BRB No. 00-0169
BOBBY L. MURPHY )
)
Claimant-Respondent )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 10/13/2000
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Petitioner )
)
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Granting Temporary Total Disability of Richard K. Malamphy,
Administrative Law Judge, United States Department of Labor.
John H. Klein (Montagna, Klein & Camden, L.L.P.), Norfolk, Virginia, for claimant.
Christopher R. Hedrick and Lexine D. Walker (Mason, Cowardin & Mason), Newport News, Virginia, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals
Judges.
PER CURIAM:
Employer appeals the Decision and Order Granting Temporary Total Disability (94-LHC-2106) of Administrative
Law Judge Richard K. Malamphy 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 was injured in a serious car accident in 1966. He sustained multiple lacerations, fractured ribs, and a
fractured right forearm, right thigh, right ankle and left hip. Claimant subsequently was diagnosed with chronic deep venous
thrombosis in his left leg, which was a result of the left hip injury. While at work on August 14, 1973, claimant sustained
an abrasion on his lower left leg which became ulcerous. This initial ulcer eventually healed; however, the left calf
repeatedly became ulcerous in and around the same spot and eventually resulted in claimant's requesting retirement on April
1, 1996, for disability attributable to recurrent leg ulcers. Claimant's left leg ulcers have resulted in multiple
hospitalizations for vein debridement, ligation and stripping as well as multiple split thickness skin grafts and Linton
procedures since the August 1973 work injury. When his condition rendered claimant unable to work, employer voluntary
paid claimant compensation for temporary total disability, 33 U.S.C. §908(b). Claimant primarily worked light-duty
for employer after he returned to work following his August 1973 injury, as well as after periods of treatment for recurrent
left leg ulcers. Moreover, employer voluntarily paid claimant compensation under the Act for a 15 percent permanent
partial impairment of the left leg. 33 U.S.C. §908(c)(2).
In his decision, the administrative law judge found that claimant's recurrent left leg ulcerations are due, at least in
part, to the August 1973 work injury. In this regard, the administrative law judge credited the opinion of claimant's treating
physician since 1979, Dr. Gregory, because of his familiarity with the case. The administrative law judge also noted the
absence of any ulcerations prior to the work injury, and he found that the initial ulcer resulting from the work injury lasted
approximately ten years.[1] The administrative law judge next found that claimant's
condition has not obtained maximum medical improvement, and he therefore found premature employer's application for
Section 8(f) relief. 33 U.S.C. §908(f). Finally, the administrative law judge credited the vocational report and
testimony of Charles DeMark, Jr., in finding that employer failed to establish the availability of suitable alternate
employment. Claimant was awarded continuing compensation under the Act for temporary total disability from August 4,
1997.
On appeal, employer challenges the administrative law judge finding that claimant's recurrent left leg ulcers are
related to the August 14, 1973, work injury. Employer also challenges the administrative law judge's findings that
claimant's left leg condition has not reached maximum medical improvement and that employer failed to establish the
availability of suitable alternate employment. Claimant responds, urging affirmance.
We initially address employer's contentions that the administrative law judge erred in finding that claimant's
recurrent leg ulcers are related to his August 14, 1973, work injury. It is claimant's burden to prove the existence of an
injury or harm and that a work-related accident occurred or that working conditions existed which could have caused the
harm in order to establish a prima facie case. See Universal Maritime Corp. v. Moore,
126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); see also U.S. Industries/Federal Sheet Metal, Inc. v. Director,
OWCP, 455 U.S. 608, 14 BRBS 631 (1982); Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).
Where claimant has established his prima facie case, Section 20(a) of the Act, 33 U.S.C. §920(a), provides
him with a presumption that his condition is causally related to his employment; the burden then shifts to employer to rebut
the presumption by producing substantial evidence that claimant's condition was neither caused nor aggravated by his
employment. See American Grain Trimmers, Inc. v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT)
(7th Cir. 1999)(en banc); Swinton v. J. Frank Kelley, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.),
cert. denied, 429 U.S. 820 (1976). If the administrative law judge finds the Section 20(a) presumption rebutted,
it drops from the case. Moore, 126 F.3d at 256, 31 BRBS at 119(CRT) (4th Cir. 1997). The administrative law
judge then must weigh all the evidence and resolve the issue of causation on the record as a whole with claimant bearing
the burden of persuasion. Id.; see also Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996); see generally
Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
In this case, employer challenges the administrative law judge's weighing of the evidence and his decision to credit
the opinion of claimant's treating physician, Dr. Gregory, that claimant's recurrent leg ulcers are related to the 1973
injury.[2] After consideration of employer's contentions on this issue, we affirm
the administrative law judge's finding. Contrary to employer's contention, the opinions of Drs. Stallard and Harmon do
not establish the absence of a causal connection between the 1973 work injury and the recurrent ulcers, as they merely
address whether the 15 percent permanent impairment to claimant's leg, a rating assigned in the late 1970s and early
1980s, is attributable to the work injury. EXs 13, 15. They do not address either the cause of the ulcers recurring after
claimant's initial ulcer healed, or, specifically, the cause of the total disability at issue here.
