No. 03-72528
IN THE UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENERAL CONSTRUCTION CO.
AND LIBERTY NORTHWEST INSURANCE CORPORATION,
Petitioners
v.
ROBERT CASTRO
and
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT
OF LABOR,
Respondents
On Petition for Review
of a Final Order
Of the Benefits Review Board
BRIEF OF THE FEDERAL
RESPONDENT
Table of Contents
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
STATEMENT OF THE ISSUES
STATEMENT OF THE CASE
STATEMENT OF THE FACTS
SUMMARY OF ARGUMENT
ARGUMENT
CONCLUSION
CERTIFICATE OF SERVICE
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
This case arises from Robert
Castro’s (“Castro”) claim for benefits under the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §§ 901-950 (1994) (“Longshore Act” or “the
Act”). The Administrative Law Judge
(“ALJ”) had jurisdiction to hear the claim pursuant to Sections 19(c)-(d) of
the Act, 33 U.S.C. § 919(c)-(d). The ALJ’s Decision and Order granting Castro
benefits was filed in the office of the District Director on May 23, 2002. (ER at 163). The ALJ subsequently denied Castro’s motion
for reconsideration on July 10, 2002.
General Construction Co. and Liberty Northwest Insurance Corporation
(collectively “General Construction”) filed a Notice of Appeal of the ALJ’s
decision with the Benefits Review Board (“Board”) on August 9, 2002, within the
thirty-day time limit set forth in Section 21(a) of the Act, 33 U.S.C. §
921(a). See 20 C.F.R. §
802.206(a) (timely motion for reconsideration suspends appeal time
period). General Construction’s timely
appeal invoked the Board’s review jurisdiction pursuant to Section 21(b)(3) of
the Act, 33 U.S.C. § 921(b)(3).
The Board issued its final decision on May 13, 2003, affirming
the ALJ’s award of benefits. (ER at
181). Aggrieved by the decision,
General Construction filed its petition for review with this Court on June 23,
2003, within the sixty-day period prescribed by Section 21(c) of the Act, 33
U.S.C. § 921(c). The Board’s order is
final pursuant to Section 21(c) because it completely resolved all issues
presented and did not include a remand to the ALJ for further factual
determinations. See Nat’l
Steel and Shipbuilding Co. v. Director, OWCP, 626 F.2d 106 (9th Cir.
1980). Castro sustained his injury in
the state of Washington, within this Court’s territorial jurisdiction. Thus, pursuant to Section 21(c), this Court
has jurisdiction over General Construction’s petition for review.
STATEMENT OF THE
ISSUES
I. Whether
the ALJ properly determined, in accordance with the interpretation of the
Longshore Act unanimously adopted by the Fourth and Fifth Circuits, the Board,
and the Director, that Castro could receive permanent total disability benefits
while participating in an OWCP-sponsored vocational rehabilitation program if
his participation in the program rendered him unavailable to take otherwise
suitable alternative employment.
II. Whether
substantial evidence supports the ALJ’s determination that Castro’s
participation in an approved vocational rehabilitation program prevented him from
taking the alternative employment General Construction identified as available.
STATEMENT OF THE CASE
While working as a pile driver for
General Construction, Castro injured his right knee on November 20, 1998. As a result, he timely sought benefits for
permanent partial disability and temporary total disability under the Longshore
Act.
(SER
at 1-4). General Construction
voluntarily paid these benefits while Castro was undergoing medical treatment
and therapy.
One month after Castro’s failed attempt
to return to modified (lighter) duty work with General Construction in June and
July, 1999, a Vocational Rehabilitation Specialist in the Department of Labor’s
Office of Workers’ Compensation Programs (“OWCP”) referred Castro to Carol
Williams, a certified vocational rehabilitation counselor. (ER at 1).
Williams was responsible for assessing Castro and determining whether he
should participate in a vocational rehabilitation plan. (ER at 1-3). After she completed her evaluation, Williams recommended a plan
to train Castro to be a hotel/motel manager.
(ER at 48-55). She scheduled the
plan period to run from September 2000 to June 2002. (ER at 55).
The OWCP Rehabilitation Specialist approved Williams’ recommendation on
June 30, 2000. (Id.).
By letter dated August 3, 2000,
General Construction contested the proposed rehabilitation plan. (ER at 56).
It asked “for a hearing concerning the appropriateness of rehabilitation,
and the length and type of any rehabilitation program.” (Id.). It also believed the plan unnecessary because Castro likely would
be able to replace his wages without rehabilitation. Contemporaneously, General Construction terminated its voluntary
payment of benefits.
Castro requested an ALJ hearing by filing a
controverted issues form (LS-18) with the District Director on October 26,
2000, and OWCP forwarded the claim to the Office of Administrative Law Judges
on November 17 for further proceedings. (ER at 59).
The ALJ held a formal hearing on
June 20, 2001. He then issued a
Decision and Order granting Castro benefits; the decision was filed in the
Office of the District Director on May 23, 2002. Based on his evaluation of the medical opinion evidence, the ALJ
found Castro entitled to permanent partial disability compensation for a
scheduled injury to his right knee based on a 17 percent lower extremity
disability rating. See 33 U.S.C.
§ 908(c)(2) (listing scheduled injuries).
He thus awarded Castro 48.96 weeks (i.e., 17 percent of
the schedule-allowed 288 weeks) of compensation at an average weekly wage of
$669.58, for a total of $32,782.64. (ER
at 179). The ALJ made his average weekly wage determination pursuant to 33
U.S.C. § 910(a) and this Court’s precedent in Matulic v. Director, OWCP, 154
F.3d 1052 (9th Cir. 1998).
In addition, the ALJ awarded Castro
total disability benefits. He
determined that Castro was entitled to temporary total disability benefits from
July 14, 1999, until August 13, 2000 (the period after Castro discontinued work
due to medical restrictions until he reached maximum medical improvement) and
permanent total disability benefits from August 14, 2000, to June 7, 2002 (the
period of his vocational rehabilitation plan).
(ER at 179). Before awarding
these benefits, the ALJ evaluated whether there was suitable alternative work
available to Castro. He noted that the
positions General Construction’s vocational experts had identified met Castro’s
physical restrictions. But, relying on
the Fifth Circuit’s decision in Louisiana Insurance Guarantee Assoc. v.
