BRB No. 99-0975
OREY L. ROWELL )
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Claimant-Respondent )
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v. )
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ZAPATA PROTEIN, INCORPORATED ) DATE ISSUED: 06/16/2000
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and )
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RELIANCE NATIONAL INSURANCE )
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Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
Law Judge, United States Department of Labor.
Henry B. Zuber, III (Parlin & Murphy, P.A.), Ocean Springs, Mississippi,
for claimant.
Stephen A. Anderson (Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond,
P.L.L.C.), Gulfport, Mississippi, for employer/carrier.
Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (97-LHC-2370) of Administrative Law
Judge Lee J. Romero, 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 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).
On December 7, 1995, as claimant, a welder, was standing on a ladder to reach
an overhead pipe, something hit the ladder causing it to fall. Claimant received
a gash on his left shin that was about three inches long and required stitches.
Claimant sought immediate medical attention for the leg wound and subsequently
sought treatment for pain in his neck and back. Claimant also subsequently
complained of pain in his wrist, which was diagnosed as carpal tunnel syndrome.
Claimant returned to work with employer but was subsequently laid off. Since the
accident, claimant has attempted to perform some odd jobs and some welding jobs
which would last no more than a few hours per job. Claimant sought benefits under
the Act.
In his Decision and Order, the administrative law judge found, after weighing
the evidence as whole, that claimant's carpal tunnel syndrome is not causally
related to the work injury of December 7, 1995. However, the administrative law
judge found that employer did not produce sufficient evidence to rebut the Section
20(a), 33 U.S.C. §920(a), presumption that claimant's neck and back condition
is causally related to the work injury, and thus these injuries are compensable
under the Act. The administrative law judge also found that claimant reached
maximum medical improvement and that he cannot return to his former duties as a
welder. The administrative law judge found that employer established the
availability of suitable alternate employment, and thus that claimant is entitled
to permanent partial disability benefits from December 31, 1997 and continuing.
The administrative law judge calculated claimant's average weekly wage as $367.71
under Section 10(c) of the Act, 33 U.S.C. §910(c). In addition, the
administrative law judge rejected employer's contention that claimant's lack of
cooperation with employer's vocational expert should bar his entitlement to
benefits, and he awarded claimant a penalty pursuant to Section 14(e), 33 U.S.C.
§914(e), and interest.
On appeal, employer contends that the administrative law judge erred in
finding claimant's neck and back injuries are related to the work accident and that
suitable alternate employment was not established until December 31, 1998, rather
than March 7, 1997, the date suitable alternate employment was first located by Mr.
Tingle, employer's vocational rehabilitation counselor. In addition, employer
contends that the administrative law judge erred in finding claimant's average
weekly wage was $367.71, and that claimant's refusal to cooperate with employer's
vocational expert was "shielded" by his attorney's actions. Claimant responds,
urging affirmance of the administrative law judge's Decision and Order.
Initially, employer contends that the administrative law judge erred in
finding the evidence insufficient to rebut the Section 20(a) presumption that
claimant's neck and back condition is causally related to the work injury on
December 7, 1995, inasmuch as claimant did not complain of pain in these areas
until a month after the work accident. Section 20(a) provides claimant with a
presumption that his injury is causally related to his employment, if claimant
establishes that he has a physical harm, and that an accident occurred or working
conditions existed that could have caused the harm. Kubin v. Pro-Football,
Inc., 29 BRBS 117 (1995). Once the presumption is invoked, the burden shifts
to employer to rebut it with substantial countervailing evidence that claimant's
disabling condition was not caused or aggravated by his employment. Conoco, Inc. v.
Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); Swinton v. J. Frank
Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429
U.S. 820 (1976). The Section 20(a) presumption may be rebutted by negative evidence
if the evidence is sufficiently specific to sever the potential connection between
a particular injury and a job-related accident. Swinton, 554 F.2d at 1083,
4 BRBS at 477; Holmes v. Universal Maritime Service Corp., 29 BRBS 18
(1995). Moreover, the Board has held that negative evidence, which supplements
"positive" medical evidence and a credibility determination, is sufficient to rebut
the Section 20(a) presumption. Holmes, 29 BRBS at 22; Craig v. Maher
Terminal, Inc., 11 BRBS 400 (1979)(Miller, J., dissenting).
