BRB Nos. 00-0955
and 00-0955A
WILLIAM N. GATES )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
DEL MONTE FRESH PRODUCE ) DATE ISSUED: 06/20/2001
)
and )
)
SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LIMITED )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners ) DECISION and ORDER
Appeal of the Decision and Order of Richard T. Stansell-Gamm,
Administrative Law Judge, United States Department of Labor.
Ralph R. Lorberbaum (Zipperer & Lorberbaum, P.C.), Savannah, Georgia,
for claimant.
G. Mason White and James D. Kreyenbuhl (Brennan, Harris & Rominger,
L.L.P.), Savannah, Georgia, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals and employer cross-appeals the Decision and Order (99-LHC-227, 228) of Administrative Law Judge Richard T. Stansell-Gamm 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).
On June 1, 1995, claimant injured his left wrist during the course of his
employment as a forklift driver/warehouseman. Claimant underwent surgery on his
wrist on March 27, 1996, and December 17, 1996. Claimant was released to return
to work without restrictions by Dr. Rehak on April 4, 1997, who opined that
claimant has a three percent permanent impairment of the left wrist. Claimant
sustained a second work-related injury to his neck, back, and left foot and ankle
on February 5, 1996. Claimant received treatment for his left foot and ankle
injuries in March 1996. Subsequently, claimant received treatment from St.
Joseph's Health Center/Garden City Lifeline (Lifeline) for neck and back pain in
June 1997, and he was referred by Lifeline to Dr. Collier for additional treatment.
On July 11, 1997, employer's facility closed. After examining claimant on October
21, 1998, Dr. Collier opined that, as a result of his February 5, 1996, work
injury, claimant sustained a two percent permanent impairment of his left ankle and
a five percent neck impairment. Dr. Collier also stated that claimant is capable
of light duty work with lifting restrictions. Claimant obtained employment as a
package store clerk for the month of June 1998, which paid $105 per week. Claimant
subsequently obtained employment with Sizemore Security as a security guard on
October 22, 1998, at the wage of $333.66 per week.
In his decision, the administrative law judge found that, due to his June 1,
1995, wrist injury, claimant is entitled to compensation for a three percent
impairment of his left arm, 33 U.S.C. §908(c)(1), and that, due to his
February 5, 1996, work injury, claimant is entitled to compensation for a two
percent impairment of his left foot, 33 U.S.C. §908(c)(4). The administrative
law judge determined that claimant was unable to return to his usual employment
after his February 5, 1996, work injury, and that the light duty work claimant
subsequently performed for employer established the availability of suitable
alternate employment until July 11, 1997, when employer's facility closed. In the
absence of any evidence of suitable alternate employment, the administrative law
judge awarded claimant compensation for temporary total disability from July 11,
1997, to March 15, 1998, 33 U.S.C. §908(b), at which date the parties
stipulated that claimant's neck, back, and left foot conditions reached maximum
medical improvement; thereafter, the administrative law judge awarded claimant
compensation for permanent total disability from March 16, 1998, to May 31, 1998,
33 U.S.C. §908(a). Finally, the administrative law judge awarded claimant
continuing compensation for permanent partial disability based on a loss of wage-earning capacity commencing on June 1, 1998, 33 U.S.C. §908(c)(21). The
administrative law judge determined claimant's loss of wage-earning capacity by
subtracting from claimant's average weekly wage of $380, claimant's weekly wage of
$333.66 as a security guard.
On appeal, claimant challenges the administrative law judge's finding that his
permanent partial disability award, based on his earnings as a security guard,
commenced on June 1, 1998, as claimant did not obtain this job until October 22,
1998. Claimant also contends he is entitled to total disability benefits from July
1, 1998 until he obtained the security guard position. Employer responds, urging
rejection of claimant's contentions. Employer cross-appeals, contending the
administrative law judge erred in finding that claimant was unable to return to his
usual employment after his work injuries. Employer further contends there is no
evidence that claimant lost any wages due to his work injuries after employer
closed its facility on July 11, 1997. Claimant responds, urging affirmance of the
administrative law judge's compensation awards for total disability and permanent
partial disability based on a loss of wage-earning capacity.
We initially address employer's challenge to the administrative law judge's
finding that claimant is unable to perform his usual employment as a forklift
driver/warehouseman. Specifically, employer contends that the absence of neck and
back pain complaints due to the February 5, 1996, work injury until June 5, 1997,
approximately five weeks prior to the announced closing of employer's facility on
July 11, 1997, and claimant's testimony that he drove a forklift for employer until
his employment terminated on July 11, 1997, establish that claimant is able to
perform his usual employment. It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury. See Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1989); Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56
(1985). In order to establish a prima facie case of total disability, claimant must show that he is unable
to perform his usual work due to his work injury. See Harmon v. Sea-Land Service, 31 BRBS
45 (1997); Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988).