Abbott, 40 F.3d 122 (5th Cir. 1994), and the Board’s subsequent decision in
Brown v. National Steel and Shipbuilding, 34 BRBS 195 (2001) (applying Abbott
to cases within the Ninth Circuit’s jurisdiction), the ALJ concluded that
Castro was entitled to total disability benefits because he could not
successfully complete his rehabilitation plan and work in the identified
positions contemporaneously.
The ALJ conducted a detailed review
of the facts before reaching his conclusion on this point. He acknowledged that under Abbott,
participation in a rehabilitation plan alone was not enough to establish
entitlement to total disability.
Instead, Castro had to prove that such participation prevented him from
working. The ALJ considered an array of
factors in deciding this question: 1)
General Construction had objected to the rehabilitation plan; 2) the time
Castro spent in classes, studying, and commuting to classes, as well as the
commute’s length and unpredictability, would make it difficult to hold down a
job; 3) Castro’s relatively slower learning capacity made it unlikely that he
could work and successfully complete his training program simultaneously; 4)
Castro had made efforts to secure other employment, including failed attempts
to return to General Construction in a lighter-duty position and to hold a paid
internship while participating in the rehabilitation program; and 5) Castro’s
long-term earning potential would be greater after completing the program. Balancing these factors, the ALJ concluded that
Castro was entitled to total disability benefits under Abbott until the
scheduled completion date of his vocational rehabilitation program. (ER at 179).
General Construction appealed the
ALJ’s decision to the Board. The
Longshore Claims Association (“LCA”) filed an amicus curiae brief in support of
the employer. On May 13, 2003, the
Board issued its decision affirming the ALJ's award of benefits in all
respects. In its decision, the Board
rejected each argument General Construction and LCA posed. First, the Board addressed their challenges
to the Fifth Circuit’s Abbott decision as an invalid extension of the
Act. General Construction contended
that total disability benefits are not allowed during vocational rehabilitation
periods because the Act does not explicitly provide for such awards; thus, Abbott
was incorrectly decided. LCA
asserted that because Congress considered, but did not adopt, a statutory
amendment that would have required employers to pay total disability
compensation to all Longshore claimants participating in vocational
rehabilitation programs, Abbott impermissibly reinserted into the Act a
provision Congress explicitly excluded.
The Board was unpersuaded. Noting that the Fourth Circuit had adopted
the Abbott approach in Newport News Shipbuilding & Dry Dock Co.
v. Director, OWCP, 315 F.3d 286 (4th Cir. 2002) (“Brickhouse”), the Board
explained that Abbott rested “not on any novel legal concept, but on the
well-established principle[s]” governing availability of suitable alternative
employment determinations. (ER at
187). Within that framework, the Board
reasoned that employment, even where suited to the employee’s disability, was
not “available” if the employee’s rehabilitation plan agreement “prohibits him
from extracurricular employment, or if the administrative law judge determines
that the rehabilitation schedule prevents” it.
Thus, the Board concluded that “Abbott does not create a new type
of award but permits consideration of factors relevant to claimant’s
employability consistent with existing case law,” law that includes
consideration of “economic factors in addition to an injured employee’s
physical condition.” (ER at 188).
The Board also found LCA’s
legislative history argument unavailing.
The Board pointed to a crucial distinction between Abbott and the
proposed (but not enacted) statutory amendments: the amendments would have made total disability payments during
rehabilitation programs automatic. That
result, the Board concluded, was far different from the Abbott approach
because “Abbott requires consideration of a number of factors” in
determining benefits entitlement. (ER
at 187). Such entitlement is not
automatic.
Next, the Board addressed General
Construction’s challenge to the ALJ’s evidentiary weighing on the issue of
availability of suitable alternative employment. Reviewing each factor the ALJ considered and the pertinent
evidence, the Board concluded that the ALJ had “clearly considered all of the
relevant factors and reached a rational conclusion.” (ER at 191). It therefore
affirmed the ALJ’s award of total disability benefits to Castro during his
vocational rehabilitation program. (Id.).
Last, the Board disposed of General
Construction’s contention that it had been denied due process because it had
unfairly been denied a hearing. Relying
on this Court’s decision in Healy Tibbitts Builders, Inc. v. Cabral, 201
F.3d 1090 (9th Cir. 2000), cert. denied 531 U.S. 956 (2000), and similar
case precedents, the Board held that General Construction was not entitled to
an ALJ hearing on whether Castro should be enrolled in a vocational
rehabilitation program. The Board
reasoned that because the statute and implementing regulations commit that
determination solely to the discretion of an OWCP District Director (the
Secretary of Labor’s designee), it may only be reviewed via direct appeal to
the Board (an appeal General Construction never sought). The Board also rejected General
Construction’s related Constitutional argument that it was illegally deprived
of its property without a hearing because the employer had received a full
hearing on the merits of whether Castro was entitled to total disability
benefits before being ordered to pay those benefits. (ER at 14).
General Construction then
petitioned this Court for review of the decisions below. LCA has, as it did before the Board, filed
an amicus curiae brief in support of the employer.
STATEMENT OF THE FACTS
Castro began working for General Construction as a
pile driver in 1998. (ER at 124). On November 20, 1998, he slipped on a crane
step, tearing the anterior cruciate ligament in his right knee. (ER at 125; SER at 1-4). Castro received treatment and eventually
had three reconstructive surgeries to his knee. (SER at 7). At the time
of his injury, Castro was earning $25.70 per hour. Had he worked in his pile driving position through the end of
1998, his earnings for the year likely would have been in excess of
$43,000. In 1996 and 1997, Castro
earned wages totaling approximately $40,000.
(ER at 67).
From June 14, 1999, through July
13, 1999, Castro returned to a light-duty position for General Construction,
but had to discontinue working in this position due to injury-related
restrictions and pain. (ER at 126-27). Castro's medical providers and evaluating
physicians agreed that he could not return to his former position with General
Construction because of his injury-related disability. (ER at 58).
On August 13, 1999, pursuant to Section 39(c)(2) of the Act and the
regulations contained at 20 C.F.R. §§ 702.501-702.508, the District Director
referred Castro to Carol Williams, a certified vocational rehabilitation
counselor, to determine whether vocational rehabilitation was warranted. (ER at 1).
To that end, she conducted vocational testing and assessed Castro’s
medical history, social and financial issues, vocational and educational
training, work history and family background.
