The Parties

Mr. Cutietta worked as a shipwright for National Steel for decades.

National Steel and Shipbuilding (also called General Dynamics NASSCO) designs and constructs auxiliary and support ships for the U.S. Navy. It performs the same services for oil tankers and dry cargo carriers for commercial markets. In addition, it is also a major provider of repair services for the U.S. Navy’s global force. The main office is in San Diego.

The Facts

Mr. Cutietta sustained a cumulative trauma injury to his lower back over the course of his decades-long work for National Steel and Shipbuilding Company as a shipwright through September 29, 2003.  Mr. Cutietta’s treating chiropractor directed him to remain off work until February 20, 2004, while another doctor opined, on December 1, 2003, that Mr. Cutietta was temporarily and totally disabled.  Subsequently, four separate doctors all found that Mr. Cutietta was incapable of returning to his usual work or performing any work involving heavy lifting.  These physicians, however, each opined that Mr. Cutietta was capable of light-duty work with varying restrictions.

However, Mr. Cutietta never returned to work as a shipwright after September 29, 2003.  He worked with a vocational counselor and participated in real estate and computer applications vocational rehabilitation training programs from the time period of July 25, 2005 to April 6, 2006. However, he did not find gainful employment following his work injury.  Mr. Cutietta stated that he has not searched for work since 2006 and that he is now retired.  He also added that since April or June 2009, he has been receiving rental income from two apartments he owns.  Mr. Cutietta filed a claim seeking permanent total disability and medical benefits for his lower back injury.

Employment Conditions

The injuries

Mr. Cutietta sustained cumulative trauma injury to his lower back. There is no information on any surgeries.

The employer’s actions

National Steel and Shipbuilding Company controverted (disputed) Mr. Cutietta’s claim. They raised, among other things, issues pertaining to the extent of Mr. Cutietta’s disability.

Results of the Initial Hearing

In his decision, the administrative law judge found that Mr. Cutietta’s work-related back injury rendered him incapable of returning to his usual work for National Steel and Shipbuilding Company as of September 30, 2003, and that National Steel and Shipbuilding Company established the availability of suitable alternate employment as of March 1, 2005.  Suitable alternate employment is important because it can reduce an employer’s payments, thereby rendering a claimant only partially disabled, rather than totally disabled.

The administrative law judge, therefore, found Mr. Cutietta was entitled to temporary total disability benefits from September 30, 2003 to November 16, 2004, permanent total disability benefits from November 17, 2004 to February 28, 2005, and from July 25, 2005 to April 6, 2006, and to periods of permanent partial disability benefits from March 1, 2005 up to the present.

The administrative law judge, however, also found that Mr. Cutietta forfeited his right to compensation from October 13, 2010 to August 27, 2013. This finding was pursuant to Section 8(j) as he failed to report his rental earnings.  The administrative law judge also found National Steel and Shipbuilding Company was entitled to a Section 3(e) credit for payments it made to the California Employment Development Department (EDD) in reimbursement for payments the EDD had made to Mr. Cutietta.  The administrative law judge denied National Steel and Shipbuilding Company’s request for Section 8(f) relief.

The Appeal

On appeal, National Steel and Shipbuilding Company challenged the administrative law judge’s finding that it is not entitled to Section 8(f) relief.  The Director of the Office of Workers’ Compensation Programs (the Director) responded. The Director urged affirmation of the administrative law judge’s denial of Section 8(f) relief.  National Steel and Shipbuilding Company filed a reply brief.

Mr. Cutietta, in his cross-appeal, challenged the administrative law judge’s findings that National Steel and Shipbuilding Company established the availability of suitable alternate employment, that he forfeited his right to compensation pursuant to Section 8(j) from October 13, 2010 to April 27, 2013, and that National Steel and Shipbuilding Company would be entitled to a Section 3(e) credit for its payments to the EDD.

The Director responded in agreement with Mr. Cutietta’s position that the administrative law judge erred in awarding National Steel and Shipbuilding Company a credit under Section 3(e) for payments it made to the EDD.  National Steel and Shipbuilding Company responded, challenging the timeliness of Mr. Cutietta’s appeal but otherwise urging rejection of the issues raised in Mr. Cutietta’s cross-appeal.  Mr. Cutietta filed a reply brief.

The Ruling on Appeal

The administrative appeals judges affirmed the administrative law judge’s finding that Mr. Cutietta’s disability became partial on March 1, 2005, except for a period when Mr. Cutietta was enrolled in a vocational rehabilitation program. They also vacated the administrative law judge’s conclusion that Mr. Cutietta forfeited his right to disability payments for the period of October 13, 2010 through April 27, 2013.  Mr. Cutietta filed seven LS-200 reports between October 11, 2011 and April 27, 2013, covering periods between October 13, 2010 and April 27, 2013.  And on these forms, he stated that he had no earnings during each of the periods.

They determined that Mr. Cutietta did not fail to report earnings from employment or self-employment, as he used the number zero. Hence that was his report. They also found that the administrative law judge erred in finding that National Steel and Shipbuilding Company was entitled to a credit pursuant to Section 3(e) for EDD benefits paid to Mr. Cutietta and then repaid to the EDD by the employer.  The Director agreed with Mr. Cutietta that the plain language of Section 3(e) precluded a credit for the employer in this case because the EDD benefits were not paid pursuant to a workers’ compensation law.

In addition, they remanded (sent back for further consideration) the case to address a question regarding Mr. Cutietta’s possible preexisting permanent disability.

The Takeaway

Claims are sometimes denied based upon fine print or odd readings of what should probably be easy to decipher. Certainly, by writing the number zero under his earnings, Mr. Cutietta answered the question on the form and did not withhold any information. However, it took an appeal for that specific issue to be resolved.

Guiseppe Cutietta v. National Steel and Shipbuilding Company
https://www.dol.gov/brb/decisions/lngshore/published/14-0335.htm