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                                 BRB Nos. 99-0316
                                   and 99-0316A
KENDRICK ROBERTS                        )    
          Claimant-Petitioner           )
          Cross-Respondent              )
     v.                                 )
UNION DRY DOCK & REPAIR,                )    DATE ISSUED:   12/15/1999
INCORPORATED                            )
     and                                )
SIGNAL MUTUAL CLAIMS                    )
ASSOCIATION                             )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION and ORDER

     Appeal of the Decision and Order of Ralph A. Romano, Administrative Law
     Judge, United States Department of Labor.

     Andrew R. Topazio (Marciano & Topazio), Hoboken, New Jersey, for

     Francis Womack (Weber Goldstein Greenberg & Gallagher), Jersey City, New
     Jersey, for employer/carrier.  

     Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.


     Claimant appeals, and employer cross-appeals, the Decision and Order (97-LHC-2739) of Administrative Law Judge Ralph A. Romano 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).

     On October 31, 1996, claimant, a welder, injured his head, back, neck, and
left shoulder after falling off a ladder at work.  Claimant has not returned to
work.  The administrative law judge awarded claimant temporary total disability
benefits from November 1, 1996, to December 6, 1997, after which date employer's
labor market report identified suitable alternate employment for claimant, and
temporary partial disability benefits from December 7, 1997, through the present
and continuing, as claimant's condition had not yet reached permanency.  The
administrative law judge held that employer did not establish that its offer on
February 3, 1997, of a light duty welding job in its facility was suitable for

     On appeal, claimant challenges the administrative law judge's findings that
his condition was not yet permanent and that employer established suitable
alternate employment on December 7, 1997, based on its labor market report. 
Employer cross-appeals the administrative law judge's finding that it did not
establish suitable alternate employment  through its offer of a light duty welding
job in its facility.

     Claimant initially challenges the administrative law judge's finding that his
condition is not permanent, and he contends that the opinions of Dr. Bourdeau, his
treating physician, and Dr. Kiell establish that he has in fact reached permanency. 
A disability is considered permanent as of the date claimant's condition reaches
maximum medical improvement, Diosdado v. Newpark Shipbuilding & Repair,
Inc., 31 BRBS 70 (1997), or where it has continued for a lengthy period
and appears to be of lasting or infinite duration, as distinguished from 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).  Whether claimant's condition is permanent is primarily a
question of fact based on the medical evidence. Ballesteros v. Willamette
Western Corp., 20 BRBS 184 (1988).

     In determining that claimant's condition was still temporary, the
administrative law judge summarily concluded that the evidence failed to show that
claimant reached maximum medical improvement as he is still treating with Dr.
Bourdeau and as the parties failed in their post-hearing briefs to reference any
evidence relevant to the date maximum medical improvement was reached.  As claimant
accurately argues in his brief, the administrative law judge did not discuss and
weigh the opinions of Drs. Bourdeau and Kiell which are relevant to this issue.[1]   We therefore vacate the administrative law
judge's finding that claimant's condition is temporary, and we remand the case for
reconsideration of this issue. See McKnight v. Carolina Shipping Co., 32
BRBS 165, aff'd on recon. en banc, 32 BRBS 251 (1998).  We note that ongoing
treatment does not necessarily preclude a finding of permanency. See, e.g.,
Morehead Marine Services, Inc. v. Washnock, 135 F.3d 366, 32 BRBS 8 (CRT)(6th
Cir. 1998); Louisiana Insurance Guaranty Association v. Abbott, 40 F.3d 122,
29 BRBS 22 (CRT)(5th Cir. 1994).

