); hearing, as well as all medical reports of other doctors submit- determined that hawaii stevedores had not produced substan- came only after the alj discussed dr. scaff's report and testi- job, the burden shifts to the employer to point to specific jobs 968-69 (9th cir. 2005). if a claimant proves that a work- permanent condition within about a year after the stroke, the under the longshore act, an injured worker who wants to office of workers compensation that "took into consideration all the testimony given at the to hawaii stevedores to "establish the availability of suitable mary palozzi. ogawa filed an accident report which gave notice to hawaii error in incorrectly describing the burden of proof was harm- tial evidence. the alj noted, correctly, that hawaii steve- lieries, 512 u.s. 267, 280-81 (1994), the burden of production killingsworth, 733 f.2d 1511, 1516 n.10 (11th cir. 1984). for two depositions and five independent medical examina- amerada hess corp. v. dir., office of worker's comp. pro- to whether the claimant is able to perform those jobs. see id. grams, 935 f.2d 1544, 1551 (9th cir. 1991). [4] hawaii stevedores argues, second, that the alj erred work-related, the absence of a reference to right-arm weak- in crediting dr. keller's opinion that ogawa's stroke began at nat'l steel & shipbuilding co. v. bonner, 600 f.2d 1288, presenting substantial evidence that is "specific and compre- alj set the mmi on march 14, 2005, about two and a half party," which occurs only if it reasonably can be concluded room maintenance clerk. the alj made additional findings 1989); hunter v. dir., office of workers' comp. programs, see gunderson v. u.s. dep't of labor, 601 f.3d 1013, 1021 explanation about the changes to his report were not "inher- contrary to the law, irrational, or unsupported by substantial finding. see brady-hamilton stevedore co. v. dir., office of filed june 22, 2010 review brought under the longshore act. we thus conform [13] here the alj made a finding, supported by substan- 861 f.2d 516, 518 (8th cir. 1988); ala. by-products corp. v. ings consistent with this opinion. each party shall bear its ney. the revised report said with more certainty that the that the mmi testimony and opinions were speculative and of which indicated that ogawa likely reached a stationary, stroke began while ogawa was at work and that job stress was years following ogawa's stroke. see 33 u.s.c. § 908(b), (e). from 1977 until november 2002, ogawa worked as the to rebut the presumption that ogawa's stroke was work- inc. v. office of workers' comp. programs, 181 f.3d 810, knowledge. the alj granted the post-trial motion and hawaii cir. 1980) (holding that an alj decision "must be affirmed ogawa at hawaii stevedores' request. the alj also received v. 08-0790 9109hawaii stevedores v. ogawa march 15, 2005, and was permanently and totally disabled ogawa did not object to the original certification of dr. scaff, regular workday, and also experienced stress from friction stevedores' liability for ogawa's permanent disability bene- most reliable, ogawa's supervisor's testimony that the store- [15] finally, hawaii stevedores and ogawa both urge that bility, however, has no proper place in determining whether termination. supported by substantial evidence, and the alj's error in mis- before: dorothy w. nelson and ronald m. gould, therefore have no basis to set the credibility determination strates that the work-related injury in question renders him [or 9113hawaii stevedores v. ogawa of ogawa's medical records, his doctors, and ogawa himself years after the stroke. although the alj expressed concern whether the employer submitted evidence that could satisfy a matter is remanded for further administrative proceed- tion," it was labeled a "recommendation" that would help for the ninth circuit that the alj determines from the medical evidence. con- determining that ogawa's claim was not barred by his failure factfinder to find that expert witness is other than credible. stroke, and dr. keller clearly opined that ogawa reached review arising under the longshore act). under the rule of and we agree. the evidence marshaled by hawaii stevedores decertified because his testimony did not demonstrate expert ment by the employer's expert, the error was harmless ant" and selected the date when dr. keller first examined also conclude that the error was harmless. despite its occur- concluding that ogawa was temporarily disabled before more possible positions, the alj makes a factual finding as the [brb]'s review." id. "where the alj relies on witness porary disability benefits, which in this case extended hawaii cial projects, and reviewing the time cards of other employ- sion that the totality of the evidence showed a relationship because the alj discounted the expert's opinion for several stevedores urges that this step-two determination was error, sufficient to meet this standard, and it was error for the alj conditions). instead of providing any concrete example of after the hearing, the alj issued a forty-six page decision harmless error. stressful. he worked up to fifteen unpaid hours per week from tial evidence, that ogawa could no longer work as the store- culation). on remand, the alj may make any adjustments to equipment maintenance, providing design assistance on spe- sidering the claimant's limitations, age, education, and back- more of a basis for his mmi date after examining the claim- er," duhagon v. metro. stevedore co., 169 f.3d 615, 618 (9th ing, hawaii stevedores told ogawa to choose between taking with the clear preponderance of the evidence, or where the for further administrative proceedings. bath iron works corp. v. fields, 599 f.3d 47, 54-55 (1st cir. [18] the petition for review is granted in part on is not credible. the alj's reasons for crediting dr. keller's stevedores now argues that it was error to do so without giv- corp./or. ship v. johnson, 908 f.2d 1434, 1441 (9th cir. not provide notice until the first week of june 2003. the alj report after learning from ogawa's attorney about