Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1984)

Dennis YGNATOWIZ, Petitionerv.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS;RMK-BRJ, INC.; Commercial Insurance Company ofNewark, New Jersey, Respondents

No. 88-7526.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 14, 1989.^* Decided Jan. 31, 1990.

Before TANG, FLETCHER and ALDISERT,^**  Circuit Judges.

MEMORANDUM^*** 

Ygnatowiz petitions pro se for review of the Department of Labor Benefits Review Board's ("Board") denial of his motion for reconsideration. In denying the motion, the Board affirmed the decision of the administrative law judge ("ALJ"), who denied Ygnatowiz's disability claim against his former employer, RMK-BRJ, Inc. ("RMK-BRJ"). Ygnatowiz was injured in 1970 when a land mine exploded while he was working for RMK-BRJ in Vietnam ("Vietnam accident"). Ygnatowiz's claim was made pursuant to the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. § 901 et seq., as extended by the Defense Base Act, 42 U.S.C. § 1165 et seq., and the War Hazards Act, 42 U.S.C. § 1701 et seq. ("LHWCA"). The ALJ found that Ygnatowiz had failed to show any compensable injury arising out of the Vietnam accident, other than those already compensated for by RMK-BRJ.

Ygnatowiz appeals the Board's decision raising the following issues: the ALJ's dismissal of his neck injury claim as time-barred; the ALJ's exclusion of his 1982 and 1983 Montana state income tax returns and letters from Department of Labor personnel; the ALJ's denial of reimbursement for living expenses while Ygnatowiz was receiving medical treatment for his work-related injury; the ALJ's dismissal of his Agent Orange claim; the ALJ's admission of depositions and a post-hearing medical report; the ALJ's alleged failure to consider all the medical evidence in the record; and the Board's alleged failure to consider adequately new evidence submitted with his motion to reconsider. We have jurisdiction over this timely appeal pursuant to 33 U.S.C. § 921(c). We AFFIRM in part, REVERSE in part, and REMAND.

This court reviews the Board's decision only for errors of law and to ensure that the Board did not accept any of the ALJ's findings that were contrary to law, irrational or unsupported by substantial evidence. Lustig v. United States Dept. of Labor, 881 F.2d 593, 594 (9th Cir. 1989); see also 22 U.S.C. § 921(b) (3) (statutory basis for applying a "substantial evidence" test). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Goldsmith v. Director, Office of Workers' Compensation Programs, 838 F.2d 1079, 1081 (9th Cir. 1988). To determine whether the Board adhered to the proper standard, this court conducts an independent review of the administrative record. Palmer Coking Coal Co. v. Director, Office of Workers' Compensation Programs, 720 F.2d 1054, 1057 (9th Cir. 1983).

We find that the Board erred in determining that substantial evidence existed to support the ALJ's findings that Ygnatowiz's neck injury claim was time-barred. Accordingly, we remand the case to the Board in order that a new hearing be conducted to determine the merits of Ygnatowiz's neck injury claim. Because the law and substantial evidence support the Board's determinations as to Ygnatowiz's other contentions on appeal, we affirm those determinations.

Time Bar to Ygnatowiz's Neck Injury Claim

Ygnatowiz contends that the ALJ erred in finding that Ygnatowiz's neck injury claim was time-barred by 33 U.S.C. § 913(a). Ygnatowiz's contention has merit. Section 913(a) bars any claim for disability under the LHWCA unless the claim is filed within one year after the injury. 33 U.S.C. § 913(a). The time, however, does not begin to run until the injured employee "is aware, or by the exercise of reasonable diligence should have been aware, of the relationship between the injury ... and the employment." Id.; see Todd Shipyards Corp. v. Allan, 666 F.2d 399, 401 (9th Cir.), cert. denied, 459 U.S. 1034 (1982); see also 33 U.S.C. § 920(b) (in the absence of substantial evidence to the contrary, section 20(b) creates a presumption that the LHWCA claim is timely filed).

A. ALJ's Findings

The ALJ denied Ygnatowiz's neck injury claim based on the following findings: First, that Ygnatowiz's neck injury claim was not filed until August 8, 1984 when he filed an amended prehearing statement; second, that Ygnatowiz had failed to show, or even allege, that he first knew about the possible connection between his neck problems and the Vietnam accident within the statutory one year time limit (i.e. after August 7, 1983); and third, that Ygnatowiz's wife's testimony that Ygnatowiz's neck injury claim was timely because it was incorporated as part of his back injury claim in his original pre-hearing statement was not credible.¹ 

The ALJ concluded that Ygnatowiz became aware or should have become aware of the possible connection between the neck injury and the Vietnam accident sometime between January 1, 1983 and August 7, 1983, and therefore was time-barred from proceeding on his neck injury claim.²  The only medical treatment Ygnatowiz received during this time was in February 1983 when he fell from a porch. As part of his treatment, a CT scan was performed on his head and cervical spine (i.e. neck) on February 2, 1983. The radiologist who performed the CT scan concluded that Ygnatowiz had a "degenerative change at the lower cervical spine."

This CT scan is the only report that supports the ALJ's finding that Ygnatowiz knew, or should have known of the possible connection between his neck problems and the Vietnam accident by February 1983. Apparently, the hospital was unable to find the medical report of the treating physician, Dr. Paolo Giacomini, which was subpoenaed by RMK-BRJ's counsel.

Thus from this single page report written by the radiologist, not the treating physician, the ALJ concluded that Ygnatowiz knew or should have known about the possible connection of his neck injury and the Vietnam accident.

This conclusion is not supported by substantial evidence for the following reasons.

First, no evidence was introduced which showed that the contents of the radiologist's report ever were disclosed to Ygnatowiz.

Second, the February 1983 examination and CT scan were performed in connection with Ygnatowiz's injuries sustained in the fall, and were not occasioned by any complaints of progressive neck injury by Ygnatowiz.

Third, when Ygnatowiz later went to see Giacomini in February 1984 complaining of neck pains, Giacomini reviewed the 1983 CT scan and ordered further tests, which resulted in Giacomini referring Ygnatowiz to a neurosurgeon for neck surgery. It seems likely that if Ygnatowiz had complained of chronic neck pain to Giacomini in February 1983, as he did in February 1984, Giacomini would have followed a similar course of treatment in 1983 to that which he followed in 1984 (i.e. further testing and referral to a specialist).

Thus, the ALJ lacked substantial evidence to support his finding that Ygnatowiz's claim was time-barred based on his finding that Ygnatowiz knew or ought to have known of the possible connection between his neck problems and the Vietnam accident by 1983.

B. The Board's Findings

The Board erred in its review of the ALJ's decision by erroneously finding that in 1983, Giacomini diagnosed Ygnatowiz as having "degenerative disc disease consisting of bony osteophytes in the cervical spine or neck at C5, -6, -7". As discussed above, the CT scan report was the only evidence in the record showing any degenerative change in Ygnatowiz's neck. Further, in Giacomini's deposition, he specifically states that it was not until "February 28, 1984, at which time he [Ygnatowiz] came complaining of pain in the left shoulder, in the back, and in the neck.... [that] I thought he had problems in his spine, his cervical spine by C-5, 6, C-6, 7."

Thus, the Board inadequately reviewed and mischaracterized the ALJ's findings which lead to its erroneous conclusion that substantial evidence existed to uphold the ALJ's dismissal of Ygnatowiz's neck injury claim as time-barred. See Lustig, 881 F.2d at 594 (court should reverse the Board if the Board accepted an ALJ's findings that are contrary to law, irrational, or unsupported by substantial evidence).

AFFIRMED in part, REVERSED in part, and REMANDED.