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BRB No. 03-0611


DAVID E. McAFEE

		Claimant-Petitioner
		
	v.

BATH IRON WORKS CORPORATION

		Self-Insured
		Employer-Respondent


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DATE ISSUED: Oct. 8, 2004


DECISION and ORDER


Appeal of the Decision and Order Denying Claim for Benefits of Daniel F. Sutton, Administrative Law Judge, United States Department of Labor.

Janmarie Toker (McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A.), Topsham, Maine, for claimant.

Stephen Hessert (Norman, Hanson & DeTroy, LLC), Portland, Maine, for self-insured employer.

Before: SMITH, McGRANERY and HALL Administrative Appeals Judges.

PER CURIAM:

Claimant appeals the Decision and Order Denying Claim for Benefits (2001-LHC-2354, 2002-LHC-0691) of Administrative Law Judge Daniel F. Sutton rendered on claims filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, 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).

Claimant, while working for employer, sustained an injury to his left knee on July 30, 1998, and a second injury, to his right knee, while working for employer on January 18, 2000. Employer voluntarily paid all medical expenses and temporary total disability benefits related to these injuries. Subsequent to the January 18, 2000, injury and surgery, claimant was, because of physical restrictions, reassigned by employer to light-duty tinsmith work in the metal shop.

In August 2000, Local 6 of the International Association of Machinists and Aerospace Workers called a strike against the employer. Claimant, a member of the union, honored the picket line and did not work between August 28, 2000, and the end of the strike, October 23, 2000. During this time period, employer informed claimant, along with all other striking employees, that work would be available to any employee who reported to work during the strike. Claimant testified that he chose not to accept employer’s offer as he feared union reprisal and he felt a sense of obligation to the union. Hearing Transcript at 31. While on strike, claimant worked as a cashier at Sears, earning $6.50 an hour over an average of 25 hours per week. After the strike ended, claimant returned to the same light-duty employment with employer. Claimant thereafter filed a claim seeking temporary partial disability benefits for the period of time he did not work for employer because of the strike, i.e., August 28 through October 24, 2000.

In his Decision and Order, the administrative law judge concluded that claimant met his prima facie case of establishing that he was unable to return to his usual pre-injury employment, and that employer, at least insofar as to the time preceding the strike, established the availability of suitable alternate employment in the form of the light-duty job which claimant performed during that time. The administrative law judge further found that employer established the availability of suitable alternate employment during the strike through its offer of full-time work, including light-duty work specifically within claimant’s restrictions, to all of its striking employees. The administrative law judge thus denied claimant’s claim for temporary partial disability compensation during the strike.

On appeal, claimant challenges the administrative law judge’s denial of temporary partial disability benefits for the period of the strike. Employer responds, urging affirmance of the administrative law judge’s Decision and Order.

Claimant asserts that the administrative law judge erred in determining that employer established the availability of alternate employment during the strike inasmuch as employer failed to demonstrate that the work was realistically available to claimant. In particular, claimant argues it was unreasonable for employer to expect him to cross the picket line during the strike and that therefore any employment offered by employer during that particular time, including those jobs physically suited to claimant’s restrictions, were not, in fact, realistic job opportunities. Claimant maintains that the administrative law judge misstated the facts and misapplied the law in the instant case by distinguishing the Board’s decision in Schenker v. The Washington Post Co., 7 BRBS 34 (1977), and also in finding this case analogous to the Board’s decisions in Suppa v. Lehigh Valley R.R. Co., 13 BRBS 374 (1981), and Edwards v. Todd Shipyards Corp., 25 BRBS 49 (1991) rev’d sub nom. Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9 th Cir. 1993), cert. denied, 511 U.S. 1031 (1994). Claimant thus seeks temporary partial disability benefits for the period of the strike based upon the difference between claimant’s pre-injury average weekly wage and his earnings at Sears during the strike.

In establishing the availability of suitable alternate employment, the burden rests with employer to demonstrate that specific job opportunities, which claimant can perform considering his age, education, background, work experience, and physical and mental restrictions, are realistically and regularly available in claimant’s community. See CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202(CRT) (1 st Cir. 1991); Air America, Inc. v. Director, OWCP, 597 F.2d 773, 10 BRBS 505 (1 st Cir. 1979); see generally Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9 th Cir. 1993), cert. denied, 511 U.S. 1031 (1994); Berezin v. Cascade General, Inc., 34 BRBS 163 (2000).

