BRB No. 01-0818
JAMES B. PLOURDE )
)
Claimant-Petitioner )
)
v. )
)
BATH IRON WORKS ) DATE ISSUED: 07/17/2002
CORPORATION )
)
and )
)
BIRMINGHAM FIRE INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION AND ORDER
Appeal of the Decision and Order on Remand of John M. Vittone,
Chief Administrative Law Judge, United States Department of Labor.
Marcia J. Cleveland (Cleveland & Chowdry), Topsham, Maine, for
claimant.
Nelson J. Larkins (Preti, Flaherty, Beliveau, Pachios & Haley,
L.L.C.) , Portland, Maine, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (98-LHC-1638, 1639)
of Chief Administrative Law Judge John M. Vittone 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 case is before the Board for a second time. To recapitulate,
claimant sustained an injury to his left wrist and elbow on May 20, 1988,
while working for employer. He subsequently developed problems with both
upper extremities, and his upper back and neck. Claimant stopped working
in March 1990. Employer paid claimant total disability benefits under the
Maine Workers' Compensation Act, 39 ME. REV. STAT. ANN. §1 et
seq. (1989)(amended 1993), from March 1990 until November 15, 1996,
except for a period in 1994-1995, when claimant worked temporarily for
employer. Following a hearing upon consolidation of petitions from both
parties before the State of Maine Workers' Compensation Board (the State
Board), the hearing officer reduced claimant's benefits to 75 percent of his
average weekly wage, based on his finding that claimant has some residual
work capacity. Cl. Exs. 4 at 12, 5 at 14; Emp. Exs. 6 at 15, 7 at 17.
Claimant filed a claim under the Longshore Act on February 18, 1997, seeking
permanent total disability and medical benefits from November 16, 1996, the
date the State Board decision reduced his disability award to partial.
The administrative law judge in the Longshore Act proceeding found that
collateral estoppel precludes claimant from relitigating the issue of
disability under the Longshore Act, and he therefore did not make any
findings on the merits of the claim. Claimant appealed this decision to the
Board. In its decision, the Board reversed the administrative law judge's
application of the doctrine of collateral estoppel, holding that the
allocation of the burdens of production and proof on the issue of extent of
disability differs materially under the two schemes. Plourde v. Bath Iron
Works Corp., 34 BRBS 45 (2000). Consequently, the Board remanded the
case to the administrative law judge to consider the merits of claimant's
claim. Id.
On remand, the administrative law judge found that claimant has reached
maximum medical improvement and that it is undisputed that claimant cannot
return to his former duties. After reviewing the testimony and labor market
survey report of Mr. Stevens, a vocational counselor, the administrative law
judge found that employer established suitable alternate employment.
Finding that claimant did not demonstrate reasonable diligence in seeking
alternate employment, the administrative law judge concluded that claimant
is entitled to permanent partial disability benefits from the date of
maximum medical improvement, based on a residual wage-earning capacity of
$135.20. The administrative law judge stated that while there was no
stipulation as to claimant's pre-injury earnings, it is undisputed that
claimant's average weekly wage was $310.87, and he thus found that claimant
has a loss in wage-earning capacity of $175.67 per week. 33 U.S.C.
§908(c)(21).
On appeal, claimant contends that the administrative law judge erred in
finding that the parties agreed to a pre-injury average weekly wage of
$310.87, when claimant consistently alleged that his average weekly wage was
$545.75. In addition, claimant contends that the administrative law judge
erred in finding that claimant was not totally disabled from June 10, 1993,
and continuing, and in failing to give the Maine award collateral estoppel
effect on this issue. Employer responds, urging affirmance of the
administrative law judge's decision.
Initially, claimant contends that the administrative law judge erred in
finding that it was undisputed that claimant's average weekly wage prior to
the injury was $310.87. Employer responds that claimant did not raise this
issue in his appeal of the administrative law judge's original decision and
thus is precluded from raising this issue now. We reject employer's
contention, as the administrative law judge denied benefits in the original
decision and did not reach the issue of claimant's average weekly wage.
The Board remanded the case to the administrative law judge to consider the
merits of the claim, including the extent of claimant's disability, and
thus claimant's average weekly wage implicitly was an issue for
consideration. Claimant's appeal of this issue is thus properly before the
Board.
