Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB No. 90-1104

LAMAR HAY                               )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )
OFFSHORE SHIPBUILDING,                  )
INCORPORATED                            )    DATE ISSUED:   01/27/1995
                                        )
       and                              )
                                        )
FLORIDA INSURANCE GUARANTY              )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order of Glenn Robert Lawrence,
     Administrative Law Judge, United States Department of Labor.

     David Barish (Cohn, Lambert, Ryan, Schneider & Harman, Ltd.), Chicago,
     Illinois, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order (89-LHC-3076) of Administrative Law
Judge Glenn Robert Lawrence awarding benefits 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
administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law.
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).

     On August 10, 1983, claimant injured his back when he slipped and fell into
the tank of a ship while he was welding.  He was knocked unconscious and taken to
the hospital, where he remained for approximately 10 days.  Claimant was released
to go home but told to return in two days for back surgery. Tr. at 24-26.  One day
before claimant was to return to the hospital, he was involved in a motorcycle
accident, and he spent three months in a coma.  After he recuperated from the
effects of the coma, claimant underwent back surgery.  He has not returned to his usual work. Tr. at 26-28.  Employer paid temporary total
disability benefits from August 10, 1983, through April 3, 1989, permanent partial
disability benefits thereafter, and all medical expenses, terminating benefits only
after claimant moved from Tennessee to Illinois.[1]
Id. at 57.  Consequently, claimant filed a claim for permanent total
disability benefits.  Employer contends claimant is, at most, permanently partially
disabled.

     After a hearing on the merits, the administrative law judge determined that
claimant established a prima facie case of total disability and cannot
return to his usual work. Decision and Order at 5.  He concluded that claimant's
disability arises as a result of his back injury and, therefore, it is not
necessary to consider employer's argument that claimant's motorcycle accident was
an intervening cause of claimant's disability.  The administrative law judge then
stated that, assuming, arguendo, it is a relevant issue, he believed the
motorcycle accident was an unavoidable result of the work accident, as claimant
suffered a head injury in the work accident and then suffered a black-out, which
caused the motorcycle accident.  Decision and Order at 6.  The administrative law
judge also found that employer failed to establish the availability of suitable
alternate employment and that claimant is entitled to permanent total disability
benefits from May 7, 1987, and continuing. Id.  Employer appeals the
decision, contending that the administrative law judge erred in finding claimant
permanently totally disabled.  Claimant has not responded to the appeal.[2] 

     Employer first argues that the administrative law judge erred in holding that
claimant has a mental deficiency which renders him unemployable.  Alternatively,
if claimant does have such a disability, employer maintains it was caused by the
intervening motorcycle accident and not the work accident.  We reject this
contention.  The administrative law judge did not conclude that claimant has a
mental deficiency which renders him unemployable.  To the contrary, he stated that
"claimant's total disability stems largely from his back injury at work. . . ."
Decision and Order at 6.   Although the administrative law judge discussed
claimant's head injury and any potential resulting impairment therefrom, and he
concluded that the motorcycle accident was an unavoidable result of the work
injury, he did so in dicta, as an alternate conclusion.[3]   Inasmuch as employer conceded that claimant
sustained a work-related back injury, and has not challenged the administrative law
judge's primary finding that claimant is disabled to some degree as a result of the
work-related back injury, we affirm the administrative law judge's finding that
claimant's disability is work-related. See 33 U.S.C. §920(a);
Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981).

     Next, employer contends the administrative law judge erred in awarding
claimant permanent total disability benefits.  Employer's argument has merit. 
Initially, we note that employer does not dispute the finding that claimant is
unable to return to his usual work.  Thus, claimant has established a prima
facie case of total disability. Chong v. Todd Pacific Shipyards Corp.,
22 BRBS 242 (1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d
1488 (9th Cir. 1990).  Once a claimant makes such a showing, the burden shifts to
the employer to establish the availability of other jobs the claimant can
realistically secure and perform given his age, education, physical restrictions
and vocational history. New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  In this case, employer presented evidence
of eight potential jobs for claimant:  security guard, food service supervisor,
telemarketer, motel desk clerk, shrink wrapper, packager, and two jobs in a boot-making company.  Emp. Ex. 1.  According to employer, these positions are within
claimant's restrictions, considering his youth, his college education, and his
physical abilities.  Moreover, employer challenges claimant's diligence in seeking
work, asserting that his response to employer's location of potential jobs was to
move from the state.  The administrative law judge rejected employer's arguments,
and specifically discussed only the telephone sales position, finding it beyond the
restrictions set by Drs. Shah, Alvary and Gentry. Decision and Order at 6.  He then
discredited the entire vocational report by discrediting Dr. Gavigan's opinion, on
whom the vocational expert relied.  Further, the administrative law judge
determined that claimant's sheltered position at the Pioneer Center, see
n.1, supra, does not constitute suitable alternate employment.

     In discrediting Dr. Gavigan's opinion, the administrative law judge stated
that it was not current and was rendered without the benefit of the MRI results. 
Generally, 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).  However, the Board need not accept such
determinations if they are "inherently incredible or patently unreasonable."
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978),
cert. denied, 440 U.S. 911 (1979).  As Dr. Gavigan's report is more recent
than that of Dr. Alvary, on which the administrative law judge relied, and as Dr.
Gavigan reviewed the medical records, including the MRI results, which he found to
be normal, see Emp. Ex. 2, it was unreasonable for the administrative law
judge to discredit Dr. Gavigan's opinion, and therefore the vocational report, based on these factors.[4]   
Consequently, although the administrative law judge is correct in concluding that
sheltered work is not suitable alternate employment, Harrod v. Newport News
Shipbuilding & Dry Dock Co., 12 BRBS 10 (1980), we must vacate the award of
permanent total disability benefits and remand the case for him to discuss the jobs
identified by the rehabilitation counselor and to reconsider whether employer
established the availability of suitable alternate employment.

     Accordingly, the administrative law judge's award of permanent total
disability benefits is vacated, and the case is remanded for further consideration
in accordance with this opinion.  In all other respects, the Decision and Order is
affirmed.

     SO ORDERED.


                                        _______________________________
                                        ROY P. SMITH
                                        Administrative Appeals Judge


                                        _______________________________
                                        NANCY S. DOLDER
                                        Administrative Appeals Judge


                                        _______________________________
                                        REGINA C. McGRANERY
                                        Administrative Appeals Judge





To Top of Document

Footnotes.


1)Claimant's injury occurred in Florida. Tr. at 25. After he recovered, he moved to Illinois for vocational rehabilitation at the Pioneer Center. Id. at 34, 39, 46, 53. Claimant then moved to Tennessee to attend college where he obtained a two-year degree in food service management. Id. at 34, 48. He sought work in Nashville, individually and with the help of a vocational counselor, but claims he was unsuccessful, so he moved back to Illinois. He now works in a sheltered position at the Pioneer Center. Id. at 35-38, 48, 51-56. Back to Text
2)All of claimant's exhibits and some of employer's exhibits are missing from the file before the Board. The Board attempted to reconstruct the record; however, its efforts were not completely successful. Therefore, the Board concluded that, in the absence of any objections, it would address employer's appeal, and it would accept the administrative law judge's descriptions and findings regarding the missing exhibits. Order dated June 15, 1994. No party objected to the Board's order. Back to Text
3)Counsel for both parties agreed that any mental impairment claimant has is not due to the work accident. Tr. at 80. Back to Text
4)We note that the administrative law judge relied on Dr. Gavigan's report in setting the date claimant reached maximum medical improvement. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document