BRB No. 01-0775
DONATO CORTEZ )
)
Claimant-Respondent )
)
v. )
)
SWIFTSHIPS, INCORPORATED ) DATE ISSUED: 06/18/2002
)
and )
)
LOUISIANA WORKERS' )
COMPENSATION CORPORATION )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Clement J.
Kennington, Administrative Law Judge, United States Department of Labor.
George W. Allen, Houston, Texas, for claimant.
William C. Cruse (Blue William L.L.P.), Metaire, Louisiana, for
employer/ carrier.
Before: SMITH, McGRANERY and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (00-LHC-2965) of
Administrative Law Judge Clement J. Kennington 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).
Claimant, a laborer/helper, suffered an injury to his right shoulder when he
tripped and fell during the course of his employment on November 20, 1998.
Following this work-incident, claimant was diagnosed with a massive rotator cuff
tear of the right shoulder, commenced physical therapy, and was restricted to
light-duty work picking up paper and small pieces of scrap metal. Claimant
continued to complain of pain and last worked for employer on January 10, 1999.
On January 21, 1999, claimant underwent various surgical procedures on his right
shoulder including arthoscopy, debridement of a glenoid labral tear, open
decompression, subacromial bursectomy, releases and resection of the
coracoaacromial ligament, and repair of a massive rotator cuff tear. Thirty-three
therapy sessions followed claimant's surgery. Claimant's operating surgeon, Dr.
Hoffman, released claimant to light duty involving the use of only one arm,
effective February 22, 1999. On December 13, 1999, Dr. Hoffman opined that
claimant would reach maximum medical improvement in January 2000, that claimant had
a massive rotator cuff tear that could not be completely repaired, and that
claimant was restricted from longshore activities with an inability to do
repetitive and overhead heavy lifting, climbing, and lifting over 50 pounds from
the ground. On May 12, 1999, employer offered claimant a light-duty helper job;
claimant declined this offer because of his ongoing pain condition. Thereafter,
claimant began working in a yard maintenance position on a limited basis.
In his decision, the administrative law judge initially determined that
neither the light-duty position offered to claimant as a helper or the position
subsequently described by employer in its tool room established the availability
of suitable alternate employment that claimant was capable of performing. Next,
the administrative law judge calculated claimant's average weekly wage pursuant to
Section 10(c) of the Act, 33 U.S.C. §910(c), and determined that claimant's
post-injury yard maintenance work demonstrated a post-injury wage-earning capacity
of $162.50 per week. Accordingly, the administrative law judge awarded claimant
temporary total disability compensation from January 11, 1998, to May 16, 1999,
temporary partial disability compensation from May 17, 1999 to December 31, 1999,
and permanent partial disability compensation thereafter.[1]
Employer now appeals, contending that the administrative law judge erred in
finding that it failed to establish the availability of suitable alternate
employment and in determining claimant's average weekly wage under Section 10(c)
rather than Section 10(b) of the Act. Claimant responds, urging affirmance.
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 the instant case,
it is uncontroverted that claimant is incapable of resuming his former employment
duties with employer. As claimant has returned to work, the issue in this case is
whether employer demonstrated the availability of a suitable job which claimant is
capable of performing and which pays a higher wage than the job that the
administrative law judge used in determining his wage-earning capacity. 33 U.S.C.
§908(c)(21), (h). In order to meet this burden by offering claimant a
suitable job in its facility, employer must demonstrate the availability of work
which is necessary and which claimant is capable of performing. See 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).[2]
Employer initially avers that the administrative law judge erred by failing
to find that the light-duty helper position, which was offered to claimant but
refused on May 12, 1999, constituted suitable alternate employment; additionally,
employer challenges the administrative law judge's determination that a position
later identified as being available in employer's tool room also does not establish
the availability of suitable alternate employment. In finding that these two
positions were unsuitable for claimant, the administrative law judge implicitly
credited claimant's testimony that he continues to suffer from severe post-surgery
pain which prevents him from performing the positions identified by employer.[3] Specifically, the administrative law judge
initially found that claimant experienced pain post-injury when he performed light-duty work for employer, that claimant informed employer of his ongoing right
shoulder discomfort while working, that claimant continues to suffer from severe
right shoulder pain, and that claimant's supervisor, in offering claimant a light-duty helper position after his surgery, described that position as constituting the
same type of light-duty work that he had previously performed.[4] See Decision and Order at 13.
