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Gallucci v. Schaffer

August 28, 2007

WILLIAM T. GALLUCCI PLAINTIFF,
v.
MARK L. SCHAFFER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff William T. Gallucci alleges that Defendants, the law firm Ashcraft & Gerel, LLP and three of its lawyers, committed malpractice in 1976 when they failed to advise him that his workers' compensation had been calculated incorrectly. This matter is now before the Court on Defendants' Motion to Dismiss [Dkt. No. 4]. Upon consideration of the Motion, Opposition, Reply, Supplemental Memorandum, Response to Supplemental Memorandum, and the entire record herein, and for the reasons stated below, Defendants' Motion is granted.

I. BACKGROUND

A. Facts*fn1

On July 9, 1972, Plaintiff started a 48-month apprenticeship program at the Bureau of Engraving and Printing ("Bureau"). If he had completed the program, he would have had the opportunity to advance to the position of a plate printer on July 9, 1976. Approximately nine months into the program, on April 23, 1973, Plaintiff injured his hip and back at work.

In October 1973, Plaintiff retained Defendant Mark L. Schaffer ("Schaffer") of Ashcraft & Gerel, LLP to represent him in workers' compensation proceedings before the Department of Labor's Office of Workers' Compensation Programs ("OWCP"). OWCP approved Plaintiff's application for workers' compensation based on the pay rate for an apprentice printer and Plaintiff began receiving monthly payments. In 1975, Plaintiff sought a hearing on OWCP's calculation of his loss of wage earning capacity ("LWEC") to establish the baseline payments he would receive from that time forward. OWCP affirmed its initial calculation on July 13, 1976. On August 19, 1976, OWCP informed Plaintiff that its decision was final and appealable.

Plaintiff claims that the OWCP's calculation was incorrect. He argues that the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8113 ("§ 8113"), entitles federal employees who are apprentices at the time of a work-related injury to be compensated as though they had progressed through the normal hierarchy of their trade. Because he was an apprentice at the time of his injury, Plaintiff claims that, pursuant to § 8113, he was entitled to a higher baseline pay beginning July 9, 1973, and each year thereafter, when he would have advanced to the next year of apprenticeship. He further claims that because his apprenticeship would have ended on July 9, 1976, his workers' compensation should have increased on that date to account for the pay level of a plate printer.

After receipt of the OCWP's July 13, 1976 decision, Plaintiff asked Schaffer why the LWEC calculation was so low. He claims that Schaffer advised him that it would be pointless to fight the OWCP's determination. He further claims that Schaffer did not inform him of any rights to increased payments under § 8113.

Almost 25 years later, on May 15, 2001, an individual unconnected to Defendants,*fn2 Thomas P. Fochs ("Fochs"), sent a letter on Plaintiff's behalf to the OWCP.*fn3 Fochs's letter stated that "Mr. Gallucci objects to the Loss of Wage Earning Capacity Determination of February 21, 1975. . . ." Def.'s Mot. Ex. D ("May 15, 2001 Letter") at 1. The May 15, 2001 Letter further stated that

Mr. Gallucci is entitled to an increased rate of compensation under 5 USC §8113(a) of the FECA because he was in a 'learners' position at the time of his injury. Consequently, the OWCP erred by failing to pay Mr. Gallucci an increased rate of pay because his injury prevented him from obtaining the higher-paying position he would have achieved at the end of his formal four-year Apprentice Program at the Bureau of Engraving and Printing.

Id. at 33. To correct that alleged error, the letter requested that the OWCP "re-compute Mr. Gallucci's Date of Injury wage rate because he was in a 'learner's position' under 5 USC §8113(a), and pay the unpaid compensation owed him . . . ." Id. at 38.

Plaintiff claims that, on October 15, 2002, OWCP issued a preliminary finding that the pay rate used in Plaintiff's case was erroneous, based on § 8113 and longstanding Department of Labor policy.*fn4 According to Plaintiff, OWCP concluded in its preliminary finding that Plaintiff's "compensation payments for the time period beginning on July 13, 1976 previously should have been, and prospectively should be, based on the pay rate for a journeyman printer, not an apprentice printer." Pl.'s Supp. Mem. Ex. 1 ("Gallucci Decl.") at ¶ 15.

Plaintiff claims that in November 2002, after the OWCP's preliminary finding on October 15, 2002, he called Defendant Ashcraft & Gerel, LLP "and spoke with an attorney from the firm for around forty minutes. During this conversation, [Plaintiff] detailed how [he] had been underpaid for over thirty years due to Mark Schaffer's failure to competently and thoroughly represent [him]. At the conclusion of the conversation the attorney told [Plaintiff] that 'there was nothing they can do to help [him].'" Gallucci Decl. at ¶ 13. Defendants deny that any such conversation occurred.

Plaintiff claims that the Bureau of Engraving has resisted paying his recalculated workers' compensation. He further claims that OWCP has twice calculated the amount of back-benefits owed to him. On May 21, 2003, OWCP calculated that the amount of back-benefits owed for the period from August 13, 1981 to September 9, 2000 due to the pay rate error was $828,980.11. On July 16, 2004, OWCP issued a revised calculation in which it concluded that Plaintiff ...


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