Seii, Inc. v. Owcp

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2020
• Docket: 18-73247
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERVICE EMPLOYEES No. 18-73247 INTERNATIONAL, INC.; INSURANCE COMPANY OF THE STATE OF BRB No. 18-0014 PENNSYLVANIA,

Petitioners, MEMORANDUM*

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; BARBARA DILL, Widow of Wade Dill,

Respondents.

On Petition for Review of an Order of the Benefits Review Board

Submitted February 11, 2020** San Francisco, California

Before: COLE,*** GOULD, and MURGUIA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable R. Guy Cole, Jr., Chief Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. Petitioner Service Employees International, Inc., and its insurance carrier,

the Insurance Company of the State of Pennsylvania (together, “SEII”), petition for

review of the decision of the Benefits Review Board (“BRB”) affirming the

decision of the Administrative Law Judge (“ALJ”) awarding Respondent Barbara

Dill death benefits and funeral expenses under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 901 et seq., as extended by the Defense Base Act,

42 U.S.C. § 1651 et seq. We have jurisdiction under 33 U.S.C. § 921(c) and deny

the petition.

In reviewing decisions of the BRB, we conduct an independent review of the

record, although the “task is not to reweigh the evidence, but only to determine if

substantial evidence supports the ALJ’s findings.” Lockheed Shipbuilding v. Dir.,

OWCP, 951 F.2d 1143, 1146 (9th Cir. 1991). The substantial evidence standard

requires a basis in evidence that “a reasonable mind might accept as adequate to

support a conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165

(9th Cir. 2010) (quoting Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149

(1997)).

1. We agree with the BRB that the ALJ’s award of benefits and expenses

was “rational, supported by substantial evidence, and in accordance with law.”

Weighing all of the evidence before him, which included an extensive

documentary record and the testimony of three witnesses delivered during a two-

2 day hearing, the ALJ issued a detailed, 46-page decision. In support of his

conclusion that Dill established that her husband’s “suicide followed causally from

a direct and unbroken chain of events related to his war zone employment with

SEII,” the ALJ detailed the record evidence of Dill’s husband’s traumatic

experiences in Iraq, and credited the opinion of Dill’s expert, which concluded that

“the stresses of the work in Iraq, when combined with the stress of the physical

separation, produced increasing emotional distance, emotional intensity, distortion,

erratic behavior, and finally [Dill’s husband’s] suicide.” Substantial evidence

supports the ALJ’s findings.

2. The ALJ properly determined that Dill’s expert was more credible

than SEII’s expert. “Where the ALJ relies on witness credibility in reaching his [or

her] decision, our court will interfere only where the credibility determinations

conflict with the clear preponderance of the evidence[,] or where the

determinations are inherently incredible or patently unreasonable.” Todd Pac.

Shipyards Corp. v. Dir., OWCP, 914 F.2d 1317, 1321 (9th Cir. 1990) (second

alteration in original) (quoting Cordero v. Triple A Machine Shop, 580 F.2d 1331,

1335 (9th Cir. 1978)). Here, the ALJ’s credibility determinations were sound and

not incredible or unreasonable. The ALJ noted and explained how the opinion of

Dill’s expert closely fit the facts, was supported by an Army study that examined

the relationship between failed relationships and suicide, and was generally more

3 persuasive than SEII’s expert’s opinion. Additionally, in discounting the opinion

of SEII’s expert, the ALJ reiterated Dill’s husband’s war zone experiences and

concluded that the expert’s conclusion that the experiences “had no causal

connection to the worsening of [Dill’s husband’s] psychological condition and

made no contribution to the suicide” defied “ordinary experience and common

sense.” It was “within the ALJ’s prerogative, as finder of fact, to credit one

witness’s testimony over that of another.” Duhagon v. Metro. Stevedore Co., 169

F.3d 615, 618 (9th Cir. 1999) (per curiam).

3. SEII’s argument that its due process rights were violated when the

ALJ admitted a supplement to Dill’s expert’s report without notice is without

merit. Due process requires that the parties to an adjudication be informed of the

matters of fact and law at issue, and be afforded an opportunity to be heard as to

each. See Sw. Sunsites, Inc. v. FTC, 785 F.2d 1431, 1435–36 (9th Cir. 1986); see

also Dep’t of Educ. of Cal. v. Bennett, 864 F.2d 655, 658–59 (9th Cir. 1988). The

ALJ provided each party an opportunity to brief the evidentiary value of Dill’s

expert’s supplemental report; SEII had a copy of the report; SEII provided the

report to its expert; and SEII’s expert’s report addressed the supplemental report.

The ALJ, accordingly, did not violate SEII’s due process rights.

PETITION DENIED.