BRB Nos. 97-1386
and 97-1386A
JUAN A. BURNS )
)
Claimant-Petitioner ) DATE ISSUED: 07/07/1998
)
v. )
)
NEWPORT NEWS SHIPBUILDING )
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Respondent )
Cross-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Cross-Respondent ) DECISION and ORDER
Appeals of the Decision and Order Granting Permanent Partial Disability
and Denying Section 8(f) Relief of Administrative Law Judge Richard K.
Malamphy, United States Department of Labor.
Robert E. Walsh and Matthew H. Kraft (Rutter & Montagna, L.L.P.),
Norfolk, Virginia, for claimant.
Melissa R. Link (Mason & Mason, P.C.), Newport News, Virginia, for self-insured employer.
LuAnn Kressley (Martin Krislov, Deputy Solicitor for National Operations; Carol DeDeo,
Associate Solicitor; Janet R. Dunlop, Counsel for Longshore),
Washington, D.C., for the Director, Office of Workers' Compensation
Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals and employer cross-appeals the Decision and Order Granting
Permanent Partial Disability and Denying Section 8(f) Relief (96-LHC-1179) of
Administrative Law Judge Richard K. Malamphy 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).
On May 3, 1985, claimant injured his lower back while working as a crane
operator for employer. As a result of this injury, claimant underwent three
surgical procedures in June 1985, on March 31, 1987, and on February 16, 1988. The
parties stipulated that claimant reached maximum medical improvement as of January
19, 1991, and that as a result of his work injury claimant was unable to perform
his pre-injury crane operator duties. Employer voluntarily paid claimant various
periods of temporary partial and temporary total disability compensation. Claimant
sought permanent total or permanent partial disability compensation under the Act
commencing April 13, 1995.
The administrative law judge determined that although claimant established his
prima facie case of total disability, he was limited to permanent partial
disability benefits under Section 8(c)(21), 33 U.S.C. §908(c)(21), as employer
established the availability of suitable alternate employment paying the minimum
wage, and claimant did not establish that he made a diligent effort but was unable
to secure such work. The administrative law judge also denied employer's request
for relief under Section 8(f), 33 U.S.C. §908(f), finding that although the
Director, Office of Workers' Compensation Programs (the Director), conceded that
claimant's 1980 right knee injury resulted in a manifest, pre-existing permanent
partial disability, employer failed to introduce evidence sufficient to establish
that claimant's pre-existing knee condition materially and substantially
contributed to his overall disability.
Claimant appeals the denial of permanent total disability benefits, contending
that the administrative law judge erred in determining that employer established
the availability of suitable alternate employment. Employer responds to claimant's
appeal, urging affirmance. In addition, employer appeals the denial of Section
8(f) relief, arguing that the administrative law judge erred in failing to find
that it satisfied the contribution element of Section 8(f). The Director responds
to employer's appeal, urging affirmance.
Suitable Alternate Employment
In the present case, as it is undisputed that claimant is unable to perform
his usual job, claimant established a prima facie case of total disability,
thus shifting the burden to employer to demonstrate the availability of suitable
alternate employment by presenting evidence of alternate jobs that are available
in the relevant geographic market for which claimant is physically and
educationally qualified. See Universal Maritime Corp. v. Moore, 126 F.3d
256, 264, 31 BRBS 119, 124 (CRT) (4th Cir. 1997); Trans-State Dredging v.
Benefits Review Board, 731 F.2d 199, 16 BRBS 74 (CRT) (4th Cir. 1984). We
affirm the administrative law judge's finding that employer established the
availability of suitable alternate employment as it is rational, in accordance with
applicable law, and supported by the testimony and labor market survey of
employer's vocational expert, Mr. Karmolinski, as well as by the approval of
various alternate job opportunities by Dr. Garner, the neurologist who performed
claimant's surgeries.[1] Claimant argues on
appeal that since he sought compensation commencing in April 1995, Mr.
