Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB No. 01-0508 

                                         
MICHAEL BROWN                           )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
AVONDALE INDUSTRIES,                    )    DATE ISSUED:   02/28/2002
2002
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order on Remand and Order Denying Claimant's
     Motion for Reconsideration of Richard D. Mills, Administrative Law
     Judge, United States Department of Labor.

     Warren L. Conway (Conway & Martin), Gulfport, Mississippi, for claimant.

     Christopher M. Landry (Blue Williams, L.L.P.) , Metairie, Louisiana, for
     self-insured employer.

     Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand and Order Denying Claimant's
Motion for Reconsideration  (94-LHC-863) 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).  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).  This case is before the
Board for a third time.

     Claimant, a fiberglass laminator for employer, suffered a work-related injury
to his lower back on June 10, 1991, which thereafter prevented him from continuing
in his usual work for employer.  After conservative treatment, claimant underwent
a discectomy at the L4-5 level in April 1992, but continued to complain of pain in
his back and right leg.  Employer voluntarily paid temporary total disability
benefits from June 21, 1991 until March 2, 1993, and from October 25, 1994 until
June 26, 1996.

     In his initial Decision and Order Denying Benefits, issued on April 7, 1997,
the administrative law judge found that claimant reached maximum medical
improvement on December 20, 1992, that claimant established a prima facie
case of total disability, and that employer established the availability of
suitable alternate employment beginning on March 5, 1993.  After finding that the
wages paid by the alternate employment exceeded claimant's pre-injury wage-earning
capacity, the administrative law judge determined that claimant was not entitled
to any further compensation, but found that he was entitled to medical benefits
under Section 7 of the Act, 33 U.S.C. §907.  The administrative law judge
denied claimant's motion for reconsideration. 

     Claimant appealed the administrative law judge's Decision and Order Denying
Compensation Benefits and Order Denying Claimant's Motion for Reconsideration (the
1997 decisions) to the Board, BRB No. 97-1511, but prior to any disposition on the
merits the case was remanded for modification proceedings.  Following a second
hearing, the administrative law judge issued his Decision and Order on Section 22
Modification, wherein he found that claimant established a change in condition
based on evidence that his back injury had worsened as of August 25, 1997.  The
administrative law judge then concluded, in light of Dr. Whitecloud's opinion that
claimant requires surgery and is unable to return to gainful employment, that
claimant is entitled to temporary total disability compensation commencing on
August 25, 1997.  He further found that claimant was entitled to reimbursement for
the treatment rendered by Dr. Whitecloud commencing on September 17, 1997, and all
reasonable and necessary treatment as suggested by claimant's physicians, but
denied reimbursement for the treatment rendered by Drs. Whitecloud, Aprill and
Jackson prior to that date as claimant failed to seek authorization for their
treatments.  In a subsequent order, the administrative law judge denied both
employer's and claimant's motions for reconsideration.  Both parties appealed the
Decision and Order on Section 22 Modification and Order Denying Petitions for
Reconsideration (the 1999 decisions), BRB Nos. 99-1063/A.  By Order dated September
22, 1999, the Board reinstated claimant's appeal of the administrative law judge's
1997 decisions, BRB Nos. 97-1511, and consolidated it with claimant's and
employer's appeals of the 1999 decisions,  BRB Nos. 99-1063/A, for purposes of
decision. 

     With regard to the administrative law judge's 1997 decisions, the Board
affirmed the administrative law judge's determination that claimant reached maximum
medical improvement on December 20, 1992, but vacated his finding that employer
established the availability of suitable alternate employment and thus his denial
of permanent total disability benefits as employer's labor market survey dated
March 5, 1993, did not provide sufficient information to support a finding that the
job duties were within the physical limitations imposed on claimant by Drs.
Danielson and Russo. Brown v. Avondale Industries, Inc., BRB Nos. 97-1511,
99-1063/A (July 7, 2000)(unpub.).  The Board therefore remanded the case for
consideration of whether the remaining jobs listed in employer's labor market
surveys, Employer's Supplemental Exhibit (ESX) 21, are within claimant's physical
limitations, and if necessary, for a determination regarding claimant's efforts to
seek alternate employment. Id.  As for the administrative law judge's 1999
decisions, the Board affirmed the administrative law judge's findings that claimant
established a change in his physical condition as of August 25, 1997, and that
claimant is entitled to an ongoing award of temporary total disability compensation
retroactive to that date.  Id.  The Board, however, vacated the
administrative law judge's denial of reimbursement for certain treatment rendered
by Drs. Whitecloud, Aprill and Jackson, and remanded for further consideration of
this issue. Id. 

