BRB No. 98-1408
DARRYL M. WILLIAMS )
)
Claimant-Respondent )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 07/27/1999
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order Awarding Periods of Permanent Total
Disability and Permanent Partial Disability and the Decision Denying
Employer's Motions for Reconsideration of Richard K. Malamphy,
Administrative Law Judge, United States Department of Labor.
Gregory E. Camden (Montagna, Klein, & Camden, L.L.P.), Norfolk,
Virginia, for claimant.
Jonathan H. Walker (Mason & Mason, P.C.), Newport News, Virginia, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order Awarding Periods of Permanent Total
Disability and Permanent Partial Disability and the Decision Denying Employer's
Motions for Reconsideration (97-LHC-1208) 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 the 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).
Claimant, who worked for employer as a welder, suffered a work-related back
injury on April 12, 1993. Claimant was off work briefly, but returned to work for
employer on June 25, 1993, in a light duty position as a welder that accommodated
the physical restrictions imposed by his treating physician, Dr. Persons. Claimant
was assigned permanent restrictions by Dr. Persons on December 20, 1993, and
continued working in his light duty welding position.[1] Claimant suffered other minor back injuries on April 13, 1994 and
September 20, 1994.
Due to a reduction-in-force as a consequence of economic factors, claimant was
temporarily laid off from his job with employer on December 7, 1996. Claimant
secured a position with Franklin Equipment on March 17, 1997; he left this job on
May 17, 1997 due to poor attendance and/or carpal tunnel syndrome. Claimant
returned to his position with employer on September 29, 1997, after being recalled.
Claimant sought disability compensation for the period of the layoff. The
administrative law judge found that claimant's current back impairment is due to
his work- related back injury, and awarded claimant permanent total disability
compensation from the date of the layoff, December 7, 1996, to March 17, 1997, the
date he secured alternate employment with Franklin. The administrative law judge
awarded claimant permanent partial disability compensation thereafter until
claimant returned to his welding job with employer. Employer filed a motion for
reconsideration with the administrative law judge, which was denied. In this
appeal, employer contends that the administrative law judge erred in finding a
causal nexus between claimant's disability and his work-related back injury
pursuant to Section 20(a) of the Act, 33 U.S.C. §920(a), and in awarding
claimant total disability compensation for the period immediately following the
layoff until claimant obtained alternate employment with Franklin. Claimant
responds, requesting affirmance of the decision below.
Initially, we address employer's allegations regarding causation. Section
20(a) of the Act provides claimant with a presumption that his impairment is
causally related to his employment. Kubin v. Pro-Football, Inc., 29 BRBS 117
(1995). Once, as here, claimant establishes that he suffered a harm, i.e.,
a back impairment resulting in physical restrictions, and that employment
conditions existed or an accident occurred which could have caused, aggravated or
accelerated the condition, i.e., the work-related back injury with employer in
1993, claimant has established a prima facie case of causation, and the
burden shifts to employer to rebut the presumption with specific and comprehensive
evidence sufficient to sever the casual connection between the injury and the
employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir), cert. denied, 429 U.S. 820 (1976). If the administrative law
judge finds that the Section 20(a) presumption is rebutted, the administrative law
judge must weigh all of the evidence and resolve the causation issue on the record
as a whole. See Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 279
(1990).
In this case, we agree with employer that the administrative law judge erred
in weighing all the medical opinions of record in determining that employer failed
to rebut claimant's prima facie case. See Universal Maritime Corp. v.
Moore, 126 F.3d 256, 31 BRBS 119 (CRT)(4th Cir. 1997). The administrative law
judge relied upon the opinion of Dr. Persons in finding claimant's condition to be
work-related, as he found Dr. Persons' opinion that claimant's continuing symptoms
were contemporaneous with his 1993 injury to be more reliable than the opinion of
Dr. Neal that there is no connection between the 1993 injury and the ongoing
disability. EXS 7, 8; Decision and Order at 13 - 14. Although an administrative
law judge's failure to analyze separately the inquiries concerning rebuttal of the
Section 20(a) presumption and the weighing of the evidence as a whole may be
harmless error under certain circumstances, see, e.g., Gooden v. Director, OWCP,
135 F.3d 1066, 32 BRBS 59 (CRT)(5th Cir. 1998), in this case, the
administrative law judge's failure to do so requires that we remand this case for
further consideration. Specifically, the administrative law judge's finding that
Dr. Persons' opinion supports an affirmative finding that claimant's current back
condition is related to the work injury cannot be affirmed, as the administrative
law judge selectively analyzed the opinion of Dr. Persons. See generally
Director, OWCP v. Greenwich Collieries, 512 U.S. 257, 28 BRBS 43 (CRT)(1994);
Neeley v. Newport News Shipbuilding & Dry Dock Co., 19 BRBS 138 (1986).