Karmolinski's vocational survey is insufficient as he relied on 1989 medical
restrictions imposed by Dr. Garner who last examined claimant in January 1994, and
he did not obtain any information from claimant regarding his limitations on
sitting, standing, and lifting. Claimant asserts that as it is employer's
affirmative burden to establish the availability of suitable alternate employment
and employer neither secured nor proffered any updated or recent evaluation of his
physical capacity covering the time during which benefits are claimed, the
administrative law judge erred in finding that employer met it burden of proof
based on Mr. Karmolinski's testimony. Claimant further avers that the
administrative law judge failed to account for his testimony that his condition
has, in fact, worsened and that it is becoming more difficult for him to perform
almost any activity or function.[2]
Initially, we reject claimant's assertion that the administrative law judge
neglected to consider his testimony. The record reflects that the administrative
law judge considered and rejected claimant's testimony that his present level of
pain is such that it precludes him from performing any work. The administrative
law judge found that claimant's assertions in this regard were not corroborated by
his treating physician, Dr. Garner, or any other witness or documentary evidence
in the record, noting that claimant had visited a physician only three times since
1990 for his back condition and that he required only Tylenol to control his pain.
Thus, contrary to claimant's assertions, the administrative law judge considered
claimant's testimony regarding his pain and perceived limitations but determined
that it did not support a finding of total disability when weighed against the
credible and consistently stated medical opinion of Dr. Garner.
Claimant's assertion that Mr. Karmolinski's testimony cannot properly meet
employer's burden because it is premised on outdated medical restrictions is also
rejected. The administrative law judge specifically determined that while Dr.
Garner's restrictions were initially made permanent in 1989, he subsequently
confirmed their continuing applicability in 1993 and 1994. Although he did not
see claimant again, he also indicated in a note dated January 31, 1997, that
claimant's restrictions remained unchanged, and he approved the jobs identified by
Mr. Karmolinski as suitable. We therefore reject claimant's argument that the
administrative law judge erred in finding Mr. Karmolinski's opinion sufficient.[3] See Simonds v. Pittman Mechanical
Contractors, Inc., 27 BRBS 120 (1993), aff'd sub nom. Pittman Mechanical
Contractors, Inc. v. Director, OWCP, 35 F.3d 122, 28 BRBS 89 (CRT) (4th Cir.
1994).
Claimant further contends that employer's vocational evidence was deficient
in that although claimant suffers from various additional physical ailments
including problems with his shoulder and knee, as well as hernias and a skin
condition, none of these conditions was taken into account in identifying the
alternate positions. Inasmuch as the administrative law judge rationally found
that claimant's shoulder and skin condition problems were not demonstrated through
medical evidence, Mr. Karmolinski's failure to account for those conditions is
irrelevant.[4] Although the record does contain
medical evidence documenting claimant's hernias, contrary to the administrative law
judge's finding, inasmuch as the record also reflects that Mr. Karmolinski
considered this condition in conducting his labor market survey, and that no
additional restrictions were imposed based on it, any error by the administrative
law judge in this regard is harmless. Claimant's knee condition was, in fact,
taken into account in identifying suitable alternate job opportunities, as Mr.
Karmolinski relied upon the restrictions imposed by Dr. Garner, who incorporated
prior restrictions relating to claimant's knee in his assessment of claimant's
physical capacity. See EX-G at 1; EX-C at 2.
Claimant also argues that whether the alternate jobs identified were
realistically available to him is questionable in light of his difficulties with
reading and writing in English, his limited education, and his poor reading,
spelling, and mathematical skills. Inasmuch, however, as Mr. Karmolinski opined
after conducting testing, meeting with claimant, and considering his prior work
history, that the unskilled labor jobs he identified were within claimant's
abilities[5] and the prospective employers whom
he contacted indicated that they were willing to consider someone who fit
claimant's profile, Tr. at 63, claimant's argument in this regard fails. In fact,
with regard to one job, the fund-raising position with National Wheelchair Sports
Foundation, the potential employer viewed claimant's background in Spanish as an
asset for raising funds in the Spanish speaking community. Tr. 64.
Finally, claimant contends that the vocational evidence fails to establish
that the positions identified were available on a full-time basis. This argument
is also without merit; the record reflects that the positions Mr. Karmolinski
identified at York River Seafood, Wal-Mart and James York Security were full-time
positions, and the other positions had the potential for full-time work. See
EX-C at 7; Tr. at 66-76. Accordingly, as the administrative law judge's
suitable alternate employment finding is supported by substantial evidence and
claimant has failed to establish any reversible error the administrative law judge
made in his evaluation of the record evidence or credibility determinations, his
determination that claimant is only partially disabled is affirmed.
