BRB No. 00-0744
JULIAN MITCHELL )
)
Claimant-Petitioner )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 04/06/2001
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Daniel A. Sarno, Jr.,
Administrative Law Judge, United States Department of Labor.
Matthew H. Kraft (Inman & Strickler, P.L.C.), Virginia Beach, Virginia,
for claimant.
Benjamin M. Mason (Mason, Cowardin & Mason, P.C.), Newport News,
Virginia, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (96-LHC-1854) of
Administrative Law Judge Daniel A. Sarno, Jr., rendered 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).
This is the second time this case is before the Board. To recapitulate,
claimant's injured his right hand while working as an inside welder for employer
on November 30, 1994. Employer voluntarily paid claimant temporary total
disability benefits on February 4, and 5, 1995. Claimant returned to light duty
outdoor work as a flat welder on February 6, 1995, and worked February 6 and 7,
1995, on the first shift. He was scheduled to work in this same position until
February 10, 1995, but asserted that he could not do so due to pain. After
February 10, 1995, claimant was scheduled to work light duty as a flat welder on
the second shift, but he never returned to work. Claimant was notified on July 30,
1996, that he was terminated from employment effective February 7, 1996, for
violation of the five-day call-in rule. Claimant sought temporary total disability
benefits from December 1, 1994, and continuing. The parties stipulated that
claimant is unable to return to his full duty pre-injury employment.
In his Decision and Order, the administrative law judge denied disability
benefits after finding that employer established the availability of suitable
alternate employment at claimant's pre-injury wages. The administrative law judge
also denied medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907,
for Dr. Morales's treatment rendered prior to June 4, 1996.
Claimant appealed, challenging the administrative law judge's denial of
additional disability and medical benefits. Employer responded, urging affirmance.
In its decision, the Board initially reversed the administrative law judge's
finding that employer established the availability of suitable alternate employment
prior to February 6, 1995, and modified the decision to reflect claimant's
entitlement to total disability benefits prior to this date. See Mitchell v.
Newport News Shipbuilding & Dry Dock Co., BRB No. 98-1035 (Apr. 26,
1999)(unpub.). The Board then vacated the administrative law judge's finding that
employer established the availability of suitable alternate employment from
February 6, 1995, and continuing by way of offering claimant a light duty job at
its facility, and remanded for a reevaluation of that light duty position in light
of claimant's restrictions. Id. Lastly, the Board vacated the
administrative law judge's denial of medical benefits for Dr. Morales's treatment
prior to June 4, 1996, and remanded for a determination of whether claimant
requested and was refused authorization to treat with Dr. Morales, and if so,
whether Dr. Morales's treatment from April 19, 1995, was reasonable and necessary.
Id.
In his Decision and Order on Remand, the administrative law judge initially
determined that Dr. Gwathmey was claimant's first choice of physician, and as such,
the administrative law judge concluded that Dr. Gwathmey's cold weather
restrictions from February 13, 1995, could not be imputed to employer. The
administrative law judge therefore found that the light duty job provided to
claimant on February 6, 1995, constituted suitable alternate employment. The
administrative law judge next determined that the light duty job provided to
claimant on February 6, 1995, remained suitable alternate employment even after
employer received Dr. Morales's cold weather restrictions on April 27, 1995.
Specifically, the administrative law judge found that the credible evidence of
record, i.e., the testimony provided by three of employer's supervisors,
established that this light duty welding position was within claimant's physical
restrictions and that there was a willingness, on employer's part, to accommodate
claimant's cold weather restrictions. Accordingly, the administrative law judge
concluded that claimant was not entitled to temporary total disability benefits.
Lastly, the administrative law judge determined that claimant was entitled to
medical benefits for his treatment with Dr. Morales from November 21, 1995, as
claimant requested and was refused authorization, and the administrative law judge
found that these medical expenses were reasonable and necessary.
On appeal, claimant challenges the administrative law judge's denial of
temporary total disability benefits. Employer responds, urging affirmance.
