Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. George Hyman Construction Co.

United States District Court, District of Columbia

June 16, 2017

EARL C. DAVIS, Plaintiff,
v.
GEORGE HYMAN CONSTRUCTION COMPANY,, Defendants.

          MEMORANDUM OPINION

          DEBORAH A. ROBINSON United States Magistrate Judge.

         This action is currently before the undersigned on remand from the United States Court of Appeals for the District of Columbia Circuit for the purpose of further proceedings with respect to whether or not the Defendants, Liberty Mutual Insurance Company and George Hyman Construction Company (collectively, “Liberty Mutual”), complied, as to three reimbursement requests, with the provisions of this Court's August 24, 1982 Order, as modified by the undersigned's March 15, 2001 Order.[1] In its May 2, 2014 Judgment, the Circuit ordered that “on remand the district court is instructed to determine whether Liberty Mutual's responses to the requests dated March 14, April 3, and November 26, 2001, complied with the 2001 order, and if any of them did not, to impose the fine prescribed by that order.” Judgment, Davis v. Department of Labor, , No. 13-5026 (D.C. Cir. May 2, 2014) (ECF No. 213).

         On February 9, 2015, the assigned United States District Judge referred this action to the undersigned “for the purpose of making written findings, consistent with the Court of Appeals May 2, 2014 remand order in this case[.]” 02/09/2015 Minute Order.

         BACKGROUND

         In 1965, Plaintiff Earl C. Davis was injured on the job while employed as a carpenter by George Hyman Construction. Director's Response to Magistrate Robinson's July 1, 2005 Order (ECF No. 117) at 1-2. In 1982, Mr. Davis was found to be permanently disabled, and entitled to benefits under the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., as extended by the District of Columbia Workmen's Compensation Act. Id. Such a finding entitled Mr. Davis to compensation for covered medical expenses.

         According to the Department of Labor, Mr. Davis,

[f]acing difficulties obtaining medical treatment, . . . sought enforcement of the compensation order in this Court under 33 U.S.C. §§ 918(a) and 921(d) against Liberty Mutual . . . his employer's insurance carrier. In an Order dated August 24, 1982 (“1982 Order”), this Court set forth the rights and obligations of Mr. Davis and Liberty Mutual with respect to medical expenses.
. . .
The 1982 Order was modified in a March 15, 2001 order [(“2001 Order”)] to provide that Liberty Mutual's violation of the 1982 Order would subject it to a penalty. Specifically, “[f]or every day beyond the 30 days . . . that Liberty Mutual fails to pay in full or file an adequate response to a request for reimbursement or payment, Liberty Mutual will be liable for a $500 fine, payable to the Plaintiff, Earl C. Davis, until payment in full or an adequate response is made.”[2]

Id. at 2-3.

         Mr. Davis has consistently claimed that Liberty Mutual has failed to comply with the provisions of the 2001 Order, and has sought the imposition of the required fine.[3] In November 2003, the undersigned held a hearing and identified the four distinct reimbursement requests submitted by Mr. Davis then at issue: March 14, 2001, April 3, 2001, November 26, 2001, and March 7, 2002. See Appeal of Magistrate Judge Order Docket No. 180 to the Federal District Judge (ECF No. 185) at 8.

         Mr. Davis pursued these four claims through the administrative process of the LHWCA, and a hearing was held before an Administrative Law Judge (“ALJ”), who partially approved and partially denied Mr. Davis's requests. See Exhibit C, Decision and Order (ECF No. 117-1) at 20- 21. Mr. Davis appealed the ALJ's decision to the United States Department of Labor's Benefits Review Board (“BRB”), which affirmed the ALJ's decision. See Exhibit 1, Decision and Order (ECF No. 118-1) at 10.[4] Mr. Davis subsequently appealed the BRB's decision to the United States Court of Appeals for the District of Columbia Circuit, affirmed the judgment of the BRB. See Davis v. Dir., Office of Workers' Comp. Programs, 124 Fed.Appx. 1 (D.C. Cir. 2005).[5]

         During the pendency of these administrative proceedings, Mr. Davis also sought review by this Court of Liberty Mutual's responses to his four reimbursement requests, and imposition of the fine specified by the 2001 Order, due to Liberty Mutual's failure to provide a timely response. In January 2007, the undersigned found that Liberty Mutual had violated the 2001 Order with regard to its response to Mr. Davis's March 7, 2002 reimbursement request; the first of the four then at issue. See 01/10/2007 Minute Entry. The undersigned imposed a fine of $5, 500 based upon the finding that Liberty Mutual responded eleven days later than required under the 2001 Order. Id. The then-assigned District Judge (Kennedy, J.) upheld the imposition of the fine. See Order (ECF No. 168).[6]