She concluded that Castro was “highly motivated to obtain [a] formal
education” and “likely to succeed” in a two-year training program. (ER at 40).
While settling on a particular Associate Arts degree program, Castro
began taking general courses at Seattle Central Community College in January,
2000. (ER at 41, 46).
Williams determined that Castro
would benefit from being retrained in hotel tourism and management. (ER at 46).
She estimated that management trainees in larger hotels earned $1100 to
$1500 per month and that experienced managers could earn up to $5000 per
month. (ER at 53). Thus, on June 16, 2000, she recommended that
Castro be enrolled in a two-year course at Highline Community College. (ER at 55).
Under the plan, the rehabilitation period ran from September 13, 2000,
through June 7, 2002, the date Castro was expected to complete the course. The OWCP Vocational Rehabilitation
Specialist approved this recommendation on June 30, 2000. (ER at 55).
Castro testified before the ALJ
that he spent between three and four-and-a-half hours per day commuting from
his home on Bainbridge Island to Highline, twenty-five hours per week studying,
and fifteen to eighteen hours per week in his classes, for a total of between
forty-six and fifty-four hours of vocational training per week. (ER at 136-37).
In the meantime, General
Construction offered evidence from its own vocational expert of available
alternative jobs that Castro could perform notwithstanding his post-injury
permanent physical limitations. These
jobs included positions as a courier, cashier, security guard, and production
assembler at an average salary of $8.00 to $10.00 per hour, less than half his
hourly rate as a pile driver. (ER at
95). Annualized, the salaries for these
jobs ranged from approximately $17,000 to $22,000 (ER at 66).
Board certified vocational expert
Stan Owings conducted a vocational and lost earnings analysis for Castro based
on a variety of assumptions, including Castro’s completion of the hotel
management course. (ER at 63-73). He noted that Castro could expect to earn
about $16,000 a year at the entry level after course completion, but with
experience his predicted earnings would rise to approximately $27,500
annually. Owings had no doubt that
Castro’s injury would cause long-term income loss. But his analysis demonstrated that Castro’s lost earnings would
be substantially less if he completed the hotel management course than if he
took a position of the sort General Construction pointed to as suitable
alternative employment (he predicted Castro would lose only $156,876 in
earnings if he completed the program instead of $248,754 if he did not, based
on a $40,000 annual salary at the time of injury). (ER at 70, 72).
SUMMARY OF ARGUMENT
In accordance with the Fifth and
Fourth Circuit's decisions in Abbott and Brickhouse, Board
precedent, and the Director’s interpretation of the Longshore Act, the ALJ
properly concluded that Castro was entitled to permanent total disability
benefits while enrolled in an OWCP-sponsored vocational rehabilitation
program. These benefits are not payable
to every claimant in a rehabilitation program where suitable alternative
employment is available. Rather,
following the well-settled analysis for determining the extent of an injured
worker’s disability, only those injured workers who are prevented from working
contemporaneously because of the demands of their rehabilitation programs may
receive total disability benefits.
As the Abbott and Brickhouse courts have already recognized, this interpretation of the
Longshore Act is fully consistent with the statute’s terms. The Act explicitly grants the fact-finder
broad authority to consider an array of factors beyond those pertaining to an
injured worker’s physical capacity in determining his post-injury wage earning
capacity. See 33 U.S.C. §
908(h). The courts have held that these
factors include the employee’s age, education, work experience, and
rehabilitative potential. Moreover,
allowing continued total disability compensation to employees in rehabilitation
programs, when appropriate, effectuates another prime statutory directive: the Secretary of Labor shall provide
vocational rehabilitation to permanently disabled workers. See 33 U.S.C. § 939(c)(2). Thus, read together, these provisions fully
support the result the ALJ reached here.
Nor does the Act’s legislative
history, contrary to General Construction’s and LCA’s arguments, undermine the Abbott/Brickhouse
statutory construction. The proposed
(but not enacted) amendments LCA points to do not support its case. Both the Supreme Court and this Court have
cautioned against drawing conclusions regarding congressional intent from
actions Congress chose not to take. And
in any event, the proposed amendments LCA cites would have granted total
disability benefits to any claimant who was in a vocational
rehabilitation program of any sort.
This is a far broader outcome than the much more restricted view that
benefits are payable only when a full-time vocational rehabilitation program
makes suitable alternative employment temporarily unavailable to the injured
worker.
General Construction’s fall-back
arguments—that its procedural rights were somehow trampled in the proceedings
below—are similarly without merit. It
could have had the District Director’s decision to approve Castro’s
rehabilitation plan reviewed had it appealed that determination to the Board,
the proper procedural path for challenging decisions the Act leaves to the
District Director’s sole discretion.
And General Construction had a full ALJ hearing on whether Castro could
perform the suitable alternative employment positions it had identified and,
accordingly, on whether Castro was entitled to permanent total disability
benefits.
Finally, the ALJ’s determination
that Castro’s participation in an approved
vocational rehabilitation program prevented him from working in remunerative
employment at the same time is supported by substantial evidence. The
ALJ’s clear and detailed evidentiary
findings on the relevant factors outlined in Abbott and Brickhouse more
than meet the required “substantial evidence standard.”
ARGUMENT
I. An Injured Worker Participating In An OWCP-Sponsored
Rehabilitation Program May Receive Permanent Total Disability Benefits If His
Participation In The Program Prevents Him From Working In Otherwise Suitable
Alternative Positions.
A. Standard Of Review
Courts review decisions of the
Board for errors of law and adherence to the substantial evidence standard. Healy
Tibitts Builders, 201 F.3d at 1092; Duhagon v. Metropolitan Stevedore
Co., 169 F.3d 615, 618 (9th Cir. 1999).
On questions of law, including interpretations of the Longshore Act,
this Court exercises de novo review. Gilliland
v. E.J. Bartells Co., Inc., 270 F.3d 1259, 1261 (9th Cir. 2001). As the administrator of the statute, the
Director’s reasonable statutory interpretations are entitled to deference. Id. at 1261-62.
B.
The ALJ’s
Ruling That Castro Is Entitled To Total Disability Benefits While Participating
In An OWCP-Sponsored Rehabilitation Plan Accords With The Statutory Language
And Relevant Case Law.