     Claimant also challenges the administrative law judge's finding that employer
established suitable alternate employment on December 7, 1997, based on its labor
market report.  Claimant argues that the opinions of Drs. Bourdeau and Kiell
establish that he is  totally disabled; thus, the administrative law judge erred
in finding him capable of some work in December 1997 based on employer's vocational
evidence.  Claimant also argues that he is totally disabled based on the results
of magnetic resonance imagings (MRIs) administered in June 1997, showing that, with
regard to claimant's shoulder, he has biceps tendinitis but no rotator cuff tear,
and with regard to his back, posterior disc bulges at C3-4 and C 4-5, and disc
herniations at C5-6 and C6-7.  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 established suitable alternate employment based
on its labor market report, the administrative law judge acted within his
discretion in crediting employer's labor market report over claimant's labor market
report, as he found claimant's vocational assessment centered on what claimant said
and did at the vocational interview  whereas employer's vocational assessment
identified claimant's functional capacity based upon the medical opinions of
record.[2]   See generally Hogan v. Schiavone
Terminal, Inc., 23 BRBS 290 (1990); Warren v. National Steel & Shipbuilding
Co., 21 BRBS 149 (1988); Decision and Order at 7; Emp. Ex. 9; Cl. Ex. 14. 
Although the opinions of Drs. Bourdeau and Kiell may conclude that claimant is
totally disabled, as claimant notes, they do not preclude a return to suitable
alternate employment by claimant since they identify restrictions for claimant.
See n. 1, 2, infra.  Moreover, the administrative law judge
rationally determined that the results of the MRI's do not preclude claimant from
working. Decision and Order at 6, and n.4.  As the jobs in employer's labor market
survey were within claimant's restrictions, we affirm the finding that employer
demonstrated the availability of suitable employment and that claimant is only
partially disabled.

     We next address employer's appeal of the administrative law judge's finding
that its offer of a light duty welding job did not constitute suitable alternate
employment.  Employer argues that the administrative law judge erroneously inferred
that Mr. O'Reilly, employer's director of personnel and safety, would be assigning
claimant his job assignments instead of Mr. Rivera, employer's yard foreman, and
thus erred in relying on inconsistencies  between the testimony of Messrs. O'Reilly
and Rivera to find that the job employer offered was not shown to be suitable. 
Employer can meet its burden of establishing suitable alternate employment for
claimant by offering him a suitable job in its facility. Darby v. Ingalls
Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996).

     We reject employer's contention, as the administrative law judge rationally
determined that a clear description of the job was not ascertainable as Messrs.
Rivera and O'Reilly defined the job differently.[3]
  See generally Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969);
Crum v. General Adjustment Bureau, 738 F.2d 474, 16 BRBS 115 (CRT)(D.C. Cir.
1984); Poole v. National Steel & Shipbuilding Co., 11 BRBS 390 (1979);
Decision and Order at 5-6.  Furthermore, the administrative law judge rationally
found that Mr. O'Reilly's description of the job could not be discounted, as he
testified that he was the primary spokesman as to the job's requirements.  As these
findings are supported by substantial evidence, the administrative law judge's
conclusion that this job was not sufficient to establish additional suitable
alternate employment is affirmed.

     Accordingly, the administrative law judge's finding that claimant's condition
is temporary is vacated, and the case is remanded to the administrative law judge
for further consideration of this issue.  In all other respects, the Decision and
Order of the administrative law judge is affirmed.   

     SO ORDERED.  

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1) On February 24, 1997, and October 10, 1997, Dr. Bourdeau stated that claimant's work-related injuries are chronic, permanent, and totally disabling in nature. See Cl. Exs. 18, 19. On August 22, 1997, and April 15, 1998, Dr. Kiell diagnosed work-related permanent neurological and neuropsychiatric disabilities and provided percentage disability ratings for them. See Cl. Exs. 16, 31. Back to Text
2) The administrative law judge did not identify claimant's restrictions of record but Dr. Bourdeau identified them as no heavy lifting and no sitting or standing for long periods of time. See Cl. Exs. 18, 19. Dr. Kiell identified claimant's restrictions as difficulty getting into a small space, bending, and lifting. See Cl. Ex. 32 at 58-59. Employer's labor market report took into account claimant's restrictions as to lifting and climbing. See Emp. Ex. 9. Back to Text
3) 3The administrative law judge accurately summarized the testimony of Mr. Rivera who stated that the job would accommodate claimant's lifting restriction of 30 pounds and require some bending, climbing, and twisting although claimant would work in an area that is open and not in a hole that he would have to climb in with a lot of twisting. Tr. at 124-127, 134-135. The administrative law judge also accurately stated that Mr. O'Reilly acknowledged that only claimant's lifting restriction of 30 pounds would be accommodated, and that claimant would have to place himself wherever the particular welding job might take him. Tr. at 155-156, 161, 167. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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