BRB No. 97-1437
CARL HORD )
)
Claimant-Petitioner ) DATE ISSUED: 07/15/1998
)
v. )
)
NORFOLK SHIPBUILDING AND )
DRY DOCK CORPORATION )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
Administrative Law Judge, United States Department of Labor.
John H. Klein and Matthew H. Kraft (Rutter & Montagna, L.L.P.), Norfolk,
Virginia, for claimant.
Robert A. Rappaport and Dana Adler Rosen (Knight, Clarke, Dolph &
Rapaport, P.L.C.), Norfolk, Virginia, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and
BROWN, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (96-LHC-1726) of Administrative
Law Judge Fletcher E. Campbell, 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 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 October 25, 1992, claimant sustained a crush injury to his left hand
and arm while working as a second-class machinist for employer. After
undergoing surgery on March 30, 1993, and a period of physical therapy,
claimant returned to light duty work at employer's facility in the latter
part of 1993. He tried unsuccessfully to return to his usual work duties wearing
a wrist brace in December 1994, but was required to return to light duty work.
On March 27, 1995, Dr. Aulicino, claimant's treating physician, imposed permanent
restrictions. Claimant continued to perform light duty work for employer within
those restrictions until March 18, 1996, at which time he was laid off due to a
reduction-in-force. Employer voluntarily paid claimant various periods of
temporary total and temporary partial disability compensation. In addition,
employer voluntarily paid claimant permanent partial disability compensation under
the schedule for a 20 percent impairment consistent with Dr. Aulicino's
disability assessment. Claimant, who was called back to work for employer
on May 6, 1996, sought permanent total disability compensation during the
period of the layoff.[1] Moreover,
claimant asserted that he was entitled to permanent partial disability
compensation under the schedule in excess of Dr. Aulicino's 20 percent
impairment rating to account for the economic effects of his injury.
In a Decision and Order dated June 18, 1997, the administrative law judge
denied the compensation claimed during the period of the lay-off based on his
determination that employer had met its burden of establishing the availability of
suitable alternate employment. In addition, the administrative law judge held that
inasmuch as Potomac Electric Power Co. v. Director, OWCP [PEPCO], 449 U.S.
268 (1980), mandates that disability compensation under the schedule is to be
calculated based solely on the employee's physical impairment, claimant was not
entitled to permanent partial disability compensation beyond that which he had been
paid previously.
On appeal, claimant argues that the administrative law judge erred in denying
the compensation claimed during the period of the lay-off because the suitable
light duty job at employer's facility was unavailable to him during this period.
In addition, claimant contends that, contrary to the administrative law judge's
determination, because the Court did not hold in PEPCO that the extent of
claimant's disability under Section 8(c) is the equivalent of a medical impairment
rating, PEPCO in no way undermines his assertion that a person with a
scheduled injury may nonetheless be disabled to a greater degree than is reflected
by the percentage of his medical impairment. Employer responds, urging affirmance.
In the present case, as it is undisputed that claimant cannot perform his
usual work due to his work injury, the burden shifted to employer to
demonstrate the availability of suitable alternate employment that claimant
is capable of performing. In order to meet its burden, employer must
demonstrate the availability of realistic job opportunities within the
geographic area where the claimant resides, which the claimant, by virtue
of his age, education, work experience, and physical capacity and
restrictions, is capable of performing and could secure if he diligently
tried. See v. Washington Metropolitan Area Transit Authority, 36 F.3d
375, 381, 28 BRBS 96, 102 (CRT)(4th Cir.1994); Trans-State Dredging v.
Benefits Review Board, 731 F.2d 199, 16 BRBS 74 (CRT)(4th Cir.
1984). Employer may meet its burden of showing suitable alternate
employment by offering claimant a job which he can perform within its own
facility. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30
BRBS 93 (CRT)(5th Cir. 1996); Darden v. Newport News Shipbuilding & Dry
Dock Co., 18 BRBS 224 (1986). In order for such a job to constitute
suitable alternate employment, however, the job must be actually available
to claimant. Wilson v. Dravo Corp., 22 BRBS 463 (1989).
We agree with claimant that the administrative law judge's denial of his claim
for total disability compensation during the period of the layoff cannot be
affirmed. After noting that it was undisputed that claimant could not perform his
usual work, the administrative law judge found that employer had met its burden of
establishing the availability of suitable alternate employment by providing
claimant with a suitable light duty job within his restrictions at its facility
from which claimant was laid off for economic reasons unrelated to his work
injury. Contrary to the administrative law judge's determination, however, where,
as here, an employer provides claimant with a light duty job at its facility but
then lays him off for economic reasons, it cannot rely on this job to meet its
burden of establishing suitable alternate employment because it has made the
alternate work unavailable and claimant is totally disabled unless the employer
provides evidence of other suitable jobs. Mendez v. National Steel &
Shipbuilding Co., 21 BRBS 22 (1988); Swain v. Bath Iron Works Corp.,
17 BRBS 145 (1985). See Newport News Shipbuilding & Dry Dock Co. v. Cole,
120 F.3d 262 (Table), No. 96-2535 (4th Cir. Aug. 12, 1997).[2]
The administrative law judge found that Mendez was distinguishable from
the present case in that in Mendez, the claimant was not laid off as part
of a general economic slowdown but rather because no light duty work was
available within his particular restrictions.[3] Claimant correctly asserts that in so concluding, the
administrative law judge construed Mendez too narrowly. This
distinction is not material; the cases are alike in that a job at the
employer's facility within claimant's restrictions was withdrawn from
claimant through no fault of his own, and this fact controls the result.
