BRB Nos. 00-545
and 00-545A
MARY E. PIERCE )
)
Claimant-Petitioner )
Cross-Respondent )
)
v. ) DATE ISSUED: 02/21/2001
)
AVONDALE INDUSTRIES, )
INCORPORATED )
)
Self-Insured )
Employer-Respondent )
Cross-Petitioner ) DECISION and ORDER
Appeals of the Decision and Order and Decision and Order on Claimant's
and Employer's Motions for Reconsideration of C. Richard Avery,
Administrative Law Judge, United States Department of Labor.
R.A. Osborn, Jr. and R.A. Osborn, III (Osborn & Osborn), Gretna,
Louisiana, for claimant.
Wayne G. Zeringue, Jr. and Christopher S. Mann (Jones, Walker, Waechter,
Poitevent, Carr‚re & Den‚gre, L.L.P.), New Orleans, Louisiana, for
employer.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals, and employer cross-appeals, the Decision and Order and
Decision and Order on Claimant's and Employer's Motions for Reconsideration (99-LHC-325; 99-LHC-2433) 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).
Claimant initially injured her neck on December 30, 1991, while lifting a
heavy steel box. She returned to work and aggravated her injury, eventually
undergoing surgery on January 13, 1994. She was released for modified duty for
four hours a day on March 14, 1994, which was gradually increased to eight hours
a day on October 31, 1994, with a restriction against heavy lifting. Claimant
continued to experience flare-ups, causing her to miss work for several hours a day
to several days at a time. She was terminated from her job on March 17, 1998, for
excessive absenteeism. She has not worked since her termination and sought
permanent total disability benefits under the Act.
In his decision, the administrative law judge found that claimant reached
maximum medical improvement on October 31, 1994, the date she was released for an
eight-hour day. In addition, he found, based on Dr. Rozas's opinion, that claimant
is unable to return to her former employment as a warehouseman. He found that the
modified clerical position in employer's facility to which claimant returned after
the surgery was suitable in light of claimant's restrictions, but that she was
discharged due to absenteeism related to her shoulder pain. Thus, he found this
position did not establish suitable alternate employment as of the date of
claimant's termination. However, the administrative law judge found that the
positions identified in the labor market survey submitted by employer were suitable
given claimant's physical restrictions, and he awarded claimant permanent partial
disability benefits accordingly. The motions for reconsideration of both parties
were summarily denied.
On appeal, claimant contends that the administrative law judge erred in
finding that the positions identified in the labor market survey constitute
suitable alternate employment inasmuch as claimant must have a position with a
flexible schedule due to the flare-up of her shoulder pain. Employer responds,
urging affirmance of the administrative law judge's finding that the labor market
survey establishes the availability of suitable alternate employment. However, on
cross-appeal, employer contends that the administrative law judge erred in finding
that claimant was terminated from her post-injury position for reasons associated
with her employment injury. Thus, employer contends, her post-injury position
constituted suitable alternate employment such that claimant suffered no loss in
wage-earning capacity.
Initially, we will address employer's contention on cross-appeal that the
modified position as a clerical worker at its facility was sufficient to establish
suitable alternate employment following the date of termination. Employer contends
that claimant's discharge was due to her excessive absenteeism, as over 70 percent
of her absences were unrelated to her injury. Where, as here, it is undisputed
that claimant cannot return to her usual work, the burden shifts to employer to
establish the availability of suitable alternate employment. See New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). Employer may establish
suitable alternate employment by virtue of a light duty position at its facility,
so long as the job is necessary and claimant is capable of performing it. Darby
v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93(CRT) (5th Cir. 1996); Ezell v. Direct Labor,
Inc., 33 BRBS 19 (1999); Diosdado v. Newpark Shipbuilding & Repair,
Inc., 31 BRBS 70 (1997). If a claimant is discharged from a suitable post-injury job for misconduct, employer does not bear the renewed burden of
establishing suitable alternate employment. See Brooks v. Newport News
Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v.
Director, OWCP, 2 F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993). However,
if claimant is discharged for reasons related to her disability, employer is not
absolved from liability for total disability unless it can establish the
availability of other suitable alternate employment. Manship v. Norfolk &
Western Railway Co., 30 BRBS 175, 179-180 (1996).
