BRB No. 97-1633
HAYWARD K. HILL )
)
Claimant-Respondent ) DATE ISSUED: 08/17/1998
)
v. )
)
AMERICAN COMMERCIAL BARGE )
LINE/LOUISIANA DOCK )
COMPANY, INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Administrative Law Judge Daniel A.
Sarno, Jr., Administrative Law Judge, United States Department of
Labor.
Tony B. Jobe, Madisonville, Louisiana, for claimant.
Wayne G. Zeringue, Jr. and R. Scott Jenkins (Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.), New Orleans, Louisiana, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (96-LHC-2421) 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).
On December 5, 1988, claimant, while working as a welder for employer, injured
his back when he fell into the hold of a ship. Claimant subsequently underwent two
surgical procedures on his back and has not returned to work since the injury.
Employer voluntarily paid claimant temporary total disability benefits from
December 6, 1988 to September 3, 1990, permanent partial disability benefits from
September 4, 1990 to July 6, 1994, temporary total disability benefits from July
7, 1994 to May 21, 1996, and permanent partial disability benefits from May 22,
1996 to March 12, 1997.
In his Decision and Order, the administrative law judge, after initially
noting the parties' agreement that claimant is incapable of returning to his former
employment duties with employer as a welder, determined that employer failed to
establish the availability of suitable alternate employment for the period April
1990 to July 1994, at which time claimant underwent a diskectomy. Next, the
administrative law judge determined that while employer had established the
availability of suitable alternate employment as of April 1996, claimant had
established that he diligently, yet unsuccessfully, sought employment during that
period of time. The administrative law judge thus awarded claimant temporary total
disability from December 5, 1988 through April 10, 1996, and permanent total
disability compensation commencing April 11, 1996, and continuing.
On appeal, employer challenges the administrative law judge's findings that
it failed to establish the availability of suitable alternate employment from April
1990 to July 1994, and that claimant had rebutted employer's showing of suitable
alternate employment after April 11, 1996. Claimant responds, urging affirmance.
Where, as in this case, claimant is incapable of resuming his usual employment
duties with his employer, claimant has established a prima facie case of
total disability; the burden thus shifts to employer to establish the availability
of suitable alternate employment which claimant is capable of performing. See
New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th
Cir.1981); Anderson v. Lockheed Shipbuilding & Const. Co., 28 BRBS 290
(1994). Employer contends that the administrative law judge erred in failing to
credit the opinion of Dr. Warren over that of Dr. Jarrott and in failing to
consequently find that it established the availability of suitable alternate
employment from April 1990 until July 1994. We disagree. The administrative law
judge found that considering claimant's age, background, and the fact that
claimant had an undetected herniated disk at L4-5, claimant was not capable of
performing any work from April 1990 until July 1994. In rendering this finding,
the administrative law judge credited the opinion of Dr. Jarrott, who opined that
claimant was totally disabled during this period of time, over that of Dr. Warren,
because Dr. Jarrott was treating claimant during this period of time and Dr. Warren
later admitted that the reason he missed claimant's second injury was because of
a failure to perform an MRI or myelogram, as suggested by Dr. Jarrott. Lastly, the
administrative law judge noted that although Ms. Favaloro, employer's vocational
expert, testified that jobs were available for claimant in 1990, this conclusion
was based on the opinion and restrictions of Dr. Warren, who had failed to diagnose
claimant's injury.
It is well-established that the administrative law judge as the trier-of-fact
is entitled to weigh the evidence, and his decision must be affirmed if supported
by substantial evidence. O'Keeffe, 380 U.S. at 359. As the administrative
law judge rationally credited Dr. Jarrott, his finding that claimant could not
perform work during the relevant period of time is supported by substantial
evidence. As we affirm the administrative law judge's finding that claimant could
not perform any employment during the period of April 1990 through July 1994, it
follows that claimant is totally disabled during that time. See generally
Lostaunau v. Campbell Industries, Inc., 13 BRBS 227 (1982), rev'd on other
grounds sub nom. Director, OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14
BRBS 974 (9th Cir. 1982), cert. denied, 459 U.S. 1104 (1983). Accordingly,
we affirm the administrative law judge's conclusion that claimant is entitled to
temporary total disability compensation from April 1990 to July 1994.
Lastly, employer challenges the administrative law judge's finding that
claimant diligently sought employment subsequent to April 1996, the date claimant
reached maximum medical improvement. If employer makes a showing of suitable
alternate employment, claimant nevertheless can prevail in his quest to establish
total disability if he demonstrates that he diligently tried and was unable to
secure such employment. See Roger's Terminal & Shipping Corp. v. Director,
OWCP, 784 F.2d 687, 18 BRBS 79 (CRT) (5th Cir. 1986); see also Turner,
661 F.2d at 1031, 14 BRBS at 156; Palombo v. Director, OWCP, 937 F.2d 70,
25 BRBS 1 (CRT)(2d Cir.1991); CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS
202 (CRT)(1st Cir. 1991); Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540, 21 BRBS 10 (CRT) (4th Cir. 1988); Ion v. Duluth, Missabe & Iron
Range Railway Co., 31 BRBS 75 (1997).
In his decision, the administrative law judge found that employer had
established the availability of suitable alternate employment as of April 1996 via
the testimony of Ms. Favaloro. Contrary to employer's contention, however, there
is substantial evidence in support of the administrative law judge's subsequent
conclusion that claimant diligently, though unsuccessfully, attempted to secure
employment as of April 1996. Specifically, in addressing this issue, the
administrative law judge credited claimant's testimony that he applied for all of
the positions identified by Ms. Favaloro in her January 1997 report and received
positive responses from none of them, and that claimant submitted over forty
applications in the ten months prior to the formal hearing, received one employment
interview but received no job offers. Moreover, the administrative law judge
specifically credited claimant's testimony regarding his desire to work. See
Decision and Order at 11. The administrative law judge thus concluded that
claimant demonstrated that he had been diligent in his quest to secure employment
and that he had been unsuccessful in that quest.
In the instant case, the administrative law judge's specific findings that
claimant unsuccessfully sought employment subsequent to April 1996 in employment
categories identified by employer, and that he additionally attempted to secure a
position available with other multiple employers, are rational and supported by the
record. See Calback v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan,
300 F.2d 741 (5th Cir.1962). Accordingly, we affirm the administrative law judge's
determination that claimant diligently sought and was unable to secure employment
post-injury, and his consequent award of continuing permanent total disability
benefits to claimant commencing April 11, 1996. See generally Roger's
Terminal, 784 F.2d at 687, 18 BRBS at 79 (CRT).
Accordingly, the Decision and Order of the administrative law judge is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
NOTE: This is an UNPUBLISHED LHCA Document.
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