     On remand, the administrative law judge determined that employer established
the availability of suitable alternate employment with the information proffered
on several positions identified in its labor market survey, i.e., jobs as
a bartender, front desk clerk, security guard and optical plant worker (flat
polisher, coating employee, lens cleaner), and that claimant did not diligently
search for alternate employment subsequent to his injury.  He therefore concluded
that claimant is not entitled to permanent total disability benefits in the pre-August 1997 period.  In addition, the administrative law judge denied any award of
permanent partial disability benefits as claimant's post-injury wage-earning
capacity, based on the average rate of pay for all of the alternate positions
deemed suitable, exceeds his pre-injury average weekly wage.  Lastly, the
administrative law judge found that claimant is entitled to reimbursement for the
treatment rendered by Drs. Whitecloud, Jackson and Aprill.  Claimant's subsequent
motion for reconsideration was summarily denied.

     On appeal, claimant challenges the administrative law judge's findings that
he is not entitled to permanent total disability benefits.  Employer responds,
urging affirmance.

     Claimant initially argues that the administrative law judge erred in finding
that he reached maximum medical improvement as of December 20, 1992.  The Board,
in its prior decision, held that the record contains substantial evidence to
support the administrative law judge's determination that claimant reached maximum
medical improvement on December 20, 1992. See Brown, slip op. at 4.  We
therefore decline to address claimant's contentions regarding the original date of
maximum medical improvement as this issue was fully addressed and decided in our
prior decision, which is the law of the case. See, e.g., Ion v. Duluth,
Missabe & Iron Range Ry. Co., 32 BRBS 268 (1998).  That claimant later
established a change in condition and is presently entitled to temporary total
disability benefits does not prevent a finding that claimant's back condition was
permanent at an earlier time. Leech v. Service Engineering Co., 15 BRBS 18 (1982).      

     Claimant next argues that contrary to the administrative law judge's decision,
employer's labor market survey evidence, ESX 21, fails to establish the
availability of suitable alternate employment as it does not identify work within
the physical limitations imposed by Drs. Russo and Danielson.  Claimant also
contends that the administrative law judge exceeded the scope of the Board's remand
instructions when he considered alternative jobs listed in employer's labor market
survey which were allegedly available prior to 1996.[1]   Alternatively, claimant argues that the administrative law judge
erred in finding that he did not diligently search for suitable alternate
employment following his work-related injury. 

     Where, as here, claimant establishes that he is unable to perform his usual
employment duties due to a work-related injury, the burden shifts to employer to
demonstrate the availability of jobs in the geographic area where claimant resides
which he is, by virtue of his age, education, work experience, and physical
restrictions, capable of performing and which he could realistically secure if he
diligently tried. See P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS
116(CRT), reh'g denied, 935 F.2d 1293 (5th Cir. 1991); New Orleans
(Gulfwide) Stevedores, Inc. v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir.
1981).  If employer establishes the availability of suitable alternate
employment, claimant nevertheless can prevail in his quest to establish total
disability if he demonstrates that he diligently tried and was unable to secure
such employment. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d
Cir. 1991); 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);
Martiniano v. Golten Marine Co., 23 BRBS 363 (1990).

     In this case, the Board previously held that the available jobs identified in
employer's March 5, 1993, job market survey were insufficient to meet employer's
burden of establishing the availability of suitable alternate employment as they
provided no means for determining whether the duties involved were within the
physical limitations imposed on claimant by Drs. Danielson and Russo.  The
administrative law judge's finding that employer established suitable alternate
employment via the March 5, 1993, job market survey was therefore vacated and the
case remanded for a specific determination as to "whether the jobs listed in the
remaining job market surveys submitted by employer, see 1996 Emp. Supp. 21,
are within the physical limitations imposed by Drs. Danielson and Russo,"
Brown, slip op. at 6, and if so, for consideration as to claimant's efforts
to seek alternative employment.  Thus, the Board's remand instructions required
only that the administrative law judge consider the "remaining job market surveys"
as identified in employer's exhibit, ESX 21, and, contrary to claimant's
contention, they did not limit the scope of the administrative law judge's remand
query to consideration of only those jobs identified after 1996.  We therefore
reject claimant's contention and hold that the administrative law judge did not err
by considering all of the remaining jobs identified in employer's exhibit, ESX 21,
regardless of the date they became available.