Dr. Neal affirmatively stated that claimant's ongoing symptoms are unrelated
to the work injury and that claimant does not have any permanent residual effects
from the injury, nor was claimant's underlying degenerative disc disease aggravated
by the work incidents.[2] EX-7. This opinion,
unless discredited for valid reasons, see Hampton v. Bethlehem Steel Corp.,
24 BRBS 141 (1990), is sufficient to meet employer's burden of rebutting the
Section 20(a) presumption. See Moore, 126 F.3d at 262-263, 31 BRBS at 123
(CRT). In crediting Dr. Persons's opinion over that of Dr. Neal on the basis that
he provided the more extensive and recent treatment, the administrative law judge
determined that Dr. Persons was of the opinion that there was a causal nexus
between claimant's 1996 disability and his 1993 work-related back injury based upon
his statement that claimant's symptoms were contemporaneous with the 1993 incident.
EX-8. The administrative law judge concluded from this statement that Dr. Persons'
opinion supports the finding that there is indeed a causal nexus between claimant's
current disability symptoms and the work injury. The administrative law judge,
however, failed to consider the statement of Dr. Persons that he could not state
with any reasonable degree of medical probability that claimant's condition in 1996
was related to the 1993 injury. EX-8. Thus, contrary to the administrative law
judge's characterization, since Dr. Persons stated that he could not determine
whether claimant's 1996 disability was attributable to his 1993 work-related back
injury, his opinion is not necessarily contrary to the opinion of Dr. Neal.
Therefore, we vacate the administrative law judge's finding that rebuttal of the
Section 20(a) presumption was not established, and remand for the administrative
law judge to reconsider whether employer established rebuttal.[3] If the administrative law judge concludes that
rebuttal is established on remand, he must then weigh all of the evidence and
resolve the causation issue on the record as a whole with claimant bearing the
burden of proof. See Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996).
We next address employer's contention that the administrative law judge erred
in awarding claimant total disability compensation for the period of the layoff
prior to his securing a job with Franklin on March 17, 1997. In order to establish
a prima facie case of total disability, claimant must establish that he
cannot perform his usual employment. Manigault v. Stevens Shipping Co., 22
BRBS 332, 333 (1989). Where claimant has established that he is unable to perform
his usual employment duties due to a work-related injury, the burden shifts to
employer to demonstrate the availability of suitable alternate employment. See
Moore, 126 F.3d at 256, 31 BRBS at 119 (CRT); Lentz v. The Cottman Co.,
852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988); see also Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th Cir.
1988); Trans-State Dredging v. Benefits Review Board, 731 F.2d 199, 16 BRBS
74 (CRT)(4th Cir. 1984). Employer may meet this burden by offering claimant a
light-duty position in its facility so long as the position is tailored to
claimant's physical restrictions, and the job is necessary and profitable to
employer's business. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685,
30 BRBS 93 (CRT)(5th Cir. 1996); Peele v. Newport News Shipbuilding & Dry Dock
Co., 20 BRBS 133 (1987); Darden v. Newport News Shipbuilding & Dry Dock
Co., 18 BRBS 224 (1986). Where claimant is laid off from a suitable post-injury light duty job within employer's control, for reasons unrelated to any
actions on his part, and demonstrates that he remains physically unable to perform
his pre-injury job, the burden remains with employer to show the availability of
new suitable alternate employment, if employer wishes to avoid liability for total
disability. See Vasquez v. Continental Maritime of San Francisco, Inc., 23
BRBS 428 (1990); Wilson v. Dravo Corp., 22 BRBS 463 (1989); Mendez v.
National Steel & Shipbuilding Co., 21 BRBS 22 (1988).
In this case, the parties agree that after suffering his work-related injury,
claimant returned to light duty work with employer, working in his job as a welder
within the restrictions placed on him. Decision and Order at 4. Thus, inasmuch
as claimant has established that he cannot perform his pre-injury employment as a
consequence of his work-related injury, claimant has established a prima
facie case of total disability, and the burden shifts to employer to establish
suitable alternate employment. The parties also agree that employer has met this
burden for the period prior to the layoff, and subsequent to claimant's obtaining
a job with Franklin in March 1997.
In light of the Board's holding in Mendez, and the unpublished decision
of the United States Court of Appeals for the Fourth Circuit in Newport News
Shipbuilding & Dry Dock Co. v. Cole, 120 F.3d 262 (Table), No. 96-2535, 1997
WL 457665 (4th Cir. Aug. 12, 1997), we affirm the administrative law judge's
determination that employer failed to establish suitable alternate employment for
the period from December 6, 1996 through March 16, 1997. Employer contends that
it is not liable for disability compensation because the layoff was for economic
reasons rather than for reasons due to claimant's injury, and that it is not a
guarantor of employment for claimant. The economic basis for employer's layoff is
not determinative of the inquiry. In Mendez, the employer withdrew the
opportunity for claimant to do light duty work in its facility by laying off the
claimant with the result that suitable alternate employment in the employer's
facility was no longer available. The Board affirmed the administrative law
judge's finding that Mendez was totally disabled since the claimant's light duty
job with employer was no longer available and as employer did not establish the
availability of other suitable alternate employment.[4] Mendez, 21 BRBS at 25.
