Randall v. Comfort Control, Inc.

• Decision Date: 24 January 1984
• Docket Number: No. 83-1123,83-1123
• Citation: 725 F.2d 791
• Parties: Robert E. RANDALL, Petitioner, v. COMFORT CONTROL, INC. and Liberty Mutual Insurance Company, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 791

725 F.2d 791

233 U.S.App.D.C. 264

Robert E. RANDALL, Petitioner, v. COMFORT CONTROL, INC. and Liberty Mutual Insurance Company Respondents.

No. 83-1123.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 12, 1983.

Decided Jan. 24, 1984.

Petition for Review of an Order of the Benefits Review Board.

William F. Mulroney, Washington, D.C., for petitioner.

Donald P. Maiberger, Rockville, Md., for respondents.

Marianne Demetral Smith, Atty. Dept. of Labor, Washington, D.C., entered an appearance for Director, Office of Workers Comp. Programs, United States Dept. of Labor.

Before WRIGHT and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Robert E. Randall asks this court to review a decision and order of the Benefits Review Board of the United States Department of Labor (the Board) which upheld a denial of his compensation claim brought under the Longshoremen's and Harbor Workers' Compensation Act (the Act), 33 U.S.C. Secs. 901-950 (1976 & Supp. V 1981). ¹ Randall claims a permanent partial disability resulting from a back injury sustained in a fall at work. He argues that his wage-earning capacity has been diminished, although his post-injury wages are higher than his previous wages. The Administrative Law Judge (ALJ) denied petitioner's claim, finding that, because petitioner has been able to acquire sheet metal work at wages in excess of his pre-injury wages, his wage-earning capacity has not been impaired. Decision and Order of Administrative Law Judge dated August 8, 1980 (hereinafter ALJ Decision) at 6, Appendix to Petitioner's Brief (App.) 24. The Board, with one judge dissenting, affirmed the ALJ's decision. We find the ALJ's decision not to be supported by substantial evidence on the record as a whole and not otherwise in accordance with law because of the ALJ's failure to consider explicitly all of the requisite factors relevant to the wage-earning capacity issue, and because of his failure to account for uncontroverted evidence on the record favoring petitioner. Consequently, we vacate the decisions and orders of the Board and the ALJ, and remand this case for further proceedings not inconsistent with this opinion.

I. BACKGROUND

A. Petitioner's Trade

Petitioner Randall is a journeyman sheet metal worker. He has been a member of Local 102 of the Sheet Metal Workers' Union since 1970. Shortly after joining the union petitioner began training as an "air balancer," a highly specialized skilled craft within the sheet metal trade. Basic sheet metal work involves the installation of metal ductwork for heating or air conditioning systems, and requires substantial amounts of lifting and carrying of heavy steel sheeting, weighing from 60 to 100 pounds, as well as climbing and bending. Official Report of Proceedings Before the Administrative Law Judge (Record) at 12, 19 (February 19, 1980). Air balancing involves the measuring and adjusting of the air flows in a completed duct system to assure that it conforms to the engineer's designs. Although requiring additional education and training, air balancing requires much less agility and lifting than does regular sheet metal work. The skilled trade of air balancing is so specialized that there are only about 15 to 25 air balancers in the Washington, D.C. area. Id. at 23. In contrast, there are approximately 1,100 members of the Sheet Metal Workers' Union Local 102 in the metropolitan area. Id. at 99. Respondent Comfort Control, Inc. is one of only two firms that specialize in air balancing and whose air balancing technicians do no general sheet metal work. Elsewhere, firms employ sheet metal workers who do air balancing work in addition to their regular work. Id. at 22-24.

B. The Accident

In 1976, while petitioner was working for respondent Comfort Control as an air balancer, he injured his back when he tried to catch a light fixture falling from the ceiling on which he was working. It is undisputed that the injury was work-related. As a result, petitioner's back was operated on and a spinal fusion was performed. As the ALJ concluded, "There is no question * * * that Mr. Randall has suffered a medically disabling injury." ALJ Decision at 4, App. 22. One doctor estimated that Randall had suffered a 40 percent permanent partial disability of the lower back, Randall's physician testified that he had suffered a 17 percent permanent partial disability of the body as a whole, and respondents' physician estimated the disability at 20 percent. Id.

