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September 12, 2003
VIA FACSIMILE AND REGULAR MAIL
U.S. Court of Appeals for the Second Circuit
Thurgood Marshall
United States Courthouse
40 Centre Street
New York, New York 10007
Re: Russell Jensen v. Weeks Marine, Inc. and Director, Office of
Workers' Compensation
Programs, U.S. Department of Labor
Docket
No. 03-4492
Your Honors:
We are submitting this in
response to Roseann MacKechnie's August 25, 2003 letter conveying the Court's
request that we file a letter brief in this case addressing the procedural
requirements of disability determinations and motions for modification under
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§
901-950. We begin by summarizing the procedural history most relevant to these
issues.
As the other parties' briefs set
out in greater detail, Russell Jensen sustained an injury to his left foot,
left hip and right knee during his employment with Weeks Marine, Inc., on July
22, 1991. (Joint Appendix, "A," -169). Weeks Marine voluntarily paid Jensen
temporary total disability compensation for a three-year period. Jensen
thereafter filed a claim for continuing total disability benefits. (A-169).
Although the parties agreed that Jensen could not return to his former
employment as a dock builder, Weeks Marine contended that Jensen could perform
suitable alternative employment and, thus, was not entitled to further
compensation for a total disability.1 It introduced vocational
evidence in support of its position.
Administrative Law Judge
DeGregorio conducted the initial hearing. He issued a decision on March 25,
1996 finding Jensen totally and permanently disabled by his work-related knee
injury. (A-167). In reaching his decision, Judge DeGregorio considered Weeks
Marine's vocational evidence but concluded that it was insufficient to
demonstrate the availability of suitable alternative employment because it did
not identify "specific jobs with particular employers, describing the duties to
be performed and the physical and mental abilities required." (A-173). Although
Weeks Marine contended it was unable to produce specific evidence because
Jensen refused to meet with its vocational specialist, Judge DeGregorio
determined that Jensen's lack of cooperation did not prevent the Employer from
conducting an adequate job search. (A-173). ALJ De Gregorio reaffirmed this
determination on May 16, 1996, when he denied Weeks Marine's Motion for
Reconsideration. (A-175-77).
Weeks Marine appealed these
decisions, but it later asked that its appeal be dismissed so that it could
pursue modification under 33 U.S.C. § 922. (A-179-80). Under § 22, a
party may seek modification of a compensation decision "on the ground of a
change in conditions or because of a mistake in a determination of fact" in
that decision. Weeks Marine alleged in its
___________________
1Once Jensen reached maximum medical
improvement, Weeks Marine voluntarily paid Jensen the compensation it believed
was due for Jensen's permanent partial disability. Thus, it paid Jensen for a
4% "scheduled" permanent partial disability to his right knee in accordance
with §§ 8(c)(2) and (19) of the Act, 33 U.S.C. §§
908(c)(2), (19). A scheduled injury, however, "can give rise to an award for
permanent total disability under [33 U.S.C. § 908(a) where the facts
establish that the injury prevents the employee from engaging in the only
employment for which he is qualified." Potomac Elec. Power Co. v. Director,
Office of Workers' Compensation Programs, U. S. Dept. of Labor, 449 U.S.
268, 279 n.17 (1980). An employer may avoid liability under section 8(a) for
total disability if it demonstrates that suitable alternative employment is
available to the employee in his community. Thus, if the Court affirms the
decisions below holding that Weeks Marine established suitable alternative
employment and that Jensen is not totally disabled, the employer will have
satisfied its current liability for Jensen's partial disability.
2
modification petition that "the basis for Claimant's initial award of
benefits, the absence of suitable alternative employment, i.e.,
Claimant's total economic disability, has changed in that suitable alternative
employment is now available/shown to exist." (A-7). In support, Weeks Marine
submitted new vocational evidence (this time obtained with Jensen's
cooperation) that included descriptions of specific available jobs and medical
testimony regarding Jensen's ability to perform the identified jobs.
On June 5, 1998, Administrative
Law Judge Romano (who had now been assigned to hear the claim) denied Weeks
Marine's request for modification. (A-179). He found that "there is no evidence
in this record on modification that the jobs there proposed as available and
suitable to the Claimant's capabilities were not available at the time of the
first hearing," a matter of proof Judge Romano found required under the
Benefits Review Board's case law precedents. (A-181) (citation omitted). He
concluded that Weeks Marine could not use § 22 modification proceedings to
correct its failure to adequately develop its evidence in the initial
proceeding. (A-182).
