BRB No. 00-0950
LONNIE PORTER )
)
Claimant-Respondent )
)
v. )
)
DIX SHIPPING COMPANY ) DATE ISSUED: 06/15/2001
2001
)
and )
)
SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LIMITED )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order on Remand of Larry W. Price,
Administrative Law Judge, United States Department of Labor.
Phil Watkins and Suzette S. Kinder (Phil Watkins, P.C.), San Antonio,
Texas, for claimant.
Charles F. Herd, Jr., and Mark L. Clark (Rice Fowler), Houston, Texas,
for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, DOLDER and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order on Remand (98-LHC-283) of
Administrative Law Judge Larry W. Price 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
administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law.
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).
This case is before the Board for the second time. On March 18, 1988, while
claimant was unloading pipes from the hold of a ship, claimant and two co-workers
were injured when the pipes broke free from the crane and fell. Claimant hurt his
neck, back, knee and leg, and employer voluntarily paid temporary total disability
benefits and medical benefits.[1] In his initial
decision, the administrative law judge found that claimant's knee and leg condition
reached maximum medical improvement on March 7, 1989, and that his back and neck
condition reached maximum medical improvement on December 1, 1993. In April 1995,
while at his son's basketball game, claimant stood to cheer and ruptured his C4-5
disc. The administrative law judge awarded claimant periods of temporary total and
permanent partial disability benefits. 33 U.S.C. §§908(b), (c)(2),
(c)(21).
On appeal, the Board affirmed the administrative law judge's findings that
claimant's April 1995 disc herniation at C4-5 and claimant's lumbar condition are
related to the work accident. Porter v. Dix Shipping Co., BRB Nos. 99-0443/A (Jan. 24, 2000). The Board also affirmed the administrative law judge's
finding that employer established the availability of suitable alternate employment
by virtue of labor market surveys. The Board remanded the case for the
administrative law judge to commence the awards for permanent partial disability
on the dates that the suitable positions employer identified were actually
available. The Board vacated the administrative law judge's award for a 30 percent
knee impairment, 33 U.S.C. §908(c)(2), commencing on March 7, 1989, and, in
the absence of any evidence that employer established the availability of suitable
alternate employment before 1994, modified the award to reflect claimant's
entitlement to compensation for temporary total disability, 33 U.S.C. §908(b),
from the date of injury until December 1, 1993. The Board instructed the
administrative law judge that claimant is entitled to compensation for permanent
total disability, 33 U.S.C. §908(a), from December 1, 1993, until the date in
1994 that the administrative law judge determines, on remand, that employer
established the availability of suitable alternate employment. Additionally, the
administrative law judge was directed to consider the nature and extent of
claimant's condition following his April 5, 1995, disc herniation at C4-5.
Specifically, the Board noted that the administrative law judge did not discuss
medical evidence that claimant's neck condition reached maximum medical improvement
on May 20, 1998, and that vocational evidence demonstrated the availability of
suitable alternate employment on July 15, 1998.
On remand, the administrative law judge denied employer's motion to admit
additional evidence regarding the date suitable alternate employment became
available. The administrative law judge found that employer established the
availability of suitable alternate employment on December 31, 1994, with regard to
claimant's work-related neck, lower back, leg and knee conditions, finding the
absence of any evidence of record establishing an actual date in 1994 when the
positions were available. The administrative law judge found that claimant's
April 5, 1995, C4-5 neck injury reached maximum medical improvement on May 20,
1998, that claimant is unable to perform the alternate employment identified in
employer's 1994 labor market survey due to the 1995 neck injury, and that, on July
15, 1998, employer identified the availability of suitable alternate employment
given claimant's additional work restrictions after the April 1995 injury.
Accordingly, the administrative law judge awarded claimant compensation for
permanent total disability from December 1, 1993, to December 31, 1994, and for
permanent partial disability from January 1, 1995, to April 4, 1995. The
administrative law judge also awarded claimant compensation for temporary total
disability from April 5, 1995, to May 19, 1998, for permanent total disability from
May 20, 1998, to July 14, 1998, and for continuing permanent partial disability
thereafter.
On appeal, employer challenges the administrative law judge's finding that it
did not establish the availability of suitable alternate employment before December
31, 1994, and the administrative law judge's award of compensation for total
disability from April 5, 1995, to July 14, 1998. Claimant responds, urging
affirmance.
Employer contends that, because the Board remanded the case for the
administrative law judge to determine the date in 1994 that employer established
the availability of suitable alternate employment, the administrative law judge
erred by denying employer's motion to admit additional evidence establishing this
date. Specifically, the administrative law judge denied employer's motion to admit
the affidavit of employer's vocational consultant, Nancy Favaloro, averring that
the credited jobs in employer's labor market survey were available from December
1, 1993, the date claimant's conditions reached maximum medical improvement, and
throughout 1994. The administrative law judge's reasoned, inter alia, that
employer had been afforded adequate opportunity to develop the record before the
hearing; moreover, the administrative law judge noted that the record was held open
post-hearing for the submission of additional evidence, and that employer did not
avail itself of this opportunity.
Generally, when the Board remands a case to an administrative law judge, the
record need not be reopened for the receipt of additional evidence, providing the
parties were provided an opportunity to develop their evidence previously. See
Dionisopoulous v. Pete Pappas & Sons, 16 BRBS 93 (1984). In this regard, a
party seeking to admit additional evidence must exercise diligence in developing
its evidence prior to the initial hearing. Smith v. Ingalls Shipbuilding Div.,
Litton Systems Inc., 22 BRBS 46 (1989); see also E.P. Paup v. Director,
OWCP, 999 F.2d 1341, 27 BRBS 41(CRT) (9th Cir. 1993). Moreover, the Board has
interpreted the relevant provisions of the Act's implementing regulations, 20
C.F.R. §§702.338, 702.339, as affording administrative law judges
considerable discretion in ruling on requests for the admission of evidence into
the record. See, e.g., Ion v. Duluth, Missabe & Iron Range Ry. Co., 32 BRBS
268 (1998); Wayland v. Moore Dry Dock, 21 BRBS 177 (1988).