         Now under consideration by the undersigned are the remaining three reimbursement requests, submitted by Mr. Davis on March 14, April 3, and November 26, 2001. Following the Judgment of the Circuit, the undersigned, for the reasons set forth in detail on the record, scheduled an evidentiary hearing. See 03/11/2015 Minute Entry. Upon consideration of the proffers and arguments of the parties concerning the scheduling of an evidentiary hearing and the manner in which such a hearing would be conducted, the undersigned determined that (1) the issues which the Circuit directed the District Court to determine on remand could be determined only through an evidentiary hearing, and (2) at such hearing, Defendants would bear the burden of production.

         These procedures were the subject of continuing objections by both sides: Mr. Davis objected to the scheduling of an evidentiary hearing at all-insisting that the record already developed provided an ample basis for the undersigned's determination on remand-while Liberty Mutual objected to being ordered to “go first.” See, e.g., Plaintiff's Opening Statement for Hearing on April 10th, 2015 (ECF No. 224) at 14 (“Res judicata will not permit a rehearing of the same, four reimbursement request[s] at issue[.]”); Transcript of Evidentiary Hearing (ECF No. 271) at 10 (“Can I also brief that, Your Honor, on the burden of proof, which party it should rest with?”). On multiple occasions throughout the hearing, the undersigned stated the basis for this exercise of discretion. See, e.g., Transcript of Status Conference (ECF No. 222) at 17 (“Because of the nature of the remand, the Court believes that it is appropriate to place upon the Defendants, the burden of both production and persuasion.”).[7]

         On April 10, 2015, the undersigned began the evidentiary hearing and heard testimony, on that date, from a witness called by Liberty Mutual with regard to the March 14, 2001 and April 3, 2001 reimbursement requests and corresponding responses. See Transcript of Evidentiary Hearing (ECF No. 271). Unfortunately, the witness was unable to testify regarding the November 26, 2001 reimbursement request before the undersigned recessed for the day. Id. Because the witness had not completed his testimony, the undersigned, as is customary, ordered, from the bench, that no party communicate with the witness until he was able to complete his testimony. Id. at 187.

         Liberty Mutual challenged the undersigned's order that no party communicate with the witness pending the completion of his testimony regarding the final request. See Defendants' George Hyman Construction/Liberty Mutual's Motion to Allow Communications Between Attorney & Client (ECF No. 234). Liberty Mutual then sought to stay the proceedings in order to further challenge the prohibition on communicating with the witness. See Defendant Liberty Mutual Insurance Company's and Defendant George Hyman Construction Company's Expidited [sic] Motion to Stay Proceedings Pending Resolution of Their Objection to Magistrate Judge Robinson's Order Prohibiting Their Attorney From Communicating with Liberity [sic] Mutual's Representative (ECF No. 239). Next, Mr. Davis moved to reconsider the decision by the undersigned to hold an evidentiary hearing. See Appeal [sic] of the Rehearing of Evidence Before the Magistrate Judge (ECF No. 246). The Court (Leon, J.) denied Mr. Davis's motion for reconsideration, see 01/29/2016 Minute Order.

         Liberty Mutual sought review by the Circuit and filed a petition for a Writ of Mandamus to overturn the order that no party speak to the witness before he had completed his testimony. See Exhibit A, Petition for Writ of Mandamus of George Hyman Construction Company and Liberty Mutual Insurance Company (ECF No. 259-1). Mr. Davis also appealed to the Circuit, see Notice of Appeal (ECF No. 262). All parties having sought appellate review; the undersigned stayed the evidentiary hearing. 02/19/2016 Minute Order.

