BRB Nos. 89-425
89-425A
GUY V. McMILLAN )
)
Claimant-Petitioner )
Cross-Respondent )
v. )
)
INGALLS SHIPBUILDING, ) INCORPORATED ) DATE ISSUED: 03/27/1992 )
and )
)
AETNA CASUALTY AND SURETY )
COMPANY )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners ) DECISION and ORDER
Appeal of the Decision and Order and Supplemental Decision and Order
Awarding Attorney's Fees of C. Richard Avery, Administrative Law Judge,
United States Department of Labor.
George W. Murphy (Parlin & Murphy), Ocean Springs, Mississippi, for
claimant.
Paul B. Howell (Franke, Rainey & Salloum), Gulfport, Mississippi, for
employer/carrier.
Before: STAGE, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order and employer appeals the Supplemental
Decision and Order-Awarding Attorney's Fees (87-LHC-2037) of Administrative Law
Judge C. Richard Avery awarding benefits and an attorney's fee on a claim filed
pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act,
as amended, 33 U.S.C. §901 et seq. (the Act). We
must affirm the findings of fact and conclusions of law of the administrative law
judge which are rational, supported by substantial evidence, and in accordance with
law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S.
359 (1965); 33 U.S.C. §921(b)(3).
Claimant sustained an injury to his right wrist on October 28, 1983, in the
course of his employment as a chipper for employer when the chiseler claimant was
using to clean snipes twisted and caught his hand. On November 1, 1983, claimant
was treated for complaints of pain and swelling in his right wrist and hand by Dr.
Harold Hawkins, a board-certified orthopedic surgeon. Dr. Hawkins performed a
closed reduction and pinning of claimant's wrist on November 2, 1992 and applied
a cast for ligamentous injuries of the right wrist. When post-surgical x-rays
revealed that the ligaments had not healed properly and the bones had misaligned,
Dr. Hawkins performed a ligamentous reconstruction on March 5, 1984.
Employer voluntarily paid benefits for temporary total disability from
November 1, 1983 to August 30, 1984; from September 5, 1984 to September 9, 1984;
and from September 17, 1984 to October 19, 1984, at the rate of $253.01 per week.
Employer also paid claimant benefits for a 32 percent permanent impairment to the
right arm pursuant to Section 8(c)(1), 33 U.S.C. §908(c)(1). The parties
stipulated that claimant reached maximum medical improvement on September 14, 1984.
The administrative law judge found that employer established the availability of
suitable alternate employment, and that claimant sustained a 25 percent permanent
impairment to the right hand and is therefore entitled to benefits pursuant to the
schedule set forth in Sections 8(c)(3), (19) of the Act, 33 U.S.C. §908(c)(3),
(19). In a Supplemental Decision and Order, the administrative law judge awarded
claimant's counsel an attorney's fee of $1,293.75, plus expenses, to be paid by
employer.
On appeal, claimant contends that the administrative law judge erred in
concluding that employer established the availability of suitable alternate
employment. Next, claimant contends that the administrative law judge committed
reversible error in not considering that the Social Security Administration found
claimant to be totally disabled using more stringent guidelines. Finally, claimant
argues that the administrative law judge incorrectly credited employer's
overpayment of disability compensation against claimant's entitlement to future
medical benefits. Employer responds, urging affirmance of the administrative law
judge's Decision and Order. In its appeal, employer contends that the
administrative law judge erred in holding employer liable for claimant's attorney's
fee as claimant received no additional compensation by pursuing his claim.
Employer argues in the alternative that if employer is responsible for any portion
of claimant's attorney's fee, it should be far less than the amount the
administrative law judge awarded. Claimant does not respond to this appeal.
Initially, we reject claimant's contention that the administrative law judge
erred in finding that employer established the availability of suitable alternate
employment. Once claimant, as in the instant case, proves that he is unable to
return to his usual work, he has established a prima
facie case of total disability. See P&M Crane Co.
v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT) (5th Cir. 1991); Trask v.
Lockheed Shipbuilding & Construction Co., 17 BRBS 56, 59 (1985). The
burden therefore shifts to employer to demonstrate the existence of realistically
available job opportunities within the geographical area where claimant resides,
which he is capable of performing given his age, education, work experience and
physical restrictions, and which he could secure if he diligently tried.
See New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 1040, 14 BRBS 156, 164-165 (5th Cir. 1981); Wilson v. Dravo
Corp., 22 BRBS 463 (1989).
Based on the evidence of record, the administrative law judge
concluded that employer established the availability of suitable alternate
employment. In so determining, the administrative law judge rationally credited
the opinion of employer's expert, Mr. Day, who testified that within the category
of jobs which claimant was reasonably capable of performing there were jobs
available in the community for which claimant was able to compete[1] and which he could realistically and likely
secure, particularly within the security industry.[2] The administrative law judge, within his discretion to make
credibility determinations, rationally rejected the conflicting opinion of Mr.
Christiansen, claimant's expert in rehabilitation, finding that Mr. Day's knowledge
of claimant's medical condition was more extensive and accurate than Mr.
Christiansen's, who relied on claimant in obtaining most of his medical
background.[3] See
generally Calbeck v. Strachan Shipping Co., 306 F.2d
693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963). Regarding the
basis for Mr. Day's opinion, the administrative law judge noted that Mr. Day was
provided with records by Dr. Hawkins, claimant's treating physician and that Mr.
