Diamond M. Drilling Co. v. Marshall

• Citation: 577 F.2d 1003
• Decision Date: 07 August 1978
• Docket Number: No. 77-2447,77-2447
• Parties: DIAMOND M. DRILLING COMPANY and Argonaut Insurance Company, Petitioners, v. F. Ray MARSHALL and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1003

577 F.2d 1003

DIAMOND M. DRILLING COMPANY and Argonaut Insurance Company, Petitioners, v. F. Ray MARSHALL and Director, Office of Workers'

Compensation Programs, U. S. Department of Labor,

Respondents.

No. 77-2447.

United States Court of Appeals,

Fifth Circuit.

Aug. 7, 1978.

Philip E. Henderson, Houma, La., for petitioners.

Stephen M. Vaughan, Houston, Tex., Carin A. Clauss, Sol. of Labor, Laurie M. Streeter, Assoc. Sol., Mary A. Sheehan, U. S. Dept. of Labor, Washington, D. C., for respondents.

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

Before COLEMAN, AINSWORTH and VANCE, Circuit Judges.

COLEMAN, Circuit Judge.

I

This case arises under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. The administrative law judge found that Oswald A. Kilsby (Respondent) became permanently and totally disabled as a result of injuries suffered in the course of his employment on an offshore oil rig. This decision was affirmed on appeal to the Benefits Review Board. The employer now appeals the decision of the Benefits Review Board, contending that Mr. Kilsby is not permanently and totally disabled. ¹ The decision of the Board is affirmed.

II

Mr. Kilsby was born on April 28, 1923. Although the respondent's formal education is limited, having dropped out of school in the seventh grade, he has had extensive experience as an oil driller. When he was sixteen years old he began work as a "roustabout", after which he steadily progressed in rank until, in 1965, he became an oil rig manager. This type of work frequently required that Kilsby be employed far from his home in West Columbia, a Texas town of 3,500, where respondent and his family have lived for over forty years.

Kilsby was managing an offshore oil rig on March 24, 1973, when he suffered a massive heart attack. He was hospitalized for approximately twenty days. Rehabilitation has been slow, and of limited success. Respondent continues to experience chest pains, becomes fatigued upon the slightest exertion, and sees his doctor on almost a monthly basis.

The administrative law judge (ALJ) found that the respondent's disability arose out of and in the course of his employment. ² In addition, the ALJ found respondent to be permanently and totally disabled after determining that he would be "unable to return to his oil field work (tool pusher or the somewhat similar jobs offered by the employer) because of his physical limitations". ³ The Benefits Review Board affirmed, reasoning that the respondent was physically unable to perform any of the jobs that the petitioner had available for Mr. Kilsby and that the petitioner failed to prove that there actually were jobs available to respondent in his locality that he could perform. --- BRBS ---, BRB No. 76-433 (May 18, 1977).

We must affirm the decision of the Benefits Review Board if it has correctly concluded that the decision of the administrative law judge is supported by substantial evidence on the record as a whole and is in accordance with the law. Watson v. Gulf Stevedore Corp., 5 Cir. 1968, 400 F.2d 649, cert. denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1969); 33 U.S.C.A. § 921(b), as amended.

It is clear that the ALJ's decision is in accordance with the law. The employer contends that Mr. Kilsby's disability is partial and not total because he is physically capable of performing sedentary work. ⁴ "Disability" is defined in the Longshoremen's and Harbor Workers' Compensation Act as an

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.A. § 902(10). The Act neither provides a definition of nor a standard by which to determine what constitutes "total" as opposed to "partial" disability. It is well settled in this Circuit, however, that the "degree of disability 'cannot be measured by physical condition alone. Other factors must be considered, such as age, education industrial history and the availability of work which the (injured worker) can do'." Watson v. Gulf Stevedore Corp., 5 Cir. 1968, 400 F.2d 649, 653, cert. denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1969). In Godfrey v. Henderson, 5 Cir. 1955, 222 F.2d 845, we adopted as an operative definition of total disability the

complete incapacity to earn wages in the same or any other employment. . . . the words "in the same or any other employment" presupposes a situation where a man can secure employment.

