BRB No. 01-0770
JOSEPH T. BROWN )
)
Claimant-Respondent )
) v.)
)
RIVER RENTALS STEVEDORING, ) DATE ISSUED: 06/17/2002
INCORPORATED )
)
and )
)
LOUISIANA WORKERS' )
COMPENSATION CORPORATION )
)
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.
Ted Williams (Johnson, Stiltner & Rathman), Baton Rouge, Louisiana, for
employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (2000-LHC-2652) 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 administrative law judge's findings
of fact and conclusions of law 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 March 31, 1999, claimant sustained a work-related injury to his lower back
when he fell while walking up a gangway. Employer voluntarily paid claimant
temporary total disability benefits from March 31, 1999, until July 14, 1999.
Claimant returned to work in his usual position, and employer paid him partial
disability benefits from July 15, 1999. Employer terminated claimant's employment
on January 10, 2000, for sleeping on the job in violation of company policy.
Thereafter, claimant filed a claim for continuing temporary total disability
compensation under the Act, as well as for retaliatory discharge.
In his decision, the administrative law judge found that claimant's
termination was not in retaliation for his filing a claim under the Act. See
33 U.S.C. §948a. The administrative law judge found, however, that claimant
is totally disabled after his discharge, as the job claimant held prior thereto was
not suitable for him. As employer did not submit into the record any other
evidence of suitable alternate employment, the administrative law judge awarded
claimant continuing temporary total disability benefits from January 10, 2000.
On appeal, employer contends that the administrative law judge erred in
finding that it did not provide claimant with a suitable position at its facility.
Claimant has not responded to this appeal.
Employer argues that the administrative law judge erred in awarding claimant
continuing temporary total disability benefits. Employer argues that the
supervisory position claimant held from July 15, 1999 to January 10, 2000,
constituted suitable alternate employment. In this regard, employer relied on
having advised claimant that he was not to perform any activity which would hurt
his back. Thus, employer argues that any manual labor claimant may have performed
outside his restrictions was voluntary; employer notes that the testimony of the
two other supervisors demonstrates the degree to which supervisors had control over
their own activities. Finally, employer argues that as claimant was able to
perform this supervisory position for approximately five months without complaint,
the job was suitable.
Once, as here, the administrative law judge finds that claimant is unable to
perform his usual work,[1] the burden shifts to
employer to demonstrate the availability of realistic 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.
New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th
Cir. 1981). Employer can satisfy this burden by providing claimant with a suitable
job at its facility. Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30
BRBS 93(CRT) (5th Cir.1996). If claimant successfully performs a suitable alternate
position, but is discharged for breaching company rules, employer does not bear a
renewed burden of demonstrating suitable alternate employment thereafter. See
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); Walker
v. Sun Shipbuilding & Dry Dock Co., 19 BRBS 171 (1986). That a claimant
is discharged due to his own misfeasance, however, does not negate his entitlement
to any benefits to which he otherwise would be entitled had the job continued to
be available to him. See Mangaliman v. Lockheed Shipbuilding Co., 30 BRBS
39 (1996); Walker, 19 BRBS 171.
In the instant case, the administrative law judge found that the supervisor
position was not suitable for claimant, as the weight of the credible evidence
established that claimant would be required to exert more than 20 pounds of force
in this position; Dr. Nutik released claimant to sedentary/light work with a 20
pound lifting limit. The administrative law judge found that both claimant and
his fellow supervisor, Mr. Giangrosso, testified that they assist their deck men
in tying down dust tents and chaining and de-chaining dust boxes; they credibly
reported that more than half of their tasks involved physical work and some of the
tasks involved greater than 20 pounds of exertion, especially when the weather is
windy or the dust tents are wet.[2] Decision and
Order at 23.[3] In addition to the testimony of
claimant and Mr. Giangrosso, the administrative law judge also relied on the
testimony of Mr. Jones, a Bunge administrative manager, as well as a directive
from Mr. Schibler. Id. Mr. Jones stated that claimant should not be in
the office and should be assisting his crew in loading the ship, placing dust
covers and setting up the chute properly. Tr. at 144. Mr. Schibler, employer's
president, sent an all- employee memorandum stating that employer expected all
employees to be out on the deck of ships. CX 3. In finding the supervisor
position unsuitable for claimant, the administrative law judge also found the
testimony of employer's vocational consultant, Mr. Crane, compromised by his
admitted omission from his analysis of any tasks related to the dust boxes.[4] Finally, the administrative law judge credited
claimant's consistent complaints of pain which required pain medication, and Dr.
Correa's statement that he would not release claimant to full duty.[5]
In adjudicating a claim, it is well-established that the administrative law
judge is entitled to evaluate the credibility of all witnesses, and is not bound
to accept the opinion or theory of any particular witness; rather, the
administrative law judge may draw his own inferences and conclusions from the
evidence. See Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS
78(CRT) (5th Cir.1991). Thus, contrary to employer's contention, the
administrative law judge was not required to find the supervisor job suitable for
claimant because another supervisor, Mr. Mason, testified that he performed very
little manual labor. In the instant case, substantial evidence supports the
administrative law judge's finding that the job at employer's facility was not
suitable for claimant prior to his discharge. Thus, this finding is affirmed.
Id.
As a result, we reject employer's contention that the administrative law judge
erred by awarding claimant continuing total disability benefits after he was
discharged. Inasmuch as the administrative law judge rationally found that the job
employer provided was not suitable, claimant is entitled total disability benefits
irrespective of his discharge, as employer did not establish the availability of
any other suitable alternate employment. See generally Mangaliman, 30 BRBS
at 43; Walker, 19 BRBS at 173; see also Manship v. Norfolk & Western
Ry. Co., 30 BRBS 175 (1996). Consequently, we affirm the administrative law
judge's award of continuing total disability benefits from January 10, 2000, as it
is rational, supported by substantial evidence and in accordance with law.
Accordingly, the administrative law judge's Decision and Order awarding
benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
To Top of Document
Footnotes.
1)Claimant's job, before and after the injury, was as a
supervisor. The administrative law judge found that claimant's injury was
"disabling" because employer conceded claimant was at least partially disabled.
Decision and Order at 18.
Back to Text
2)Mr. Mason, another supervisor, testified that he does "mostly
paperwork," and "very little physical work, if any." See Tr. at 170.
Back to Text
3)The administrative law judge stated that although claimant
inconsistently testified at his deposition and at the hearing regarding laying down
wet dust covers, shoveling grain and helping his two deck men after his accident,
the tasks clearly exceeded his "light duty" restrictions, and do not provide a
basis for concluding that his "modified" supervisory position constituted suitable
alternate employment. Decision and Order at 23.
Back to Text
4)Mr. Crane also acknowledged that tying down dust tents in
windy conditions or when they are wet could involve more than 20 pounds of
force.
Back to Text
5)Dr. Correa stated that the muscle relaxant, flexeril, which had
been prescribed to claimant for relief of his back pain could have caused claimant
to fall asleep at work. See generally Bryant v. Carolina Shipping Co., Inc.,
25 BRBS 294 (1992).
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document