BRB No. 99-1006
JOSEPH AMBROSE )
)
Claimant-Petitioner )
)
v. )
)
BETHLEHEM STEEL CORPORATION ) DATE ISSUED: 06/23/2000
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order on Remand of John C. Holmes,
Administrative Law Judge, United States Department of Labor.
Michael C. Eisenstein, Baltimore, Maryland, for claimant.
Heather H. Kraus (Semmes, Bowen & Semmes), Baltimore, Maryland, for
employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order on Remand (96-LHC-2143) of
Administrative Law Judge John C. Holmes 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 the second time. To briefly recapitulate,
claimant was injured on April 4, 1996, when several stadium boards, weighing 75 to
80 pounds each, fell and struck claimant in the area of his head, neck, and right
shoulder. On April 5, 1996, claimant reported to the Eastern Industrial Medical
Center for a medical examination by Dr. Dollette, who diagnosed a contusion and
sprain of the right neck and shoulder and released claimant for sedentary work.
Later that afternoon, claimant was examined by Dr. Bailey, to whom he was referred
by his attorney. On April 12, 1996, claimant was seen by Dr. Friedler, an
orthopedist who had treated him twenty years earlier, and claimant continued
treatment with Dr. Friedler. John Hafler, supervisor of employer's dispensary at
the time of the injury, testified that he advised claimant of sedentary work
available at the shipyard and offered to send a cab to bring claimant to the
dispensary for that purpose. Claimant did not report for the sedentary duty and
employer discharged him on May 22, 1996, pursuant to the union-management contract,
for failure to accept restricted duty. Claimant sought permanent total disability
benefits under the Act.
Administrative Law Judge Vivian Schreter-Murray found that claimant chose Dr.
Bailey as his physician, and that his change to Dr. Friedler was not authorized by
employer. Moreover, the administrative law judge found that the multiple MRI's
ordered and the surgery performed on claimant's shoulder by Dr. Friedler were not
reasonable or necessary. In addition, the administrative law judge found that
claimant's right knee complaints are not related to the work injury. Thus, the
administrative law judge concluded that employer is not liable for the consultation
and treatment by Dr. Friedler.
The administrative law judge also found inexcusable claimant's refusal to be
examined by employer's physicians on April 10, 1996, and continuing until May 1,
1996. Lastly, the administrative law judge found that claimant was released for
sedentary work of the type provided by employer immediately following the accident,
for which claimant would receive full pay, and that all of claimant's soft tissue
injuries had completely resolved prior to October 1996. Therefore, the
administrative law judge denied compensation benefits under the Act.
Claimant appealed the denial of benefits, asserting that the administrative
law judge erred in denying him total disability benefits. Specifically, claimant
contended that the administrative law judge erred in finding that he could return
to his former employment and in finding that he knew of the restricted duty
program.[1] The Board held that, while claimant
knew of employer's restricted duty position at least by April 5, 1996, the
administrative law judge's finding that this position established the availability
of suitable alternate employment until claimant was discharged by employer on May
22, 1996, must be vacated. On remand, the administrative law judge was instructed
to address the medical evidence that claimant is capable of performing only
sedentary or light-duty work, and to compare this evidence to the physical
requirements of the restricted duty employment that employer offered to claimant.
See Ambrose v. Bethlehem Steel Corp., BRB No. 98-0469 (Nov. 27,
1998)(unpublished).
On remand, the case was reassigned to Administrative Law Judge John C. Holmes.
In his Decision and Order on Remand, the administrative law judge denied claimant's
motion for a new hearing. He next interpreted the Board's remand instructions
as requiring him to determine whether claimant is entitled to benefits for
temporary total disability, 33 U.S.C. §908(b), from May 1 to October 30,
1996.[2] He found that claimant could perform
the light-duty work employer offered based on the evidence of record. He noted the
testimony of Mr. Hafler and Mr. Wilson, employer's workers' compensation
supervisor, as to the job's sedentary work requirements, and the medical evidence
that claimant could perform light-duty work from May 1 until October 30, 1996, when
Dr. Apostolo opined that claimant could work without restrictions.
On appeal, claimant alleges error in the Board's holding that claimant was
informed by Mr. Hafler by April 5, 1996, that he should report for restricted duty.
