BRB No. 94-843
DANIEL F. BUSH )
)
Claimant-Petitioner )
)
v. )
)
I.T.O. CORPORATION ) DATE ISSUED: 02/25/1997
)
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 Awarding Benefits and Decision and
Order on Claimant's Motion for Reconsideration of C. Richard Avery,
Administrative Law Judge, United States Department of Labor.
D.A. Bass Frazier (Huey & Leon), Mobile, Alabama, for claimant.
V. William Farrington, Jr. (Cornelius, Sartin & Murphy), New Orleans,
Louisiana, for employer.
Before: HALL, Chief Administrative Appeals Judge, BROWN and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Awarding Benefits and Decision and
Order on Claimant's Motion for Reconsideration (93-LHC-850) 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).[1] 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 worked for employer as a refrigerator mechanic. On January 3, 1991,
claimant suffered a back injury as he attempted to change an oil seal on a
container. He immediately sought treatment by the company physician, who diagnosed
an "L-5 sprain." Emp. Ex. 4. Following an MRI, claimant's treating physician
concluded that he had a significant disc herniation and that it was likely claimant
would require surgery. Emp. Exs. 6, 7. Claimant underwent surgery performed by
Dr. Hopper on September 4, 1991, followed by physical therapy and work hardening.
Dr. Hopper released claimant to work on January 7, 1992 with restrictions. Tr. at
24. Subsequently, claimant participated in a retraining program. He sought
permanent total disability benefits under the Act for the period he was undergoing
retraining and continuing permanent partial disability benefits thereafter.
In his decision, the administrative law judge found that claimant is entitled
to temporary total disability benefits from January 3, 1991, until January 7, 1992,
when he was released to work by Dr. Hopper with a twenty percent impairment.
Decision and Order at 10. The administrative law judge also found claimant
entitled to permanent total disability benefits from January 7, 1992, through March
9, 1992, when employer established suitable alternate employment through a labor
market survey conducted by Tavia Tiblets, and permanent partial disability benefits
continuing from March 9, 1992, based on a post-injury wage-earning capacity of
$329.91 per week. Decision and Order at 11. Claimant's motion for reconsideration
was denied.[2]
Claimant appealed this decision, but while the appeal was pending, employer
filed a motion for modification pursuant to 33 U.S.C. §922. The Board
remanded the case to the administrative law judge, dismissing claimant's appeal
subject to reinstatement upon the conclusion of modification proceedings. In a
Decision and Order dated February 29, 1996, Administrative Law Judge Fletcher E.
Campbell found that the parties agreed that claimant had completed his Department
of Labor sponsored reeducation and was able to obtain suitable alternate employment
at a higher wage rate, thus reducing his post-injury loss in earning capacity.
Judge Campbell found that claimant's permanent partial disability benefits are to
be calculated as of June 15, 1995, based on his post-injury wage-earning capacity
of $697.45 in 1991 dollars.[3] This decision has
not been appealed. Claimant's original appeal was reinstated by Order dated May
16, 1996, pursuant to claimant's request.
On appeal, claimant contends that the administrative law judge erred in
finding that employer established suitable alternate employment during the period
he was attending a Department of Labor sponsored reeducation program. Moreover,
he contends that he was not qualified for one of the identified technician
positions the administrative law judge found were suitable alternate employment.
Claimant also contends that employer is liable for a penalty pursuant to Section
14(e) of the Act, 33 U.S.C. §914(e). Employer responds, urging affirmance of
the administrative law judge's finding that claimant is entitled to permanent
partial disability benefits during the period he participated in the retraining
program.[4]
Initially, claimant contends that the administrative law judge erred in
finding that employer established suitable alternate employment as the positions
identified were not realistically available to him while he is enrolled in a full-time rehabilitation program. As it is undisputed that claimant cannot return to
his usual employment due to his work-related injury, the burden shifted to employer
to establish the existence of realistically available job opportunities within the
geographical area where the employee resides which he is capable of performing,
considering his age, education, work experience, and physical restrictions, and
which he could secure if he diligently tried. New Orleans (Gulfwide) Stevedores,
Inc. v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). The Board
addressed the issue of suitable alternate employment where claimant is enrolled in
a full-time vocational rehabilitation program in Abbott v. Louisiana Ins.