         Both applications for relief in the Circuit were rejected. See Order, In re: George Hyman Construction Company and Liberty Mutual Insurance Company, No. 16-7006 (D.C. Cir. April 4, 2016); Order, Davis v. George Hyman Construction Company and Liberty Mutual Insurance Company, No. 16-7020 (D.C. Cir. June 16, 2016) (ECF No. 264). Thereafter, the undersigned scheduled the resumption of the evidentiary hearing to complete the testimony of the witness with regard to the November 26, 2001 reimbursement request. See 12/19/2016 Minute Entry. The evidentiary hearing resumed on January 26, 2017, and the witness who began his testimony on April 10, 2015 completed his testimony. See 01/26/2017 Minute Entry. The undersigned scheduled a third day of the evidentiary hearing in order for Liberty Mutual to call a second witness to testify further regarding compliance with Paragraph 5 of the 2001 Order. See 01/27/2017 Minute Order.[8]

         On February 15, 2017, the undersigned completed the evidentiary portion of the proceedings and scheduled a final session of oral arguments on the issue of whether or not Liberty Mutual's responses to the three requests at issue complied with the 2001 Order. See 02/15/2017 Minute Order and Entry. Oral argument was held on April 5 and April 10, 2017, after which the parties filed additional post-hearing memoranda to address factual issues, see Defendants' Memorandum Regarding Payments Made in Response to Plaintiff's Reimbursement Requests (“Factual Defenses Mem.”) (ECF No. 284); Motion to Find Liberty Mutual in Contempt of Court and a Response to District Court Order April 11, 2017 to File Any Responds [sic] to Defendants' Memorandum Regarding the Dates and Amount of Payments (“Plaintiff's Factual Resp.”) (ECF No. 288), as well as any legal or equitable defenses that may be appropriate, see Defendants George Hyman Construction and Liberty Mutual's Memorandum of Law Regarding Legal and Equitable Issues (“Legal and Equitable Defenses Mem.”) (ECF No. 286). Mr. Davis subsequently responded to Liberty Mutual's claimed legal and equitable defenses. See Response to and Motion to Strike Defendants George Hyman Construction Company and Liberty Mutual's Memorandum of Law Regarding the Legal and Equitable Issues (“Plaintiff's Legal and Equitable Resp.”) (ECF No. 289).

         Upon consideration of the evidence adduced at the evidentiary hearing, the arguments offered by the parties, both orally and in writing, and for the reasons discussed in detail below, the undersigned finds, as to one item included in Mr. Davis's April 3, 2001 reimbursement request and two items included in the November 26, 2001 reimbursement request, that Liberty Mutual failed to fully comply with the 2001 Order. The undersigned applied the formula for calculation of the fine provided by said Order, and determined that the fine totals $28, 000.00. Thus, as directed by the Circuit, the undersigned imposes such fine.[9]

         In so ruling, the undersigned has considered each of the equitable defenses offered by Liberty Mutual, and finds that Liberty Mutual's reliance upon such equitable defenses-both individually and collectively-is entirely misplaced. The undersigned undertakes a detailed discussion of these equitable defenses beginning in Section IV, infra. The undersigned finds, however, that it is appropriate to note at this juncture that the overarching proposition asserted by Liberty Mutual, i.e., that the District Court lacks authority to impose any fine, is entirely specious, as the United States Court of Appeals for the District of Columbia Circuit remanded this action to the District Court for the express purpose of imposing the fine prescribed by the 2001 Order, upon a showing that Liberty Mutual failed to comply with the 1982 Order, as modified by the 2001 Order; indeed, the Circuit's instruction to the District Court was mandatory. See Judgment at 2 (“Accordingly, on remand the district court is instructed to determine whether Liberty Mutual's responses to the [three enumerated requests] complied with the 2001 order, and if any of them did not, to impose the fine prescribed by that order.”) (emphasis supplied). The parties to this action- in like manner as the undersigned-must assume that the Circuit did not direct the District Court to undertake an unlawful action.[10]

         DISCUSSION

         Liberty Mutual, having the burden of proof to show that its responses to Mr. Davis's reimbursement requests complied with the 2001 Order, offered evidence, in the form of testimony and exhibits, through Christopher Kijovsky, a technical claims specialist employed by Liberty Mutual. See Transcript of Evidentiary Hearing (ECF No. 271) at 21. In addition, Liberty Mutual elicited testimony from Norman Jackson, a claims examiner and the custodian of records employed by the District of Columbia Department of Employment Services. See Transcript of Evidentiary Hearing (ECF No. 276) at 18.

         In order to comply with Paragraph 4(A) of the March 15, 2001 Order, any response to a reimbursement request by Liberty Mutual approving payment must:

separately list[] each medication, therapy, procedure, or medical condition, as each is described in the request for reimbursement submitted by Mr. Davis, followed by the amount requested by Mr. Davis, and followed by the amount reimbursed, or to be reimbursed, by Liberty Mutual. If two or more of the same medications, therapies, procedures, or medical conditions are included in the same request for reimbursement, Liberty Mutual will identify each by date, or other distinguishing feature, and separately respond to each.

