DECISION AND ORDER
APPROVING SETTLEMENT AGREEMENT
AND ATTORNEY FEES
This claim was brought under the Longshore and Harbor Workers’ Compensation Act
(the “Act”). On September 18, 2012, the parties submitted an “Application for Approval of
Agreed Settlement—Section 8(I)” (hereinafter “Settlement Agreement”) for my approval. The
Settlement Agreement has been signed by the Claimant, Claimant’s counsel, and the
Employer/Carrier’s counsel. The parties have agreed to compromise their differences and settle
this claim, as outlined in the attached Settlement Agreement, which is incorporated herein by
reference.
The Director is not a signatory to the Settlement Agreement; section 8(f) relief.
Moreover, section 8(i)(4) of the Act provides that when the parties to a claim for compensation
agree to a settlement, “[t]he special fund shall not be liable for reimbursement of any sums paid
or payable to an employee or any beneficiary under such settlement.”
In the Settlement Agreement, the parties have agreed to attorney’s fees and costs in the
amount of $25,000.00.1 As long as the parties have engaged in arm’s length negotiations the fee
agreement should be approved if not clearly excessive, absent evidence of collusion. Eifler v.
Peabody Coal Co., 27 BRBS 168 (CRT) (7th Cir. 1993). I find the attorney’s fees to which the
parties have agreed are appropriate, taking into consideration the qualifications of Claimant’s
counsel, the complexity of the issues, the skill with which the case was handled, and the amountrecovered. Thus, the agreed upon attorney’s fees and costs in the total amount of $25,000.00 are
hereby approved.
Having reviewed the Settlement Agreement, along with other matters of record, and
finding the terms of the settlement incorporated therein to be fair, as set forth below, I hereby
approve the Settlement. Service will be made by the District Director pursuant to 20 C.F.R.
§702.349.
FINDINGS OF FACT
1. The facts are as set forth in the attached Settlement Agreement. The Claimant was born
on May 8, 1956. He attended high school through the eleventh grade, and has a work
history in the construction industry, and as a cook and restaurant manager. He is certified
as a mule driver, crane operator, and small forklift operator, and has 34 years of
experience with the union. He is currently not working.
2. The Claimant was working operating a gantry crane for the Employer on February 18,
2011, when he alleged that the cab, in which he was sitting, began to violently shake up
and down, causing severe pain in his back and left leg. The Claimant reported the
incident to his supervisor, and went to the Port of Miami Medical Clinic, where he was
given a drug test, but received no treatment. The following day, the Claimant reported to
work on a crane, and a cable broke and hit the cabin, causing another incident which
injured his back. The Claimant worked for four or five more days, and saw a
chiropractor, unauthorized, for two or three visits. The Claimant contends that he did not
return to the Port of Miami Clinic because no treatment was provided to him; his attorney
referred him to Dr. Moya.
3. Dr. Moya saw the Claimant on March 21, 2011, and diagnosed thoracic spine strain and
sprain, rule out herniated disc in the lumbar spine and facetogenic arthropathy. Dr. Moya
recommended a lumbar MRI, therapy for three times a week for four weeks, Celebrex,
and Amrix. A lumbar MRI was done on March 28, 2011, which showed spinal stenosis
at L3-4, bulging annulus and annular tear at L4-5 with moderate canal stenosis, and
hypertrophy of the ligamentum flavum. Although therapy was helping, Dr. Moya felt
that the claimant was a candidate for facet blocks, which Dr. Moya performed on May 8,
2011. As of June 6, 2011, the Claimant reported just a 10% improvement for two weeks.
Dr. Moya recommended a number of surgical options, including discography, endoscopic
discectomy and ablation by way of microdiscectomy with TESSYS procedure, classical
laminectomy and fusion, and FUSIO at L3-4 and L4-5, combined with discography and
endoscopic discectomy rather than ablation. Dr. Moya continues to see the Claimant, and
to recommend some type of surgical intervention.
