Skip to page content
Benefits Review Board
Bookmark and Share

                                 BRB No. 98-1097

GERALD COMEAUX                          )
          Claimant-Respondent        )
     v.                                 )
M.G. MAYER YACHT SERVICE                )    DATE ISSUED:   05/05/1999   

     and                                )
LOUISIANA WORKERS'                      )
COMPENSATION CORPORATION                )               
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order of C. Richard Avery, Administrative Law
     Judge, United States Department of Labor.

     Donald B. Cameron (Anderson & Anderson, L.L.P.), Slidell, Louisiana for
     Patricia H. Wilton (Egan, Johnson & Stiltner), Baton Rouge, Louisana,
     for employer/carrier.

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


     Employer appeals the Decision and Order awarding benefits (97-LHC-1688) of
Administrative Law Judge C. Richard Avery 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).
     The parties stipulated that claimant, a welder/fitter, suffered an injury in
the course and scope of his employment on November 16, 1994.  Joint Exhibit 1. 
Employer paid temporary total disability benefits from November 16, 1994, to August
17, 1995.  Thereafter, employer ceased payment, and claimant filed his claim,
contending  that he is permanently totally disabled due to pain resulting from his
work-related back injury.

     The administrative law judge  found that it is undisputed that claimant cannot 
return to his pre-injury employment and  that claimant reached maximum medical
improvement on December 15, 1995. The administrative law judge found further that
employer produced insufficient evidence to establish the availability of suitable
alternate employment.  The administrative law judge therefore awarded claimant
temporary total disability benefits  from November 16, 1994 to December 15, 1995,
and permanent total disability benefits from December 15, 1995, and continuing, as
well as medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907. 
Finally, the administrative law judge denied claimant a penalty under Section 14(e)
of  the Act, 33 U.S.C. §914(e).

     On appeal, employer contends that the administrative law judge erred in
finding that it failed to establish the availability of suitable alternate
employment.  Claimant responds, urging affirmance.

     Contrary to employer's contention, the administrative law judge rationally
found that employer failed to sustain its burden of proving the availability of
suitable alternate employment.  When, as here, it is undisputed that claimant is
unable to perform his usual pre-injury 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. 1031, 14 BRBS 156 (5th Cir. 1981).  The
United States Court of  Appeals for the Fifth Circuit held in P & M Crane Co.
v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g denied, 935 F.2d 1239
(5th Cir. 1991), that an employer can meet its burden of establishing the
availability of suitable alternate employment by demonstrating the existence of
only one actual job opportunity, where it also establishes the general availability
of other suitable positions or that the employee has the realistic likelihood of
obtaining such a single employment opportunity under appropriate circumstances.[1]   See also Holland v. Holt Cargo Systems,
Inc., 32 BRBS 179 (1998).
     In the instant case, the administrative law judge found that Ms. Adair,
employer's rehabilitation consultant, identified five light to  medium physical
labor positions  which she deemed suitable for claimant, as well as the general
availability of light and medium duty jobs, under the mistaken assumption that his
treating physician, Dr. Manale, had released claimant for such work in accordance
with a functional capacities evaluation, when in fact both Drs. Manale and Mimeles
found the evaluation "equivocal."  EX 1, 8.  The administrative law judge noted
that Dr. Manale's 1997 chart notes state that claimant cannot work an 8 hour day
and is permanently totally disabled. CX 6-8.  The administrative law judge also
stated that Dr. Mimeles, employer's expert, who examined claimant once on March 14,
1995, approved claimant unequivocally for only one identified job.  EX 1.[2]    The administrative law judge found further that
Ms. Adair admitted that claimant would not be suitable for any work based on Dr.
Manale's assessment of claimant as permanently and totally disabled.  Decision and
Order  at 5-6; Post-hearing, February 5, 1998, Adair deposition at  20.   The
administrative law judge, within his discretion as the trier of fact, credited the
opinion of claimant's treating physician, Dr. Manale, that claimant is totally
disabled from his work-related injury. See, e.g., Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); see generally Lostaunau v. Campbell Industries, Inc., 13 BRBS 227
(1981), rev'd on other grounds sub nom. Director, OWCP  v. Campbell Industries,
Inc., 678 F.2d 836, 14 BRBS 974 (9th Cir. 1982), cert. denied, 459 U.S.
1104 (1983)(if  the administrative law judge finds, based on medical opinions, that
claimant cannot perform any employment, employer has not established the
availability of suitable alternate employment).   As the credited evidence
establishes that claimant is unable to perform any work, which necessarily includes
the jobs identified by employer's vocational expert, employer has failed to
establish the availability of suitable alternate employment, and we consequently
affirm the administrative law judge's award of benefits as it is supported by
substantial evidence and in accordance with law.   

     Accordingly, the administrative law judge's decision awarding benefits is


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document


1)The court stated that such a likelihood could exist where, for example, the employee is skilled, employer identifies a specialized job and the number of highly qualified employees is small. P & M Crane, 930 F.2d at 431, 24 BRBS at 121-122 (CRT). Back to Text
2)Dr. Mimeles approved the Bench/Tig/Welders position, disapproved the Welder (Aluminum), Welder/Fitters, and Welder positions, and found the Benchwork Helper/Assembly Helper and Small Part Assembler positions questionable. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document