In Cole, the Fourth Circuit specifically discussed the Board's
decision in Mendez and held that where the employer has eliminated
the suitable alternate position entirely for economic reasons, it has made
that job unavailable, and thus may not rely on that position to carry its
burden of establishing suitable alternate employment. Cole, slip op.
at 7.
The administrative law judge also found Mendez distinguishable
based on the fact that claimant had worked for employer for approximately
one year prior to being laid off. This attempt to distinguish
Mendez, however, is also not persuasive; in Cole, the claimant
had similarly worked for the employer for more than one year prior to being
laid off. Because the light duty job at employer's facility became
unavailable to claimant due to the general economic lay off at its facility
and employer did not attempt to demonstrate other suitable alternate
opportunities available to claimant, the administrative law judge's denial
of claimant's claim for disability compensation during the period of the
layoff is reversed, and his Decision and Order is modified to reflect
claimant's entitlement to permanent total disability compensation during
this period from March 18, 1996 through May 5, 1996.[4]
We next direct our attention to claimant's argument that the administrative
law judge erred in refusing to augment his scheduled award of permanent partial
disability benefits to account for the economic effects of his injury. Claimant
contends that the administrative law judge's conclusion that such an award is
precluded by PEPCO, is erroneous, as PEPCO dealt solely with the
issue of whether an employee suffering from a permanent partial disability falling
within the schedule may elect to pursue a claim under Section 8(c)(21) and the
Court did not hold that disability under the schedule is the same as medical
impairment. Claimant also points out that with the exception of Section
8(c)(13)(E) and (c)(23), 33 U.S.C. §908(c)(13)(E), (c)(23)(1994), enacted by
the 1984 Amendments, the schedule contains no provisions which require that
disability assessments be premised on permanent impairment. Claimant argues that
the enactment of these provisions demonstrates that impairment is not, unless
specifically delineated as such, the direct equivalent of disability.
Claimant's arguments are rejected in light of Gilchrist v. Newport News
Shipbuilding & Dry Dock Co, 135 F.3d 915 (4th Cir. 1998), wherein the United
States Court of Appeals recently considered and rejected the same arguments which
claimant raises on appeal. In Gilchrist, the court held that although
PEPCO does not specifically address the question of whether claimant's loss
of wage-earning capacity may be considered in assessing the extent of his
disability under the schedule, in spirit PEPCO precludes the calculation
which claimant seeks. In so concluding, the court noted that a contrary ruling
would permit claimant to benefit from both the presumptive disability period
created by the schedule, and from demonstrating a lower wage-earning capacity like
that required under Section 8(c)(21), a result deliberately barred by the Court in
PEPCO. Id. at 919. Moreover, the court rejected claimant's argument
that the provisions enacted by the 1984 Amendments demonstrate Congressional intent
to distinguish between disability and impairment except where the statute
deliberately equates them, concluding that the Amendments instead evidence
Congress's continued declination to grant recipients of scheduled awards greater
relief for demonstrated economic loss. Id. Inasmuch as Gilchrist
is dispositive in this case, which arises within the jurisdiction of the Fourth
Circuit, we reject claimant's arguments and affirm the administrative law judge's
determination that claimant's entitlement to compensation under the schedule is
limited to his undisputed 20 percent permanent impairment which employer had
voluntarily paid him.
Accordingly, the administrative law judge's denial of compensation during the
period claimant was laid off at employer's facility is reversed, and his Decision
and Order is modified to reflect claimant's entitlement to permanent total
disability benefits during this period. In all other respects, the administrative
law judges' 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
To Top of Document
Footnotes.
1)The parties stipulated that claimant's condition reached
maximum medical improvement on March 27, 1995.
Back to Text
2)This case arises within the jurisdiction of the United
States Court of Appeals for the Fourth Circuit. Pursuant to that court's
Local Rule 36(c), the citation of an unpublished decision "is disfavored.
. . ." Nevertheless, Local Rule 36(c) provides that an unpublished decision
with precedential value may be cited in relation to a material issue in a
case if there is no published opinion that would serve as well (if all other
parties are served with a copy of the decision). The Fourth Circuit's
unpublished decision in Cole, which was cited by claimant in his
brief, is readily available to both parties. Inasmuch as Cole is
factually indistinguishable from this case, and there is no other published
circuit court decision specifically addressing Mendez, it is
consistent with the court's rule to cite it in this case.
Back to Text
3)The administrative law judge also found that because the
claimant here had been laid off as part of a general economic layoff, the
present case was more like Suppa v. Leigh Valley Railroad Co., 13
BRBS 374 (1981), and Edwards v. Todd Shipyards Corp., 25 BRBS 49
(1991), rev'd sub nom. Edwards v. Director, OWCP, 999 F.2d
1374, 27 BRBS 81 (CRT) (9th Cir. 1993), cert. denied, U.S. , 114
S.Ct. 1539 (1994), than Mendez. Suppa and Edwards,
however, are distinguishable from this case in that in Suppa the
claimant was performing his usual work at the time he was laid off; thus,
claimant had not established a prima facie case, placing the burden
of showing suitable alternate employment on employer. In Edwards,
the claimant was working for another employer. The Board's decision in
Edwards, moreover, was reversed by the United States Court of Appeals
for the Ninth Circuit. Although the administrative law judge also found the
present case more compelling for employer than Mendez,
Edwards, or Suppa, in that the layoff here lasted only 7 weeks
whereas it was permanent in Mendez, lasted 10 months in
Edwards, and 6 « months in Suppa, the fact remains that
regardless of the length of the layoff, the suitable alternate job at
employer's facility was unavailable to the claimant during that time.
Back to Text
4)In light of our determination that employer did not meet
its burden of establishing the availability of suitable alternate employment
during the period of the layoff, we need not address claimant's alternate
argument that he exhibited due diligence but was nonetheless unable to
secure alternate work.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