Weeks Marine appealed to the
Board. In the first of a series of decisions, the Board on June 25, 1999
vacated the ALJ's decision and remanded the case for further fact-finding.
(A-183). The Board noted that an employer could modify a total disability award
by establishing the availability of suitable alternative employment. But,
agreeing with Judge Romano that § 22 could not be used to correct
counsel's errors or misjudgments, the Board stated that the employer's evidence
"must demonstrate that there was, in fact, a change in the claimant's physical
or economic condition from the time of the initial award to the time
modification is sought." (A-187). Finding evidence meeting that standard in the
record here, the Board held that Judge Romano had "erred in refusing to reopen
the instant case in order to determine whether
3
modification of the total disability award was warranted." (A-188). The
Board also held that Jensen's cooperation with Weeks Marine's vocational
experts after the initial hearing "provides a basis for employer's pursuit of
modification." (A-188). It reasoned that Jensen's earlier failure to cooperate
"should not preclude employer's attempt to improve its evidence of suitable
alternate employment. . . as this would permit claimant to benefit through his
lack of cooperation." (A-188). Accordingly, the Board concluded that Weeks
Marine's modification evidence "is sufficient to bring the claim within the
scope of Section 22 by way of a change in claimant's physical and economic
condition after the time of Judge DeGregorio's award," and remanded the case to
Judge Romano "to determine whether the evidence proffered by employer on
modification is sufficient to establish the availability of suitable alternate
employment in this case." (A-188-89).
On remand, the ALJ entered a
decision granting Weeks Marine's modification petition on October 12, 1999,
largely because he believed the Board's remand order compelled him to do so.
(A-193). Judge Romano stated that the Board had not addressed the basis for his
original order denying modification, namely, that Weeks Marine had not
demonstrated that the suitable alternative jobs it identified on modification
did not exist at the time of the first hearing. Reviewing the vocational and
medical evidence submitted in connection with the § 22 proceeding, Judge
Romano found that: 1) Jensen was able to perform seven of the specific jobs
identified by Weeks Marine's experts; and 2) the record contained no evidence
that Jensen had diligently, but unsuccessfully, pursued alternative employment.
(A-193-94).
Jensen appealed, arguing in part
that the Board had improperly engaged in a de novo review of the
evidence in its first decision. On October 24, 2000, the Board issued a
decision further clarifying its earlier decision and remanding the case again
to the ALJ for review of the
4
evidence. Its clarification was essentially two fold. First, the Board
focused on the nature of modification proceedings. It stated that a party
petitioning for modification based on a change in condition must meet "the
threshold requirement by offering evidence demonstrating that there has been a
change in claimant's condition." (A-199). If this evidence is "sufficient to
bring the claim within the scope of Section 22," then the judge "must determine
whether modification is warranted by considering all of the relevant evidence
of record [under] the standards for determining the extent of disability" used
in the initial proceeding. (A-199). The Board noted that the "intent" of its
earlier decision was to hold only that Weeks Marine's medical evidence met the
"threshold requirement" of showing a change in Jensen's physical condition
sufficient to bring the claim within section 22's scope, but that it remained
incumbent upon Judge Romano to determine whether the award should be modified
after considering all the evidence. (A-200).
Second, the Board "squarely
addressed" Judge Romano's finding that Weeks Marine could not correct its
litigation errors by submitting additional vocational evidence in a section 22
proceeding. Reviewing its own decisional law, the Board concluded that an
employer who does not submit any evidence on the suitable alternative
employment issue in the initial proceeding "is not entitled to modification
based on evidence of the current availability of jobs" unless it demonstrates
extenuating circumstances for not developing sufficient vocational evidence in
the initial proceeding or submits evidence "of a change in the
claimant's economic position." (A-201). Applying these principles here, the
Board concluded that the claim fell "within the scope of Section 22" because:
1) Weeks Marine had submitted suitable alternative employment evidence in the
initial proceeding; 2) it had developed on modification vocational evidence of
an improved job market since the initial proceeding; and 3) Jensen cooperated
with the employer's vocational experts in the modification proceeding. (A-202).
The Board instructed the ALJ on
5
remand to consider all of the vocational and medical evidence submitted
by the parties under the same standards of proof applied during the initial
claim proceeding. (A-202-03).