The record indicates that the Maine Workers' Compensation Award was
based on the average weekly wage of $545.75, Cl. Ex. 4, and that claimant's
claim for compensation under the Act indicated an average weekly wage of
$545.75. Claimant contends that this figure represents his actual earnings
for the 52-week period preceding the injury. Although the administrative
law judge correctly noted that the parties did not stipulate as to average
weekly wage, there is no support for his finding that the parties agreed
that claimant's average weekly wage was $310.87. In light of record
evidence that claimant alleged an average weekly wage of $545.75, we vacate
the administrative law judge's average weekly wage finding.
The record indicates that claimant worked for employer for only a few
months prior to his injury in 1988, and that at the time of the injury he
was earning $7.76 per hour.[1] Both
parties stated in their pre-hearing summary of the claim that claimant's
average weekly wage was $545.75. See Claimant's Prehearing Summary
at 3; Employer's Prehearing Summary at 2. Section 10 sets forth three
alternative methods for determining claimant's average annual earnings,
which are then divided by 52 pursuant to Section 10(d), 33 U.S.C.
§910(d), to arrive at an average weekly wage. 33 U.S.C. §910.
The computation methods are directed towards establishing claimant's earning
power at the time of the injury. See generally McKnight v. Carolina
Shipping Co., 32 BRBS 165, aff'd on recon. en banc, 32 BRBS 251
(1998). Sections 10(a) and 10(b), 33 U.S.C. §§910(a), (b), are
the statutory provisions relevant to a determination of an employee's
average annual wages where an injured employee's work is regular and
continuous. The computation of average annual earnings must be made
pursuant to Section 10(c), 33 U.S.C. §910(c), if subsections (a) or (b)
cannot be reasonably and fairly applied. See Story v. Navy Exchange
Service Center, 30 BRBS 225 (1997). An administrative law judge may
rely on a stipulation as to average weekly wage. See generally Thompson
v. Northwest Enviro Services, Inc., 26 BRBS 53 (1992); Fox v.
Melville Shoe Corp., Inc., 17 BRBS 71 (1985). However, in the instant
case, as there is no indication how the figure of $545.75 was derived, and
the administrative law judge erred in stating that the parties agreed to an
average weekly wage of $310.87, we remand the case to the administrative law
judge for further consideration of this issue.[2] See generally Gremillion v. Gulf Coast Catering Co.,
31 BRBS 163 (1997)(Brown, J., concurring).
Claimant also contends on appeal that the administrative law judge erred
in finding that claimant was not totally disabled from August 4, 1986[3] through November 11, 1996. Initially, we
reject claimant's contention that the administrative law judge was bound to
give collateral estoppel effect to the 1994 Maine award. The Maine award
cited by claimant does not address claimant's ability to work, but rather
indicates that claimant sustained a 23 percent physical impairment due to
his May 20, 1988, work-related injury. Cl. Ex. 2. Moreover, the Maine
award dated November 15, 1996, states that claimant was receiving "accepted"
total disability benefits from employer under the Maine Act, denied claimant
continuing total disability benefits, and awarded benefits for a 75 percent
partial impairment. Cl. Ex. 4. Thus, contrary to claimant's contention,
claimant was never "awarded" total disability benefits under the Maine Act
following a consideration of the facts and issues by an adjudicating
official. Thus, collateral estoppel is not appropriate as to this issue.
Dunn v. Lockheed Martin Corp., 33 BRBS 204 (1999); Chavez v. Todd
Shipyards Corp., 28 BRBS 185 (1985)(en banc)(Brown & McGranery,
JJ., dissenting), aff'g on recon. 27 BRBS 80 (1993)(McGranery, J.,
dissenting), aff'd sub nom. Todd Shipyards Corp. v. Director, OWCP,
139 F.3d 1309, 32 BRBS 67(CRT) (9th Cir. 1998). In addition, in its previous
decision, the Board extensively considered whether the state decision
precluded relitigation under the Longshore Act. The Board held that "while
the general definition of disability' appears to be similar under the state
and federal schemes, the allocations of the burdens of production and proof
differ materially under the two schemes." Plourde, 34 BRBS at 49.
The Board cited the holding of the United States Court of Appeals for the
First Circuit in Bath Iron Works Corp. v. Director, OWCP [Acord], 125 F.3d 18, 31BRBS
109(CRT) (1st Cir. 1997), that "if the burdens of proof are different in the two
forums, collateral estoppel may not apply. Only if application of the
differing burdens affects the result is the doctrine inapplicable."