C. Post-Injury Employment

Petitioner's post-injury employment record consists of various jobs interspersed with periods of unemployment. Approximately one year after his surgery, petitioner sought to return to his air balancing position with Comfort Control, but was refused employment. He filed a grievance through the mechanisms provided in the collective bargaining agreement. Record at 32 (February 19, 1980). While the grievance was being processed petitioner, unable to find a job in the Washington, D.C. area, went to Detroit to work on the annual remodeling of the automobile plants. Id. at 32-33; ALJ Decision at 2, App. 20. Petitioner worked in Detroit for two months with substantial overtime. Record at 35 (February 19, 1980). According to petitioner's unrefuted testimony, the sheet metal work he performed in Detroit is distinguished from normal sheet metal work by two factors: (1) the work was a "time and materials job," ² with less pressure to work rapidly, and (2) petitioner testified that his co-workers, knowing of his injury, helped him with the lifting and carrying. Id. at 33-34. Petitioner claims that his injury would have prevented his working in Detroit were it not for these distinguishing factors.

Upon his return from Detroit petitioner was reinstated in his old position with Comfort Control as a result of the grievance he filed. Three months later he was let go in a general lay-off. All of the employees, except petitioner, were gradually rehired. Record at 60-61 (March 3, 1980). After his termination by Comfort Control, petitioner was unemployed for three months until he found a job in Front Royal, Virginia. That job lasted six weeks. Record at 45-46 (February 19, 1980). Petitioner testified that the job was a time and materials job, and that the foreman knew of his injury and, therefore, required him to do very little physical work. Id. at 46.

Immediately upon termination of his employment in Front Royal, petitioner was hired by his present employer, Enterprises Sheet Metal (Enterprises). Petitioner's duties with Enterprises consist of 15 percent air balancing, 65 percent "troughing," ³ and the remaining 20 percent regular sheet metal work. ALJ Decision at 3, App. 21. When petitioner performs regular sheet metal work his co-workers do the lifting, and, even when he is air balancing, an apprentice hired by Enterprises does the lifting for him. Id.; Record at 47-48 (February 19, 1980). Petitioner testified that his employer knows of his back injury and, consequently, assigns him to the lightest work the company has. Id. at 47. ⁴ According to the ALJ's opinion, "Mr. Randall's current employer intends to retire within the year and is uncertain as to whether he will dissolve the business. * * * In light of Mr. Randall's back problems, this may create difficulty in finding employment." ALJ Decision at 3, App. 21.

In each of his jobs since the injury petitioner, as a member of the union, has earned wages on the same union wage scale as before the accident. These wages are currently higher than those earned by petitioner at the time of his injury. Record at 54 (February 19, 1980). In rejecting petitioner's claim for permanent partial disability, the ALJ relied primarily on petitioner's continuing ability to obtain work at wage levels higher than he earned at the time of the injury. In this petition we are asked to find that the ALJ's decision is not supported by substantial evidence.

II. STATUTORY FRAMEWORK

In early 1980 petitioner filed a claim for permanent partial disability under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950 (1976 & Supp. V 1981). The Act divides permanent partial disability cases into two groups, according to the type of injury. The first group, scheduled disabilities, are compensable at a specific rate regardless of their economic effect. See id. Sec. 908(c)(1)-(20). The second group, unscheduled disabilities, are only legally compensable if they lessen the worker's "wage-earning capacity." See id. Sec. 908(c)(21). ⁵ Petitioner's claim clearly fits within this second category. Hence, his undisputed medical disability is compensable only to the extent that it adversely affects his wage-earning capacity.

The statute provides that, in calculating post-injury wage-earning capacity, actual post-injury wages shall be used if they "fairly and reasonably represent * * * wage-earning capacity"; but if they "do not fairly and reasonably represent * * * wage-earning capacity," the ALJ is authorized to,

in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of [the] injury, the degree of physical impairment, [the claimant's] usual employment, and any other factors or circumstances in the case which may affect [the claimant's] capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.

Id. Sec. 908(h). The ultimate objective of this wage-earning capacity formula is "to determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured. * * * Only by the elimination of all variables except the injury itself can a reasonably accurate estimate be made of the impairment of earning capacity to be attributed to that injury." 2 A. LARSON,...