The parties agree that Castro’s
knee injury and three subsequent reconstructive surgeries have rendered him
unable to return to his work as a Longshore pile driver. If the injured worker can no longer perform
his prior job duties, he is totally disabled unless the employer is able to demonstrate
that suitable alternative employment is available to the worker. In this case, General Construction offered
evidence of positions available in Castro’s geographic area and generally
within his physical limitations. Castro
did not take any of these positions, however, because he was participating in
an OWCP-sponsored vocational rehabilitation program that precluded him from
working contemporaneously. Having found
that General Construction failed to demonstrate the availability of suitable
alternative employment, the ALJ awarded Castro permanent total disability
benefits for his retraining period.
General Construction argues that
the ALJ’s ruling violates the Act. It
argues that the Fifth Circuit’s decision in Abbott, upon which the ALJ
rested his decision, has no basis in law and should not be followed. LCA agrees with General Construction. Focusing on the Act’s legislative history,
LCA contends that Abbott was wrongly decided. Both the employer's and the amicus’s arguments are without merit.
The statute fully supports the
ruling below. In determining a
Longshore claimant’s entitlement to total disability benefits, this Court
applies a shifting burdens of proof scheme.
See, e.g., Edwards v. Director, OWCP, 999 F.2d 1374 (9th Cir.
1993), cert. denied, 511 U.S. 1031 (1994); Bumble Bee Seafoods v.
Director, OWCP, 629 F.2d 1327 (9th Cir. 1980). The claimant bears the initial burden of establishing a prima
facie case of total disability by demonstrating that his work-related
injury renders him unable to return to his prior employment. Bumble Bee, 629 F.2d at 1329. If the claimant establishes a prima facie
case of total disability, the burden then shifts to the employer to establish
the availability of suitable alternative employment, within the geographic area
of the claimant’s residence, that the claimant can perform considering his age,
education, and background, and a diligent employment search on his part. See Bumble Bee Seafoods, 629 F.2d at
1329-30; Edwards, 999 F.2d at 1375; Brown, 34 BRBS at 196. If the employer makes such a showing, the
claimant may nevertheless be entitled to total disability benefits if he
demonstrates that he diligently tried but was unable to secure alternate
employment. Palumbo v. Director,
OWCP, 937 F.2d 70, 73 (2d Cir. 1991).
In the context of this
well-settled wage-earning capacity inquiry, the Fourth and Fifth Circuits, the
Board, and the Director unanimously interpret the Longshore Act as permitting a
total disability benefits award to an injured worker participating in an
OWCP-sponsored vocational rehabilitation program when such participation
prevents him from performing otherwise suitable alternate employment. The Act is not, contrary to General
Construction’s argument, silent on this question; instead, it provides strong
support for the decisions of this Court’s sister circuits and the decisions
below.
First, the
Longshore Act plainly compels consideration of more than just an injured
worker’s medical status in determining entitlement to benefits. It adopts a more flexible scheme that allows
the fact-finder to consider all relevant factors that may limit or preclude
employment. Section 2(10) of the
Longshore Act defines disability in economic terms: it is the “incapacity because of injury to earn the wages which
the employee was receiving at the time of injury in the same or any other
employment.” 33 U.S.C. § 902(10). Thus, one key to determining extent of
disability is lost wage-earning capacity.
The statutory provision directly
addressing wage-earning capacity reflects the same theme—one supporting a
flexible inquiry into all the circumstances surrounding a worker’s post-injury
status. Section 8(h) of the Act
provides that
if the employee has no actual earnings
. . . the [fact-finder] may, in the interest of justice, fix such wage-earning
capacity as shall be reasonable, having due regard to the nature of his injury,
the degree of physical impairment, his usual employment, and any other factors
or circumstances . . . which may affect his capacity to earn wages in his
disabled condition, including the effect of disability as it may naturally
extend into the future.
33 U.S.C. § 908(h). Thus, the statute permits the fact-finder
broad discretion in determining a reasonable, post-injury, wage-earning
capacity for the injured worker. The
provision specifically directs the fact-finder to consider the long-term
effects of the worker’s disability, an inquiry that should naturally include a
worker’s rehabilitative potential. See
also Edwards, 999 F.2d at 1375-76, quoting Randall v. Comfort Control,
Inc., 725 F.2d 791, 799 (D.C.Cir. 1984) (Act “designed to ‘compensate for
any injury-related reduction in wage-earning capacity through the claimant’s lifetime.’”)
(emphasis added by Edwards).
Second, the Longshore Act
emphasizes the value of vocational rehabilitation. It provides that “[t]he Secretary [of Labor] shall direct the vocational rehabilitation of permanently disabled
employees and shall arrange . . . for such rehabilitation.” 33 U.S.C. § 939(c)(2) (emphasis added). Exercising her statutorily-mandated
rulemaking authority, 33 U.S.C. § 939(a)(1), the Secretary has implemented this
provision through regulations. Those regulations
state that the purpose of rehabilitation is “to return permanently disabled
persons to gainful employment commensurate with their physical or mental
impairments, or both, by reevaluation or redirection of their abilities, or
retraining in another occupation, or selective job placement assistance.” 20 C.F.R. § 702.501. In fact, the regulations give vocational
advisors significant flexibility in devising such training programs, stating
that training programs “shall be developed to meet the varying needs of
eligible beneficiaries, and may include courses at colleges . . . .” 20 C.F.R. § 702.506(b). Because “[t]he Act gives the Department of
Labor the authority to direct rehabilitation programs[,] courts should not
frustrate those efforts when they are reasonable and result in lower total
compensation liability for the employer and its insurers in the long run.” Abbott, 40 F.3d at 128.
Thus, the Longshore Act directs
both that all relevant factors be considered in determining a disabled worker’s
earning capacity and that the Department promote rehabilitation of disabled workers. Reading these provisions together, the
Longshore Act authorizes an ALJ—where the totality of the circumstances so
warrants—to award total disability benefits during a disabled worker’s
participation in an OWCP-sponsored vocational rehabilitation program,
notwithstanding the existence of other positions the worker could assume based
upon his residual physical capacity to work alone.