Plourde, 34 BRBS at 49, citing Acord, 125 F.3d at 21, 31 BRBS
at 111 (CRT). The Board concluded that in this case, "the differing burdens
clearly affect the result, as the parties are required to produce different
types and quantum of evidence at different steps in the proceedings."[4] Plourde, 34 BRBS at 49. Therefore,
we reject claimant's contention that the administrative law judge erred in
failing to give the state award collateral estoppel effect with regard to
the extent of claimant's disability prior to November 11, 1996, and hold
that the administrative law judge properly considered the claim under the
Longshore Act from the date of the injury, applying the burden of proof
required under the Act, as instructed in the Board's decision.
Claimant also contends that the administrative law judge erred in
finding that employer established suitable alternate employment pursuant to
applicable law. Once the claimant has shown his inability to return to his
usual work under the Act, the burden shifts to the employer to establish the
availability of suitable alternate employment. The employer must show the
realistic availability of jobs that the claimant can perform in order to
meet its burden of establishing the availability of suitable alternate
employment under the Act. See generally New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). The United States Court of Appeals
for the First Circuit, in whose jurisdiction the current case arises, has
referred to this burden as requiring the "precise nature, terms and
availability of the job[s]." CNA Ins. Co. v. Legrow, 935 F.2d 430, 433, 24 BRBS 202,
208(CRT) (1st Cir. 1991). In the present case, the administrative law judge cited
the First Circuit's decision in Air America, Inc. v. Director, OWCP, 597 F.2d 773, 10
BRBS 505 (1st Cir. 1979),[5] but also stated that
employer must show the existence of realistic job opportunities that
claimant is capable of performing. The administrative law judge then
reviewed the positions identified by Mr. Stevens in a labor market survey,
Emp. Exs. 12, 13, comparing claimant's restrictions with the duties of the
jobs, and concluded that employer has met its burden of proving suitable
alternate employment.[6] See generally
Hernandez v. National Steel & Shipbuilding Co., 32 BRBS 109
(1998). Therefore, contrary to claimant's contention, the administrative
law judge did not rely solely on the First Circuit's decision in Air
America, but rather reviewed the vocational evidence submitted by
employer and determined that the vocational counselor identified a number
of positions which fit claimant's restrictions and are within claimant's own
ten minute driving limitation.[7] Claimant
does not contest the finding that the jobs are suitable, and substantial
evidence supports the administrative law judge's conclusion. Thus, we
affirm the administrative law judge's finding that employer established the
availability of suitable alternate employment. See generally Fox v. West
State, Inc., 31 BRBS 118 (1997).
If employer establishes the availability of suitable alternate
employment, claimant can rebut that showing by demonstrating that, despite
a diligent effort, he was unable to secure a position. Palombo v. Director,
OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir. 1991); Roger's Terminal & Shipping Corp. v. Director,
OWCP, 784 F.2d 687, 18 BRBS 79(CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986). In
the instant case, the administrative law judge reviewed claimant's testimony and concluded that claimant's search
was "sporadic." Decision and Order at 9. Claimant testified that he had declined to submit an application for a
number of the identified positions for various reasons which the administrative law judge did not find convincing.
In addition, the administrative law judge found that while claimant testified that he had been conducting an
independent search, he did not submit any evidence to corroborate his testimony. On appeal, claimant does not
contest the administrative law judge's finding that claimant did not demonstrate reasonable diligence in finding
suitable alternate employment. Therefore, as claimant did not refute the evidence of suitable alternate
employment, we affirm the administrative law judge's finding that claimant is limited to an award of permanent
partial disability benefits under the Act.
However, we vacate the administrative law judge's finding that as claimant reached maximum medical
improvement on June 10, 1993, this was the effective date of the award of permanent partial disability benefits.
Claimant's entitlement to total disability benefits continues until the date suitable alternate employment is found
to be first available to claimant, and not from the date of maximum medical improvement, and such a showing
may not be applied retroactively so as to commence partial disability status before suitable alternate employment
is shown to exist. Director, OWCP v. Bethlehem Steel Corp. [Dollins], 949 F.2d 185, 25 BRBS 90(CRT)
(5th Cir. 1991); Palombo, 937 F.2d 70, 25 BRBS 1(CRT); Director, OWCP v. Berkstresser, 921
F.2d 306, 24 BRBS 69(CRT) (D.C. Cir. 1990); Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS
89(CRT) (9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991); Livingston v. Jacksonville Shipyards,
Inc., 32 BRBS 123 (1998). In the present case, the administrative law judge relied on the labor market surveys
produced by Mr. Stevens dated July 13, 1998 and October 9, 1998 to establish suitable alternate
employment. Decision and Order at 8-9; Emp. Exs. 12, 13. Mr. Stevens
testified that the labor market at the time of the hearing was stable and
that it was improving "over the last three or four years." H. Tr. at 84.