March 15, 2001 Order (ECF No. 50) at 1.

         To comply with Paragraph 4(B) of the March 15, 2001 Order, any response to a reimbursement request by Liberty Mutual denying payment must:

separately list[] each medication, therapy, procedure, or medical condition, as each is described in the request for reimbursement submitted by Mr. Davis, followed by the amount requested, followed by an unequivocal assertion that the payment is refused, followed by the reason payment is refused supported by an assertion of a specific and legally sufficient basis for nonliability. If two or more of the same medications, therapies, procedures, or medical conditions are included in the same request for reimbursement, Liberty Mutual will identify each by date, or other distinguishing feature, and separately respond to each.

Id. at 1-2.

         To insure clarity, the undersigned sets forth findings regarding Liberty Mutual's compliance-and the assessment of any fine for noncompliance-for each reimbursement or payment request separately.

         I. March 14, 2001 Request

         On March 14, 2001, Mr. Davis mailed a letter to Liberty Mutual in which he included five requests: (1) reimbursement for prescriptions from CVS pharmacy, (2) reimbursement for the purchase of glucosamine and chondroitin, (3) the cost of replacement of an exercise bike, (4) the cost of replacement of a treadmill and (5) the cost of replacement of an additional piece of fitness equipment. Defs.' Exhibit A (ECF No. 223-1) at 2.

         Mr. Kijovsky testified that Liberty Mutual provided a response to this request on March 26, 2001 by sending Mr. Davis a letter. See Defs.' Exhibit B (ECF No. 223-1) at 9-11. The March 26, 2001 letter communicated to Mr. Davis that Liberty Mutual would pay for both the prescriptions from CVS and the glucosamine and chondroitin, but would reject payment for the exercise bike, the treadmill, and the fitness equipment. Id. In addition to the March 26, 2001 letter, Liberty Mutual offered as evidence at the evidentiary hearing a payment ledger purporting to show the checks issued to Mr. Davis for the requests which were approved. See Defs.' Exhibit C (ECF No. 223-1) at 13-24.

         A. Approved Requests

         Upon review of the March 26, 2001 response letter, the undersigned finds that Liberty Mutual failed to fully comply with Paragraph 4(A) of the 2001 Order with regard to the approved request for reimbursement for CVS prescriptions, and the request for reimbursement for glucosamine and chondroitin. More specifically, the undersigned observes that Liberty Mutual's March 26, 2001 letter fails to separately list each medication for which Mr. Davis sought reimbursement. With regard to the list of prescriptions from CVS, the letter simply states that “Liberty Mutual will reimburse you for the amount on the CVS summary, in the amount of $ 2420.44, subject to the questions raised below.” Defs.' Exhibit B (ECF No. 223-1) at 9. Liberty Mutual does not “separately list” each medication, nor does it identify the amount requested by Mr. Davis.

         Likewise, Liberty Mutual's response to Mr. Davis's request for reimbursement for glucosamine and chondroitin is also lacking. It reads in total: “Liberty Mutual will reimburse you for the chondroitin in the total amount of $ 119.94, $ 39.98 x 3, subject to the inquiry set forth below.” Id. The 2001 Order, however, requires that in the event that Mr. Davis has requested reimbursement for “two or more of the same medications, ” Liberty Mutual shall “identify each by date, or other distinguishing feature, and separately respond to each.” 2001 Order at 1. Liberty Mutual failed to do so.

         B. Denied Requests

         Liberty Mutual argues that the three remaining requests made by Mr. Davis in the March 14, 2001 letter are not subject to the 2001 Order because Mr. Davis was not, in fact, requesting reimbursement, but rather “prospectively requesting replacement of the identified exercise equipment[.]” Defendants George Hyman Construction and Liberty Mutual's Chart Regarding Liberty Mutual's Responses to Plaintiff's Reimbursement Requests Pursuant to Court's Order Dated February 15, 2017 (“Defendants' Chart”) (ECF No. 277) at 4 n.5. Liberty Mutual further contends that only reimbursements for Mr. Davis's out-of-pocket expenses are subject to the terms of the 2001 Order. Legal and Equitable Defenses Mem. at 28. The undersigned cannot concur in this all-encompassing interpretation of the 1982 and 2001 Orders.

