BRB No. 98-0103
WARREN ROUGEAU )
)
Claimant-Respondent )
)
v. )
)
FILCO INTERNATIONAL, )
INCORPORATED )
) DATE ISSUED: 09/22/1998
and )
)
LOUISIANA WORKERS' )
COMPENSATION CORPORATION )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order and Decision and Order on Motion for
Reconsideration of Lee J. Romero, Jr., Administrative Law Judge, United
States Department of Labor.
Nicholas Soileau, Mamou, Louisiana, for claimant.
J. Michael Stiltner, Baton Rouge, Louisiana, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order and Decision and Order on Motion for
Reconsideration (96-LHC-2363) 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 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 platform operator on an offshore oil platform, slipped and fell while descending a ladder, and injured
his right knee. Since the work injury, claimant has had two knee surgeries. Employer voluntarily paid claimant temporary
total disability benefits from February 19, 1993, through January 10, 1994, and permanent partial disability benefits based
on a 20 percent impairment rating to the right leg. Claimant sought additional disability benefits. The administrative law
judge found that claimant established his prima facie case of total disability and that employer did not establish
suitable alternate employment. Consequently, the administrative law judge awarded claimant permanent total disability
benefits from January 10, 1994, and continuing, in addition to temporary total disability benefits from February 17, 1993,
to January 9, 1994, after finding that maximum medical improvement was established on January 10, 1994. The administrative
law judge also awarded medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907, cost-of-living adjustments
pursuant to Section 10(f) of the Act, 33 U.S.C. §910(f), an assessment pursuant to Section 14(e) of the Act, 33 U.S.C.
§914(e), and interest. The administrative law judge denied employer's motion for reconsideration.
On appeal, employer challenges the administrative law judge's award of total disability benefits. Claimant
responds in support of the administrative law judge's award of benefits.
Employer contends that the administrative law judge erred in finding that it did not establish the availability of
suitable alternate employment. Specifically, employer contends that the positions of print shop inker and cabinetmaker
constitute suitable alternate employment based on the opinions of Ms. Hoover, its rehabilitation counselor, and those of
Drs. Schutte, Nason, and Reavill.
Once, as here, claimant establishes that he is unable to perform his usual work, 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). In determining that
employer did not establish suitable alternate employment, the administrative law
judge discussed the jobs of print shop inker and cabinetmaker as described on
Forms CA-66. Emp. Ex. 7 at 18-23. The administrative law judge rationally concluded
that the job descriptions on the forms lacked all the details necessary to
determine if claimant is capable of performing the jobs in light of his
restrictions.[1] See Manigault v. Stevens
Shipping Co., 22 BRBS 332 (1989); Thompson v. Lockheed Shipbuilding &
Constr. Co., 21 BRBS 94 (1988); Decision and Order at 20. The administrative
law judge also discussed the opinions of Drs. Schutte and Nason that claimant could
perform these jobs, and he acted within his discretion in discounting Dr.
Schutte's opinion because Dr. Schutte based his opinion on a review of Forms CA-66. See generally Manigault, 22 BRBS at 332; Thompson, 21 BRBS at 94;
Decision and Order on Motion for Reconsideration at 3; Decision and Order at 20;
Emp. Ex. 4 at 22-23. Similarly, the administrative law judge was not persuaded by
Dr. Nason's opinion, as Dr. Nason qualified his opinion by questioning the amount
of time claimant would be required to be on his feet in performing these types of
jobs.[2] See generally Hawthorne v. Ingalls
Shipbuilding, Inc., 28 BRBS 73 (1994), modified on other grounds on
recon. 29 BRBS 103 (1995); Decision and Order on Motion for Reconsideration at
3; Emp. Ex. 6 at 16, 17. Consequently, the administrative law judge's finding that
employer did not establish suitable alternate employment through the job
descriptions on Forms CA-66 and the medical opinions of record is affirmed.
The administrative law judge also discussed the opinion of employer's
vocational expert, Ms. Hoover, who testified that claimant could perform both types
of jobs. Although Ms. Hoover testified that these positions are within claimant's
restrictions, the administrative law judge rationally questioned her opinion as to
claimant's ability to perform the job of cabinetmaker after she acknowledged that
the cabinetmaker position required a lot of standing which was inconsistent with
Dr. Nason's limitation. See generally Dupre v. Cape Romain Contractors,
Inc., 23 BRBS 86 (1989); Decision and Order on Motion for Reconsideration at
2; Emp. Ex. 6 at 17; Tr. at 80. The administrative law judge, however, did not
consider Ms. Hoover's testimony that claimant could perform the job of print shop
inker as it would permit claimant to intermittently sit and stand. Thus, this
position may be within claimant's residual restrictions. See n.1,
supra; see generally Diosdado v. Newpark Shipbuilding & Repair, Inc.,
31 BRBS 70 (1997); Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140
(1991); Bryant v. Carolina Shipping Co., Inc., 25 BRBS 294 (1992); Tr. at
78. We, therefore, vacate the administrative law judge's finding that employer did
not establish the availability of suitable alternate employment, and we remand
this case to the administrative law judge for further consideration of the
suitability of the print shop inker positions.[3]
If the administrative law judge on remand finds that employer established suitable
alternate employment, he must address employer's contention that claimant did not
exercise reasonable diligence in searching for alternate employment. See
generally Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687,
18 BRBS 79 (CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986).
Accordingly, the administrative law judge's Decision and Order and Decision
and Order on Motion for Reconsideration are affirmed in part and vacated in part,
and the case is remanded to the administrative law judge for further consideration
consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Dr. Mayer, inter alia, allowed claimant to intermittently stand for four hours a day. Emp. Ex. 7 at 7. Dr. Nason,
inter alia, restricted claimant from a lot of walking and/or standing. Emp. Ex. 6 at 16. The Form CA-66 for each
position did not indicate how much standing or walking was involved. Emp. Ex. 7 at 19, 22.
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2)The administrative law judge also noted Dr. Reavill's inability to state whether claimant could
perform the jobs as print shop inker and cabinetmaker in that a functional capacity evaluation was not performed. Decision
and Order on Motion for Reconsideration at 2; Emp. Ex. 5 at 15-16.
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3)Ms. Hoover identified more than one opening for a print shop inker and she testified that the jobs
paid $250 per week. Tr. at 78; see generally P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g
denied, 935 F.2d 1293 (5th Cir. 1991).
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NOTE: This is an UNPUBLISHED LHCA Document.
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