In his March 2, 2001 Second
Decision and Order on Remand, Judge Romano again determined that Weeks Marine
had not presented evidence (even with Jensen's cooperation) establishing that
the currently available jobs were unavailable at the time of the first hearing.
(A-206-07). Accordingly, he denied Weeks Marine's modification request. Weeks
Marine subsequently appealed, and on November 30, 2001, the Board once again
remanded the case to Judge Romano for further fact-finding. (A-208). In doing
so, the Board reiterated its earlier legal analysis and pointed to a variety of
evidentiary matters the ALJ had not addressed.
In his Third Decision and Order
on Remand, Judge Romano found that "the medical evidence in this record
overwhelmingly supports the proposition that Claimant is capable of performing
the security guard positions identified by Mr. Steckler. (citation omitted).
Employer has thus presented sufficient evidence of the existence of suitable
alternative employment." (A-217). Accordingly, he ruled that Jensen was not
entitled to ongoing total disability benefits.
On January 15, 2003, the Board
rendered its last decision in the case. (A-219). It affirmed the ALJ's
determination that Weeks Marine had established the availability of suitable
alternative employment. The Board denied Jensen's assertions that it had
engaged in prohibited "de novo review" and acted as a finder of fact in its
multiple remands to the ALJ, stating that "[e]ach of [the Board's] decisions to
remand this case rest[ed] on the administrative law judge's duty to weigh the
relevant evidence." (A-224). Jensen now petitions this Court for review of the
decisions below.
6
Discussion
The Board's ultimate
conclusion—that Weeks Marine may prove suitable alternative employment in
this § 22 modification proceeding—is correct. But in the course of
this proceeding, both Judge Romano and the Board erected a variety of
procedural hurdles inconsistent with § 22's intent.2
Specifically, Judge Romano and the Board inquired into whether: 1) Weeks Marine
had submitted any evidence of suitable alternative employment in the initial
proceeding; 2) the vocational evidence Weeks Marine submitted on modification
could have been submitted in the initial proceeding; 3) Weeks Marine submitted
medical or vocational evidence documenting a change sufficient to meet a
"threshold" inquiry on modification; 4) extenuating circumstances (such as
Jensen's cooperation with the employer's vocational experts on modification)
allowed adjudication of the modification petition; and 5) Weeks Marine's
modification evidence demonstrated that the jobs currently available were not
the same jobs available at the time of the initial adjudication. As we
demonstrate below, the adjudicators' "'insistence on what seems to us a
'narrowly technical and impractical construction'. . . is inconsistent with the
purpose of the statute." Universal Maritime Service Corp. v. Spitalieri,
226 F.3d 167, 172 (2d Cir. 2000) (quoting Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291, 297 (1995)).
A. The courts have uniformly interpreted § 22 to provide
exceptionally broad relief from traditional judicial finality concepts and to
emphasize accuracy in decision-making over finality.
Section 22 provides, in relevant
part:
___________________
2Although the Board's errors may not have
affected the outcome of the case, we discuss those errors and the appropriate
framework for § 22 modification proceedings in order to address the
"procedural requirements of disability determinations, and motions for
modification," as requested by this Court.
7
Upon his own initiative, or upon the application of
any party in interest . . . on the ground of a change in conditions or because
of a mistake in a determination of fact by the deputy commissioner, the deputy
commissioner may, at any time prior to one year after the date of the last
payment of compensation, whether or not a compensation order has been issued,
or at any time prior to one year after the rejection of a claim, review a
compensation case. . . in accordance with the procedure prescribed in respect
of claims in section 919 of this title, and in accordance with such section
issue a new compensation order which may terminate, continue, reinstate,
increase, or decrease such compensation, or award compensation.
33 U.S.C. § 922. The Supreme Court, this Court and every other
court interpreting § 22 has recognized this provision's extraordinary
breadth.
In its brief, Weeks Marine has
accurately summarized the Supreme Court's leading decisions interpreting §
22: Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459 (1968);
O=Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971); and
Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291 (1995). (Weeks Marine
brief at 18-23). Each of these decisions emphasizes that § 22's broad
scope is designed to promote accuracy over finality in decision-making with the
goal of rendering justice under the Longshore Act. It is thus easy to
understand Professor Larson's observation that the "broad Supreme Court
interpretation superimposed on a broad statutory provision" is correctly seen
as "endow[ing] the Longshore Act with perhaps the most permissive . . .
reopening rule on record." 8 Larson's Workers' Compensation Law §
131.05[2][b], at 131-58 (2000).