The Director’s construction of
the Act comports with its fundamental underlying policies. See,
e.g., Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 315-16
(1983) (recognizing that the Longshore Act “must be liberally construed in
conformance with its purpose, and in a way which avoids harsh and incongruous
results”); Northeast Marine Terminal,
Inc. v. Caputo, 432 U.S. 249, 268 (1977) (recognizing the Act’s remedial
purpose). The Director’s construction
promotes the rehabilitation of injured employees to enable them to resume their
places, to the greatest extent possible, as productive members of the work
force. Turner, 661 F.2d
at 1042. Accord Stevens v. Director,
OWCP, 909 F.2d 1256, 1260 (9th Cir. 1990). By providing an adequate financial base for the disabled worker
whose rehabilitation makes alternate employment unavailable, the worker is able
to devote his full attention to his long-term rehabilitation.
Both circuit courts that have
addressed this issue have agreed with the Director’s statutory
construction. In Abbott, 40 F.3d 122, the Fifth Circuit held
that under the totality of the circumstances, a claimant was entitled to
receive continuing permanent total disability benefits while enrolled in an
OWCP-sponsored rehabilitation program.
The decision is anchored in the Longshore Act’s specific provisions. Writing for a unanimous panel, Justice Byron
White first observed that the Act provides no strict formula for calculating a
worker’s post-injury earning capacity. Id. at 126-27. Rather, consistent with Section 8(h) of the Act, the court
recognized that post-injury earning capacity is determined “‘not only on the
basis of physical condition but also on factors such as age, education,
employment history, rehabilitative
potential, and the availability of work that the claimant can do.’” Id. at 127, quoting New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
1038 (5th Cir. 1981) (emphasis added).
The Fifth Circuit also focused on
the statute’s emphasis on vocational rehabilitation. Recognizing that the statute “does not explicitly provide for”
continued benefits during vocational rehabilitation, the court nevertheless
believed that result correct because it was 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.” Id. at 127. The court
concluded that “‘[i]t would be ‘unduly harsh and incongruous’”—or, in other
words, contrary to the Supreme Court’s instruction in Perini N. River Assocs.—“‘to find that suitable alternative
employment was reasonably available if the claimant demonstrates that, through
his own diligent efforts at rehabilitation, he was ineligible for such a
job.’” Id. at 128, quoting
Palombo, 937 F.2d at 73.
The Fourth Circuit recently
reached the same conclusion in Brickhouse,
315 F.3d at 286. Upholding an ALJ’s award of total disability
benefits to a claimant whose participation in a vocational rehabilitation
program made suitable alternative work unavailable, the court held that “[t]he
Director’s interpretation of the Act is reasonable and must be sustained.” Id.
at 295. The court based its holding on
the same two principles Justice White laid out in Abbott. First, the court pointed to the Act’s focus
on a disabled worker’s “economic security in the long-term” as evidenced by both Section 2(10) and Section
8(h). Id. at 295 (emphasis in original).
Quoting this Court’s decision in Edwards,
999 F.2d at 1374, the Fourth Circuit concluded that “the Act carries with it
the ‘long-term remedial purpose [to] compensate for any injury-related
reduction in wage earning capacity through the claimant’s lifetime.’” Brickhouse, 315 F.3d at 295 (internal
quotation marks omitted).
Second, the Fourth Circuit
recognized the Act’s vocational rehabilitation emphasis, noting that “the
Director possesses wide latitude in his development of vocational
rehabilitation programs so that disabled employees are able to be productive
members of the work force.” Id.
After surveying the implementing regulations, the court determined that
“the Act, and the legal principles under which it is implemented, mandate that
vocational rehabilitation be an important tool in returning disabled employees”
to the workforce and ensuring “a measure of long-term economic security” for
them. Id. Accordingly, the court
concluded that “in appropriate circumstances, suitable alternative employment
is reasonably unavailable due to his participation in an approved
rehabilitation program.” Id.
Finally, the Board has
consistently agreed with the Director’s construction of the statute on this
issue. Brown, 34 BRBS 195; accord
Kee v. Newport News Shipbuilding & Dry Dock Co., 33 BRBS 221 (2000); Bush
v. I.T.O. Corp., 32 BRBS 213 (1998); Gregory v. Norfolk Shipbuilding
& Dry Dock Co., 32 BRBS 264 (1998).
Thus, far from positing a “concocted”
or “reckless” (to use General Construction’s terms) statutory interpretation,
the Abbott and Brickhouse decisions, in accord with the Director’s interpretation
of the Act, set forth a cohesive construction of the statute as a whole.
C. The Act’s Legislative History Does Not
Undermine The Director’s Interpretation Of The Statute Or The Abbott And
Brickhouse Decisions.
General Construction and LCA
vigorously contend that had the Fourth and Fifth Circuits “been able to
consider” the legislative history snippets from the 1984 Longshore Act
amendments LCA cites, the courts “would likely have uncovered Congress’ true
intent” and, as a result, the proverbial error of their ways. (Amicus brief at 25, 27). LCA and the employer point to certain
amendments proposed, but not enacted, that would explicitly have required
awards of total disability benefits to all workers participating in vocational
rehabilitation plans. See H.R.
7610, 96th Cong. (1980) (Amicus brief, Ex. 2); Longshoremen’s and Harbor Workers’
Compensation Act Amendments of 1982, S. 1182, 97th Cong. (1982) (Amicus brief,
Ex. 3); Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1983,
S. 38, 98th Cong. (1983). From this,
they argue that Abbott and Brickhouse improperly add a provision to the statute that
Congress chose to exclude.
The Supreme
Court, however, has warned of the inherent unreliability of interpreting
Congress’ failure to pass a proposed amendment, stating that “Congressional
inaction lacks persuasive significance because several equally tenable
inferences may be drawn from such inaction, including the inference that the
existing legislation already incorporated the offered change.” Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994) (citations
omitted); United States v. Wise, 370 U.S. 405, 411 (1962). This Court has similarly noted that “[a]ny
inference drawn from Congress’ failure to act is generally unreliable.” Chen
v. I.N.S., 95 F.3d 801 (9th Cir. 1996).
This unreliability can be seen in
the paucity of evidence LCA offers regarding Congress’ reasons for not passing
these amendments. LCA’s purportedly
strongest indication of congressional intent is drawn from the section entitled
“Individual Views of Hon. John N. Erlenborn,” attached to House Report 98-570
(1983). (Amicus brief, Ex. 5). This section includes a laundry list of
provisions that the House Committee on Education and Labor’s majority, without
the minority’s agreement, chose not to adopt, including an automatic guarantee
of continuing benefit payments during vocational rehabilitation programs. There is no explanation for why the majority
rejected the provision as proposed.