In his decision, the administrative law judge credited the opinion of Dr. Collier that
claimant is unable to tolerate the repetitive neck movement involved with driving
a forklift. CX 5. The administrative law judge noted claimant's testimony that
he operated a forklift during the period after his February 1996 injury and before
employer closed its facility in July 1997; however, the administrative law judge
credited evidence that a Lifeline physician placed claimant on restricted duty in
June 1997and that employer had placed claimant on light duty after his June 1,
1995, and February 5, 1996, work injuries. See CX 14; Tr. at 50, 53-54, 64,
101-102, 105-106. In the instant case, we hold that the administrative law judge's
decision to credit the testimony of claimant, the opinion of Dr. Collier, and
claimant's medical records from Lifeline is rational, and his finding that claimant
cannot perform his usual work is supported by substantial evidence. We therefore
affirm the administrative law judge's determination that claimant is incapable of
resuming his pre-injury work as a forklift driver/warehouseman.[1] See Universal Maritime Corp. v. Moore,
126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997).
Employer also challenges the administrative law judge's award of benefits for
total disability from July 11, 1997, to May 31, 1998. Specifically, employer
contends that, since the administrative law judge found that claimant's actual
employment with employer constituted suitable alternate employment, and claimant
was discharged by employer due to the closing of its facility and not for any
reason related to claimant's work injuries, any subsequent loss of wage-earning
capacity after employer closed its facility is not compensable. Once a claimant
establishes that he cannot return to his usual work, as here, the burden shifts to
his employer to demonstrate the availability of suitable alternate employment. In
order to meet this burden, employer must show the availability of a range of job
opportunities within the geographic area where claimant resides, which claimant,
by virtue of his age, education, work experience, and physical restrictions, is
capable of performing. See Moore, 126 F.3d 256, 31 BRBS 119(CRT); Lentz
v. The Cottman Co., 852 F.2d 129, 21 BRBS 109(CRT) (4th Cir. 1988); Bryant
v. Carolina Shipping Co., Inc., 25 BRBS 294 (1992). Employer can meet its
burden by offering claimant a job in its facility, including a light duty job.
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). Where employer establishes suitable alternate employment by providing
claimant light-duty work which he successfully performs, but subsequently withdraws
this work due to no fault of claimant's, claimant is entitled to compensation for
total disability absent evidence of the availability of other suitable employment.
Norfolk Shipbuilding & Dry Dock Corp. v. Hord, 193 F.3d 836, 33 BRBS
170(CRT) (4th Cir. 1999); Vasquez v. Continental Maritime of San Francisco,
Inc., 23 BRBS 428 (1990); Mendez v. National Steel & Shipbuilding Co.,
21 BRBS 22 (1988).
Contrary to employer's contention, the administrative law judge properly
rejected employer's contention that, pursuant to Brooks v. Director, OWCP,
2 F.3d 64, 27 BRBS 100(CRT) (4th Cir. 1993), aff'g Brooks v. Newport News
Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), claimant's discharge relieved
employer from any further compensation liability. In Brooks, the claimant
was discharged for breaching company rules. Under such circumstances, employer
does not bear a renewed burden of establishing other suitable alternate employment.
Id. The administrative law judge found Brooks distinguishable from
the present case because claimant's discharge was not related to a violation of
company rules or any other misconduct on his part. The administrative law judge
found that in order to avoid liability for total disability, employer must
establish new suitable alternate employment from the date of claimant's discharge
on July 11, 1997, since claimant was terminated for reasons unrelated to any action
on his part and he remains physically unable to perform his former employment as
a forklift driver/warehouseman. The administrative law judge concluded that, in
the absence of any evidence of suitable alternate employment after claimant's
discharge, claimant is entitled to compensation for total disability from July 11,
1997, to May 31, 1998. Inasmuch as the administrative law judge's findings of
fact are supported by substantial evidence, and his conclusion comports with law,
we affirm the administrative law judge's finding that claimant is entitled to
compensation for total disability until he obtained employment as a package store
clerk on June 1, 1998. Hord, 193 F.3d 836, 33 BRBS 170(CRT); Mendez,
21 BRBS 22.
Employer also challenges the administrative law judge's award for permanent
partial disability based on a loss of wage-earning capacity. Claimant contends in
his appeal that the administrative law judge erred by commencing the permanent
partial disability award on June 1, 1998, based on his post-injury earnings as a
security guard, a job he did not obtain until October 22, 1998. Claimant contends
that he is entitled to compensation for permanent partial disability from June 1
to June 30, 1998, based on his actual wage loss that month when he was employed as
a package store clerk at an average weekly wage of $105. Claimant also contends
he is entitled to compensation for permanent total disability when he was
unemployed from July 1, 1998, to October 21, 1998.
Pursuant to Section 8(c)(21), an award for permanent partial disability is
based on the difference between claimant's pre-injury average weekly wage and his
post-injury wage-earning capacity. 33 U.S.C. §908(c)(21). Section 8(h) of
the Act, 33 U.S.C. §908(h), provides that claimant's post-injury wage-earning
capacity shall be his actual post-injury earnings if these earnings fairly and
reasonably represent his post-injury wage-earning capacity. See Randall v.
