BRB No. 00-0985
WILFORD NAILER )
)
Claimant-Respondent )
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v. )
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NEW ORLEANS STEVEDORING ) DATE ISSUED: 06/20/2001
COMPANY )
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and )
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SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LIMITED )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Clement J.
Kennington, United States Department of Labor.
William S. Vincent, Jr. and William J. Delsa (Law Offices of William S.
Vincent, Jr.), New Orleans, Louisiana, for claimant.
Douglass M. Moragas, Harahan, Louisiana, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (99-LHC-2213) of
Administrative Law Judge Clement J. Kennington awarding benefits 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).
Claimant, a hold man, sustained a work-place injury on June 22, 1997, while
handing material to another employee on a ladder, who was to use the material to
hook a container onto the bottom of the ship. While claimant began to retrieve a
hook, a jack began rolling, which pushed a pallet onto claimant's groin, and
claimant fell back onto the jack. Claimant sustained back and testicular injuries
in this accident. Employer voluntarily paid claimant temporary total disability
benefits from June 25, 1997 to June 22, 1998, and permanent partial disability
benefits from June 23, 1998 to March 23, 2000. In his Decision and Order, the
administrative law judge found that claimant established his prima facie
case of total disability, and that employer did not establish the availability of
suitable alternate employment. Thus, the administrative law judge awarded claimant
ongoing total disability benefits from June 22, 1997.
On appeal, employer challenges the administrative law judge's finding that it
did not establish the availability of suitable alternate employment. Claimant
responds, urging affirmance.
In order to establish a prima facie case of total disability, claimant
must show that he is unable to perform his usual employment due to his work-related
injury. See, e.g., Louisiana Ins. Guar. Ass'n v. Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5th Cir.
2000). Once, as in the instant case, claimant establishes his prima facie
case, the burden shifts to employer to establish the existence of realistic job
opportunities that are suitable for claimant, considering his age, education,
vocational history and physical capabilities, and for which he could realistically
compete if he diligently tried. New Orleans (Gulfwide) Stevedores v. Turner,
661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). The administrative law
judge found that the jobs identified as suitable for claimant by employer's
vocational consultant, Nancy Favaloro, were not in fact suitable given claimant's
significant cognitive limitations and the physical restrictions placed by
claimant's treating physician, Dr. Billings. The administrative law judge also
found that claimant's vocational consultant, Ed Ryan, stated only one job was
potentially suitable for claimant, without consideration of claimant's significant
pain. The administrative law judge then found claimant's continuing complaints of
pain to be credible and supported by diagnostic studies, and he therefore concluded
that claimant cannot perform the jobs identified.
Employer contends the administrative law judge's rejection of the jobs
identified by Ms. Favaloro is not supported by substantial evidence, in that Dr.
Billings approved five of the jobs. Thus, employer contends the administrative
law judge erred in stating the jobs are not within the restrictions placed by Dr.
Billings. Employer also contends the administrative law judge erred in stating
that Ms. Favaloro did not take into account claimant's cognitive limitations, and
in crediting claimant's subjective complaints of pain.
We affirm the administrative law judge's award of total disability benefits.
The administrative law judge's finding, that Ms. Favaloro did not take into account
Dr. Billings's restrictions and claimant's cognitive impairments, is questionable
in light of Ms. Favaloro's hearing and deposition testimony, and Dr. Billings's
approval of some of the identified jobs.[1]
Nonetheless, the administrative law judge found that claimant's vocational
consultant stated that only one of the jobs identified, that of parking lot
cashier, was potentially suitable for claimant,[2]
and substantial evidence supports the administrative law judge's finding that none
of the jobs is suitable for claimant given his significant pain.
In this regard, the administrative law judge found that Dr. Billings stated
the jobs he approved are not medically contraindicated, if claimant's
symptoms are under reasonable control. EX 18 at 24. Dr. Billings stated,
however, that claimant's pain has stayed constant at a fairly high level, id.
at 36, and that medication has not provided much relief, id. at 28-29.
Mr. Ryan stated that claimant probably cannot hold a job if claimant indeed has
the pain he has related. CX 7 at 68. Claimant testified that he is in severe
pain, see, e.g, Tr. at 27, 30, and he takes several pain medications each
day. Dr. Billings stated that claimant's persistent pain is consistent with
nerve root irritation, and that diagnostic tests showed evidence of arthritic
changes, primarily at L4-5. EX 18 at 12-16. Dr. Billings explained that the
small joints of the back are similar to other joints, such as the knee, and that
standing, sitting, walking, and merely remaining upright can cause inflammation and
pain, despite medication. Id. at 29-30.
"A claimant's credible testimony may constitute substantial evidence
justifying an award of compensation." Eller & Co. v. Golden, 620 F.2d 71,
74 (5th Cir. 1980). The administrative law judge is entitled to determine the
weight to be given a witness's testimony, and credibility determinations are to be
affirmed unless they are "inherently incredible or patently unreasonable."
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911
(1979). Employer has not established that the administrative law judge's crediting of claimant's testimony
concerning his pain, as supported by Dr. Billings's opinion, constitutes an abuse of the administrative law
judge's discretion. In Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th Cir. 1991),
the United States Court of Appeals for the Fifth Circuit was presented with a case very similar to the case at bar. There was
evidence, as here, that the claimant was capable of performing the alternate employment identified. There also was
evidence, as here, that the claimant was in constant pain. The court concluded that the "facts in this case could support a
finding in favor of either party. The choice between reasonable inferences is left to the ALJ and may not be disturbed if
it is supported by the evidence." Mijangos, 948 F.2d at 945, 25 BRBS at 81(CRT). Inasmuch as the
administrative law judge's decision herein is rational, supported by substantial evidence, and in accordance with
law, we affirm the finding that employer did not establish the availability of suitable alternate employment,
and the consequent award of total disability benefits.
Accordingly, the administrative law judge's Decision and Order Awarding
Benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant is illiterate and aptitude test results place him in the mildly mentally retarded
classification. CX 5 at 1-3. Ms. Favaloro was aware of these factors when she identified potential employment for
claimant. See Tr. at 68; EX 13. Based on claimant's vocational history, however, she stated that claimant has the
ability to learn new job tasks. See EX 13 at 11. This statement does not indicate that she ignored claimant's limited
cognitive abilities. In identifying claimant's restrictions, Dr. Billings checked a box stating that claimant could work an
eight-hour day, within the restrictions indicated. Dr. Billings approved several of the jobs identified by Ms. Favaloro as
being within the restrictions. EX 13.
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2)Mr. Ryan stated he contacted the potential employers identified by employer, and that
claimant was not a viable candidate for any job but that of cashier given his physical restrictions and cognitive limitations.
CX 7.
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NOTE: This is an UNPUBLISHED LHCA Document.
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