Perhaps the language was unclear—perhaps it was overly broad in its
blanket award of benefits to all claimants in vocational rehabilitation, or
perhaps (in a situation suggested by the Supreme Court in Central Bank of
Denver) Congress thought the amendment was unnecessary because it saw the
possibility of awarding benefits to appropriate claimants under the existing
provisions of the Act. Many of the
decisions allowing consideration of a variety of factors in the suitable
alternative employment context were already in place by the time Congress
considered the 1984 amendments. See,
e.g., Bumble Bee Seafoods,
629 F.2d at 1330; Turner, 661 F.2d at 1037-38; Diamond M. Drilling
Co. v. Marshall, 577 F.2d 1003, 1005-06 (5th Cir. 1978).
As the Supreme Court has
indicated, Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it reenacts a
statute without change. Lorillard v.
Pons, 434 U.S. 575, 580 (1978). It
is a no less persuasive interpretation of Congress’ intent in not passing the
global vocational rehabilitation benefits amendment that Congress believed
appropriate awards of disability benefits would be made pursuant to the already
existing provisions of the Longshore Act.
In any event, even if a rejected
amendment carries some persuasive force in a statutory construction context,
the amendments Congress rejected here would have led to a different result than
that reached by the courts. As the
Board stated, “[a]lthough Congress considered and rejected awards of total
disability benefits to employees enrolled in vocational rehabilitation programs
as a matter of statutory right, the failure to enact that proposal does not
establish that Abbott runs counter to congressional intent.” (ER at 185). General Construction suggests this reasoning is “illogical,” but
it is not. A blanket grant of total
disability benefits to anyone in vocational rehabilitation is a far different
matter than allowing the fact-finder, on a case-by-case basis, to consider an
injured worker’s participation in a rehabilitation program as one factor (among
others) in determining whether suitable alternative employment is available to
that worker. Even General Construction
grasps this elemental difference. (Petitioner’s
brief at 27).
Thus,
the legislative history cited by LCA is unpersuasive. It does not provide any actual insight into Congress' intent
regarding the payment of total disability benefits to a particular claimant who
is undergoing vocational rehabilitation and who, as a result of the
rehabilitation program, cannot practically perform suitable alternative
employment.
LCA also cites
Section 8(g) of the Act in support of its contention that the only money
Congress intended be provided to the claimant during vocational rehabilitation
is a $25 maintenance stipend paid by the Section 44 special fund. 33 U.S.C. §§ 908(g), 944. But here, LCA commits the same error it
attributes to the Director and the Abbott
and Brickhouse courts: it ignores the plain language of the
statute. Section 8(g) expressly states
that an injured worker in vocational rehabilitation who is being rendered fit
for remunerative occupation “shall receive additional compensation
necessary for his maintenance, but such additional compensation shall
not exceed $25 a week.” 33 U.S.C. §
908(g) (emphasis added). Congress’ use
of the word “additional” demonstrates its intent that the maintenance fee be
paid in addition to—not instead of—other compensation payable. It also demonstrates Congress’ understanding
that a claimant might be receiving compensation, other than the $25 stipend,
under the terms of the Act during the vocational rehabilitation process. Thus, far from undermining the Abbott/Brickhouse rationale, the language of Section 8(g) serves as
further support for it.
In the end, it is the Director’s reasonable
interpretation of the Act—not General Construction’s or LCA’s—that is entitled
to “‘considerable weight.’” Gilliland,
270 F.3d. at 1261-62, quoting Mallott & Peterson v. Director,
OWCP, 98 F.3d 1170, 1172 (9th Cir. 1996).
Although the Director’s construction of Sections 2(10), 8(h) and
39(c)(2) on the point at issue here is not contained in a regulation, it
nevertheless is entitled to deference because he maintained the same litigating
position during the agency adjudication and has consistently advanced his
position. Id. Indeed, since Abbott was litigated
(and decided in 1994), the Director has steadfastly held to the statutory
interpretation he posits here before both the courts and the Board. See, e.g., Abbott, 40 F.3d at
127-128; Brickhouse, 315 F.3d at 295-96; Brown, 34 BRBS
195. Because the Director’s
construction of these provisions is reasonable, uncontradicted by any other
terms of the Act or clear legislative history, and consistent with the
broad remedial intent of the Longshore Act and the intended functions of the
provisions at issue, the Director urges the Court to follow the lead of its
sister circuits and defer to the Director’s interpretation.
D. General Construction’s Procedural Rights
Were Not Abrogated During The Adjudication Of Castro’s Claim.
With little citation to
particular statutory provisions, General Construction broadly asserts that even
if Abbott was correctly decided, its
rights under the Longshore Act and the Administrative Procedure Act were
violated because it was improperly denied its right to an ALJ hearing on the
propriety of the OWCP-approved vocational rehabilitation plan. (Petitioner’s brief at 21-25). It further contends that its due process
rights were violated because it was not afforded a “pre-deprivation of property
hearing” before Castro’s vocational rehabilitation plan began and thus
established “a set period of time for Castro’s total disability
compensation.” (Petitioner’s brief at
25-27).
General Construction’s procedural
arguments are fundamentally flawed. The
employer confuses its rights and obligations concerning two distinct decisions
that the Act commits to different decision makers. The first is the OWCP District Director’s decision to approve
Castro’s vocational rehabilitation program. The second is the ALJ’s
determination that Castro is entitled to total disability benefits while
enrolled in a vocational rehabilitation program because he was unable to
perform suitable employment while participating in the program. On both scores, General Construction’s
procedural rights were fully protected.
General Construction has no right
under the Longshore Act to an ALJ hearing to review the Secretary's
determinations regarding vocational rehabilitation. The Secretary’s discretionary determination concerning the
vocational rehabilitation of an injured worker is directly reviewable only by
the Board. Because General Construction
did not properly seek such review, its challenge cannot now be heard.