Day had reviewed the testing performed by Mr. Tingle, the rehabilitation specialist
to whom claimant was referred by the Department of Labor. Moreover, the
administrative law judge credited the opinion of Dr. Hawkins that claimant could
return to any type of employment except for heavy labor requiring the use of his
right wrist. The administrative law judge further credited Dr. Hawkins' opinion
that claimant should be able to work as a service station attendant or a security
guard or perform light stock work. Substantial evidence therefore supports the
administrative law judge's finding that employer has established the availability
of suitable alternate employment, and that claimant thus is only partially
disabled. See generally McCollough v. Marathon
Letourneau Co., 22 BRBS 359 (1989).
Next, contrary to claimant's contention, the administrative law judge did not
err in finding that claimant was partially disabled even though the Social Security
Administration found claimant totally disabled. The Board has held that a finding
by the Social Security Administration, while relevant, is not binding on the
administrative law judge. See Jones v. Midwest Machinery
Movers, 15 BRBS 70 (1982) (Ramsey, C.J., dissenting on other grounds);
Hunigman v. Sun Shipbuilding & Dry Dock Co., 8 BRBS 141 (1978).
Claimant correctly argues, however, that the administrative law judge erred
in crediting employer's overpayment of compensation against claimant's future
medical benefits. Section 14(j) of the Act, 33 U.S.C. §914(j), provides that:
"If the employer has made advance payments of compensation, he shall be entitled
to be reimbursed out of any unpaid installment or installments of compensation
due." Compensation is defined pursuant to Section 2(12) of the Act, 33 U.S.C.
§902(12), as "the money allowance payable to an employee...as provided for in
this chapter." The Board has held that since medical expenses are not paid in
installments and are not within the definition of compensation under Section 2(12),
Section 14(j) does not afford employer the right to reduce its liability for
medical benefits under the administrative law judge's award by the amount of its
voluntary disability payments. Aurelio v. Louisiana Stevedores, Inc.,
22 BRBS 418 (1989), aff'd mem., No. 90-4135 (5th Cir. March 5, 1991).
We therefore reverse the administrative law judge's determination that employer is
entitled to credit its overpayment of disability benefits against claimant's future
medical expenses.
In its appeal, employer contends that the administrative law judge erred in
holding it liable for claimant's attorney's fee as claimant received no additional
compensation as a result of pursuing his claim. We agree that the administrative
law judge's finding that "the permanent nature of the award would have to be viewed
as a measure of success on the part of claimant" cannot support the award of an
attorney's fee. Employer made full and final payment for a 32 percent permanent
partial impairment of the arm on September 12, 1986, in addition to its voluntary
temporary total disability payments, almost a full year before the claim was
referred to the Office of Administrative Law Judges. After a hearing on the merits,
the administrative law judge awarded claimant benefits for a 25 percent permanent
partial disability to the hand. Thus, as employer voluntarily paid claimant for
a greater permanent impairment than that awarded by the administrative law judge,
employer is not liable for an attorney's fee on this basis. Armor v. Maryland
Shipbuilding & Dry Dock Co., 19 BRBS 119 (1986); 33 U.S.C. §928(b).
We therefore vacate the administrative law judge's finding that employer is liable
for claimant's attorney's fee.
We note, however, that the administrative law judge awarded claimant future
medical benefits which could support the award of an attorney's fee payable by
employer. See generally Geisler v. Continental
Grain Co., 20 BRBS 35 (1987). The parties stipulated that all medical
benefits had been paid up to the date of the hearing, but it is not clear whether
the issue of claimant's entitlement to future medical benefits was a contested
issue on which claimant prevailed. Thus, we remand the case for the administrative
law judge to consider whether employer may be liable for claimant's attorney's fee
on this basis. If he determines that employer is not liable for the fee, he should
consider whether claimant is liable for the fee in light of 33 U.S.C. §928(c)
and 20 C.F.R. §702.132(a).
Accordingly, the administrative law judge's crediting of employer's
overpayment of compensation against claimant's future medical benefits is reversed.
The Decision and Order of the administrative law judge awarding permanent partial
disability
benefits is affirmed in all other respects. The Supplemental Decision and Order-Awarding Attorney's Fees is vacated, and the case is remanded for consideration of
the attorney's fee award consistent with this decision.
SO ORDERED.
BETTY J. STAGE, Chief
Administrative Appeals Judge
ROY P. SMITH,
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge noted that claimant's refusal to accept
any job paying less than $8.00 per hour imposed an artificial income barrier.
Similarly, the administrative law judge noted further that an inference can be
drawn that claimant is not highly motivated to seek further employment based on his
testimony that he received $133.00 per month disability for an ulcer condition,
that he received monthly disability benefits of $1,004.00 from Social Security,
that he had tried only on two occasions to obtain lighter work from employer since
being released by Dr. Hawkins in September 1984, and that he had not filled out
applications anywhere else.
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2)The jobs identified by Mr. Day were: (1) a security guard at Singing
River Mall, which paid $3.35 per hour; (2) a station guard at Gulfport Authority
for $4.50 per hour; (3) a security guard at Edgewater Mall at $4.00 per hour; and
(4) a security guard at the McDermott Industrial site at $4.00 per hour on a part-time basis, with the possibility of full-time employment.
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3)The administrative law judge also found from Mr. Christiansen's
testimony that he had changed his conclusion in the June 30, 1987 report which was
submitted into evidence, stating that based on claimant's education, testing,
skills, and health, he
did not feel that claimant was employable or that retraining was possible. The
administrative law judge found that the May 20, 1987 report, also prepared by Mr.
Christiansen, was identical except for the conclusion that claimant
could perform minimum wage jobs.
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NOTE: This is an UNPUBLISHED LHCA Document.
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