BRB No. 95-2132
RONALD E. GIBBS )
)
Claimant-Petitioner )
)
v. )
)
ARMY & AIR FORCE EXCHANGE ) DATE ISSUED: 01/27/1997
SERVICE )
)
and )
)
THOMAS HOWELL GROUP )
)
Employer/Servicing )
Agent-Respondents ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits of Paul H. Teitler,
Administrative Law Judge, United States Department of Labor.
Roscoe E. Long, Clearwater, Florida, for claimant.
Elisa A. Roberts (Hamilton, Westby, Marshall & Antonowich, L.L.C.),
Atlanta, Georgia, for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (94-LHC-2434) of Administrative Law
Judge Paul H. Teitler denying benefits 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., as extended by the Nonappropriated Fund
Instrumentalities Act, 5 U.S.C. §8171 et seq. (the Act).[1] 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 applicable law. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,
380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant started work for employer in 1980 at the Army and Air Force Exchange
Service at MacDill Air Force Base in Florida as a commissioned mechanic. Claimant
suffered a back injury on April 12, 1990, when he was placing a tire on a balancer.
He finished work that day, but then was in pain by the time he returned home.
Claimant missed approximately two weeks of work following this accident, and then
worked intermittently at times, and for other periods was out of work altogether.
Claimant sought benefits under the Act, and was paid temporary total disability
benefits by employer from April 15, 1990, to October 9, 1992, and then temporary
partial disability benefits for the intervals from October 15, 1992, to December
20, 1993, and June 7 to November 30, 1994. Joint Ex. 1.
Before the administrative law judge, claimant advanced three distinct claims
for additional entitlement. Claimant first sought total disability benefits for
the period between February 11 and June 7, 1994. Claimant next averred that he was
not paid any compensation for his temporary partial disability for a period in
October and November, 1993. Claimant's last argument was that he is entitled to
"additional temporary partial disability" from November 30, 1994, to the present.
After a formal hearing which was conducted on February 28, 1995, Administrative Law
Judge Paul H. Teitler denied further benefits and claimant brought this appeal,
raising the same contentions before the Board. Upon consideration of the briefs
submitted by the parties, the Decision and Order of the administrative law judge
and the administrative record as a whole, we conclude that the findings of the
administrative law judge in this case are supported by substantial evidence and
accord with applicable law. Nevertheless, because these findings establish that
claimant suffered a loss in wage-earning capacity after November 30, 1994, we
modify the administrative law judge's decision to provide for claimant's continuing
entitlement to temporary partial disability benefits based on the difference
between claimant's stipulated average weekly wage and the administrative law
judge's findings with respect to claimant's post-injury wage-earning capacity.
Once a claimant demonstrates that he is unable to perform his former
employment because of a job-related injury, he has made a prima facie case
of total disability. Louisiana Insurance Guaranty Association v. Abbott, 40
F.3d 122, 126, 29 BRBS 22, 26 (CRT) (5th Cir. 1994). It is uncontested in this
case that claimant cannot return to his usual work. The burden then shifts to the
employer to establish that the employee is capable of performing other
realistically available and suitable jobs. Id. A job in employer's facility
may constitute suitable alternate employment, provided that it is actually
available. Mendez v. National Steel & Shipbuilding Co., 21 BRBS 22, 24
(1988). This position may be light duty work, and will constitute suitable
alternate employment, provided it is necessary to employer's operation and tailored
to comply with an employee's restrictions. See Darden v. Newport News
Shipbuilding & Dry Dock Co., 18 BRBS 224, 226 (1986). Thus, an employer's
offer of a suitable job within claimant's place of work is sufficient to discharge
its burden of establishing suitable alternate employment. Darby v. Ingalls
Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996).
The administrative law judge found that employer met its burden of
demonstrating necessary suitable alternate employment because it provided claimant
a specific job at its facility within the medical restrictions outlined by Dr.
Davis.[2] Although claimant asserted that
employer transferred him to a job at the tire desk during the period between
February 11 and June 7, 1994, and this position did not meet Dr. Davis'
restrictions, the administrative law judge reasonably found otherwise. The
administrative law judge disbelieved the assertion that claimant was prohibited
from moving or walking around at will, and thus discounted Dr. Davis' disability
assessment that was derived from this misrepresentation. Decision and Order at 23,
26; see Er. Ex. D-10 at 21 (4/6/94 Davis deposition). Acknowledging that
complaints of pain may be sufficient to show an inability to perform work, see,
e.g., Anderson v. Todd Shipyards Corp., 22 BRBS 20, 21 (1989), the
administrative law judge nonetheless rationally found that claimant was not a
credible witness, and ruled that he was not totally disabled from February 11 to
June 7, 1994.
Furthermore, Dr. Davis' subsequent deposition testimony provides substantial
evidence to support the finding that claimant was not totally disabled between
February 11 and June 7, 1994. See Swain v. Bath Iron Works Corp., 17 BRBS
145, 147 (1985). On February 7, 1994, employer informed claimant by letter that
"the position of Customer Service Representative [meets] the physical limitations
set by [Dr. Davis and that t]his job does not require you to remain in one position
for any length of time. You are free to move around as needed[.]" Er. Ex. 13;
see Tr. at 85. Dr. Davis testified in his first deposition that he would
not have placed claimant on total disability status had he been aware that claimant
could indeed move around. Er. Ex. 10 at 20-21 (4/6/94 Davis deposition).