Following the Supreme Court's
lead, this Court and the other federal appellate courts have uniformly held
that the authority "to modify existing orders based on mistakes in fact or
changes in condition under § 922 is broad." Universal Maritime Service
Corp., 226 F.3d at 175. As a result, "the 'principle of finality' just does
not apply to Longshore Act and black lung claims as it does in ordinary
lawsuits." Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir. 1993),
8
citing Banks, 390 U.S. at 459.(3) Instead, § 22 evinces an
"interest in accuracy [that] trumps the interest in finality." Old Ben Coal
Co. v. Director, OWCP, 292 F.3d 533, 541 (7th Cir. 2002). It is designed to
"render justice under the Act," Banks, 390 U.S. at 464, and to ensure
"the accurate distribution of benefits," Old Ben Coal, 292 F.3d at 546.
As the Fourth Circuit has summarized, "the modification procedure is flexible,
potent, easily invoked, and intended to secure 'justice under the act.'"
Betty B. Coal Co. v. Director, OWCP, 194 F.3d 491, 497-98 (4th
Cir. 1999).
This is not to say that there is
no limit on a party's right to seek modification. The opportunity to modify may
be denied when the moving party has engaged in particularly egregious conduct
amounting to an abuse of the adjudicatory system, McCord v. Cephas, 532
F.2d 1377 (D.C. Cir. 1976) (refusing to entertain employer's modification
petition based on employer's recalcitrance, "callousness towards the processes
of justice," and self-serving ignorance it displayed), or in circumstances
demonstrating "important reasons grounded in the language and policy of the Act
that overcome the preference for accuracy," Old Ben Coal Co., 292 F.3d
at 547. In this small set of cases, an administrative law judge has the
discretion to deny an otherwise meritorious request because allowing
modification will not "render justice under the Act." Id.; Branham v.
Bethenergy Mines, Inc., 21 Black Lung Rep. 1-79, 1-83 (1998); 1998
WL 169698 (DOL Ben.Rev.Bd.). However, an administrative law judge's discretion
in this regard is clearly circumscribed by "the basic determination of Congress
that accuracy of determination is to be given great weight in all
determinations under the Act." Old Ben Coal Co., 292 F.3d at 547.
The procedures § 22
incorporates match its substantive reach. Once a party requests modification,
"no matter the grounds stated, if any, the deputy commissioner has the
authority,
_________________________
3The Black Lung Benefits Act, 30 U.S.C.
§§ 901-945, incorporates the Longshore Act's procedural provisions,
including § 22. 30 U.S.C. § 932(a). Thus, much of the case law
construing § 22 has been developed in the black lung benefits claim
context.
9
if not the duty, to reconsider all the evidence for any mistake of fact
or change in conditions." Consolidation Coal Co. v. Worrell, 27 F.3d
227, 230 (6th Cir. 1994). A modification request is processed and adjudicated
in the same manner as an original claim for benefits. Director, OWCP v.
Drummond Coal Co., 831 F.2d 240, 242 (11th Cir. 1987). Section 22
explicitly provides that modification requests are reviewed "in accordance with
the procedure prescribed in respect of claims in section [19, 33 U.S.C. §
919]." Section 19 of the Longshore Act, in turn, provides the procedures for
the investigation and development of claims by the district director, and for a
hearing before an ALJ upon a party's request. 33 U.S.C. § 919(c). ALJ
hearings on modification petitions are de novo and result in a new
adjudication of the claim. Betty B Coal Co. v. Director, OWCP, 194 F.3d
491, 498-99 (4th Cir. 1999). Because he is presiding over a de novo
proceeding, the ALJ is not bound by any prior fact-findings. After the ALJ
issues a decision, an aggrieved party may (as the parties did here) seek review
by the Board and the federal courts of appeal. Id.
Thus, on modification a party
may: 1) pursue a new theory of entitlement, Banks, 390 U.S. at 465; 2)
offer evidence it could have presented in the initial proceeding,
O'Keeffe, 404 U.S. at 255-56; 3) rely solely on the evidence already in
the record, or submit cumulative or new evidence, id.; or 4) premise its
petition on a change in the employees' physical condition or relevant economic
conditions, Metropolitan Stevedore Co., 515 U.S. at 296-97.