In the present case, the administrative law judge reviewed employer's
attendance records and found that if the log did not specify why claimant was
"sick" or at the "doctor," he would credit the absence to her work-related injury
as the logs were maintained by employer. He therefore concluded that a majority
of claimant's absence was due to her work-related injury and that she missed only
an average of seven days per year for other reasons. Although employer correctly
contends that claimant was absent for 470.2 hours through the years 1996-98, using
the administrative law judge's findings, only 155.7 hours were allocated to
personal reasons or sick time unrelated to her injury. The administrative law judge
also noted that claimant was advised by her supervisor in January 1998 that she was
not allowed any more absences, for any reason, because she was in danger of
termination. He concluded that claimant would have been terminated even if all of
her absences were due to her work-related injury. Thus, he concluded that claimant
was terminated because of her work-related medical condition, and found that she
is entitled to permanent total disability benefits from the date of her discharge
until suitable alternate employment was again established.
Contrary to employer's contention, as employer was attempting to meet its
burden with regard to suitable alternate employment by establishing that this light
duty position was suitable for claimant given her work-related injury, it was
required to establish that claimant's termination from this position was unrelated
to her work injury. The administrative law judge found that the evidence,
i.e., the attendance records, was not sufficiently specific to establish
that claimant's absenteeism was due to reasons other than her work-related injury.
This finding is affirmed, as it is reasonable based on the evidence in this case.
See Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th Cir. 1991); Pittman
Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d 122, 28 BRBS 89(CRT) (4th Cir. 1994). As his
finding rests on a thorough review of the record and a logical interpretation of
the evidence, it is apparent that the administrative law judge did not resolve
"doubt" in claimant's favor, but rather found employer's evidence insufficient to
establish that the position was in fact suitable for claimant. Therefore, we
reject employer's contention that the administrative law judge violated the rule
in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994),[1] regarding the allocation of the burden of proof,
and we affirm the administrative law judge's finding that the light duty position
did not establish suitable alternate employment after the date of claimant's
termination.
Claimant contends on appeal that the administrative law judge erred in finding
the positions identified in the labor market survey are sufficient to establish the
availability of suitable alternate employment inasmuch as they all require full-time attendance on a reasonable scheduled basis. In order to meet its burden of
establishing suitable alternate employment, employer must show the general
availability of job opportunities within the geographical areas where claimant
resides, which claimant, by virtue of her age, education, work experience, and
physical restrictions, is capable of performing. See Avondale Shipyards, Inc. v. Guidry,
967 F.2d 1039, 26 BRBS 30(CRT) (5th Cir. 1992); P & M Crane Co. v. Hayes, 930 F.2d 424,
24 BRBS 116 (CRT), reh'g denied, 935 F.2d 1293 (5th Cir. 1991).
The administrative law judge reviewed the positions identified in the labor
market survey and found that the light and sedentary positions such as toll
collector, machine operator, telemarketer and parking cashier are well within
claimant's restrictions as provided by Dr. Rozas and the functional capacity
evaluation. As claimant correctly contends, Dr. Rozas opined that claimant would
continue to have flare-ups of her shoulder pain and noted that she could expect to
have approximately two weeks of lost time per year due to this injury. He also
stated that she would probably experience more frequent difficulties as her
condition is progressing. However, Dr. Rozas also opined that claimant is capable
of working a 40 hour week, eight hours a day. Cl. Ex. 13 at 52. The
administrative law judge found this statement in Dr. Rozas's opinion most
persuasive and thus rejected claimant's contention that the positions identified
in the labor market survey are not suitable. Claimant does not assign any other
error to the administrative law judge's finding that these positions are suitable.
Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969). As substantial evidence supports the
administrative law judge's finding that the jobs in the labor market survey
constitute suitable alternate employment, we affirm the award of permanent partial
disability benefits. See Fox v. West State Inc., 31 BRBS 118 (1997).
Accordingly, the Decision and Order of the administrative law judge awarding
permanent partial disability benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) 1The United States Supreme Court held in Director, OWCP
v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994), that if evidence is evenly
balanced, the party that bears the burden of persuasion must lose.
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NOTE: This is an UNPUBLISHED LHCA Document.
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