BRB No. 93-1311
HENRY TILLMAN )
)
Claimant-Petitioner )
)
v. )
)
HARBORSIDE REFRIGERATION ) DATE ISSUED: 01/25/1996
SERVICES )
)
and )
)
AETNA CASUALTY & SURETY )
COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of George A. Fath, Administrative Law
Judge, United States Department of Labor.
Ray Calafell, Jr., P.A., Tampa, Florida, for claimant.
Donald S. Bennett (Fowler, White, Gillen, Boggs, Villareal and Banker,
P.A.), Tampa, Florida, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (92-LHC-2425) of Administrative Law
Judge George A. Fath 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 if they 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 back, left foot and ankle on May 31, 1989,
while in the course of his employment with employer. Claimant has not returned to
work since the date of this incident. Employer voluntarily paid temporary total
disability compensation from June 1, 1989 until the issuance of the administrative
law judge's Decision and Order in March 1993.
In his Decision and Order, the administrative law judge found that while
claimant was permanently and totally disabled from performing his usual longshore
work, employer established the availability of suitable alternate employment
through the testimony of Robert Evanko, a vocational counselor who prepared labor
market surveys in November 1990 and November 1992. Accordingly, the administrative
law judge denied the claim for permanent total disability compensation, awarded
claimant permanent partial disability compensation commencing November 30, 1990 and
determined employer to be entitled to a credit for any voluntary temporary total
disability payments made to claimant subsequent to that date.
On appeal, claimant challenges the administrative law judge's finding that
employer established the availability of suitable alternate employment. Claimant
also alleges that the administrative law judge erred in both commencing claimant's
permanent partial disability award as of the date of the initial labor market
survey and in awarding employer a credit toward payment of the award. Employer
responds, urging affirmance.
Where, as in the instant case, it is uncontested that claimant is unable to
return to his usual employment duties with employer, the burden shifts to employer
to demonstrate the availability of suitable alternate employment. New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).
In order to meet this burden, employer must show that there are jobs reasonably
available in the geographic area where claimant resides which claimant is capable
of performing based upon his age, education, work experience and physical
restrictions and which he could realistically secure with diligent effort. Id.;
see Southern v. Farmers Export Co., 17 BRBS 64 (1985). Employer must establish
realistic, not theoretical, job opportunities; however, contrary to claimant's
contention, the employer need not actually obtain a job for the claimant.
Preziosi v. Controlled Industries, Inc., 22 BRBS 468 (1989). The credible
testimony of a vocational rehabilitation specialist is sufficient to meet the
burden of establishing the availability of suitable alternate employment.
Southern, 17 BRBS at 66. Contrary to claimant's assertions, however, an
administrative law judge may credit a vocational expert's opinion even if the
expert did not interview and test the employee, as long as the expert was aware of
the above factors when exploring local job opportunities. See Hogan v. Schiavone
Terminal, Inc., 23 BRBS 290 (1990).
In the instant case, claimant is correct that Mr. Evanko, a vocational
counselor, testified that he did not interview claimant and would have to test
claimant's ability to read and write if a job, such as the security guard job
identified in the 1992 labor market survey, would require claimant to fill out
reports and forms. Hearing Transcript at 41. However, the security guard job is
not among the job opportunities determined by the administrative law judge to
constitute suitable alternate employment. Based on Dr. Batas' medical opinion
regarding claimant's physical restrictions and claimant's deposition testimony, as
well as consideration of claimant's lack of formal education, age, and employment
history, Mr. Evanko set forth in his 1990 evaluation a number of specific
employment opportunities which he determined to be appropriate for claimant, such
as janitor and rental car service agent positions, which the administrative law judge found to be suitable alternate
employment.[1] Based on the record before us, the
administrative law judge's determination that employer has established the
availability of suitable alternate employment is supported by substantial evidence
and is consistent with law. See Southern, 17 BRBS at 64. Accordingly, we
affirm the administrative law judge's finding on this issue, and the consequent
award of permanent partial disability compensation. Dove v. Southwest Marine of
San Francisco, Inc., 18 BRBS 139 (1986).
Lastly, claimant contends that the administrative law judge erred in ordering
his permanent partial disability benefits to commence as of November 30, 1990, and
in allowing employer a credit for temporary total disability payments made after
that date. We disagree. An award of permanent partial disability benefits
commences as of the date employer establishes the availability of suitable
alternate employment. See Rinaldi v. General Dynamics Corp., 25 BRBS 128
(1991); n.1, supra. Moreover, Section 14(j) of the Act, 33 U.S.C.
§914(j), clearly provides for a credit of advance compensation payments made
by an employer if unpaid installments of compensation remain due. See Ceres Gulf
v. Cooper, 957 F.2d 1199, 25 BRBS 125 (CRT) (5th Cir. 1992); Vinson v.
Newport News Shipbuilding & Dry Dock Co., 27 BRBS 220 (1990). The
administrative law judge's decision to commence claimant's permanent partial
disability award as of the date of the initial labor market survey, and his
decision to allow employer to credit its overpayments of temporary total disability
compensation against claimant's continuing award, is thus affirmed.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)Contrary to claimant's suggestions, Mr. Evanko testified that the
jobs he identified in 1990 were available at that time, Hearing Transcript at 46,
and a part-time job may constitute suitable alternate employment if claimant
performs it satisfactorily and for pay. Royce v. Elrich Construction Co.,
17 BRBS 157 (1985). Further, claimant's assertion that Mr. Evanko is biased is
wholly unsubstantiated by the record.
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NOTE: This is an UNPUBLISHED LHCA Document.
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