4. Dr. Moya referred the Claimant to Dr. Brown for nerve conduction studies of the bilateral
lower extremities, which were unremarkable. Lumbar radiculopathy could not be
evaluated.
5. Dr. Donshik saw the Claimant on June 16, 2011, and reported that his examination
showed that the Claimant walked without difficulty, had full range of motion of the
cervical spine, had some spasm of the thoracolumbar spine, and generally exhibited a
normal lower extremity exam, with some subjective left leg pain. He reported that there
was no significant pathology on the MRI, or anything that he could interpret as acute, or
indicating an injury as a result of the alleged crane episodes. Dr. Donshik suggested that
the Claimant might have a lumbar strain superimposed on a pre-existing degenerative
condition; the findings were all consistent with pre-existing degenerative conditions. Dr.
Donshik suggested epidural injections, and questioned the surgeries recommended by Dr.
Moya.
6. Dr. Donshik examined the Claimant on January 23, 2012, and reviewed his medical
records. His physical examination showed inconsistent subjective complaints of pain.
Dr. Donshik concluded that it was “inconceivable” that all of the pathology was the result
of the crane incidents. He noted that the Claimant had three levels of disc dessication, a
degenerative condition; there were no specific focal herniations, but rather a generalized
disc bulge typical with age. Dr. Donshik felt that the three level fusion recommended by
Dr. Moya was absolutely not indicated in any orthopedic spinal literature, and that Dr.
Moya’s claim that there was a 95% likelihood that the Claimant would notice a decrease
in his pain following facet fusion was inconsistent with any orthopedic procedure that
could offer such a high success rate. Dr. Donshik does not believe that the Claimant
would improve with any type of surgical procedure. He did not need a discectomy to
compress the nerve roots, and he did not need a fusion. The Claimant had completed
physical therapy and undergone injection therapy, and Dr. Donshhik placed him at
maximum medical improvement, employable without restriction.
7. Dr. Alen Gordon examined the Claimant on October 26, 2011, and reviewed his medical
records. He did not reach any conclusions regarding care, treatment, maximum medical
improvement, or impairment ratings.
8. The Employer/Carrier has paid the Claimant temporary total disability benefits from
March 21, 2011 through February 3, 2012, at a rate of $1,237.21 for 45 3/7 weeks, for a
total of $56,558.17. The Employer/Carrier has also paid for all reasonable and necessary
medical care, pursuant to the Fee Schedule.
9. The parties disagree on the nature and extent of the Claimant’s injuries and entitlement to
benefits. The Employer/Carrier argues that the Claimant’s injuries were either not related
to the work injury, were pre-existing, or were the natural progression of the pre-existing
problems, and were not permanently worsened by the work injury. The Employer/Carrier
argues that the Claimant’s request for further medical care and treatment is unrelated to
the work injury, or not needed for any current condition. The Employer/Carrier argues
that the Claimant is not entitled to any compensation benefits, or alternatively, that
payment of this settlement compensates the Claimant for all periods of temporary total,
temporary partial, and/or permanent partial disability benefits.
10. The Claimant argues that he has suffered new injuries and/or a permanent aggravation of
pre-existing injuries, and needs additional medical treatment.
11. The Employer/Carrier retained Mr. James Sullivan to perform a vocational assessment.
He prepared a labor market survey identifying suitable alternate employment based on
the Claimant’s age, background, experience, education, and physical abilities.
12. The parties have agreed to compromise their disagreements on these issues. The parties
have agreed that under the terms of the Settlement Agreement, the Employer/Carrier will
pay to the Claimant the sum of $75,000.00, with the Claimant to pay his attorneys,
Gillis, Mermell & Pacheco, the sum of $25,000 for fees and costs, for a net settlement of
$50,000.00 to the Claimant. Of this sum, $25,000.00 represents past and future
indemnity benefits, and $25,000.00 represents future medical benefits. The Settlement
Agreement represents any and all potential or actual temporary total or temporary partial
disability compensation, permanent partial or permanent total disability compensation,
wage loss benefits, medical benefits, transportation reimbursement, rehabilitation
benefits, and attendant care benefits, attorney fees and costs, arising from the February
18, 2011 work injury under the Act, to which the Claimant might presently ben entitled,
or to which he may in the future become entitled to receive from the Employer/Carrier.