In Cole, the administrative law judge, citing Mendez, awarded
the claimant benefits during a period when her light duty position with the
employer was unavailable due to an economic layoff. See Cole v. Newport News
Shipbuilding & Dry Dock Co., 28 BRBS 621(ALJ)(1994). In affirming the award of
benefits to claimant, the Fourth Circuit specifically discussed the Board's
decision in Mendez and held, in accordance with that decision, that in order
for employer to carry its burden of establishing the availability of suitable
alternate employment, employer must demonstrate that a suitable job exists. Thus,
in a situation where a light duty job is no longer available due to an economic
layoff, employer has made that job unavailable and may not rely on that position
to demonstrate that a suitable alternate job exists. See Cole, 1997 WL
457665 at ** 6-8.
In this case, as in Mendez and Cole, light duty suitable
alternate employment at employer's facility became unavailable to claimant due to
a layoff, albeit temporarily. Employer did not attempt to demonstrate the
availability of additional suitable alternate employment opportunities to claimant
during December 6, 1996 to March 16, 1997,[5]
until, without notice to claimant or to the administrative law judge, it attempted
to call a previously unnamed vocational counselor, Mr. Karmolinski, to testify at
the hearing about the contents of a labor market survey which was not served on the
parties or placed in the record. Tr. at 68. The administrative law judge, who has
broad discretion in procedural matters, acted within that discretion in refusing
to allow employer's untimely evidence into the record. See generally Durham v.
Embassy Dairy, 19 BRBS 105 (1986). The only other evidence relevant to
suitable alternate employment available to claimant for the period in question is
claimant's testimony that he was offered another job with an unnamed employer, but
turned the position down because he wanted to secure a wage of at least $6.50 per
hour. Tr. at 58 - 61. The administrative law judge rationally concluded that this
testimony was insufficient to meet employer's affirmative burden of demonstrating
the availability of suitable alternate employment. Thus, since employer failed to
establish suitable alternate employment during the period of the layoff prior to
claimant's obtaining a job with Franklin, we affirm the administrative law judge's
determination that claimant is entitled to total disability benefits from December
6, 1996 to March 16, 1997, if a causal nexus between claimant's work-related injury
and his disability is established on remand.
Accordingly, the administrative law judge's finding that claimant's disability
is work-related is vacated, and the case is remanded for further consideration
consistent with this opinion. In all other respects, the administrative law
judge's decision is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)Dr. Persons placed the following permanent restrictions on
claimant: lifting to 40 pounds, and intermittent bending, pushing and pulling no
more than 40 pounds. CX-1 at 34.
Back to Text
2) 2Although, as the administrative law judge notes, Dr. Neal
last saw claimant on 1994, his 1998 opinion was given after he reviewed later
records from Dr. Persons. EX-7.
Back to Text
3) 3We note that, aside from the opinions of Drs. Persons and
Neal, the record also contains two opinions by Dr. Kyles relevant to the causation
issue. Dr. Kyles testified on deposition that the physical restrictions claimant
was under in 1997 were a result of his 1993 back injury. CX-7 at 27. In a
written medical opinion, Dr. Kyles found that claimant has degenerative disc
disease which was not caused by work-related injuries, and that he would not place
any limitations on claimant due to the 1993 injury. EX-13 at 7. The
administrative law judge should consider these two opinions with the other evidence
relevant to the causation issue on remand.
Back to Text
4) 4In Edwards v. Todd Shipyards Corp., 25 BRBS 49
(1991), where claimant was laid off from alternate work on the open market, rather
than from light duty work with the employer, the Board held that the fact that
claimant was laid off due to a reduction in the work force did not impose upon
employer the responsibility of identifying new suitable alternate employment, as
an employer is not a long term guarantor of claimant's employment. The Board's
decision was reversed by the United States Court of Appeals for the Ninth Circuit
in Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81 (CRT)(9th Cir.
1993), cert. denied, 114 S.Ct. 1539 (1994), which held that short-lived
employment did not establish that alternate work was "realistically and regularly"
available to the claimant.
Back to Text
5) 5Contrary to employer's contention, the Fourth Circuit's
unpublished decision in Forgich v. Norfolk Shipbuilding & Dry Dock Corp.,
153 F.3d 719 (Table), No. 96-2574 1998 WL 468834 (4th Cir. Aug. 4, 1998), does not
compel a different result. In Forgich, the claimant worked at employer
after his injury as well as at two other employers for periods of time, although
not during the time of claimant's economic layoff from employer. The court held,
therefore, that as claimant held a series of four jobs for three employers,
demonstrating the capability of working and of finding and changing jobs freely,
the administrative law judge's finding that claimant is not entitled to total
disability benefits during the layoff is supported by the evidence. 1998 WL 468834
at **2. In the instant case, however, there is no credible evidence of the
availability of any other type of work prior to claimant's obtaining the position
with Franklin on March 16, 1997. See discussion, infra.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