Claimant argues that the administrative law judge erred in denying
temporary total disability benefits from April 27, 1995, and continuing, as
the light duty position at employer's facility is insufficient to meet its
burden of establishing suitable alternate employment.[1] Claimant first asserts that this light duty welding position
is not suitable alternate employment as claimant was laid off from that job
for reasons unrelated to any misconduct on his part. Claimant also argues
that employer did not affirmatively establish that the light duty welding
position was ever actually offered to him or for that matter continued to
be available to him, and that it was within his post-injury physical
capacity and restrictions. Specifically, claimant asserts that the
administrative law judge erred in that he did not follow the Board's
instructions to consider the two positions offered by employer at its
facility, i.e., the flat welding position provided on February 6 and
7, 1995, and a subsequent position on the second shift to which claimant was
to be transferred as of February 10, 1995, and instead relied only on the
first position which the record shows was no longer available after February
10, 1995. Lastly, claimant avers that employer never conclusively
established that the light duty positions offered by employer were, in fact,
indoor positions within claimant's restriction from working outdoors.
Where, as in the instant case, it is undisputed that claimant is unable
to perform his usual employment duties due to a work-related injury, the
burden shifts to employer to demonstrate the availability of suitable
alternate employment. See Universal Maritime Corp. v. Moore, 126 F.3d
256, 31 BRBS 119(CRT) (4th Cir. 1997); See v. Washington Metropolitan
Area Transit Authority, 36 F.3d 375, 28 BRBS 96(CRT) (4th Cir. 1994);
Lentz v. The Cottman Co., 852 F.2d 129, 21 BRBS 109(CRT) (4th Cir.
1988); see also Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988); Trans-State Dredging v.
Benefits Review Board [Tarner], 731 F.2d 199, 16 BRBS 74(CRT) (4th Cir.
1984). Employer may meet this burden by offering claimant a suitable
position in its facility. See Darby v. Ingalls Shipbuilding, Inc.,
99 F.3d 685, 30 BRBS 93(CRT) (5th Cir. 1996). Where claimant is laid off
from a suitable post-injury light duty job within employer's control for
reasons unrelated to any actions on his part, and demonstrates that he
remains physically unable to perform his pre-injury job, the burden remains
with employer to show the availability of other suitable alternate
employment, if employer wishes to avoid liability for total disability.
Norfolk Shipbuilding & Dry Dock Corp. v. Hord, 193 F.3d 797, 33 BRBS
170(CRT) (4th Cir. 1999); Mendez v. National Steel & Shipbuilding
Co., 21 BRBS 22 (1988). If, however, claimant has been discharged from a light duty job
within employer's own facility for violation of a company rule, and not for reasons related to his disability,
employer may use that position to satisfy its burden of showing suitable alternate employment if it has established
that claimant is, in fact, capable of performing the duties of that position. Thus, if employer has demonstrated that
claimant is able to perform the job within its facility, the fact that the position is no longer available to claimant,
due to his discharge for reasons unrelated to his disability, does not impose upon employer the additional
requirement to show different suitable alternate employment outside its facility. See Brooks v. Newport News
Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v. Director, OWCP, 2 F.3d
64, 27 BRBS 100(CRT) (4th Cir. 1993); see also Manship v. Norfolk & Western
Ry. Co., 30 BRBS 175 (1996). In order to defeat employer's showing of the availability
of suitable alternate employment, claimant must establish that he diligently pursued alternate employment
opportunities but was unable to secure a position. See Tann, 841 F.2d 540, 21 BRBS 10(CRT); see
also Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir. 1991).
Complying with the Board's remand instructions, the administrative law judge initially determined, based
on claimant's own admission, that Dr. Gwathmey was claimant's choice of physician. In so finding, the
administrative law judge explicitly considered, as instructed by the Board, Dr. Reid's letter dated January 18,
1995, acknowledging referral of claimant to Dr. Gwathmey, and Dr. Gwathmey's letter dated February 1, 1995,
thanking Dr. Reid for said referral. He however determined that these letters were insufficient to rebut his finding
that claimant chose Dr. Gwathmey, particularly in light of claimant's admission. The administrative law judge
therefore found that Dr. Gwathmey's cold weather restrictions from February 13, 1995, could not be imputed to
employer[2] and thus concluded that the light duty job offered on February
6, 1995, constituted suitable alternate employment.