Moreover, the administrative law judge acted within his discretion in crediting the opinion of claimant's treating
physician, Dr. Gregory, that claimant's recurrent ulcers are related to the 1973 work injury, CX 1i, k, l, over the opinion
of Dr. Levy, who stated that the recurrent ulcers "appear to be secondary to venous insufficiency following his automobile
accident, rather than related to the initial contusion suffered in August 1973." EX 1. The administrative law judge noted
that both physicians are vascular surgeons, and he rationally accorded greater weight to the opinion of claimant's treating
physician, who treated claimant's ulcerous condition from 1978 to 1984, and from 1992 forward, and who thus is more
familiar with the case.[3] Decision and Order at 10. The Board is not empowered
to reweigh the evidence. See generally Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d
122, 28 BRBS 89(CRT) (4th Cir. 1994). Inasmuch as Dr. Gregory's opinion constitutes substantial evidence in support
of the conclusion that claimant's recurrent ulcerous condition is work-related, and as the administrative law judge's decision
to credit Dr. Gregory's opinion over that of Dr. Levy is within his discretion as the fact-finder, see Todd Shipyards
Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962), we affirm the administrative law judge's finding.[4]
Employer next challenges the administrative law judge's finding that claimant's leg condition has not reached
maximum medical improvement. A claimant's condition may be considered permanent when it has continued for a lengthy
period and appears to be of lasting and indefinite duration, as opposed to one in which recovery merely awaits a normal
healing period, Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394 U.S. 976
(1969), or if he has any residual impairment after reaching maximum medical improvement, the date of which is determined
by medical evidence. See SGS Control Services v. Director, OWCP, 86 F.3d 438, 30 BRBS 57(CRT) (5th Cir.
1996). In the instant case, the administrative law judge rejected employer's contention that claimant's recurrent leg ulcers
reached maximum medical improvement on April 28, 1977, when Dr. Wheeler stated that claimant's ulcerous leg had
healed, and that he could return to his usual employment.[5] CX 4. The
administrative law judge stated that no physician of record specifically provided a date at which claimant's condition
reached maximum medical improvement. He further reasoned that Dr. Gregory stated in June 1995 that claimant's ulcerous
leg would not reach maximum medical improvement for at least six months, and he noted that claimant has continued to
require extensive medical treatment. The administrative law judge therefore found that claimant's condition was not
permanent, and he found premature employer's request for Section 8(f) relief .
We hold that the administrative law judge erred in finding that claimant's condition is not permanent. The
administrative law judge focused solely on whether a physician provided a date on which claimant's condition reached
maximum medical improvement, and did not discuss whether claimant's condition is long-lasting and indefinite under the
test stated in Watson. Indeed, the uncontradicted evidence of record establishes that claimant's leg condition has
continued for a lengthy period and may only further deteriorate in the future. See generally SGS Control Services,
86 F.3d at 438, 30 BRBS at 57(CRT). Although claimant's previous ulcers healed, claimant's underlying condition
is clearly permanent, and, as of the hearing in March 1999, claimant was receiving continuing treatment for an ulcer that
initially appeared in August 1994. EX 10a-q. Dr. Ives stated in his July 1997 report that claimant's leg condition will only
deteriorate, and that he considered it possible that claimant may require amputation of the left leg. CX 3. The
uncontradicted evidence of record establishes that claimant's recurrent ulcers are of lasting and indefinite duration, and there
is no evidence that claimant's condition merely awaits a normal healing period. Therefore, we hold that claimant's ulcerous
leg condition is permanent, and we reverse the administrative law judge's conclusion to the contrary. See SGS Control
Services, 86 F.3d at 438, 30 BRBS at 57(CRT); Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS
69(CRT) (D.C. Cir. 1990). Thus, we remand the case to the administrative law judge for a determination of the date
claimant's condition became permanent, and for him to address employer's application for Section 8(f) relief.