Moreover, as Mr. Wilson's testimony in this regard conflicts with claimant's
testimony that employer never offered such employment, claimant contends the
administrative law judge erred by denying his motion for a new hearing to assess
witness credibility. Claimant also challenges the administrative law judge's
finding that employer's offer of a restricted duty position established the
availability of suitable alternate employment. Employer responds, urging
affirmance.
Initially, we reject claimant's challenge to the Board's holding in its
initial Decision and Order that Mr. Hafler informed claimant by April 5, 1996, that
he should report for restricted duty at employer's dispensary. In its Decision and
Order, the Board rejected claimant's contention that Judge Schreter-Murray erred
in finding that claimant knew of employer's job offer by April 5, 1996. See
Ambrose, slip op. at 5 n.2. Judge Schreter-Murray credited both Mr. Hafler's
testimony that he offered claimant light-duty work in the dispensary, Tr. at 82-83,
and the records of Dr. Friedler, reflecting his knowledge of a proposed return to
work on April 8, 1996. The Board thus affirmed Judge Schreter-Murray's finding as
rational and supported by substantial evidence. As the Board's holding on this
issue is the law of the case, the Board will not address it in this appeal.
See Ricks v. Temporary Employment Services, Inc., 33 BRBS 81 (1999).
Moreover, we hold that claimant has failed to show any prejudice from Judge
Holmes's denial of his motion for a new hearing, as the administrative law judge
was not instructed, nor required, to reassess on remand the credibility of claimant
and Mr. Wilson in this regard.[3] See
Creasy v. J. W. Bateson Co., 14 BRBS 434 (1981).
We next address claimant's contention that the administrative law judge erred
in finding that employer established the availability of suitable alternate
employment from May 1 to October 30, 1996. Specifically, claimant asserts that
only a labor market survey may be utilized to establish the availability of
suitable alternate employment. Claimant also contends that the administrative law
judge, on remand, failed to adhere to the Board's directive that he assess the
physical requirements of the restricted duty position at employer's dispensary.
Where, as here, it was uncontested that at least for a period of time,
claimant was incapable of returning to his usual work, the burden shifts to
employer to establish the availability of suitable alternate employment. See,
e.g., Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS
10 (CRT) (4th Cir. 1988). In the present case, the administrative law judge on
remand denied compensation based on his finding that employer established suitable
alternate employment from May 1 to October 30, 1996, at full pay, by providing
light-duty work at its shipyard. As it is well-established that employer can meet
its burden of establishing suitable alternate employment by offering claimant
a suitable light-duty job in its facility, we reject claimant's contention that the
administrative law judge was required to base his finding that employer established
the availability of suitable alternate employment on a labor market survey. See
Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir.
1996); Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d
1225, 18 BRBS 12(CRT)(4th Cir. 1985), aff'g 16 BRBS 282 (1984).
Furthermore, we reject claimant's contention that the administrative law judge
failed on remand to follow the Board's instruction to discuss the physical
requirements of employer's light-duty position. The administrative law judge
specifically noted Mr. Hafler's testimony that the job was a "sit-down" job, which
required light filing, Tr. at 81, 112-114, and Mr. Wilson's testimony that the job
was completely sedentary and there was a bed available, if needed, id. at
115-117 . Finally, as the administrative law judge's finding that claimant was
restricted to sedentary or light-duty work is supported by substantial evidence,
see EXS 6, 8, 14; CX 10 at 35-37, and as he rationally found that employer's
restricted duty position was within these restrictions, we affirm the
administrative law judge's conclusion that employer's April 5, 1996, job offer
established the availability of suitable alternate employment. Darby, 99
F.3d at 685, 30 BRBS at 93 (CRT).
Accordingly, the administrative law judge's Decision and Order on Remand is
affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant additionally contended that the administrative law judge erred in denying him
reimbursement for past and future medical treatment with Dr. Friedler, and in finding that his knee condition is not
causally related to the work injury. The Board rejected these contentions.
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2)In its Decision and Order, the Board noted that claimant would not be entitled to benefits
from April 10 to 30, 1996, based on Judge Schreter-Murray's finding that claimant unreasonably refused to be examined
by employer's physicians during this period. 33 U.S.C. §907(d)(4); Ambrose, slip op. at 5 n.3.
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3)Contrary to claimant's contention, in the first paragraph of his decision on remand, Judge
Holmes explicitly denied claimant's motion for a new hearing
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NOTE: This is an UNPUBLISHED LHCA Document.
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