The administrative law judge then considered, again pursuant to the Board's remand instructions, whether
the light duty job of February 6, 1995, remained suitable alternate employment after employer received Dr.
Morales's cold weather restrictions on April 27, 1995. In this regard, the administrative law judge looked to the
testimony provided by three of employer's supervisors, George Cash, Billy Fowler and Fred Moore, regarding the
light duty work made available to claimant and the contrary statements by claimant that he worked outside of his
restrictions. The administrative law judge credited the testimony of employer's three supervisors that nothing
about the flat welding job required claimant to go outside of his restrictions,[3] and that they would, if asked, accommodate claimant's cold weather restrictions,[4] over claimant's testimony, that upon his return to light duty work on
February 6, 1995, he was required to perform work beyond his restrictions. Inasmuch as the administrative law
judge's credibility determinations are rational and supported by substantial evidence, they are affirmed.[5] Moreover, we affirm the administrative law judge's finding that employer
established suitable alternate employment via the light duty position which it provided claimant as of February
6, 1995, as the administrative law judge, following a complete consideration of the Board's instructions on
remand, rationally determined that this position was within claimant's physical restrictions, including the cold
weather restriction, and the record establishes that employer offered, and claimant, in fact, briefly worked in this
position. See generally Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999). Furthermore, as claimant's
termination from his position with employer occurred as a result of claimant's violation of the five-day rule, and
thus was not related to his work injury, employer was not required to show different suitable alternate employment
outside its facility. Brooks, 26 BRBS 1. The administrative law judge's denial of temporary total
disability benefits is therefore affirmed.
Accordingly, the administrative law judge's Decision and Order on Remand is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) 1While the bulk of claimant's assertions pertain to the administrative law
judge's denial of benefits from April 27, 1995, claimant nevertheless also asserts that the administrative law judge
erred in finding that employer established suitable alternate employment as of February 6, 1995, by providing
claimant a light duty job within its facility.
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2) 2Neither claimant nor Dr. Gwathmey informed employer of the additional
restriction to avoid cold weather.
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3) 3On February 6, 1995, Dr. Gwathmey placed the following work restrictions
on claimant: no lifting greater than 25 pounds, and no vertical climbing or heavy sustained gripping. Claimant's
Exhibit (CX) 9. On February 13, 1995, Dr. Gwathmey added that claimant should avoid working in cold weather.
CX 9. On April 27, 1995, Dr. Morales indicated that claimant could only perform lifting up to 10 pounds one hour
a day, climbing for one hour a day, pushing and pulling for one hour a day, no strenuous repetitive use of the hand,
and advised claimant to avoid exposure to extreme temperatures. CX 6.
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4) 4At the time that claimant actually worked in the light duty position, he
performed a majority of his work in an outdoor environment. However, as the administrative law judge noted,
there was no cold weather restriction placed upon claimant's employment at this time. Moreover, as claimant was
ultimately terminated for cause prior to the imposition of the cold weather restriction on April 27, 1995, the
administrative law judge rationally relied on the testimony provided by the three supervisors, that, if asked, they
would accommodate claimant's cold weather restriction, to find that this position was within the entirety of
claimant's restrictions as set out by Dr. Morales on April 27, 1995. As such, the administrative law judge did
consider, and in fact, found that the light duty position provided to claimant within employer's facility would have
involved indoor work so as to accommodate claimant's cold weather restriction.
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5) 5In its prior decision, the Board held that the administrative law judge acted
within his discretion in finding that claimant's testimony that the light duty work provided by employer exceeded
his physical restrictions was not credible. We therefore decline to address claimant's specific contentions
regarding the administrative law judge's finding as to claimant's lack of credibility based on the law of the case
doctrine. See generally Alexander v. Triple A Machine Shop, 34 BRBS 34 (2000).
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NOTE: This is an UNPUBLISHED LHCA Document.
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