     On remand, the administrative law judge  set out claimant's physical
limitations and then considered the viability of all the remaining jobs identified
by employer's job market surveys, ESX 21;[2]  he
concluded that the three bartending positions, the front desk clerk position, the
security guard position, and the positions as a flat polishing technician and an
optical lens coater, were within claimant's physical limitations.  He thus found
that employer established the availability of suitable alternate employment.  

     With regard to the bartending positions at Singing River Yacht Club,
O'Charley's Restaurant, and Sneaky Pete's, the administrative law judge noted that
although there is not specific information for each position, the information
provided was sufficient to enable him to determine that the jobs are suitable for
claimant.  We disagree.  The information contained in employer's exhibit for each
of these positions consists merely of a notice as to the specific job opportunity,
the approximate salary, and the contact person.  ESX 21 at 209, 226, 246.  It does
not include any specific job descriptions, the duties and/or the exertional
requirements for these positions.  Thus, employer's evidence regarding the
bartending positions provides essentially the same information as the driving
positions listed in the March 5, 1993, job market survey, which the Board has
already held are insufficient to establish suitable alternate employment.  Any
error the administrative law judge may have made in relying on these positions,
however, is harmless as the  remaining job postings provide sufficient information
for the administrative law judge to find them  within the physical limitations
imposed on claimant by Drs. Danielson and Russo.

     Specifically, the letter identifying the job with Swetman Security Company
(Swetman), stated that claimant was eligible for a security training course with
automatic placement by virtue of his disability, i.e., the security training
course was only available to individuals who are "disadvantaged" or who have some
sort of "handicap," and employer's vocational expert explicitly stated that he
contacted both the company offering the training, Gulf Coast Business Services, and
Swetman, and they each felt that claimant would be qualified and eligible to attend
this class, and thus ultimately to obtain suitable alternate employment as a
security guard. See ESX 21 at 249.   The administrative law judge therefore
rationally found that claimant was ideally suited to this position because of his
disability.  In addition, while an initial letter, dated October 22, 1993,
identifying potential positions at PFG Precision Optics is lacking essential
information regarding the specifics of the jobs, a followup letter dated December
15, 1993, reveals that the position as an optical lens coater required very little
lifting, and involved simply sitting and cleaning lenses prior to shipping; thus,
although the work is tedious, it could be done by almost anyone.  ESX 21 at 242,
248.  Based on this evidence, the administrative law judge rationally inferred that
the lens coater job is a sedentary position which claimant would be physically
capable of performing.[3]   Lastly, the letter
regarding the front desk job at the Days Inn notes that it "was a completely
sedentary position," and that the prospective general manager stated that she
"would take anyone who would be reliable and train them for that position."  ESX
21 at 200.  The administrative law judge inferred that this position would not
require lifting, stooping, or standing for long periods of time and that there is
no question that claimant could, in this job, change positions almost at will. 
Thus, he rationally determined that this sedentary position was a suitable
alternative for claimant.  Consequently, we affirm the administrative law judge's
conclusion that employer established the availability of suitable alternate
employment as a security guard with Swetman, an optical lens coater with PFG
Precision Optics, and as a hotel desk clerk with Days Inn, as it is supported by
substantial evidence. Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498,
29 BRBS 79(CRT) (5th Cir. 1995).


     In considering claimant's post-injury search for work, the administrative law
found that claimant gave misleading information about the jobs he had applied for,
indicated that his restrictions were more serious than they actually were, and
failed to timely apply for available positions that he could have filled.  As cited
by the administrative law judge, the record is replete with examples of claimant's
lack of a diligent effort to obtain a job, including the following:   in June 1993
claimant returned an employer contact sheet to his vocational rehabilitation
counselor stating that he contacted several employers for jobs but  the vocational
counselor later learned, upon contacting these prospective employers, that the
employers had no record of contact with claimant, ESX 21 at 260, 262; claimant was
admonished by his vocational counselor on at least one occasion to put his best
foot forward in his job interviews, thereby indicating that claimant was perhaps
damaging his own applications for new employment,  ESX at 240; claimant completely
eliminated himself from other jobs by stating to prospective employers that he had
many other serious physical restrictions in addition to those imposed by Drs.
Danielson and Russo and by  misrepresenting those doctors' restrictions,  ESX  21
at 218; and on a number of occasions,  claimant sabotaged employment opportunities
job either by not applying for the position or by applying too late.  ESX 21 at
208.  Yet another example of claimant's less than diligent effort is exhibited by
his failure to apply at the appropriate location for a specified job, i.e.,
the record indicates that claimant applied to the wrong Days Inn.  ESX 21 at 202. 