Regarding the position identified in employer's tool room, the administrative law
judge determined that claimant would not be able to function effectively in this
position since claimant cannot speak or read English, employer's tool room
supervisor is not fluent in Spanish, and that at best the position described by
employer constituted sheltered employment which did not satisfy employer's burden
of establishing the availability of suitable alternate employment.[5] Id. It is well-established that an
administrative law judge is entitled to weigh the evidence and draw his own
inferences from it. See Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th
Cir. 1962); Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988). In
the instant case, the administrative law judge's decision to rely on the testimony
of claimant regarding his ongoing complaints of pain and his inability to perform
some of the light-duty assignments given to him, and his subsequent determination
that the two positions identified by employer are insufficient to establish the
availability of suitable alternate employment, are rational and his findings are
supported by the record. See Mijangos v. Avondale Shipyards, Inc., 948 F.2d
941, 25 BRBS 78 (CRT)(5th Cir. 1991). Accordingly, we affirm the administrative
law judge's finding that the positions identified by employer do not satisfy
employer's burden of establishing the availability of suitable alternate employment
at a higher wage. See generally Uglesich v. Stevedoring Services of America,
24 BRBS 180 (1991).
Employer also argues that the administrative law judge erred by determining
claimant's pre-injury average weekly wage to be $554.36[6] under Section 10(c) rather than Section 10(b) of the Act, 33 U.S.C.
§910(b).[7] Specifically, because claimant
was employed by employer for only 14 weeks prior to his injury, employer contends
that claimant's pre-injury average weekly wage should be determined under Section
10(b), using as a basis the earnings of three other similarly situated workers.[8] The administrative law judge thoroughly reviewed
the earnings and work practices of these workers and found that their earnings
could not be used as a comparison because they failed to demonstrate the same work
ethic as the claimant, particularly in working overtime during the relevant
period.[9] Although employer contends that the
overtime hours claimant worked during this period were unusually inflated due to
the necessity of meeting a deadline, the record reflects that even during this
period of relatively high overtime availability, claimant worked significantly more
overtime than the comparison workers; indeed, claimant's overtime hours were more
than double the average overtime hours of the three similar employees (19.53 v.
8.14 hours).[10] We hold, therefore, that the
administrative law judge rationally determined that claimant could not be compared,
pursuant to Section 10(b), with workers who lacked his work ethic, and we affirm
his decision not to utilize that subsection of the Act in calculating claimant's
average weekly wage. As the mathematical calculation of claimant's average weekly wage under Section 10(c) is not challenged on appeal, we affirm the
administrative law judge's finding that claimant established an average weekly wage
of $554.36.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)The parties herein stipulated that claimant reached maximum
medical improvement on January 1, 2000.
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2)The Board has affirmed a finding of suitable alternate
employment where employer offers claimant a job tailored to his specific
restrictions so long as the work is necessary. Larsen v. Golten Marine Co.,
19 BRBS 54 (1986).
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3)Claimant's complaints of ongoing pain are supported by the
testimony of Dr. Hoffman, who stated that claimant's torn rotator cuff could only
be partially repaired and that claimant would continue to suffer from arthritis in
his right shoulder. See CX 5.
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4)Contrary to employer's assertion on appeal, claimant testified
that he was unable to perform some of his light-duty, post-injury work assignments,
specifically, cleaning and sweeping, due to his pain. See Tr. at 60.
Claimant's testimony was corroborated by Mr. Salazar, who testified that claimant
complained of ongoing right shoulder pain while working during this period of time.
See Tr. at 114. Moreover, Mr. Salazar testified that when he spoke to
claimant about returning to light duty following his surgery, he explained that
claimant's post-surgical position would be basically the same job he had performed
prior to his surgery. See Tr. at 113.
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5)In addressing this position, the administrative law judge
specifically declined to rely upon employer's position that the language barrier
present in this case could be overcome by the use of some unidentified system of
hand signals. See Decision and Order at 13; Tr. at 141.
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6)In arriving at this figure, the administrative law judge
divided claimant's actual wages earned, $7,761, by the 14 weeks he worked prior to
his injury. EX 12.
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7)Section 10(b) expressly requires evidence regarding the
earnings "of an employee of the same class working in similar employment in the
same or a neighboring place." 33 U.S.C. §910(b); Hall v. Consolidated
Employment Systems, Inc., 139 F.3d 276, 32 BRBS 91(CRT) (5th Cir. 1998).
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8)Employer offered the wages earned and overtime hours worked by
three other workers in the same position as claimant. During the relevant 14 week
period:
Worker I 11.6 hours of overtime Average Weekly Wage: $460.12
Worker II 8.89 hours of overtime Average Weekly Wage: $426.73
Worker III 3.92 hours of overtime Average Weekly Wage: $337.00
Claimant 19.53 hours of overtime Average Weekly Wage: $554.36
EX 16.
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9)In this regard, the administrative law judge relied upon the
testimony of Mr. Salazar, who had testified that the three comparable employees
relied upon by employer worked fewer hours because they were not as dependable and
highly motivated as claimant, who had worked as much overtime as possible.
See Decision and Order at 7-8.
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10)Contrary to employer's statement on appeal, that the three
workers were similarly motivated to work overtime, Brief at 6, Mr. Salazar
testified that the three employees identified by employer worked fewer hours as
they were less motivated and less dependable than claimant. Tr. at 125-127.
Additionally, if employer's contention is accurate, the overtime hours of all four
employees would have been inflated, with claimant still working in excess of twice
the average overtime hours of his co-workers.
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NOTE: This is an UNPUBLISHED LHCA Document.
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