In the instant case, the administrative law judge found that claimant's
credible testimony, that he suffered from pain as a result of falling from the
ladder, was supported by the physicians' opinions of record. He found that "merely
because claimant did not immediately report symptoms and pain does not establish
that the pain was non-existent." Decision and Order at 38. He rejected
employer's contention that the length of time it took for claimant to report his
symptomatology requires a finding of rebuttal. Dr. Manolakas testified that the
fall "probably likely" aggravated claimant's pre-existing back condition. Cl. Ex.
12 at 25. On cross-examination in a deposition, Dr. Longnecker testified that the
length of time before claimant's first complaints of neck and back pain may be
indicative that the injuries were not related to the incident on December 7, 1995.
Cl. Ex. 14 at 36. However, Dr. Longnecker also testified that his opinion that
claimant's neck and back condition was causally related to the work incident on
December 7, 1995 was not changed. He noted that it was also possible that claimant
initially addressed his primary problem, i.e., the leg laceration, and
thought the other pain would go away. Cl. Ex. 14 at 33. Dr. Wyatt testified in
a deposition that he would think that a person falling from the top of a ladder and
landing on his back would have significant complaints at the time of the injury.
Emp. Ex. 26. Claimant testified that immediately after the accident, the major
sources of pain were in his back and neck, but mostly concentrated in his legs.
H.Tr. at 90-91.
We affirm the administrative law judge's finding that employer did not produce
substantial evidence to rebut the Section 20(a) presumption. Gencarelle v.
General Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS
13 (CRT)(2d Cir. 1989). The administrative law judge found the evidence
insufficient to support the negative inference that claimant's back and neck pain
is not work-related given claimant's credible testimony that he suffered pain in
his back and neck immediately following the accident, but did not report the pain
until after the leg wound had been addressed. Unlike in Holmes, 29 BRBS at
22, there is no other "positive evidence" that severs the causal relationship
between claimant's neck and back condition and the work-related accident. Inasmuch
as the administrative law judge acted within his discretion in evaluating the
evidence, see Perini v. Heyde, 306 F. Supp. 1321 (D.R.I. 1969), and employer
has failed to establish that the credibility determinations of the administrative
law judge are irrational, we affirm the administrative law judge's finding that
employer did not rebut the Section 20(a) presumption and that claimant's back and
neck injuries are work-related.[1] 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).
Employer also contends on appeal that the administrative law judge erred in
finding that suitable alternate employment was not established until December 31,
1998, rather than March 7, 1997, the date alternate employment was first located
by employer's vocational expert, Mr. Tingle. As claimant established that he is
unable to perform his usual work, the burden shifted to employer to demonstrate the
availability of realistic job opportunities which claimant could secure if he
diligently tried. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d
1031, 14 BRBS 156 (5th Cir. 1981). The testimony of a vocational rehabilitation
specialist may establish the availability of suitable alternate employment.
Jones v. Genco, Inc., 21 BRBS 12 (1988). The administrative law judge
should determine the employee's physical restrictions based on the medical opinions
of record and apply them to the available jobs identified by the vocational expert.
Villasenor v. Marine Maintenance Industries, Inc., 17 BRBS 99 (1985)(Ramsey,
C.J., concurring in part and dissenting in part), mot. for recon. denied,
17 BRBS 160 (1985)(Ramsey, C.J., concurring in part and dissenting in part).
In the instant case, the administrative law judge found that the labor market
survey dated December 31, 1998, did not contain enough information regarding the
physical requirements of the positions identified in order for him to evaluate the
suitability of the positions. Thus, the administrative law judge requested and
received further information about the positions from a deposition of Mr. Tingle
dated February 11, 1999. Emp. Ex. 30. Once the administrative law judge reviewed
the additional information regarding the positions identified in the December 1998
survey, he found that a number of them were not suitable given claimant's physical
restrictions, but that four of the gate guard positions were suitable. Employer
does not contest this finding on appeal. As the administrative law judge
rationally found that the earlier surveys did not contain enough information
regarding the positions identified for him to ascertain whether the positions
identified were suitable given claimant's physical restrictions, Turner, 661
F.2d at 1042-1043, 14 BRBS at 164-165; Fox v. West State, Inc., 31 BRBS 118
(1997), we affirm the administrative law judge's finding that suitable alternate
employment was not established until December 31, 1998, the date of the labor
market survey which contains the positions relied upon by the administrative law
judge as available given claimant's physical restrictions. Director, OWCP v.
Bethlehem Steel Corp. [Dollins], 949 F.2d 185, 25 BRBS 90(CRT) (5th Cir.