B. In adjudicating Weeks Marine's modification petition, Judge Romano
and the Board adopted a variety of overly restrictive views of § 22
inconsistent with its intended purpose.
Against this background, it is
clear that the procedural hurdles the ALJ and the Board erected in connection
with Weeks Marine's modification petition here cannot stand. Judge Romano
initially denied the petition because he viewed Weeks Marine's submission of
additional evidence as an impermissible attempt to correct its own litigation
errors in the initial
10
proceeding. Citing the First Circuit's decision in GeneralDynamics
Corp. v. Director, OWCP, 673 F.2d 23 (1st Cir. 1982), the Board agreed that
Weeks Marine could not use modification to correct its litigation errors. But,
putting a slightly different twist on the issue, the Board held that the
employer could nevertheless pursue modification but only if it demonstrated an
actual change in Jensen's physical or economic condition since Judge DeGregorio
entered the initial award.
As Banks and
O'Keeffe demonstrate, however, a party may seek modification on a theory
it failed to pursue in the initial proceeding or by submitting more evidence
pertinent to the theory it did pursue.4 Here, Weeks Marine
introduced more evidence that Jensen is in fact capable of performing suitable
alternative employment. Although some of this evidence may have been available
earlier, the ALJ could not simply deny the modification request "out of hand. .
. on the basis that the evidence may have been available at an earlier stage in
the proceeding." Old Ben Coal Co., 292 F.3d at 546. And the Board's
imposition of an additional requirement—direct proof of changed physical
or economic circumstances—is unwarranted for two reasons. First, as
O'Keeffe teaches, "neither the statute nor its interpreting case law
limits the type of evidence that may justify reopening; an ALJ may reopen 'to
correct mistakes of fact whether demonstrated by wholly new evidence,
cumulative evidence, or merely further reflection on the evidence initially
submitted.'" Id. (quoting O'Keeffe, 404 U.S. at 256).
Second, by requiring proof of change, the Board effectively, and improperly,
removed from
___________________
4 Based on the fact that Weeks Marine had raised
the suitable alternative employment issue in the initial proceeding, the Board
distinguished this case from some of its other precedents disallowing
modification where the employer either was silent or offered no relevant proof
on the suitable alternative employment question in the initial proceeding. See
Feld v. General Dynamics Corp., 34 BRBS 131 (2000), 2000 WL 1489547 (DOL
Ben.Rev.Bd.); Lombardi v. Universal Maritime Service Corp., 32 BRBS 82
(1998), 1998 WL 285569 (DOL Ben.Rev.Bd.). To the extent these decisions flatly
prohibit modification, they are inconsistent with Banks.
11
consideration the mistake in fact ground for modification. Once Weeks
Marine requested modification, it was entitled to de novo review for
both changes in condition and mistakes in fact. Consolidation Coal Co.,
27 F.3d at 230.
The Board's reliance on the First
Circuit's General Dynamics case does not rescue its analysis. General
Dynamics held that a Longshore employer may not raise the affirmative
defense allowed by 33 U.S.C. ' 908(f) (the Longshore Act=s "second injury"
provision) for the first time in a modification proceeding.5
Although the decision generally remarks that to allow the late raising of
§ 8(f) in a modification proceeding would disregard finality and would not
render justice under the Act,6 it is more accurately understood to
stand for the proposition that if a particular affirmative defense was not
raised—and thus not ruled upon—in the initial proceeding, then there
is no mistake to correct. The court's dicta emphasizing finality interests are
plainly inconsistent with the language of § 22, and with Banks and
O'Keeffe.7 Indeed, the
___________________
5An employer must timely request relief under
§ 8(f) or else it loses this defense. 33 U.S.C. § 908(f)(3).
6The General Dynamics court reasoned that
reopening would not serve the orderly administration of
justice which depends in no small part upon finality of judicial
determinations. Parties should not be permitted to invoke ' 22 to correct
errors or misjudgments of counsel, nor to present a new theory of the case when
they discover a subsequent decision arguably favorable to their position.
673 F.2d at 26. See also Verderane v. Jacksonville
Shipyard, Inc., 772 F.2d 775, 780 (11th Cir. 1985) (section 22 cannot "save
litigants from the consequences of their counsel=s mistakes").