In addition, he noted that his job search encompassed sources dating from
August 1995 through December 1997. Emp. Ex. 12. There is no evidence that
he considered the job market prior to 1995. The administrative law judge
did not weigh this evidence or render findings as to its probative value in
determining the date claimant's disability became partial. Therefore, we
vacate the administrative law judge's finding that claimant was entitled to
partial disability benefits on the date his disability became permanent, and
instruct the administrative law judge on remand to render further findings
consistent with the Administrative Procedure Act, 5 U.S.C.
§557(c)(3)(A). Gremillion, 31 BRBS 163.
Accordingly, the administrative law judge's finding that the parties
agreed that claimant's pre-injury average weekly wage was $310.87 is
vacated, and the case is remanded for further consideration of this issue.
In addition, while the administrative law judge's finding that claimant is
entitled to continuing permanent partial disability benefits is affirmed,
the administrative law judge is instructed on remand to render findings
regarding the date claimant's disability became partial rather than total
in accordance with this opinion. In all other respects, the Decision and
Order on Remand of the administrative law judge is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) 1This hourly wage represents an average weekly wage
of $310.40, for a 40-hour week.
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2) 2Claimant urges the Board to hold that the Maine award
has collateral estoppel effect as to this issue, but there is no indication
how the average weekly wage was determined in the state forum, or whether
the issue was actually and necessarily litigated in that forum. Therefore,
collateral estoppel is not appropriate on the record before us. See Dunn
v. Lockheed Martin Corp., 33 BRBS 204 (1999).
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3) 3This date appears to be in error as claimant was not
injured until May 1988.
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4) 4Specifically, the Board reviewed the requirements of
the Maine Act, stating that employer must initially show only that the
claimant is no longer physically totally disabled based, in most cases,
solely on medical evidence. 39 ME. REV. STAT. ANN.
§100(2)(B)(1989)(repealed). Once employer has made this initial
showing, the burden is on the worker to come forward with evidence bearing
on whether his work-related injury is causing remunerative work in the
marketplace to be unavailable to him. Poitras v. R.E. Glidden Body Shop,
Inc., 430 A.2d 1113 (Me. 1981). Once the worker meets his burden of
production, employer has the burden of proof that it is more probable than
not that the persisting effects of the worker's work-related injury lacked
causative relation to the worker's opportunities for remunerative work in
the work market of his community. Ibbitson v. Sheridan Corp., 422
A.2d 1005 (Me. 1980). The Board compared the Longshore Act's requirement
that the employer establish suitable alternate employment and held that it
is manifestly insufficient under the Longshore Act for the employer to show
merely that the claimant has some capacity to work or that the claimant can
perform certain tasks. Plourde, 34 BRBS at 48. Moreover, the Board
stated that under the Longshore Act, claimant does not bear the burden of
establishing reasonable diligence in attempting to secure alternate
employment until employer has established the realistic availability of
actual jobs that the claimant can perform in order to meet its burden of
establishing the availability of suitable alternate employment. The Board
concluded that the differing burdens clearly affect the result in the
instant case and thus collateral estoppel does not apply. Plourde,
34 BRBS at 49.
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5) 5The First Circuit held in Air America that it
will not put the burden of proving that actual available jobs exist on the
employer when it is "obvious" that there are available jobs that someone of
claimant's age, education and experience can do. Air America,, 597
F.2d at 780, 10 BRBS at 515.
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6) 6The administrative law judge found that, based on the
opinions of both Dr. Kois and Ciembroniewicz, claimant is able to return to
work with the limitation that he can only lift up to twenty pounds, and that
he should avoid repetitive actions with his arms. See Cl. Ex. 16,
Emp. Ex. 11. Moreover, the administrative law judge rationally found that
claimant has the experience necessary to perform these jobs as they are
mostly entry level sales positions. Decision and Order at 9
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7) 7Dr. Kois suggested that claimant work in a situation
that does not involve prolonged driving. Cl. Ex. 16. Claimant has
determined that 10 minutes is the limit that he can comfortably drive. H.
Tr. at 36.
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NOTE: This is an UNPUBLISHED LHCA Document.
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