Comfort Control, Inc., 725 F.2d 791, 16 BRBS 56(CRT) (D.C. Cir. 1984). If they
do not, the administrative law judge must determine a reasonable dollar amount that
does. Devillier v. National Steel & Shipbuilding Co., 10 BRBS 649, 660
(1979). In either case, relevant considerations include the employee's physical
condition, age, education, industrial history, and availability of employment which
he can do post-injury. See 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).
Based on claimant's vocational history, the administrative law judge found
that claimant was overqualified for the job as a store clerk and that claimant's
actual wages of $105 per week are not representative of his post-injury wage-earning capacity. The administrative law judge found that the availability of jobs
in the Savannah area improved in June 1998 based on claimant's obtaining employment
that month as well as in October 1998, after being unemployed since July 1997.
Based on claimant's vocational history and level of education, the administrative
law judge found that claimant's weekly wage of $333.66 as a security guard
establishes claimant's post-injury wage-earning capacity. The administrative law
judge therefore awarded claimant continuing compensation for permanent partial
disability based on a loss of wage-earning capacity of $46.34 from June 1, 1998,
when claimant found work as a package store clerk.
We reject employer's contention that claimant is not entitled to any permanent
partial disability benefits. We have affirmed the administrative law judge's
finding that the burden remained with employer to establish suitable alternate
employment after employer's facility closed. See Hord, 193 F.3d 836, 33 BRBS
170(CRT). Claimant obtained alternate employment on his own initiative. He
therefore is entitled to permanent partial disability benefits for any loss in
wage-earning capacity, based on the difference between his average weekly wage with
employer and his post-injury wage-earning capacity. 33 U.S.C. §908(c)(21),
(h).
We cannot affirm, however, the administrative law judge's finding that the
wages claimant earned as a security guard beginning on October 22, 1998, should be
used to establish claimant's wage-earning capacity at an earlier time. Contrary
to the administrative law judge's finding, there is no evidence of record that the
local job market in Savannah improved in June 1998, and the administrative law
judge's inference based on claimant's obtaining two jobs within a few months is not
rational. Claimant testified that he obtained the store clerk position through
personal contacts. Tr. at 69. This job lasted for only one month, as claimant
lost the position due to the owner's financial difficulties. Tr. at 70-71.
Employer did not submit any evidence that this, or any other type of employment,
was realistically and regularly available to claimant on the open market. See
Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9th Cir. 1993),
cert. denied, 511 U.S. 1031 (1994). In the absence of any evidence
concerning other suitable employment, employer has not demonstrated that claimant
had a higher wage-earning capacity than the wages he earned in the store clerk
position. See Burch v. Superior Oil Co., 15 BRBS 423 (1983); Bethard v.
Sun Shipbuilding & Dry Dock Co., 12 BRBS 691 (1980). Thus, the store clerk
position establishes only that claimant was not totally disabled during the time
he held the job, and the wages for this job establish claimant's wage-earning
capacity only for the job's duration.
Moreover, notwithstanding claimant's qualifications and work experience,
claimant's testimony and the evidence of record are uncontradicted that he
diligently sought work until he obtained permanent employment as a security guard
on October 22, 1998. Tr. at 67-71; CX 19. As with the store clerk position,
employer did not present any evidence that security guard positions were regularly
available on the open market prior to the time claimant obtained his job.
Edwards, 999 F.2d 1374, 27 BRBS 81(CRT). Accordingly, in the absence of any
evidence that claimant's actual wages starting on October 22, 1998, represent
claimant's wage-earning capacity on the open market from June 1, 1998, to October
21, 1998, we vacate the administrative law judge's compensation award for permanent
partial disability from June 1, 1998, to October 21, 1998, based on a loss of wage-earning capacity of $46.34 per week. Claimant is entitled to compensation for
permanent partial disability from June 1, 1998, to June 30, 1998, based on the
difference between claimant's average weekly wage for employer of $380 and
claimant's actual wages as a package store clerk of $105, which corresponds to a
loss of wage-earning capacity of $275 per week. From July 1 through October 21,
1998, claimant is entitled to permanent total disability benefits. Beginning
October 22, 1998, claimant is entitled to permanent partial disability benefits of
$46.34 per week, as awarded by the administrative law judge.
Accordingly, the administrative law judge's Decision and Order awarding
compensation for permanent partial disability from June 1, 1998, to October 21,
1998, based on a loss of wage-earning capacity of $46.34 per week is vacated. The
decision is modified to award claimant compensation for permanent partial
disability from June 1, 1998, to June 30, 1998, based on a loss of wage-earning
capacity of $275, and for permanent total disability from July 1, 1998, to October
21, 1998, based on an average weekly wage of $380. In all other respects, the
Decision and Order is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)We note that any error in the administrative law judge's
finding that employer presented insufficient evidence that claimant could
return to his usual employment is harmless, as the administrative law judge
explicitly found that claimant established his prima facie case of total
disability. Decision and Order at 15.
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NOTE: This is an UNPUBLISHED LHCA Document.
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