7In addition to General Dynamics, the Board cited its
own decision in Kinlaw v. Stevens Shipping & Terminal Co., Inc., 33
BRBS 68 (1999), 1999 WL 387253 (DOL Ben.Rev.Bd.) (upholding ALJ's denial of
employer's modification request simply because the employer could have and
should have obtained and proffered during the initial hearing the medical
opinion it later proffered in support of its modification request). The Board's
decisions on this point, however, are inconsistent. See Branham v.
Bethenergy Mines, Inc., 21 Black Lung Rep. 1-79, 1-83 (1998), 1998 WL
169698 (DOL Ben.Rev.Bd.) (affirming ALJ's order granting employer's
modification request
12
Seventh Circuit has refused to extend General Dynamics beyond the
§ 8(f) context for these very reasons. Old Ben Coal Co., 292 F.3d
at 545 (noting that General Dynamics language "emphasiz[ing] finality
interests cannot easily be squared with the language of the statute, the
holdings of the Supreme Court, or the holdings of other circuits that have
emphasized the preference for accuracy over finality in § 22
adjudications.").
Accordingly, the facts that Weeks
Marine did or did not raise the suitable alternative employment issue in the
initial proceeding and did or did not submit on modification evidence it could
have produced during the initial proceeding are not, as the ALJ's and Board's
decisions imply, fatal (or potentially so) to Weeks Marine's modification
request.8 The same is true of the remaining procedural obstacles
Judge Romano and the Board placed in Weeks Marine's path. The Board believed
that Weeks Marine could not pursue modification simply by demonstrating current
availability of suitable alternative employment. Instead, the Board required
the employer to make a "threshold" showing of changed physical and vocational
conditions to bring its modification petition within the "scope" of § 22.
(A-199; A- 202). The Board found that threshold met here for a variety of
reasons: Weeks Marine produced medical evidence showing changes in Jensen's
physical condition and vocational evidence attesting to a change in economic
conditions after the employer developed its initial vocational evidence, and
Jensen cooperated
___________________________________________________________________
supported solely by medical opinions that it could have obtained and
proffered during the initial hearing and reasoning that "[o]ne could hardly
find a better reason for rendering justice than that it would be unjust or
unfair to require an employer to pay benefits to a miner who does not meet the
requirements of the Act.").
8If Weeks Marine could have submitted persuasive evidence of
suitable alternative employment during the initial proceeding but simply chose
not to do so, its belated evidentiary development is not without consequence.
The employer may not recover any compensation it paid to Jensen before its
modification petition was granted. 33 U.S.C. § 922 (a modification order
"shall not affect any compensation previously paid"); see generally Universal
Maritime Service Corp., 226 F.3d at 172-74 (discussing effect of modification
on benefits previously paid and allowing offset only against future benefits
payable).
13
with Weeks Marine's vocational experts during the modification
proceedings when he had not initially. On a somewhat related point, both the
Board and Judge Romano discounted at least some of Weeks Marine's vocational
evidence because it did not establish that the currently available jobs were
not available at the time of the initial proceeding (and, thus, did not
establish the job market had changed). (A-181; A-206; A-213).
Again, these principles
improperly place a "narrowly technical and impractical construction" on §
22 that is flatly inconsistent with its preference for accuracy over finality
in decisions rendered under the Longshore Act. To be sure, a party seeking to
prove a change in conditions must introduce additional evidence that could, if
credited, lead the fact-finder to a different conclusion on the ultimate
fact—here, Jensen's entitlement to permanent total disability
compensation. To the extent the Board's decisions pertaining to a "threshold"
inquiry can be construed in that fashion, we have no quarrel: without facially
relevant evidence that could change the result, there is no need for the
fact-finder to consider the modification petition further. But the Board's and
the ALJ's decisions go further by requiring Weeks Marine to prove that Jensen's
physical condition had changed, that the pertinent economic conditions had
changed, and that the jobs identified as currently available were not available
during the initial proceeding. By requiring such proof, the adjudicators have,
at a minimum, eliminated the mistake in fact ground from modification. Evidence
of current suitable alternative employment, standing on its own, necessarily
demonstrates either that Judge DeGregorio's initial award was factually
mistaken (because the identified jobs were available then as well) or that
conditions (medical, economic, or both) have changed to the point that Jensen
is no longer totally disabled within the meaning of the Longshore Act. See,
e.g., Betty B Coal Co., 194 F.3d at 498 (holding that an ALJ may
adjudicate entitlement "without first deciding the threshold modification
issue--that is,
14
whether there was a 'mistake of fact' in the prior rejection of the
claim--because a decision awarding benefits on modification would necessarily
mean that the prior rejection was a mistake of ultimate fact"). A contrary
conclusion would have the effect of perpetuating an erroneous decision rather
than effectuating § 22's purpose of "ceas[ing] payment "when circumstances
so require." Universal Maritime Service Corp., 226 F.3d at 173.
