Skip to page content
Benefits Review Board
Bookmark and Share


                                 BRB No. 00-1004

OTIS LEWIS                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
PENNSYLVANIA TIDEWATER                  )    DATE ISSUED:   07/09/2001
                                                                         
DOCK COMPANY                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                   )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS,               )
UNITED STATES DEPARTMENT            )
OF LABOR                                       )  
                                         )
          Party-in-Interest             )    DECISION and ORDER

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

     Aloysius J. Staud (Fine and Staud), Philadelphia, Pennsylvania, for
     claimant. 

     Michael D. Schaff (Naulty, Scaricamazza & McDevitt, Ltd.), Philadelphia,
     Pennsylvania, for self-insured employer.

     Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.
     
     PER CURIAM:

     Claimant appeals the Decision and Order and Order Denying Reconsideration (99-LHC-2449) 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
administrative law judge's findings of fact and conclusions of law 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 injured his left elbow and back on April 28, 1993, and his right wrist and lower back on November 20,
1993.  Claimant has not returned to work since November 1993.  Employer voluntarily paid claimant temporary total
disability benefits from June 15, 1993, to July 19, 1993.  33 U.S.C. §908(b).  In 1996, Administrative Law Judge
Teitler awarded claimant permanent total disability benefits, 33 U.S.C. §908(a),  from July 20, 1993, and continuing,
finding that claimant established his prima facie case of total disability and that employer offered no evidence
establishing the availability of suitable alternate employment.  The administrative law judge awarded employer relief under
Section 8(f) of the Act, 33 U.S.C. §908(f).  

     In Lewis v. Pennsylvania Tidewater Dock Co., BRB Nos. 96-0733/A (Feb. 25, 1997)(unpublished), the
Board affirmed the administrative law judge's award of permanent total disability benefits.  The Board, however, vacated
the administrative law judge's findings regarding Section 8(f) relief.  On remand, the administrative law judge again
awarded Section 8(f) relief to employer.  Subsequently, in Lewis v. Pennsylvania Tidewater Dock Co., BRB No.
97-1583 (Aug. 11, 1998)(unpublished), the Board reversed the administrative law judge's award of Section 8(f) relief.  The
Board's decision on Section 8(f) relief was subsequently reversed by the United States Court of Appeals for the Third
Circuit in Pennsylvania Tidewater Dock Co. v. Director, OWCP, 202 F.3d 656, 34 BRBS 55(CRT)(3d Cir. 2000).
  
     In May 2000, upon employer's request for modification, Administrative Law Judge Romano found that claimant's
physical condition had improved since Judge Teitler's initial award, based upon his decision to credit Dr. Horowitz's
opinion that claimant has recovered from the work injuries to his back and is capable of sedentary work rather than that of
Dr. Sedacca that claimant cannot perform his previous work with employer.  Moreover, the administrative law judge found
that employer established the availability of suitable alternate employment on October 8, 1999, based upon the jobs
identified by Ms. Weinstein, employer's vocational expert, in the absence of contrary medical evidence that claimant is
unable to perform these jobs.  The administrative law judge also found that the highest paying of the suitable alternate jobs
is $389 per week, and that claimant's compensation award should be decreased by this amount.  Thus, the administrative
law judge granted employer's modification request and decreased claimant's compensation to $391.92 per week as of
October 8, 1999.  33 U.S.C. §§908(c)(21), 922.  The administrative law judge denied summarily claimant's
motion for reconsideration.

     In the instant appeal, claimant challenges the administrative law judge's decision to modify the award from total
to partial disability benefits.  Employer responds in support of the administrative law judge's decision granting its motion
for modification.    

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based on a mistake of fact in the initial decision or on a change in
claimant's physical or economic condition. See Metropolitan Stevedore Co. v.
Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1 (CRT)(1995); see also Metropolitan
Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54 (CRT)(1997);
Vasquez v. Continental Maritime of San Francisco, Inc., 23 BRBS 428 (1990). 
The Board has held that an employer may attempt to modify a total disability award
to one for partial disability by offering evidence establishing the availability
of suitable alternate employment. See, e.g., Delay v. Jones Washington
Stevedoring Co., 31 BRBS 197, 204 (1998); Moore v. Washington Metropolitan
Area Transit Authority, 23 BRBS 49, 52 (1989); Blake v. Ceres, Inc., 19
BRBS 219, 221 (1987).  Once, as here, claimant establishes his inability to perform
his usual work, the burden shifts to employer to establish the availability of
suitable alternate employment by identifying realistic job opportunities which
claimant is capable of performing. See New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  If employer establishes
the availability of suitable alternate employment, the wages which the alternate
jobs would have paid at the time of injury are compared to claimant's pre-injury
wages to determine if claimant has sustained a loss in wage-earning capacity.
See Avondale Industries, Inc. v. Pulliam, 137 F.3d 326, 32 BRBS 65
(CRT)(5th Cir. 1998); Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS 69 (CRT)(D.C. Cir.
1990); Richardson v. General Dynamics Corp., 23 BRBS 327 (1990).