Moreover, while the administrative law judge was concerned that the chair provided
claimant by employer did not meet Dr. Davis' requirements for adequate support,
see Decision and Order at 23, he rationally determined that claimant did not
cooperate with employer, or a union official, about which type of orthopedic chair
would be sufficient to comply with the need for lumbar-sacral support. Decision
and Order at 24; see Tr. at 174-75; Er. Ex. D-11 at 12 (2/22/95 Davis
deposition). Because his determinations are supported by substantial evidence
based on the record as a whole, and his credibility assessments are "neither
patently unreasonable nor inherently incredible," see Cordero v. Triple A
Machine Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th Cir. 1978), cert.
denied, 440 U.S. 911 (1979), we affirm the administrative law judge's
determination that claimant was not totally disabled between February 11 and June
7, 1994.[3]
We likewise reject claimant's challenge to the finding by the administrative
law judge that claimant's post-injury wage-earning capacity for the period
commencing November 30, 1994 should be based on an eight-hour workday.[4] See 33 U.S.C. §908(h). The
administrative law judge found that claimant's part-time earnings with employer did
not fairly and accurately reflect his post-injury wage-earning capacity, because
the administrative law judge deemed claimant to be capable of full-time work in the
same position, and employer offered this employment.[5] Decision and Order at 27. The administrative law judge rationally
credited the opinions of Drs. Davis and Eckart, each of whom reported that claimant
could work an eight-hour day within his restrictions, to find claimant capable of
full-time work. See Er. Ex. D-11, p. 7 (2/22/95 deposition of Dr. Davis);
Er. Ex. D-14, pp. 16-17 (2/22/95 deposition of Dr. Eckart).[6] Because the administrative law judge, based on the record as a whole,
rationally found that employer met its burden of establishing that claimant was
capable of working full-time for employer, see Swain, 17 BRBS at 147, and
this finding is supported by substantial evidence, it is affirmed.[7]
While we affirm the findings of the administrative law judge, we nevertheless
modify the Decision and Order to reflect that claimant, while not entitled to
additional temporary partial disability, is in fact entitled to a temporary partial
award of $96.36 per week commencing November 30, 1994 and continuing. Claimant's
full-time employment during the period after November 30, 1994, still results in
a loss in his post-injury wage-earning capacity. The parties stipulated that
claimant's average weekly wage at the time of his injury was $429.34. Decision and
Order at 2. The administrative law judge later determined that claimant's "wage-earning capacity is the hourly rate of $7.12 multiplied by a forty hour work week,
totalling $284.80." Decision and Order at 27. Thus, based on the findings in the
Decision and Order, claimant established entitlement to temporary partial
disability benefits for the loss in his wage-earning capacity based on two-thirds
of the difference between claimant's average weekly wage and his post-injury wage-earning capacity of $284.80 per week. 33 U.S.C. §908(e). Claimant states in
his brief that he is receiving benefits of $96.36 per week, which equals the amount
due pursuant to these findings. We therefore modify the administrative law judge's
decision to provide that claimant is entitled to benefits of $96.36 per week for
temporary partial disability commencing November 30, 1994, and continuing.
Accordingly, the administrative law judge's decision is modified to provide
for compensation for temporary partial disability in the amount of $96.36 per week
commencing November 30, 1994. In all other respects, the Decision and Order of the
administrative law judge is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)By Order dated October 11, 1995, claimant's appeal was
dismissed as untimely filed. Upon claimant's motion for reconsideration, the Board
reinstated claimant's appeal in an Order dated April 11, 1996. The Board thus
considers April 11, 1996 to be the controlling date for purposes of the one-year
period referenced in Public Laws 104-134 and 104-208.
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2)Dr. Davis, on May 23, 1993, restricted claimant to lifting 35
lbs., and directed that he should do only minimal bending, climbing and squatting
activities. Er. Ex. D-1, 1-15. On September 24 of that year, Dr. Davis restricted
claimant from repetitive lifting, lifting over 25 lbs., and climbing. Claimant was
not to perform excessive standing, walking, pushing or pulling. Er. Ex. D-1, 1-18.
On January 5, 1994, he modified the lifting restriction to 15 lbs. Er. Ex. D-1,
1-19. On September 20, 1993, Dr. Davis reviewed the position description and
reported that claimant could perform that work with his then current restrictions.
See Er. Ex. D-1, 1-16; Er. Ex. D-10 (4/6/94 Davis deposition).
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3)Temporary partial disability during this period is not at
issue, as employer ultimately tendered these benefits. See Decision and
Order at 22.
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4)At some point in this period, claimant returned to work at the
service desk. See Tr. at 158.
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5)The administrative law judge also found that, in addition,
employer demonstrated the availability of suitable alternate employment in the
Tampa, Florida, area. Decision and Order at 27-8.
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6)Dr. Eckart testified that he reviewed letters from Dr. Davis,
dated 7/20/94 and 11/27/94, that reported that claimant was capable of full-time
work. Er. Ex. D-14 at 14. Dr. Eckart also reviewed the description of claimant's
service position and concluded that claimant could perform this work. Er. Ex. D-14
at 15, 17. Dr. Davis, in his second deposition, testified that the new restriction
to part-time employment was based on claimant's representations that employer was
not meeting the restrictions. Er. Ex. D-11 at 6-7.
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7)Claimant's argument with respect to whether he was paid for a
three-week period in October and November 1993 lacks merit. The administrative law
judge rationally rejected this contention, and determined that employer's risk
manager indeed paid claimant for the period in question, and that claimant failed
to present any evidence that any payment was improperly made. The administrative
law judge's findings are supported by substantial evidence.
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NOTE: This is an UNPUBLISHED LHCA Document.
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