In the instant case, employer established the availability of suitable alternate employment via the post-injury light-duty position within its facility which claimant successfully performed both prior and subsequent to the strike. The administrative law judge determined that claimant was not entitled to temporary partial disability benefits for the period of the strike as, based on the Board’s decision in Schenker, 7 BRBS 34, claimant did not establish any post-injury loss in wage-earning capacity at the time of the strike, and because, based on the Board’s decisions in Suppa, 13 BRBS 374, and Edwards, 25 BRBS 49, claimant’s decision to honor the strike, and thus voluntarily leave his light-duty employment with employer, was due to reasons entirely unrelated to his work injuries. We agree with the administrative law judge’s rationale.

In Schenker, the claimant sustained a work-related injury on June 23, 1974, he filed a claim for benefits sometime before June 1975, and the strike commenced in October 1975. In addressing claimant’s entitlement to benefits for the period of the strike, the Board explicitly found that although claimant may have voluntarily withdrawn from the labor market by going on strike, his wage-earning capacity diminished before the strike and thus continued during and after the strike. The Board recognized that “it is the loss of such capacity, not loss of present earnings, which is compensated,” and further observed that “had the claimant continued to work for employer, he would have been entitled to benefits.” Schenker, 7 BRBS at 39. As such, the Board recognized that it made no difference to claimant’s loss in earning capacity whether the union struck employer’s facility. While the administrative law judge factually distinguished Schenker, 7 BRBS 34, since claimant herein, unlike his counterpart in Schenker, did not establish a pre-strike loss in earning capacity, Decision and Order at 6, he ultimately relied on the holding in that case, i.e., that a loss in wage-earning capacity due to the work injury is required for claimant’s entitlement to disability benefits for a period of a strike, to conclude that since claimant did not have any loss in wage-earning capacity up to the time of the strike, 1 he could not be entitled to benefits for the duration of the strike. In addition, while the administrative law judge’s application of the Board’s decision in Edwards, 25 BRBS 49, is mistaken since that decision was reversed on appeal, 2 his ultimate determination that claimant is not entitled to temporary partial disability benefits for the period of the strike because he voluntarily left work for reasons unrelated to his work-injury is rational, supported by substantial evidence and in accordance with the law. In particular, we agree with the administrative law judge’s statement that the Act cannot “be stretched to provide compensation to a worker whose loss of wages was attributable not to his injury but rather due to a decision to participate in a strike against the worker’s employer.” Decision and Order at 9. As claimant had a suitable job with no loss in earning capacity which continued to be available him during and after the strike, we affirm the administrative law judge’s finding that claimant did not sustain any loss in wage-earning capacity related to his work injury during the strike, and thus affirm his denial of temporary partial disability compensation for the period of the strike.

Accordingly, the administrative law judge’s Decision and Order Denying Claim for Benefits is affirmed.

SO ORDERED.

____________________________________

ROY P. SMITH

Administrative Appeals Judge

____________________________________

REGINA C. McGRANERY

Administrative Appeals Judge

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BETTY JEAN HALL

Administrative Appeals Judge

ENDNOTES

1. The administrative law judge noted while claimant asserted in his closing argument that the stipulated fluctuation in claimant’s average weekly wage from $730.20 on July 30, 1998, to $679.05 on January 18, 2000, established a loss of wage-earning capacity, at the same time claimant stated that no claim is being made for any loss of earning capacity or lost wages prior to the strike. Further, there was no claim made for permanent disability nor was employer making any voluntary compensation payments prior to the strike. Thus, the administrative law judge concluded, there was no evidence to support a finding that claimant would have continued to receive disability compensation had he continued working during the strike.

2. In Edwards, the Board held that as the claimant worked in a suitable alternate position for 11 weeks and was involuntarily laid off from that position for reasons unrelated to his injury, i.e., as part of a reduction in force, the employer did not bear the renewed burden of establishing suitable alternate employment and the claimant was not entitled to total disability benefits after the layoff. The Ninth Circuit reversed the Board’s decision, holding that the claimant’s short-lived employment did not establish that suitable alternate employment was “realistically and regularly” available on the open market. Edwards, 999 F.2d at 1375-1376, 27 BRBS at 83(CRT). In contrast, claimant’s post-injury work for employer herein cannot be termed short-lived, particularly since he held that position for three months before voluntarily leaving his position to go out on strike, and then he returned to that position at the conclusion of the strike. In this regard, the instant case is distinguished from Edwards. Moreover, contrary to employer’s assertion, the administrative law judge properly determined that Suppa, 13 BRBS at 376, is analogous to the case at hand as the claimant therein was performing his usual employment at the time of the layoff and thus, as in the instant case, did not have any loss in wage-earning capacity at the pertinent time period for which benefits were sought.



NOTE: This is a LHCA Unpublished Document


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