Employer lastly challenges the administrative law judge finding that it did not establish the availability of suitable
alternate employment. Employer contends that the administrative law judge erred by requiring that it establish that the
prospective jobs could be modified to enable claimant to keep his left leg elevated. Where, as in the instant case, it is
undisputed that claimant is unable to perform his usual employment duties with employer, the burden shifts to employer
to demonstrate the availability of suitable alternate employment. See Universal Maritime Corp. v. Moore, 126 F.3d
256, 31 BRBS 119(CRT) (4th Cir. 1997); Lentz v. The Cottman Co., 852 F.2d 129, 21 BRBS 109(CRT) (4th Cir.
1988); see also Newport News Shipbuilding & Dry Dock v. Tann, 841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988).
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 Lentz, 852 F.2d at 129, 21 BRBS at 109(CRT); Bryant v. Carolina Shipping Co.,
Inc., 25 BRBS 294 (1992). In considering whether employer has established the availability of suitable alternate
employment, the administrative law judge must determine whether claimant is physically capable of performing the
positions identified by employer. Wilson v. Crowley Maritime, 30 BRBS 199 (1996); Davenport v. Daytona
Marine & Boat Works, 16 BRBS 196 (1984).
Employer's contentions lack merit. Relying on the credible testimony of claimant's vocational expert, Charles
DeMark, Jr., who testified that claimant could not perform any of the jobs listed in employer's labor market survey, the
administrative law judge rationally concluded that none of the jobs identified by employer's vocational counselor constitutes
suitable alternate employment because claimant does not have the requisite skills or manual dexterity, and/or the jobs
require physical activities inconsistent with claimant's limitations.[6] See
generally Canty v. S.E.L. Maduro, 20 BRBS 147 (1992). Moreover, contrary to employer's contention, the
administrative law judge's findings are consistent with the applicable standard, in that given claimant's physical restrictions,
education and work experience, none of the positions set forth in employer's labor market survey is realistically available
to claimant.[7] Lentz, 852 F.2d at 129, 22 BRBS at 109(CRT). We thus
affirm the administrative law judge's finding that employer failed to establish the availability of suitable alternate
employment, and that claimant, therefore, is totally disabled.[8]
Accordingly, the administrative law judge's finding that claimant's condition is temporary in nature is reversed, and
the case is remanded for further proceedings consistent with this opinion. In all other respects, the administrative law
judge's decision is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
To Top of Document
Footnotes.
1) 1This finding is in error, as the record establishes that the initial ulcer had healed in
1977.
Back to Text
2) 2We note that the administrative law judge's failure to apply the Section 20(a)
presumption is harmless error in that he weighed the evidence as a whole and found in claimant's favor. See generally
Bass v. Broadway Maintenance, 28 BRBS 11 (1994).
Back to Text
3) 3The administrative law judge also noted the opinion of Dr. Ives, who stated that the
1973 work injury is an aggravating event from which claimant never fully recovered and that claimant's disability is related,
at least in part, to the 1973 injury. CX 3. The administrative law judge noted that Dr. Ives is a general surgeon.
Back to Text
4) 4We reject employer's contention that the decisions in Millburn Colliery Co. v.
Hicks, 138 F.3d 524 (4th Cir. 1998), and Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438 (4th Cir. 1997),
require the reversal of the administrative law judge's decision. These cases do not authorize the Board to reweigh the
evidence or to overturn a decision that is supported by substantial evidence in the record.
Back to Text
5) 5In addition, in 1982, Dr. Wheeler rated claimant's leg as having a 15 percent
permanent impairment. CX 4.
Back to Text
6) 6The administrative law judge credited the opinions of Drs. Freeman, Gregory and
Ives that claimant should sit almost constantly with his leg elevated. Decision and Order at 12; see also CXs 1y,
3h; EX 6f. Moreover, the administrative law judge specifically credited Mr. DeMark's testimony that the only truly
sedentary job identified in employer's survey, that of a pizza order clerk, also required physical activity beyond claimant's
work restrictions during slack periods, that there were few sedentary jobs where claimant could sit with his leg continuously
elevated, and that employer's labor market survey failed to identify such a job within claimant's vocational abilities.
Decision and Order at 13; see also Tr. at 101-117.
Back to Text
7) 7Accordingly, as Mr. DeMark's testimony supports the administrative law judge's
finding, any error the administrative law judge committed in rejecting employer's vocational counselor's opinion because
he failed to have a physician approve the jobs identified in employer's labor market survey as within claimant's work
restrictions is harmless.
Back to Text
8) 8As the administrative law judge rationally concluded that employer did not establish
the availability of suitable alternate employment, we need not address employer's contentions that claimant did not
diligently seek appropriate employment. See generally Tann, 841 F.2d at 540, 21 BRBS at 10(CRT).
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document. To Top of Document
|