The Longshore Act grants to the
Secretary of Labor the exclusive authority to direct the course of vocational
rehabilitation of injured workers. As
noted above, Section 39(c) (2) of the Act states in relevant part that “[t]he
Secretary shall direct the vocational rehabilitation of permanently disabled
employees and shall arrange with the appropriate public or private
agencies…such rehabilitation.” 33 U.S.C. 939(c)(2). Such discretionary determinations are directly reviewable only by
the Board under an abuse of discretion standard. See Meinert v. Fraser, Inc., ___ BRBS ___, 2003 WL
22866806 (2003)(on employer’s direct appeal, Board upheld OWCP-approved
rehabilitation plan’s terms as within District Director’s discretion); Olsen v. Gen.
Engineering & Mach. Works, 25 BRBS 169 (1991) (on claimant’s
direct appeal, Board upheld District Director’s denial of rehabilitation
services); see also Jackson v. Universal Maritime Serv.
Corp., 31 BRBS 103 (1997) (where Longshore Act specifically vests the
Secretary alone with authority to change a claimant’s treating physician, the
Secretary’s decision is discretionary in nature and only reviewable on direct
appeal to the Board).
General Construction nevertheless
contends that Sections 19(c) and (d) of the Act entitle it to a hearing before
an ALJ regarding the vocational rehabilitation determinations in this claim.
The employer has simply misread the Act.
Longshore Sections 19(c) and (d) provide for a transfer of the deputy
commissioners' pre-1972 statutory hearing authority to the ALJ. As noted above, however, the statute gives
the Secretary of Labor, and not the deputy commissioner, the authority to
direct the course of vocational rehabilitation. As such, the transfer of hearing authority in 19(d) has no
bearing on the Secretary's statutory powers.
Indeed, as this Court has held, the Act “does not necessarily require an
evidentiary hearing before an ALJ on all contested issues” and Section 19(d) of
the Act “does not ipso facto confer an absolute right to a hearing before an
ALJ on all contested issues.” Healy Tibbitts Builders, 201 F.3d at 1094
(citations omitted). See generally
Ingalls Shipbuilding Division, Litton Sys., Inc. v. White, 681 F.2d 275
(5th Cir. 1982), overruled on other grounds sub nom. Newpark
Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir. 1984)
(en banc.).
The Board has recognized this
point in rejecting a similar employer challenge seeking ALJ review of the
Secretary’s vocational rehabilitation determinations. In Cooper v. Todd Pacific Shipyards Corporation, 22 BRBS
37 (1989), the Board held that an ALJ had no authority to review determinations
regarding reimbursing an employer for vocational rehabilitation expenses. The Board stated:
Employer’s arguments that resolution
of this issue is within the authority of administrative law judges cannot be
accepted in view of Section 39(c)(2) and the Secretary’s delegation of
authority . . . . Section 19(d) . . . withdrew from deputy commissioners the
power to conduct adjudicative hearings and transferred this power to administrative
law judges. . . . By contrast, Section 39 of the Act focuses on the Secretary
of Labor, whose discretionary authority has been delegated to deputy
commissioners.
Id. at 39-40.
Thus, the Board concluded that
discretion over issues regarding vocational rehabilitation remained in the
hands of the Secretary (and the Secretary’s delegees), even after the transfer
of hearing authority to the ALJ, and that any challenge to the Secretary’s
discretionary determinations regarding vocational rehabilitation “should be
made to the Board, rather than to an administrative law judge, as the deputy
commissioner’s determination in this regard will constitute a discretionary act
and will thus be appealable directly to the Board.” (citation omitted). Id.
at 41 n.4.
General Construction’s failure to
file a direct appeal to the Board regarding the Secretary’s rehabilitation
determination “forecloses all rights to review by the Board with respect to the
. . . matter in question.” 20 C.F.R. §
802.205(c). Thus, whatever challenge,
Constitutional or otherwise, General Construction now raises should not be heard because the employer
failed to present it through the appropriate procedural channel. Its decision to seek a hearing before the
ALJ rather than a direct appeal to the Board is fatal to its challenge of the
District Director’s determinations regarding the Claimant’s vocational
rehabilitation program.
General Construction’s related
due process claim is similarly bereft of merit, chiefly because the employer
was fully heard on the very issue at the heart of this case: whether Castro should receive total
disability benefits under the well-established suitable alternative employment
inquiry. When the issue of disability
compensation appropriately arose with Castro’s filing of an LS-18 form, the
District Director properly forwarded the matter to the OALJ for further
handling. (ER at 59).
Thereafter, the ALJ held a full
hearing on the merits of the claim for disability benefits; both parties
participated. The hearing provided
General Construction notice and an opportunity to submit evidence and argument
in advance of the ALJ’s decision awarding compensation as well as in advance of
any required payment on its part.
General Construction’s liability for total disability compensation does
not stem from a lack of due process; rather, it bears liability simply because
it was unable to convince the ALJ that Castro was able and available to perform
suitable alternative employment.
In order to justify its claim
that its due process rights were violated, General Construction asserts that Abbott
improperly allows “a functionary of the OWCP” (presumably a vocational
counselor) to impose compensation liability on the employer. (Petitioner’s brief at 25). This totally misperceives the effect of Abbott
and the process by which Castro was awarded benefits during his vocational
rehabilitation program. The mechanism
for awarding benefits to Castro was identical to that followed in every other
case in which a claimant’s attempt to obtain such benefits is contested by his
employer; Abbott does not purport to remove from the ALJ or give to the
OWCP the authority to impose benefits liability on an employer. Rather, Abbott provides that in
making such determination, the ALJ must consider, as one factor in determining
the availability of alternative employment, whether the injured worker is
enrolled in an OWCP-sponsored rehabilitation plan and the effect participation
in the plan has on his availability for other work. Abbott, 40 F.3d at 128 (directing fact-finder to ascertain
whether “[the claimant] could not reasonably secure that employment under the
statutory scheme because his participation in his rehabilitation plan approved
by the Department of Labor precluded him from working.”).
Thus, Abbott and Brickhouse
merely added an additional factor for an ALJ to consider in determining a
claimant’s availability for suitable alternative employment. And in the proceeding determining that
issue, General Construction fully participated. Thus, its constitutional rights were not violated.
II. Substantial Evidence Supports The ALJ’s Determination That
Castro's Enrollment In An OWCP-Sponsored Rehabilitation Plan Precluded
Employment During That Period.