Guaranty Ass'n, 27 BRBS 192 (1993), aff'd, 40 F.3d 122, 29 BRBS 22
(CRT)(5th Cir. 1995), holding that an injured worker is entitled to receive
permanent total disability benefits while undergoing certain types of vocational
rehabilitation, notwithstanding that he was physically capable of performing
minimum wage jobs that an expert identified as having been available. The
administrative law judge did not discuss the Board's decision in Abbott in
deciding this case. Subsequent to the issuance of the administrative law judge's
Decision and Order, the United States Court of Appeals for the Fifth Circuit
affirmed the Board's holding in Abbott, stating that the Board's decision
is consistent with "the Act's goal of promoting the rehabilitation of injured
employees to enable them to resume their places, to the greatest extent possible,
as productive members of the work force." Abbott, 40 F.3d at 127, 29 BRBS
at 26 (CRT).
In the present case, claimant initially contacted Paul Spivey of the
Department of Labor on May 21, 1991, about starting a retraining program
coordinated through the Department of Labor, which was eventually handled by Leon
Tingle, a vocational rehabilitation counselor. Tr. at 74. Following his medical
release in January 1992, claimant took four pre-nursing classes at a community
college in the Spring 1992 semester and two classes in the Summer 1992 session.
Tr. at 25. This was considered full-time participation in the reeducation program.
During this period, employer had hired another vocational counselor, Ms. Tiblets,
to identify suitable alternate employment. Of the positions Ms. Tiblets
identified, the administrative law judge found that claimant was capable of
realistically securing three scientific technician positions. Decision and Order
at 11.
Claimant was accepted in a formal nursing program beginning in August 1992,
but was offered a light duty position by employer, which he accepted and started
on August 6, 1992. Tr. at 35, 52, 60. However, he worked only three days before
his back pain returned, so Dr. Hopper sent him back to physical therapy and added
the restriction that claimant should not sit for more than one hour at a time. Tr.
at 36. As claimant was not able to work during this period of recuperation, he
began the nursing program in September 1992, but again left the program in November
1992 to attempt to work again. However, claimant alleges that employer would not
hire him with the added restriction. Tr. at 52, 38-39. Claimant sought counseling
at this time to help with depression. Cl. Ex. 6.
Claimant took one course in the nursing program in the Spring 1993 semester
in order to keep his enrollment active, but paid for the course himself, because
the Department of Labor would sponsor only full-time course work. Tr. at 42. It
appears from claimant's testimony, and the subsequent history on modification, that
claimant returned to the Department of Labor sponsored program in August 1993, and
graduated on June 5, 1995. Tr. at 42; Decision and Order of February 29, 1996.
The parties stipulated that he is now employed and has a weekly wage of $697.45 in
1991 dollars. Id.
In discussing the evidence of suitable alternate employment in 1992, the
administrative law judge did not consider that claimant was participating in a
Department of Labor sponsored retraining program at that time. While claimant was
not consistently enrolled in classes from the date of maximum medical improvement
to the date he eventually graduated, the administrative law judge found that
employer established suitable alternate employment as of March 9, 1992, including
the periods claimant was fully participating in the program. Moreover, the
testimony of claimant and Mr. Tingle indicate that employer agreed to claimant's
retraining if benefits were reduced to reflect claimant's ability to earn at least
the minimum wage during this period if he had worked instead, and claimant
testified it was because of this reduction that he dropped out of the nursing
program in order to better support his family. Tr. at 89-90.
As the administrative law judge did not consider the decisions in
Abbott that a claimant, in some circumstances, may receive permanent total
disability benefits while undergoing full-time vocational rehabilitation, we vacate
the administrative law judge's finding that employer established suitable alternate
employment as of March 9, 1992, and remand the case to the administrative law judge
for further findings. See generally Anderson v. Lockheed Shipbuilding &
Construction Co., 28 BRBS 290 (1994). The administrative law judge must
reconsider claimant's entitlement to benefits from March 1992 to June 1995 when
claimant completed his rehabilitation program and obtained the job relied upon on
modification. In so doing, the administrative law judge may consider that there
are periods of time during which claimant was not enrolled full-time in the
retraining program.
In addition, claimant contends that one of the alternate jobs identified by
Ms. Tiblets, that at National Marine Fisheries Laboratory, requires education he
does not possess, and that he nonetheless tried, unsuccessfully, to obtain this
position. The administrative law judge relied on the wages this job paid in
establishing claimant's post-injury wage-earning capacity. On remand the
administrative law judge must reconsider whether claimant satisfied the educational
requirements of this position, see generally Merrill v. Todd Pacific Shipyards
Corp., 25 BRBS 140 (1991), as well as evidence of claimant's allegedly
unsuccessful attempts to obtain this position. See generally Roger's Terminal
& Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT) (5th Cir.),
cert. denied, 479 U.S. 826 (1986). If this job is not suitable for or
realistically available to claimant, the administrative law judge cannot rely on
the wages of this job to establish claimant's post-injury wage-earning capacity.[5] See generally Avondale Shipyards, Inc. v.
