BRB Nos. 90-0161
and 91-1559
ANTHONY C. HAMMER, JR. )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. )
)
HARRINGTON & COMPANY ) DATE ISSUED: 07/16/1996
)
and )
)
INSURANCE COMPANY OF NORTH )
AMERICA )
)
Employer/Carrier- )
Respondents )
Cross-Petitioners ) DECISION and ORDER
Appeals of the Decision and Order Awarding Benefits, the Errata Order,
and the Supplemental Decision and Order Awarding Attorney Fees of
Richard D. Mills, Administrative Law Judge, United States Department of
Labor.
Douglass M. Moragas, Metairie, Louisiana, for claimant.
Kathleen K. Charvet (McGlinchey, Stafford, Cellini & Lang), New Orleans,
Louisiana, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Awarding Benefits and the Errata Order
and employer appeals the Supplemental Decision and Order Awarding Attorney Fees
(88-LHC-1594) of Administrative Law Judge Richard D. Mills 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).[1] 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).
On May 4, 1981, claimant sustained an injury during the course of his
employment which lead to a hernia operation. Claimant's condition recurred in 1982
and 1983, resulting in claimant's undergoing two more surgical procedures. On
August 15, 1985, claimant's hernia recurred again; following this last recurrence,
claimant declined to undergo additional surgery.
In his Decision and Order, the administrative law judge found that claimant
could not return to his former occupational duties with employer. Next, the
administrative law judge determined that employer established the availability of
suitable alternate employment and that claimant retained a post-injury wage-earning
capacity of $107.20 per week. The administrative law judge then awarded claimant
permanent partial disability compensation from January 30, 1987, the date claimant
reached maximum medical improvement, based on two-thirds of the difference between
claimant's average weekly wage of $451.22 before his injury and his post-injury
wage-earning capacity of $107.20 per week.[2] The
administrative law judge also found claimant's refusal to undergo further surgery
was reasonable and justified, see 33 U.S.C. §907(d)(4), and awarded
claimant benefits for future medical expenses.
Thereafter, claimant's counsel submitted a fee petition to the administrative
law judge requesting an attorney's fee of $7,965, representing 79.65 hours of
services at $100 per hour, plus $1,728.56 in expenses. In a Supplemental Decision
and Order, the administrative law judge awarded the fee in full.
On appeal, claimant challenges the administrative law judge's finding that
employer established the availability of suitable alternate employment. BRB No.
90-0161. In its appeal, employer contends that the administrative law judge erred
in awarding a fee to claimant's counsel. BRB No. 91-1559.
Claimant contends that the administrative law judge erred in concluding that
employer established the availability of suitable alternate employment based solely
upon the single position of an airport parking lot cashier. We agree that the
administrative law judge's decision cannot be affirmed. Where, as in the instant
case, it is uncontroverted that claimant cannot return to his usual employment,
claimant has established a prima facie case of total disability, thus
shifting the burden of proof to employer to demonstrate the availability of
suitable alternate employment. See New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also P & M Crane Co.
v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT)(5th Cir. 1991), reh'g denied,
935 F.2d 1293 (5th Cir. 1991). In order to meet this burden, employer must show
that there are jobs reasonably available in the geographic area where claimant
resides which claimant is capable of performing based upon his age, education, work
experience and physical restrictions, and which he could realistically secure if
he diligently tried. Southern v. Farmers Export Co., 17 BRBS 64 (1985).
Employer must establish realistic, not theoretical, job opportunities. See
Preziosi v. Controlled Industries, Inc., 22 BRBS 468 (1989) (Brown, J.,
dissenting on other grounds). The United States Court of Appeals for the Fifth
Circuit, within whose jurisdiction this case arises, has stated that an employer
can meet its burden of establishing the availability of suitable alternate
employment by demonstrating the existence of only one job opportunity, and the
general availability of other suitable positions, where "an employee may have a
reasonable likelihood of obtaining such a single employment opportunity under
appropriate circumstances." See P & M Crane, 930 F.2d at 431, 24 BRBS
at 121 (CRT). According to the court, such circumstances would exist, for example,
where the employee is highly skilled, the job relied upon by employer is
specialized and the number of workers with suitable qualifications is small. In
Diosdado v. John Bludworth Marine, Inc., No. 93-5422 (Sept. 19, 1994)(5th
Cir. 1994)(unpublished), the Fifth Circuit discussed its holding in P & M
Crane, stating that P & M Crane establishes that more must be shown than
the mere existence of a single job the claimant can perform; specifically, the
court stated that in a case where one specific job has been identified and no
general employment opportunities that were suitable alternatives for the claimant
had been proffered, employer must establish a reasonable likelihood that claimant
could obtain the single job identified.[3] See
Diosdado, slip op. at 11-12.