         The text of the 1982 Order states that the purpose of the Court's intervention is to “secure payment of medical expenses, transportation expenses, reimbursement of prescription costs, and orthopedic footwear[.]” August 24, 1982 Order (ECF No. 117-1) at 1.[11] While the Court, in the 1982 Order, appears to use the terms “expenses” and “reimbursements” interchangeably, it is clear that some instances of prospective reimbursement requests were envisioned by the Court. The 1982 Order states “the expense of filling the prescriptions will be separately itemized from the druggist when advanced reimbursement prior to the purchase of the medication is being sought.” Id. (emphasis supplied). The 1982 Order, therefore, does not require that Liberty Mutual only reimburse Mr. Davis for purchases that he had already personally made, but contemplates prospective payment in the event that Mr. Davis submits a “separately itemized” bill or invoice from a supplier.

         Similarly, the language of the 2001 Order itself envisions payment to Mr. Davis for instances other than direct reimbursement for out-of-pocket expenses. Paragraph 6 of the 2001 Order states that “[f]or every day beyond the 30 days specified in this order . . . that Liberty Mutual fails to pay in full or file an adequate response to a request for reimbursement or payment, Liberty Mutual will be liable for a $500 fine, payable to the Plaintiff, Earl C. Davis, until payment in full or an adequate response is made.” 2001 Order at 2 (emphasis supplied).

         Liberty Mutual also argues that the three requests at issue do not fall within the ambit of the 2001 Order's response requirements because each is not a “medication, therapy, procedure, or medical condition[.]” See Legal and Equitable Defenses Mem. at 29-30. The undersigned rejects this argument. It should be noted that during the hearing that led to the filing of the 2001 Order, the parties discussed the proposed language at length. See generally Transcript of Motions Hearing (ECF No. 54). During that hearing, James Greene, Esquire, then counsel for Liberty Mutual, stated that, in his view, requests for payment for items such as exercise equipment would be subject to the provisions of the proposed order. Id. at 13 (“And then if [Mr. Davis] puts in bills for things like exercise equipment, that should be treated as a separate item, as well. If we fail to respond to that within 30 days, that would be an infraction.”) (emphasis supplied). Indeed-in virtual anticipation of the issues presented with respect to Mr. Davis's March 14, 2001 claim-Mr. Greene continued:

[S]uppose Liberty [Mutual] paid the request for reimbursement on the drugs, all the drug store prescriptions, but failed to respond by either rejecting or agreeing to pay for the replacement of the exercise equipment. It would be logical to state, for the Plaintiff to make an argument that the failure to respond on that portion of this reimbursement request is an infraction. I believe we'd be hard pressed to argue with that.

Transcript of Motions Hearing (ECF No. 54) at 14-15 (emphasis supplied).

         Largely for these reasons, the undersigned finds that all parties were in agreement that a request for exercise equipment, accompanied by a bill or invoice, would be covered by the 2001 Order. The question remains, however, whether Mr. Davis's request for payment for the replacement of exercise equipment was made in accordance with the terms of the 1982 Order. The record is clear that Mr. Davis submitted several “print-outs” from internet advertisements or catalogs to support his claim for payment. See Defs.' Exhibit A (ECF No. 223-1) at 5-7. Liberty Mutual refused payment for these items, in part, because Mr. Davis “submitted pages from an internet catalog, not firm estimates” and because Mr. Davis did not “obtain[] a repair estimate on each of these three pieces of equipment[.]” Defs.' Exhibit B (ECF No. 223-1) at 10-11.

         Upon review of the language of the 1982 Order, the undersigned finds that Mr. Davis did not submit his requests for replacement of three pieces of exercise equipment in accordance with the terms of the 1982 Order. Mr. Davis did not submit “an itemization of the expenses for which he is seeking reimbursement[, ]” nor did he submit any bill or invoice from a supplier. See 1982 Order at 1. Liberty Mutual responded to Mr. Davis within thirty days of his request, and advised that “[i]f any one or more of these pieces of equipment are to be replaced, Liberty Mutual will reserve the right to seek its own source and a more favorable price.” Defs.' Exhibit B (ECF No. 223-1) at 11. Mr. Kijovsky also testified that “when someone needs any type of durable medical equipment, which is the term we would use, I would rather the[m] go out and buy and pay for it and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.