Guidry, 967 F.2d 1039, 26 BRBS 30 (CRT) (5th Cir. 1992).
Claimant also contends on appeal that employer is liable for a penalty
pursuant to Section 14(e) of the Act. We disagree. Section 14(e) provides that
if employer fails to pay compensation voluntarily within 14 days after it becomes
due, employer shall be liable for an additional 10 percent added to unpaid
installments. 33 U.S.C. §914(e). A notice of controversion must be filed
whenever a dispute arises over the amount of compensation due, even if some
compensation is being paid voluntarily. See Lorenz v. F.M.C. Corp., Marine and
Rail Div., 12 BRBS 592 (1980).
In the present case, employer had actual notice of claimant's injury on
January 3, 1991, and began paying temporary total disability benefits on January
3, 1991. These benefits continued, and claimant did not dispute the amount paid,
until employer reduced the benefits to permanent partial disability on May 6, 1992
as noted in the LS-208 dated May 18, 1992.[6]
Employer also filed a notice of controversion on May 18, 1992. Therefore, as a
controversy did not arise until May 6, 1992, when employer reduced claimant's
benefits, and employer timely filed a notice of controversion on May 18, 1992, we
deny claimant's request for a Section 14(e) penalty. See generally Browder v.
Dillingham Ship Repair, 24 BRBS 216, aff'd on recon., 25 BRBS 88 (1991).
Claimant's attorney also petitions the Board for a fee for work performed
before the Board on employer's cross-appeal, BRB No. 94-843A, which the Board
dismissed as untimely. Claimant's counsel requests a fee in the amount of $303.75
for 2.25 hours of legal services at the rate of $135 per hour. Inasmuch as the
hours requested are reasonably commensurate with the necessary work done,
claimant's counsel is entitled to a fee in the amount of $303.75 representing 2.25
hours of legal services at the hourly rate of $135 to be paid by employer. 33
U.S.C. §928; 20 C.F.R. §802.203.
Accordingly, the administrative law judge's finding that employer established
suitable alternate employment as of March 9, 1992 is vacated, and the case is
remanded to the administrative law judge for further consideration consistent with
this opinion. The administrative law judge's decisions are affirmed in all other
respects, and claimant's request for a Section 14(e) penalty is denied. Claimant's
attorney is awarded a fee of $303.75 for work performed before the Board in BRB No.
94-843A to be paid directly to counsel by employer.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)Claimant's appeal was reinstated on the Board's docket on May 16,
1996, following modification proceedings before an administrative law judge. The
Board considers the one-year period for review provided by Public Laws 14-134 and
104-208 to run from this date.
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2)The administrative law judge also found that employer is not
responsible for paying for counseling provided by Mr. Bennet, a social worker, as
it was unauthorized, but is responsible for treatment by Dr. Dauterive, a physical
therapist, since claimant was referred to him by Dr. Hopper. In a Decision and
Order on Employer's Motion for Reconsideration the administrative law judge amended
his original order to reflect employer's entitlement to relief under Section 8(f)
of the Act, 33 U.S.C. §908(f), and in a Supplemental Decision and Order
Awarding Attorney's Fees, the administrative law judge awarded claimant's attorney
a fee in the amount of $23,656.25 representing 189.25 hours of legal services at
the rate of $125 an hour and 2.75 hours at the rate of $55 per hour, plus costs in
the amount of $124. These findings are not at issue on appeal.
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3)The administrative law judge also ordered that the overpayment that
occurred since June 15, 1995, can be recovered by a deduction of $25 per week from
claimant's continuing permanent partial disability benefits and that employer
remains responsible for medical benefits. The administrative law judge also noted
that employer agrees to pay claimant's attorney's fees and expenses in an amount
not to exceed $10,500.
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4)Employer also contends in its response brief that the administrative
law judge erred in his determinations of claimant's average weekly wage and post-injury wage-earning capacity. We will not address issues raised in a response
brief which challenge the administrative law judge's findings as such arguments
must be raised in a cross-appeal. Garcia v. National Steel & Shipbuilding
Co., 21 BRBS 314 (1988).
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5)Claimant does not challenge the suitability or availability of two
positions at Gulf Coast Research Laboratory. See generally P & M Crane Co. v.
Hayes, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g denied, 935 F.2d 1293 (5th
Cir. 1991).
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6)Employer also requested a credit to reflect overpayment of temporary
total disability benefits from January 7, 1992 through May 6, 1992, a period
employer alleges claimant was only due permanent partial disability benefits.
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NOTE: This is an UNPUBLISHED LHCA Document.
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