A. Standard Of Review.
As noted above, the Court reviews
the Board’s decision “for compliance with the substantial evidence
standard.” Gilliland, 270 F.3d
at 1261. This Court has made it clear
that “the Board may not substitute its views for those of the administrative
law judge or engage in a de novo review of the evidence, and it must accept the
administrative law judge's factfindings if they are supported by substantial
evidence.” Stevens v. Director, OWCP,
909 F.2d 1256, 1257 (9th Cir. 1990); Bumble Bee Seafoods, 629 F.2d at
1329.
B. The ALJ Rationally Concluded, Based Upon
His Review Of The Evidence In Light Of The Relevant Factors Set Forth In Abbott
And Brickhouse, That Castro Was Entitled To Total Disability Benefits While
Participating In The Vocational Rehabilitation Program.
Consistent with the provisions of
the Longshore Act, its implementing regulations, and relevant case law, the ALJ
properly determined that Castro was entitled to total disability benefits due
to his practical unavailability while enrolled in the OWCP-sponsored hotel
management vocational rehabilitation program. See Abbott, 40 F.3d at
128, Brickhouse, 315 F.3d at 294.
The Abbott court discussed
a general doctrine outlining factors that may be considered in determining
whether a claimant is entitled to disability benefits while enrolled in a
vocational rehabilitation plan. Abbott,
40 F.3d at 127-128. These factors
include, but are not limited to: (1) whether the Department of Labor approved
the rehabilitation plan, (2) whether the employer was aware of the claimant’s
participation in the program and agreed to continue making total disability
benefits, (3) whether the claimant’s diligent pursuit of his studies precluded
employment, and (4) whether completion of the program would increase the
claimant’s future wage-earning capacity.
Abbott, 40 F.3d at 127-128.
The Fourth Circuit clarified in Brickhouse, however, that in a
proper assessment of the Abbott elements, “an ALJ should not base his
decision on any single factor.” Brickhouse,
315 F.3d at 295.
Here, the ALJ evaluated the
relevant evidence and concluded that Castro was entitled to permanent total
disability benefits until June 7, 2002, the date he was scheduled to complete
his hotel management course. First, it
was undisputed that OWCP sponsored and approved the plan. Second, the ALJ noted that General
Construction objected to the rehabilitation plan and to continuing the payment
of benefits, but recognized that this fact alone was not sufficient to defeat
Castro’s entitlement.
Third, the ALJ reviewed the facts
relevant to Castro’s diligence in pursuing vocational rehabilitation and
whether the demands the program placed on him precluded other employment. In concluding that Castro could not work and
successfully complete his retraining program simultaneously, the ALJ relied on
Castro’s uncontradicted testimony that he spent between forty-six and
fifty-four hours per week pursuing his vocational rehabilitation program. (ER at 176). He also considered
Castro’s testimony regarding the extra effort he had to expend to learn the
material (a fact confirmed by his vocational counselors), and his laudable
overall grade point average in the program.
The ALJ was impressed by the fact that despite the rehabilitation program’s
demands, Castro had attempted to secure employment and had even worked briefly
(albeit unsuccessfully) during a paid internship.
And fourth, the ALJ considered
the economic impact the training program would have on Castro’s life-long wage
earning capacity. Although the starting salary in hotel
management was comparable to the salary in the jobs General Construction had
identified, the ALJ recognized that Castro’s “vocational advisors reasonably
determined that being trained in hotel management gave Castro the best
long-term earning potential.” (ER at 177).
Indeed, Castro’s vocational counselor, Carol Williams, estimated that
Castro could earn between $30,000 and $40,000 annually in the hotel
industry. And although the ALJ
recognized that Castro could get an entry-level hotel position without any
training, he concluded that by completing the rehabilitation program, Castro
would have “greater potential to achieve a higher-paying management job” within
the hotel industry. (Id.).
Having considered these factors, the ALJ rationally concluded that
General Construction failed to demonstrate Castro’s availability for suitable
alternative employment while he participated in a vocational rehabilitation
program. The Court should affirm this
finding as supported by substantial evidence.
CONCLUSION
For the
foregoing reasons, the Court should affirm the Board’s decision upholding the
ALJ’s determination that Castro was entitled to permanent total disability
benefits through June 7, 2002.
Respectfully
submitted.
HOWARD
M. RADZELY
Solicitor of Labor
DONALD
S. SHIRE
Associate
Solicitor
PATRICIA
M. NECE
Counsel
for Appellate Litigation
PETER
B. SILVAIN, JR.
Appellate
Attorney
U.S.
Department of Labor
Suite
N-2117
200
Constitution Ave., N.W.
Washington,
D.C. 20210
(202)
693-5339
Attorneys
for the Director, OWCP
CERTIFICATE OF SERVICE
I hereby certify that on December
12, 2003, two copies of the foregoing document were served by mail, postage
prepaid, on the following:
Robert H. Warns, Jr., Esquire
999 Third Avenue, Suite 2600
Seattle, Washington 98104
William Hochberg, Esquire
222 3rd Avenue, North
Edmonds, Washington 98020
Roger A. Levy
Laughlin, Falbo, Levy & Moresi LLP
39 Drumm Street
San Fransisco, California 94111-4805
General Construction alleges that the Abbott
doctrine should not apply here because Castro’s knee injury resulted in a
disability compensable under the “schedule” set forth at Sections 8(c)(1)-(20),
33 U.S.C. §§ 908(c)(1)-(20).
(Petitioner’s brief at 30, n.8)
As the Supreme Court has recognized, however, an injury that falls under
the schedule for permanent partial disability may still give rise to total
disability pursuant to Section § 8(a), 33 U.S.C. § 908(a), as “determined in
accordance with the facts.” 33 U.S.C. § 908(a); Potomac Elec. Power Co. v.
Director, OWCP, 449 U.S. at 279, n.17.
The Court stated that “since the § 8(c) schedule applies only in cases
of permanent partial disability, once it is determined that an employee is
totally disabled the schedule becomes irrelevant.” Id.; see also
Jacksonville Shipyards, Inc. v. Dugger, 587 F.2d 197, 198 (5th Cir.
1979). Accordingly, the Board has held
that because “the same standards apply to the issue of total disability in both
scheduled and non-scheduled injury cases,” a claimant who suffered a scheduled
arm injury compensable under Section 8(c)(2) is entitled to receive total
disability benefits during vocational rehabilitation “unless employer
establishes that there are suitable alternate jobs available which
claimant can realistically secure.” Gregory, 32 BRBS at 265 (emphasis in
original).