Section 8(f)
On cross-appeal, employer challenges the administrative law judge's denial of
Section 8(f) relief, contending that the administrative law judge erroneously
rejected its vocational evidence regarding the effects of claimant's knee
impairment on the ground that it did not satisfy the contribution element set forth
in Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum I],
8 F.3d 175, 27 BRBS 116 (CRT)(4th Cir. 1993), aff'd on other grounds, 514
U.S. 122, 29 BRBS 87 (CRT)(1995). Employer specifically avers that based on the
uncontradicted opinion of Dr. Reid and Mr. Karmolinski's Loss of Access to the
Labor Market Survey, it has introduced evidence sufficient to establish that
claimant's chronic knee disability contributed to and made his disability
materially and substantially worse than it would have been based solely on his back
injury and employer has quantified the degree of such contribution both medically
and vocationally. The Director responds, urging affirmance.
To avail itself of Section 8(f) relief where an employee suffers from a
permanent partial disability, an employer must affirmatively establish: 1) that
claimant had a pre-existing permanent partial disability; 2) that the pre-existing
disability was manifest to the employer prior to the work-related injury; and 3)
that the ultimate permanent partial disability is not due solely to the work injury
and that it materially and substantially exceeds the disability that would have
resulted from the work-related injury alone. Director, OWCP v. Newport News
Shipbuilding & Dry Dock Co. [Carmines], 138 F.3d 134 (4th Cir. 1998);
Director, OWCP v. Newport News Shipbuilding & Dry Dock Co. [Harcum II], 131
F.3d 1079, 31 BRBS 164 (CRT)(4th Cir. 1997). If employer fails to establish any
of these elements, it is not entitled to Section 8(f) relief. Id.
In order to satisfy the contribution element, an employer must show by medical
evidence or otherwise that the ultimate permanent partial disability materially and
substantially exceeds the disability which would have resulted from the work-related injury alone.
A showing of this kind requires quantification of the
level of impairment that would ensue from the
work-related injury alone. In other words, an employer
must present evidence of the type and extent of
disability that the claimant would suffer if not
previously disabled when injured by the same work-related
injury. Once the employer establishes the level of
disability in the absence of a pre-existing permanent
partial disability, an adjudicative body will have a
basis on which to determine whether the ultimate
permanent partial disability is materially and
substantially greater.
Harcum I, 8 F.3d at 185, 27 BRBS at 130-131 (CRT). In
Harcum II, the United States Court of Appeals for the Fourth
Circuit reiterated that employer is not limited to medical
evidence, but may also submit vocational evidence in an effort to
meet its burden to establish the contribution element. Harcum
II, 131 F.3d at 1079, 31 BRBS at 164 (CRT).
In analyzing the contribution issue in this case, the
administrative law judge discussed Mr. Karmolinski's opinion that
claimant's knee injury resulted in a 10 percent loss of access to
the labor market and that, adding adjustments for claimant's back
injury resulted in a total loss of access of 67 percent. The
administrative law judge concluded that while this evidence gives
the appearance of quantification, it does not satisfy the Harcum
I standard. Specifically, the administrative law judge stated
that the percentages given by Mr. Karmolinski do not reflect
disability or impairment, but merely estimate the number of jobs
that claimant is able to acquire due to the first injury alone and
the combination of the two injuries.
The administrative law judge issued his decision in this case
prior to the second opinion of the Fourth Circuit in the
Harcum case. In Harcum II, the Fourth Circuit held
that the employer's vocational evidence was sufficient to provide
the administrative law judge with a basis to award Section 8(f)
relief, satisfying the requirement that the level of impairment be
quantified previously set out in Harcum I. Harcum II,
131 F.3d at 1079, 31 BRBS at 164 (CRT). The evidence at issue in
Harcum II consisted of testimony by a vocational expert, Ms.
Edwards, that without his pre-existing cervical spine injury, the
claimant would have been able to earn $6.00 per hour, but because
of his pre-existing condition, the claimant was only capable of
earning $3.80 per hour. In addition, Ms. Edwards testified that
because of claimant's pre-existing injury, he is unable to perform
certain types of sedentary work.
In the present case, employer's vocational expert, Mr.
Karmolinski, performed a transferable skills analysis to discern
what types and percentages of jobs were available to claimant based
solely on his pre-existing knee injury, and based on his knee and
back injury in combination. Based on claimant's pre-existing knee
injury, and the restrictions imposed by Dr. Bobbitt, Mr.