Id. at 849. Thus, it is possible that an individual could be found to be totally disabled for the purposes of the Act and yet possess the physical ability to do certain light work. Id. at 848-49. In Watson, for example, there was medical evidence that it was " 'reasonably and medically probable' " that an amputee would be fully rehabilitated and capable of returning to a supervisory position. 400 F.2d at 653. However, it was observed that, under his present condition, Watson would be unable to return to his supervisory work and that, given his age, education, and skills, he would be unable to secure or perform other kinds of work. Id. at 654. On this basis we found substantial evidence to support the conclusion of total disability.

In Cunnyngham v. Donovan, 5 Cir. 1964, 328 F.2d 694, we found the rejection of an amputee's claim of permanent total disability to be in error when he had held various jobs for a six year period following his injury but these were only of a temporary nature "partly, at least, because of the duration and extent of his injury". Id. at 697.

Finally, in Godfrey v. Henderson, 5 Cir. 1955, 222 F.2d 845 a reclassification of an amputee's disability status from temporary total disability to permanent partial disability was found to be erroneous even though the medical evidence indicated that the injured worker would possess the physical ability to perform light work if he had an artificial leg. We observed the prospect of future employment was highly speculative given his age, education, skills, and the risk of incurring further injury. Id. at 848.

It is thus seen that an individual may be totally disabled for purposes of the Act when physically capable of performing certain work but otherwise unable to secure that particular kind of work.

We now turn our attention to the facts of this case to determine whether there is substantial evidence on the record as a whole to support the ALJ's finding of total disability. Substantial evidence is evidence that provides "a substantial basis of fact from which the fact in issue can be reasonably inferred . . . more than a scintilla . . . more than create a suspicion . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 292, 299-300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). It is "immaterial that the facts permit the drawing of diverse inferences". Cardillo v. Liberty Mutual Co., 330 U.S. 469, 478, 67 S.Ct. 801, 807, 91 L.Ed. 1028 (1947). Although it is "something less than the preponderance of the evidence", Brennan v. National Hotel Co., 5 Cir. 1973, 476 F.2d 17, 21, there must be "enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury". NLRB v. Columbian Enameling & Stamping Co., 306 U.S. at 300, 59 S.Ct. at 505.

The medical testimony of the two doctors in attendance upon Mr. Kilsby since his illness is to the effect that he is physically capable of performing sedentary work. The record reveals, however, that due to his illness he has been unable to find any work which he can physically perform. First, both doctors agree, and the employer does not dispute, that respondent is no longer physically capable of performing his former job as rig manager. Second, Kilsby also has been unsuccessful in locating other types of work. The Texas Rehabilitation Commission, for example, was unable to find respondent a job because of his heart condition. Similarly, he was turned down for jobs at a West Columbia service station and grocery store because of his illness. In the summer of 1975, however, Kilsby found a position at a supply warehouse. He was responsible for answering the telephone and determining whether items requested by customers were in stock. Even this slight exertion left him fatigued and, upon his doctor's advice, he resigned after three weeks on the job. He returned to this position a month later but met with the same difficulties and, again, quit.

The respondent, having demonstrated an inability to perform either his former job or any other work due to his heart condition, has established disability for purposes of the Act. Under such circumstances the burden shifts to the employer to demonstrate the availability of work that the injured employee can perform. American Stevedores, Inc. v. Salzano, 2 Cir. 1976, 538 F.2d 933, 935-36. Petitioner has failed to satisfy this burden.

Seven days prior to the hearing before the ALJ three years after respondent's heart attack petitioner offered Mr. Kilsby two positions. The first position is situated at petitioner's Houston shipyard, located over 65 miles from West Columbia. This position entails acting as yard representative, making an inventory of petitioner's equipment, and coordinating the repairs of such equipment. Mr. Kilsby would be provided with an air conditioned office. The second position is situated in Morgan City, Louisiana, approximately 200 miles from West Columbia. This position entails nighttime work at job locations that alternate between petitioner's principal yard in Morgan City and another facility of petitioner's that is a ten minute drive away. In this position Mr. Kilsby's primary responsibility would be to handle communications with petitioner's offshore and inshore drilling operations. In addition, Mr. Kilsby would be responsible for...