Thus, although the Board
ultimately reached the correct result in allowing Weeks Marine to proceed on
its modification petition, it got there only after traversing an unnecessary
and exceedingly complicated path. Modification is simple: upon a party's
request, the ALJ has the duty to conduct a de novo review of the
existing record and any evidence submitted during the modification proceeding
for both factual errors in the initial decision and changes in condition
warranting a change in the ultimate findings of fact. While the ALJ has the
discretion to grant or deny a request under § 22 in order to render
justice under the Act, that discretion must be exercised in light of "the basic
determination of Congress that accuracy of determination is to be given great
weight in all determinations under the Act." Old Ben Coal Co., 292 F.3d
at 547.
C. The ALJ's decision granting Weeks Marine's modification petition
may be affirmed if his determination that Jensen can perform available suitable
alternative employment is supported by substantial evidence and complies with
the Administrative Procedure Act.
Once a claimant has shown that
his or her post-injury condition forecloses return to his or her regular
pre-injury work, the burden shifts "to the employer to prove the availability
of suitable alternative employment in the claimant's community." Palombo v.
Director, OWCP, 937 F.2d 70, 73 (2d Cir. 1991). If the Employer makes this
showing, it will have demonstrated that the claimant's disability is partial,
and not total in nature. Id.
The job-availability
determination should incorporate, however, the specific capabilities of the
claimant, considering his or her age, background, employment history and
experience as
15
well as intellectual and physical capacities. See, e.g.,
Darden v. Newport News Shipbuilding & Dry Dock, Co. 11 BRBS 676, 679
(1979). This Court has also recognized a third step in this analysis: "the
claimant may rebut his employer's showing of suitable alternate employment--and
thus retain entitlement to total disability benefits--by demonstrating that he
diligently tried but was unable to secure such employment." Palombo, 937
F.2d at 73. The determination as to the diligence of an injured employee to
seek out alternative employment "does not displace the employer's
initial burden of demonstrating job availability." Id. at 75
(citations omitted, emphasis in original).9
Jensen and Weeks Marine have
extensively addressed the relative merits of the record evidence and the ALJ's
fact-findings on that evidence. While we will not address those points here, we
note that the ALJ's decision must comply with the mandates of the
Administrative Procedure Act. The Longshore Act provides that hearings "held
under this Act shall be conducted in accordance with the provisions of section
554 of title 5 of the United States Code." 33 U.S.C. § 919(d). Section
554, in turn, incorporates section 557 of the APA. Section 557 requires that
all decisions "include a statement of. . . findings and conclusions, and the
reasons or basis therefore, on all the material issues of fact, law, or
discretion presented on the record…" 5 U.S.C. § 557.
If the Court determines that the
ALJ's decision does not comport with the APA's requirements, and that such
failure is not harmless error, then it should remand the case for further
fact-finding. On the other hand, if the Court believes the ALJ's decision
satisfies the APA, it may affirm his decision granting Weeks Marine's
modification petition if, in light of the
___________________
9The ALJ found "no evidence in the record that
Claimant has. . . diligently pursued alternative employment opportunities but
was unable to secure a position within the scope of employment identified as
suitable." (A-194) (citation omitted).
16
entire record below, it is supported by substantial evidence.
American Stevedoring Ltd. v. Marinelli, 248 F.3d 54, 56 (2d Cir. 2001);
Sealand Terminals, Inc. v. Gasparic, 7 F.3d 321, 323 (2d Cir.1993).
Respectfully submitted,
HOWARD M. RADZELY
Acting Solicitor of Labor
DONALD S. SHIRE
Associate Solicitor
PATRICIA M. NECE
Counsel for Appellate Litigation
MARK S. FLYNN
Acting Counsel for Longshore
PETER B. SILVAIN, JR.
Attorney
U.S. Department
of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Suite N-2117
Washington, DC 20210
(202) 693-5339
cc (by facsimile): Norman S. Goldsmith, Esq.
James R. Campbell, Esq.
Christopher J. Field, Esq.
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