In the instant case, we hold that the administrative law judge acted within
his discretion in determining that further evidence regarding the date suitable
alternate employment became available would not be admitted into the record on
remand. The administrative law judge rationally found that employer had ample
opportunity to develop the record both before and after the initial hearing. As
suitable alternate employment was at issue in the initial proceedings, and as
employer bears the burden of proof on this issue, employer could have anticipated
the need to develop evidence regarding the date suitable alternate employment was
available during the initial proceedings. See generally Director, OWCP v. Bethlehem Steel
Corp. [Dollins], 949 F.2d 185, 25 BRBS 90(CRT) (5th Cir. 1991). Employer has failed to establish
that the administrative law judge abused his discretion in declining to admit Ms.
Favaloro's affidavit on remand. Accordingly, we affirm the administrative law
judge's finding that suitable alternate employment was not established until
December 31, 1994, given the absence of evidence concerning an actual date in 1994
when such employment became available.[2]
Employer next challenges the administrative law judge's award of compensation
for total disability from April 5, 1995, the date of claimant's second injury to
his neck, until July 14, 1998, when the administrative law judge found that
employer again established the availability of suitable alternate employment.
Employer contends that claimant's neck condition following the April 5, 1995,
incident did not result in any work restrictions above those that were in place
following the initial work injury.
In his initial Decision and Order, the administrative law judge credited Dr.
Echeverry's opinion that, due to claimant's neck condition after his April 5, 1995,
injury, claimant is limited to sedentary employment with restrictions against
lifting more than 10 pounds, and reaching above shoulder height. CX 1 at 85-90.
Moreover, Dr. Echeverry opined that claimant is restricted from working an eight
hour day. CX 1 at 22. Prior to claimant's April 1995 C4-5 injury, Dr. Echeverry
imposed no work restrictions related to claimant's neck condition. CX 2; EX 11 at
65-66. Dr. Barrash opined in 1998 that claimant's neck condition limits him to
semi-sedentary employment lifting no more than 20 pounds, Tr. at 189-191, and that
claimant should not kneel more than 12 times a day or climb ladders, id. at
194.
On remand, the administrative law judge found that, after his April 1995 neck
injury, claimant could no longer perform the suitable alternate employment employer
identified as available in 1994. In this regard, the administrative law judge
credited the opinion of Mr. Kramberg, a vocational counselor, CX 16 at 9,
reasoning that Mr. Kramberg's opinion, that claimant is unable to perform the jobs
identified in 1994 due to his neck condition, is in accordance with the opinions
of Drs. Echeverry and Barrash. The administrative law judge further found that
there is no evidence that the credited 1994 jobs were available on a part-time
basis.
In adjudicating a claim, it is well-established that the administrative law
judge is entitled to weigh the evidence, and is not bound to accept the opinion or
theory of any particular witness; rather, the administrative law judge may draw his
own conclusions and inferences from the evidence. See Mijangos v.
Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th Cir.1991). In
the instant case, we hold that the administrative law judge's decision on remand
to credit the testimony of Mr. Kramberg, as supported by the opinions of Drs.
Echeverry and Barrash, is rational and supported by substantial evidence. See
James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 34 BRBS 35(CRT) (5th Cir. 2000); Louisiana Ins.
Guar. Ass'n v. Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5th Cir. 2000). We therefore affirm the administrative law
judge's finding that, after claimant's April 5, 1995, neck injury, claimant was unable to perform the jobs identified
as suitable alternate employment in 1994. Accordingly, we also affirm the administrative law judge's award of compensation for temporary total disability from April 5, 1995, to May 20, 1998, and for permanent total disability from
May 20, 1998, to July 14, 1998.
Accordingly, the administrative law judge's Decision and Order on Remand is
affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant broke his right fibula, and he underwent surgical
fasciotomies and a skin graft in March 1988. Claimant also tore the medial
meniscus in his right knee, and he underwent arthroscopic surgery in March 1989.
MRIs revealed herniated discs in his cervical spine at C5-6 and C6-7, and claimant
underwent a diskectomy and double fusion in November 1992. The C6-7 bone plug
collapsed and a repeat fusion was performed in April 1993. EX 11. MRIs also
revealed abnormalities, including a possible herniation, in claimant's lumbar spine
at L4-5 and L5-S1, which had not been treated. CX 1 at 96, 98; CX 2; EX 11.
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2)We reject employer's alternate contention that there is
substantial evidence of record establishing that suitable alternate employment was
available on December 1, 1993, or January 1, 1994. The Board determined in the
prior appeal of this case that there was no evidence of suitable alternate
employment until 1994. Porter, slip op. at 9. The Board's decision on this
issue constitutes the law of the case, and we decline to consider this issue again.
See Ricks v. Temporary Employment Services, Inc., 33 BRBS 81 (1999).
Moreover, the administrative law judge rationally found Ms. Favaloro's hearing
testimony that suitable alternate employment was available "in 1994," Tr. at 285,
289, 294, was not sufficient evidence to establish its availability on January 1,
1994. See generally Calbeck v. Strachan Shipping Co., 306 F.2d 493 (5th Cir.
1962), cert. denied, 372 U.S. 954 (1963)
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NOTE: This is an UNPUBLISHED LHCA Document.
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