Karmolinski opined that claimant had a loss of access to
approximately 38 percent of directly transferable occupations, a
loss of 4 percent of closely transferrable occupations and a loss
of almost 10 percent of unskilled occupations within claimant's
capabilities. Mr. Karmolinski further opined that when evaluating
claimant's access to the labor market utilizing the restrictions
imposed by Dr. Garner, claimant had lost approximately 97 percent
of directly transferable occupations, 100 percent of closely
transferable occupations, and approximately 66 percent of unskilled
occupations within his capabilities.[6] Based on these findings, he concluded that as
claimant's pre-existing knee disability resulted in a 10 percent
loss of access and claimant's combined loss of access for his knee
and back injury was 67 percent, his pre-existing condition
significantly increased claimant's disability and the combination
of the two injuries made claimant materially and substantially more
disabled than if he had had the back injury alone. EX-G at 1. In
addition, in a report dated June 27, 1995, Dr. Reid opined that
claimant's disability was not caused by his 1985 back injury alone,
but represented a material contribution from and a substantial
worsening by his pre-existing chronic knee disability. The doctor
stated that even with his back disability claimant would have been
able to perform light and sedentary work in the open market, but
that now he would not be hired for many such jobs because of his
knee. EX-K at 2.
In Farrell v. Norfolk Shipbuilding & Dry Dock Corp.,
___ BRBS ___, BRB No. 97-1317 (June 19, 1998), the Board recently
recognized that vocational evidence similar to that presented in
this case could, if properly credited, establish "the level of
impairment that would ensue from the work-related injury alone,"
and thereby provide the administrative law judge with a basis to
determine if claimant's ultimate permanent partial disability is
materially and substantially greater than his disability caused by
the work-related injury alone under Harcum II, 131 F.3d at
1079, 31 BRBS at 164 (CRT). Farrell, slip op at 6.
Evidence as to the number of jobs claimant could obtain due to the
prior injury and to the two injuries combined is clearly relevant
under Harcum II. As the administrative law judge summarily
discounted this relevant evidence, we vacate his finding that
employer did not establish contribution under Section 8(f) and
remand this case for reconsideration of whether the
ultimate permanent partial disability is materially and
substantially greater than that due solely to the work injury
consistent with Harcum II and Farrell.[7]
Accordingly, the administrative law judge's denial of Section
8(f) relief is vacated, and this case is remanded for further
consideration of this issue consistent with this opinion. In all
other respects, 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
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The positions identified by Mr. Karmolinski
which were approved by Dr. Garner included an order taker at Papa
John's, a crab picker at York River Seafood, a door greeter at Wal-Mart, a security guard at James York Security, a donation attendant
at Goodwill Industries, and a fund raising telemarketing position
with the National Wheelchair Sports Foundation. EX-C at 7.
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2)Claimant described his limitations as follows:
that after sitting only 20 minutes he gets stiff and starts
hurting; that he can stand a maximum of 30 minutes; that his
ability to lift is severely limited; that he must rest frequently;
and that he is unable to perform any activity without significant
pain.
Back to Text
3)Although claimant also argues that Mr. Karmolinski's labor market
surveys should have been scrutinized heavily in light of his relatively limited background in
vocational testing, the administrative law judge specifically considered Mr. Karmolinski's
qualifications and committed no error in this regard. Decision and Order at 9-10, 15-16.
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4)We note that the administrative law judge
nonetheless concluded that, although there was some question as to
claimant's ability to work for Papa John's because of his
psoriasis, the other positions were well within the limitations set
by Dr. Garner.
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5)The record reflects that Mr. Karmolinski
specifically considered claimant's past problems with the law and
determined that they would not impede claimant from obtaining the
alternate work identified. Tr. at 101-102. See generally
Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122
(CRT)(9th Cir. 1988).
Back to Text
6)Mr. Karmolinski also identified specific types
of jobs that would be available to claimant based on his having
only the knee injury and his having both the knee and the back
injury.
Back to Text
7)In considering the contribution issue on
remand, the administrative law judge should also reconsider Dr.
Reid's medical opinion. Although the administrative law judge
found that the doctor's opinion was insufficient to establish
contribution because he offered no quantification as to the
impairment claimant would have based on the work injury alone, in
his June 25, 1995, report Dr. Reid stated that even with his back
disability claimant would have been able to perform light and
sedentary work in the open market, but that now he would not be
hired for many such jobs because of his knee. EX-K at 2. Dr.
Reid's testimony in this regard is similar to the vocational
opinion of employer's expert in Harcum II.
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NOTE: This is an UNPUBLISHED LHCA Document.
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