how medi- [6] we express no view on whether the alj properly excused where the alj found that the employer had "ample matter of law. see kashuba, 139 f.3d at 1276 ("evidence that prejudicial error, "we may overturn the alj's decision only because ogawa showed that he was unable to return to his the brb must accept the alj's findings "unless they are (remanding to alj for further factfinding on proper wage cal- a medical retirement or facing termination. the same week, aside. the mere fact that an expert witness has talked with a keller was previously unfamiliar. grams, 897 f.2d 1052, 1055 (10th cir. 1990); wensel v. dir., work and was caused in part by job stress. the primary evi- vi hawaii stevedores, incorporated; which normal and natural healing is no longer likely). the shifts in the course of determining whether a claimant's injury iv interfere only where the credibility determinations conflict a disabling injury suffered by a maritime worker is work- storeroom clerk required him to balance responsibilities hawaii stevedores, inc. petitions for review of a decision jones stevedoring co., 133 f.3d at 690. mind when he assessed the employer's evidence"). observing 9107hawaii stevedores v. ogawa home to finish reports that could not be completed within the ted to him"). the alj here arrived at the applicable work 9103hawaii stevedores v. ogawa rafael, california, for the respondent. california, for the petitioners. the recommendation was vague and because the alj took that oral argument. see fed. r. app. p. 34(a)(2). review in past cases arising under the longshore act. see dir., office of workers' comp. programs, 133 f.3d 683, 690 act, 33 u.s.c. § 908(f), such that hawaii stevedores would at the date of mmi. id.; 33 u.s.c. § 908(f)(1)-(2). until the lated at the outset of her analysis. the alj's ultimate conclu- stevedores' temporary-benefits liability for two and a half alj's finding that hawaii stevedores did not meet its burden the second step. counsel employer subsequently fails to establish the availability of 9114 hawaii stevedores v. ogawa 9105hawaii stevedores v. ogawa office of workers' comp. programs, 619 f.2d 38, 42 (9th of demonstrating prejudice was supported by substantial evi- ment. the alj is expected to consider the record as a whole, [16] we agree with the parties that the alj's determina- where the employer was not prejudiced by the failure to give referred the claim to the office of administrative law judges weakness while lifting ladders at work on friday, november ing clinical psychologists dr. brian goodyear and dr. ann tainer stevedoring co. v. dir., office of workers' comp. pro- 9106 hawaii stevedores v. ogawa on petition for review of an order of the observed, is a persuasive reason to follow it. see robert h. had continued to heal until march 14, 2005, so this finding storeroom maintenance clerk position is stressful, and whether ally built up his hours, ogawa spoke, typed, wrote, and leslie ogawa; director, opinion ogawa's co-workers, and dr. keller. this weighing of credi- of fact, to credit one witness's testimony over that of anoth- no doctor expressed a view that normal and natural stroke 9099 injury or aggravate or accelerate a pre-existing condition mony in detail and supplied many reasons for finding dr. inquiry required of the alj at step three of the burden- submitted june 10, 2010* own costs on appeal. evidence that ogawa's stroke did not arise in the course of his opportunity" to conduct discovery and investigate workplace ring under the auspices of determining whether hawaii steve- ogawa avert more pronounced cognitive difficulties. we con- before entering findings. see parsons corp. of cal. v. dir., iii palozzi's opinion on breaks was not labeled a "work restric- gould, circuit judge: dores submitted sufficient rebuttal evidence, the alj's ability to work. during which eight witnesses testified, including dr. howard dir., office of workers' comp. programs v. greenwich col- 819 (7th cir. 1999) (en banc) (holding that the alj's apparent for a formal hearing. an alj conducted a three-day hearing brb affirmed the alj's decision in all respects and this peti- cir. 2000); am. grain trimmers, inc. v. office of workers' of law and for adherence to the statutory standard governing 9104 hawaii stevedores v. ogawa pasadena, california northern district of ohio, sitting by designation. [9] the alj determined that ogawa successfully invoked thereafter. the alj also granted hawaii stevedores' request ogawa enjoyed his job, and the possibility that ogawa's requirement of breaks, were supported by substantial evi- credibility in reaching his [or her] decision, our court will that absent such error there would have been a contrary result. under the "aggravation rule," which dictates that "the ogawa as the mmi date. the problem with this finding is that testimony from vocational rehabilitation counselor howard cessfully invokes the presumption at the first step, the including all witness testimony and each medical report, mony that records created immediately after an injury are the scaff not credible. hawaii stevedores does not challenge the hawaii stevedores relies on a bare assumption that an imme- signal mutual indemnity mulating, stressful and demanding. hawaii stevedores takes employer may rebut the presumption at the second step by opinion by judge gould none of the positions identified by the vocational evaluation months later, it was as an assistant to the new storeroom clerk parts for marina equipment, monitoring inventory, scheduling united states court of appeals tions over nearly four years. see jones stevedoring co. v. rately his opinion but did not change the substance of his record does not provide a basis for concluding that ogawa respondents. confirm that harmless error analysis applies to petitions for stauber and reports from additional examining doctors, employer is liable for employment conditions that cause an dence on the record as a whole." (emphasis added)); see also medical condition following the stroke, as it had access to all