In the instant case, employer's rehabilitation expert identified six positions
which were deemed to be suitable for claimant. The administrative law judge found
five of the six identified positions to be unsuitable for claimant; with regard to
the airport parking lot attendant position, the administrative law judge found the
position to be suitable, available, and within claimant's restrictions.[4] See Decision and Order at 9-10. The case
before us is thus similar to the situation presented in Diosdado;
specifically, as the court noted, "we have been confronted with the rare situation
in which only one specific job is offered as suitable employment." See
Diosdado, slip op. at 12. Like the employer in Diosdado, employer
herein did not proffer any testimony of the general availability of jobs which
claimant could perform. Moreover, the administrative law judge's decision in this
case was issued prior to the court's decisions in P & M Crane and
Diosdado; thus, he made no finding as to whether there was a "reasonable
likelihood" under the P & M Crane standard that claimant could obtain the
airport parking lot position. Accordingly, as the employer has identified only one
employment opportunity deemed to be suitable for claimant, and has proffered no
evidence of the general availability of jobs which claimant could perform, we
conclude that the case must be remanded for further findings under the appropriate
legal standard. We therefore vacate the administrative law judge's finding that
employer has established the availability of suitable alternate employment, and we
remand the case to the administrative law judge for a determination of the
reasonable likelihood that claimant could obtain the sole position identified as
being suitable for claimant.[5] On remand, should
the administrative law judge find that employer has established the availability
of suitable alternate employment, he must additionally reconsider the date of when
claimant's permanent partial disability award will commence. Rinaldi v. General
Dynamics Corp., 25 BRBS 128 (1991)(Decision on Recon.).
We next address employer's appeal of the administrative law judge's award of
an attorney's fee to claimant's counsel. BRB No. 91-1559. Employer initially
contends that counsel's efforts before the administrative law judge resulted in
only a nominal award, and consequently, claimant's case was not successfully
prosecuted. We reject employer's argument. In this case, the administrative law
judge found that claimant's attorney successfully prosecuted this claim by
establishing causation, as well as obtaining an award of permanent partial
disability compensation and future medical benefits for the remainder of claimant's
life. See Supplemental Decision and Order at 2. Our decision to remand this
case for reconsideration of the extent of claimant's disability does not disturb
these findings; claimant's award may in fact increase as a result of the remand.
Thus, the administrative law judge's finding that claimant's attorney successfully
prosecuted this claim is affirmed.
We further reject employer's arguments that its settlement offers and pre-hearing compensation rates yield a greater amount of compensation to claimant than
the permanent partial disability award entered by the administrative law judge.
The administrative law judge found employer first offered claimant a $75,000 lump sum plus medical
benefits and then offered claimant $899 per month with a 10 year guarantee plus
medical benefits, whereas claimant obtained permanent partial disability of $895.52
for the rest of his life, plus medical expenses. Under these circumstances, the
administrative law judge did not err in finding claimant obtained greater benefits
than those offered by employer. See, e.g., Turney v. Bethlehem Steel Corp.,
17 BRBS 232 (1985).
Lastly, employer argues that attorney fees should not be assessed against it
since claimant's attorney consistently refused to relate any of the settlement
offers made by employer to his client. Claimant's counsel responds, asserting that
every settlement offer was conveyed to and rejected by his client. We decline to
address this contention, which is raised for the first time on appeal. See
Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993)(en banc)(Brown
and McGranery, JJ., concurring and dissenting), modified on other grounds on
recon. en banc., 28 BRBS 102 (1994), aff'd mem. sub nom. Ingalls
Shipbuilding, Inc. v. Director, OWCP [Biggs], 46 F.3d 66 (5th Cir. 1995);
Clophus v. Amoco Production Co., 21 BRBS 261 (1988).
Accordingly, the administrative law judge's finding that employer demonstrated
the availability of suitable alternate employment is vacated, and the case is
remanded to the administrative law judge for reconsideration consistent with this
opinion. In all other respects, the administrative law judge's Decision and
Order, Errata Order, and Supplemental Decision and Order Awarding Attorney Fees
are affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
To Top of Document
Footnotes.
1)By Order dated September 3, 1991, the Board consolidated for
purposes of decision claimant's appeal of the administrative law judge's Decision
and Order Awarding Benefits and his Errata Order, BRB No. 90-0161, and employer's
appeal of the administrative law judge's award of attorney's fees, BRB No. 91-1559.
See 20 C.F.R. §802.104.
Back to Text
2)In an Errata Order, the administrative law judge found that
claimant's post-injury wage-earning capacity is $112 per week.
Back to Text
3)Local Rule 47.5.3 provides "Unpublished opinions are precedent. .
. . " See 5th Cir. R. 47.5.3. Although the Fifth Circuit has determined
that this opinion should not be published, see 5th Cir. R. 47.5.1, the
decision in this case can be found at 29 BRBS 125 (CRT).
Back to Text
4)The administrative law judge's determinations regarding the
suitability of the five rejected positions have not been appealed by employer.
Back to Text
5)We reject claimant's argument that he should have been informed of
the airport parking lot position by employer. P & M Crane Co. v. Hayes, 930
F.2d 424, 24 BRBS 116 (CRT)(5th Cir. 1991), reh'g denied, 935 F.2d 1293 (5th
Cir. 1991); Hogan v. Schiavone Terminal, Inc., 23 BRBS 290 (1990).
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