1991); Rinaldi v. General Dynamics Corp., 25 BRBS 128 (1991)(decision on
reconsideration).
Employer also contends that the administrative law judge erred in finding that
claimant did not fail to cooperate with employer's vocational expert. In
Villasenor, the Board held that an employee must reasonably cooperate with
an employer's rehabilitation specialist and that failure to do so should be
considered in evaluating the extent of disability. Villasenor, 17 BRBS at
102; see also Jensen v. Weeks Marine, Inc., 33 BRBS 97 (1999);
Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989); Vogle
v. Sealand Terminal, Inc., 17 BRBS 126 (1985). The Board, however, cautioned
that it did not intend to interfere with an administrative law judge's discretion
in weighing the evidence, and thus, remanded the case for the administrative law
judge to consider the relevance, if any, of claimant's lack of cooperation in
evaluating the rehabilitation expert's testimony. Villasenor, 17 BRBS at
102.
In the present case, the administrative law judge considered employer's
contention that claimant failed to cooperate with employer's vocational expert and
found claimant did not purposefully fail to cooperate, but rather that claimant's
counsel refused to let the vocational expert interview claimant. Moreover, the
administrative law judge found that employer was able to establish suitable
alternate employment even though the vocational expert did not meet with
claimant.[2] Therefore, as the administrative law
judge explicitly considered and found immaterial claimant's failure to meet with
employer's vocational rehabilitation specialist, we reject employer's contention
of error. See Jensen, 33 BRBS at 99.
Employer lastly contends that the administrative law judge erred in his
determination of claimant's average weekly wage. Employer contends that the income
characterized as "business income" on claimant's tax return is too vague and
speculative and thus should not have been included in the calculation of claimant's
pre-injury wages. Under Section 10, 33 U.S.C. §910, computation of average
annual earnings must be made pursuant to subsection (c) if subsection (a) or (b)
cannot be reasonably and fairly applied. The administrative law judge is accorded
broad discretion in determining claimant's annual earning capacity under Section
10(c). See generally Bonner v. National Steel & Shipbuilding Co., 5 BRBS 290
(1977), aff'd in pertinent part, 600 F.2d 1288 (9th Cir. 1979). All sources
of income are to be included in determining claimant's average weekly wage. See
33 U.S.C. §910(c); Wayland v. Moore Dry Dock, 25 BRBS 53 (1991);
Lobus v. I.T.O. Corp. of Baltimore, Inc., 24 BRBS 137 (1990).
In the present case, the administrative law judge found that claimant's
earnings in 1995 yield the fairest determination of his average weekly wage. He
found that claimant's earnings in 1995 include $3,978.97 from Gautier Utility
District, $540 from employer, and $6,880 from business income, as reflected on
claimant's tax return, and that claimant worked a total of 31 weeks in 1995.[3] Thus, he found that claimant had an average
weekly wage of $367.71 ($11,398.97/31= $367.71). Claimant testified that he
received some wages for jobs he did while he was self-employed in 1995, from the
date he stopped receiving unemployment compensation to the date he began work with
employer. Although claimant did not provide a detailed accounting of the specific
jobs he performed during this period, he testified that these jobs included
carpentry work, roofing, hanging sheetrock, welding, fitting steel, and working
with steel, and that he was paid by the job rather than then the hour. H. Tr. at
68. He also testified that he did not receive any wages from his self-employment
during the period he was receiving unemployment compensation. H. Tr. at 128. From
the record it can be determined that claimant's self-employment wages were received
for the work performed during the relevant period. We, therefore, affirm the
administrative law judge's determination of claimant's average weekly wage as it
is reasonable and supported by substantial evidence. See Wayland, 25 BRBS
at 59; Lobus, 24 BRBS at 140.
Accordingly, the Decision and Order of the administrative law judge awarding
benefits is affirmed.
SO ORDERED
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)As we affirm the administrative law judge's finding that
rebuttal of the Section 20(a) presumption was not established, we need not address
employer's contentions regarding the weighing of the evidence as a whole.
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2)We also note that claimant's refusal did not prevent employer
from conducting a job search and the deficiency in employer's evidence,
i.e., the lack of specificity regarding the physical requirements of the
identified employment, was not due to claimant's failure to cooperate.
Jensen, 33 BRBS at 99.
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3)Claimant received unemployment compensation from May 17, 1995 to October 11, 1995,
for a period of 21 weeks.
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NOTE: This is an UNPUBLISHED LHCA Document.
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