          After consideration of claimant's arguments on appeal, employer's
response, and the administrative law judge's decision in light of the record
evidence, we affirm the administrative law judge's findings that employer established a change in
claimant's physical and economic condition.   See Rambo II, 521 U.S. 121, 31 BRBS 54
(CRT); Rambo I, 515 U.S. 291, 30 BRBS 1 (CRT); Fleetwood v. Newport New Shipbuilding
& Dry Dock Co., 776 F.2d 1225, 18 BRBS 12 (CRT)(4th Cir. 1985), aff'g 16 BRBS 282 (1984); Wynn
v. Clevenger Corp., 21 BRBS 290 (1988).  Initially, the administrative law judge acted within his discretion in crediting
Dr. Horowitz's opinion that claimant has fully recovered from his work-related back injury and can perform sedentary work,
finding it to be detailed, documented, and well-reasoned.  The administrative law judge found that the opinion  of Dr.
Sedacca, claimant's treating physician, states only that claimant remains unable to return to his usual work and does not
address claimant's ability to perform lighter duty work.[1]   See
Wynn, 21 BRBS 290; Decision and Order at 4; Emp. Exs. 1-3, 10, 13 at 21; Cl. Ex. 3.  Thus, substantial evidence
supports the administrative law judge's finding that claimant's physical condition has improved.  

     Moreover, the administrative law judge's finding that employer established the availability of suitable alternate
employment on October 8, 1999, and thus a change in claimant's economic condition, is supported by substantial evidence.
See generally Ramos v. Global Terminal & Container Services, Inc., 34 BRBS 83 (1999).  Ms. Weinstein identified
suitable jobs for claimant which she stated are within the restrictions imposed by Dr. Horowitz.  The administrative law
judge specifically noted the absence of medical evidence that claimant cannot perform these jobs, and the administrative
law judge reasonably inferred that Dr. Horowitz's opinion supports the finding that claimant was capable of performing
the specific jobs identified by Ms. Weinstein based on Dr. Horowitz's deposition testimony that as long as the jobs fell
within his restrictions, claimant should be able to do them as the jobs appear to be sedentary. See Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Decision and Order at 4; Emp. Exs. 4, 6, 10, 13 at 20, 35,
14 at 18-19, 48; Cl. Ex. 3.[2]   Lastly, the administrative law judge acted within his
discretion in finding that claimant's post-injury wage-earning capacity is $389 per week based on the highest paying of the
suitable alternate employment jobs identified by Ms. Weinstein.[3]   See
Pulliam, 137 F.3d 326, 32 BRBS 65 (CRT); Berkstresser, 921 F.2d 306, 24 BRBS 69
(CRT); Decision and Order at 4-5; Emp. Ex. 7.  Consequently, we affirm the administrative law judge's modification of
claimant's disability benefits from permanent total to permanent partial in the amount of $391.92 per week commencing
October 8, 1999, and continuing.  33 U.S.C. §§922, 908(c)(21), (h).             

     Accordingly, the administrative law judge's Decision and Order and Order
Denying Reconsideration are affirmed. 

           SO ORDERED. 


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)Contrary to claimant's contention, the administrative law judge did not state that Dr. Sedacca agreed with Dr. Horowitz's opinion that claimant's back condition has resolved; rather, the administrative law judge stated that Dr. Sedacca agreed with Dr. Horowitz that claimant exacerbated his back condition after having been involved in a motor vehicle accident on February 18, 1997. See Decision and Order at 4 n. 4; Emp. Exs. 3, 10 at 2. Back to Text
2)Although claimant asserts that the jobs are outside his restrictions because the time getting to and from work was not taken into account, Dr. Horowitz imposed mild restrictions for driving but did not identify specific limits on driving, and Ms. Weinstein was aware of this restriction. See Emp. Exs. 4, 14 at 19, 37. Back to Text
3)Claimant's contention, that the only job that was within his restrictions was the parking lot job which paid $90 per week, is not an accurate reflection of the evidence of record. The parking lot job initially paid $170-184 per week with an average wage of $279 per week. Emp. Ex. 7. Although claimant asserts that he cannot do this job because it was not approved by Dr. Horowitz and requires counting money which he cannot do because of his rheumatoid arthritis, the administrative law judge reasonably inferred that Dr. Horowitz approved this job as within claimant's restrictions. Claimant is not restricted from using his hands for repetitive actions involving simple or firm grasping and fine manipulating. See Emp. Ex. 4. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document