13. The Claimant has agreed to waive his right to any future benefits under the Act as a
result of the alleged injuries. The Claimant also expressly agrees that for seven months
from the signing of the Settlement Agreement, he will not apply for, seek, or accept work
as a longshoreman and harborworker for South Florida container Terminal. The
Employer/Carrier has relied on these representations in agreeing to pay the sums of
money in the Settlement Agreement. The Claimant also acknowledges and agrees that
the terms and conditions of the Settlement Agreement may be published to and shared
with his union to ensure compliance with the Settlement Agreement.
14. The parties have considered the potential impact of the Medicare as Secondary Payer
statute. The claimant is not a current Medicare beneficiary, and is not expected to
become one within thirty months after the settlement. The Claimant has not applied for,
and is not receiving Social Security Disability benefits, nor has he been denied such
benefits. As the total amount of the settlement is not over $250,000, there is no
requirement for the Claimant to seek CMMS approval, or to allocate any funds in a
Medicare Set aside account, and Medicare waives any interest in the settlement. party
waives any right with respect to the issue of entitlement to attorney fees related to any
litigation regarding future medical care.
15. The Claimant confirms that there is no claim or right of reimbursement by Medicare or
the Medicare Secondary Payer Program for treatment of the injuries in connection with
this claim, and acknowledges that all responsibility for Medicare claims or Medicare
Secondary Payer Program liens for any and all past treatment for which Medicare or the
Medicare Secondary Payer Program has a claim if any, is that of the Claimant, subject to
the rules and regulations of Medicare.
16. The Claimant understands that the receipt of the settlement monies may impact any
assistance he currently receives, or may receive in the future, from Medicare, Medicaid,
Social Security Disability, or other collateral sources, but regardless of any such impact,
including a reduction in benefits, a cessation of benefits, or reimbursement of benefits,
the Claimant wishes to proceed with the settlement agreement.
17. The parties have submitted an itemization of medical benefits for the preceding three
years, and have allotted $25,000.00 for future medical benefits in the unlikely event that
the Claimant needs medical treatment in connection with his February 18, 2011 injury.
The Claimant also has insurance through his Union for medical expenses.
18. I find that the agreed settlement is adequate and has not been procured by duress or fraud.
The Settlement Agreement adequately complies with the requirements of 20 C.F.R.
§§702.242 and 702.243.
ORDER
IT IS HEREBY ORDERED that the attached Settlement Agreement should be, and
hereby is, APPROVED, and the parties are directed to carry out the requirements of the
Settlement Agreement; and
It is further ORDERED that the Employer/Carrier shall forthwith pay all amounts due in
accord with the provisions of the Settlement Agreement; and
It is further ORDERED that the liability of the Employer/Carrier for all payments of
compensation, attorney fees, and medical benefits under the Act as a result of the Claimant’s
alleged accident and injury of February 18, 2011 shall be discharged on payment of the agreed
upon sums.
SO ORDERED.
LINDA S. CHAPMAN
Administrative Law Judge
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Clifford R. Mermell, Esq., created the law firm of Gillis, Mermell & Pacheco, P.A. on March 1, 1996. Mr. Mermell has been the senior and managing partner of the firm since its creation. The firm was created to champion the rights of injured workers nationwide. It represents cases under the Worker’s Compensation, Wrongful Termination, Personal Injury, Admiralty and Maritime, Defense Base Act, and Longshore & Harbor Worker’s Compensation Act Laws.