     Questions of witness credibility are for the administrative law judge as the 
trier-of- fact, Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961), and determinations in this
regard must be affirmed unless they are "inherently incredible" or "patently
unreasonable."  Cordero v. Triple Machine Shop, 580  F.2d 1331, 8 BRBS 744
(9th Cir. 1978), cert. denied, 440 U.S. 911 (1979).  In this case, the
administrative law judge credited the statements and testimony of employer's
vocational expert with regard to claimant's job search and in turn discredited
claimant's contrary testimony on this issue.  As it is rational and supported by
substantial evidence, we affirm the administrative law judge's finding that
claimant did not diligently search for suitable alternate employment.  See
generally Berezin v. Cascade General, Inc., 34 BRBS 163 (2000).

     These findings support the conclusion that claimant is not entitled to
benefits for total disability for the full period in question.  However, the
administrative law judge did not make a finding as to the specific date upon which
the availability of suitable alternate employment was established, which is the
date when claimant's entitlement to permanent total disability benefits ended. 
Moreover, in finding that claimant is not entitled to permanent partial disability
benefits, the administrative law judge used the average of pay for all of the jobs
he found to be suitable alternate employment.  As this figure includes the three
bartending positions and the flat polishing position which we have held cannot be
relied upon to establish suitable alternate employment, the administrative law
judge's calculation of claimant's post-injury wage-earning capacity and
determination that claimant is not entitled to permanent partial disability
benefits cannot be affirmed.  We therefore remand this case for the administrative
law judge to make a specific determination regarding the date of cessation of
claimant's entitlement to permanent total disability benefits, and for a
recalculation of claimant's post-injury wage-earning capacity and claimant's
entitlement to permanent partial disability benefits.  33 U.S.C. §908(c)(21),
(h); Avondale Industries, Inc. v. Pulliam, 137 F.3d 326, 32 BRBS 65(CRT)
(5th Cir. 1998).

     Accordingly, we affirm the administrative law judge's finding that employer
established suitable alternate employment but the denial of permanent partial
disability benefits is vacated, and the case is remanded for further consideration
of this issue.  In addition, on remand the administrative law judge must make a
specific determination regarding the date of cessation of claimant's entitlement
to permanent total disability benefits.  In all other respects, the administrative
law judge's Decision and Order on Remand and Order Denying Claimant's Motion for
Reconsideration are affirmed.  

     SO ORDERED.



                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)Claimant further contends that the issue as to the availability of suitable alternate employment is, in any event, moot as Dr. Davis's opinion throughout the entire period in question, i.e., from February 1, 1993, through August 1997, that claimant is totally disabled, is in and of itself, sufficient to establish his entitlement to total disability benefits. We reject this contention based on the law of the case doctrine, since in our prior decision, we affirmed the administrative law judge's decision to accord greatest weight to the limitations imposed by Drs. Danielson and Russo, i.e., that claimant is capable of light duty with alternate sitting and standing, rather than to the 1993 opinion of Dr. Davis. See Brown, slip op. at 5-6. Back to Text
2)The administrative law judge determined, based on the medical opinions of Drs. Danielson and Russo, that claimant was limited to lifting no more than 25-30 pounds, and was to perform functions which required only intermittent bending, stooping, squatting, and crawling. In addition, he noted that claimant should have the option to sit, stand, or ambulate as necessary. Decision and Order on Remand at 2. Back to Text
3)It is not clear, however, whether the position as a flat polishing technician would fall within claimant's physical limitations. The follow-up letter implies that this position is more strenuous than that of the optical lens coater. ESX 21 at 242. Any error with regard to the viability of this position is harmless due to the availability of other suitable positions. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document