Difidelto v. Delaware River Stevedores
| Decision Date | 19 July 2004 |
| Docket Number | BRB 03-0705 |
| Parties | EDWARD DIFIDELTO, Claimant-Petitioner v. DELAWARE RIVER STEVEDORES and LIBERTY MUTUAL INSURANCE COMPANY, Employer/Carrier- Respondents |
| Court | Longshore Complaints Court of Appeals |
UNPUBLISHED OPINION
Appeal of the Decision and Order Awarding Benefits and the Decision and Order Granting Claimant's Request for Reconsideration of Ralph A. Romano, Administrative Law Judge, United States Department of Labor.
David M. Linker (Freedman & Lorry, P.C.), Cherry Hill, New Jersey, for claimant.
John E. Kawczynski (Field Womack & Kawczynski, L.L.C.), South Amboy, New Jersey, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY, Administrative Appeals Judges.
NANCY S. DOLDER, Chief Administrative Appeals Judge:
Claimant appeals the Decision and Order Awarding Benefits and the Decision and Order Granting Claimant's Request for Reconsideration (2002-LHC-0884) of Administrative Law Judge Ralph A. Romano rendered on a claim filed pursuant to the provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates Inc., 380 U.S. 359 (1965).
Claimant fell at work on January 7, 2000, injuring his left foot and allegedly injuring his knee and back. Decision and Order at 2. Claimant filed a claim for temporary total disability benefits from January 8, 2000, and continuing. Employer voluntarily paid temporary total disability benefits from January 8, 2000, through November 19, 2001, when a doctor reported that claimant had fully recovered from his work injury. Jt. Exs. 2-4. Claimant has not returned to any work although a surveillance team videotaped claimant performing what appeared to be supervisory work at an auto repair store. [1] Jt. Ex. 29. Consequently, on January 25, February 21, and April 22, 2002, employer sent claimant LS-200 forms requesting post-injury wage information pursuant to Section 8(j) of the Act, 33 U.S.C. §908(j). The first two forms requested information from January 8, 2000, through January 21, 2002. The final request sought information between January 8, 2000, and April 22, 2002. Jt. Ex. 8. Claimant did not respond to any of the requests.
Based on the opinions of five doctors, the administrative law judge found that claimant established a prima facie case of total disability. Employer presented evidence of eight possible alternate jobs. By virtue of the labor market survey, the surveillance tapes, and his own observations of claimant, the administrative law judge found that claimant could perform all but the two medium duty jobs identified by employer, and he held that claimant is entitled to temporary partial disability benefits from January 8, 2000, and continuing. 33 U.S.C. §908(e); Decision and Order at 17 20. The administrative law judge also determined that claimant's failure to respond to the three LS-200 forms results in the forfeiture of his benefits from January 8, 2000, through April 22, 2002, the period for which employer requested information, pursuant to Section 8(j). Decision and Order at 18-20.
Claimant filed a motion for reconsideration of the administrative law judge's decision. He requested reconsideration of the award of temporary partial disability benefits from January 8, 2000, asserting he is entitled to total disability benefits from the date of injury. Further, because the majority of the alternate jobs identified by employer were available between September 1 and December 1, 2001, "averaging" an availability date of October 15, 2001, claimant argued that, at the earliest, his condition changed from total to partial in October 2001. Claimant also requested that the administrative law judge address the extent of claimant's disability following his October 2002 foot surgery, [2] and that the administrative law judge reconsider the finding that claimant must forfeit benefits for not completing and returning the LS-200 earnings reports.
On reconsideration, the administrative law judge agreed that claimant is entitled to temporary total disability benefits from January 8, 2000, but rejected claimant's contention that suitable alternate employment was not established until October 15, 2001. He instead found that claimant's disability became partial on July 1, 2001, because that was when the first suitable job identified was available. Decision and Order on Recon. at 1-2. The administrative law judge then determined that the question of the extent of claimant's disability following his October 2002 surgery was not raised in the initial briefs filed in the proceeding. He, nevertheless, addressed the issue and found that claimant's condition remained temporary and partial, interpreting the medical evidence as supportive of this finding. Thus, he concluded claimant remained capable of performing the identified alternate employment after his October 2002 surgery. Decision and Order on Recon. at 2-3. Finally, the administrative law judge rejected claimant's challenge to the Section 8(j) forfeiture, concluding that claimant need not be in payment status at the time of the wage information request. Decision and Order on Recon. at 3-4. Claimant appeals the administrative law judge's decisions, and employer responds, urging affirmance. [3]
Claimant first argues that the administrative law judge erred in awarding temporary partial disability benefits beginning July 1, 2001. Specifically, he asserts that employer identified only one suitable job in July 2001, and relying on the decision of the United States Court of Appeals for the Fourth Circuit in Lentz v. Cottman Co., 852 F.2d 129, 21 BRBS 109(CRT) (4th Cir. 1988), he contends that one job is not sufficient to establish the availability of suitable alternate employment. Employer responds, arguing that it did not identify only one job for claimant, but, rather, that the job available in July 2001 was the first of eight jobs shown to be available over the course of time.
To be entitled to total disability benefits, the claimant bears the initial burden of establishing his inability to perform his usual work as a result of his work injury. McCabe v. Sun Shipbuilding & Dry Dock Co., 602 F.2d 59, 10 BRBS 614 (3 d Cir. 1979); Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1980). In this case, the administrative law judge determined that claimant established his prima facie case of total disability. Once a claimant establishes his inability to return to his usual work, as here, the burden shifts to his employer to demonstrate the availability of suitable alternate employment. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). A claimant's disability converts from total to partial on the earliest date an employer shows suitable alternate employment to be available. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2 d Cir. 1991); Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS 69(CRT) (D.C. Cir. 1990); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988); Rinaldi v. General Dynamics Corp., 25 BRBS 128 (1991) (decision on recon.).
Claimant argues that the Board should apply Fourth Circuit precedent to this case and hold that his disability does not change from total to partial on the date that only one job is shown to be available. The Fourth Circuit has held that the identification of a single job opening does not satisfy an employer's burden of showing the availability of suitable alternate employment because if a vocational expert is only able to identify one job, "it is manifestly unreasonable to conclude that an individual would be able to seek out and, more importantly, secure that specific job." Lentz, 852 F.2d at 131, 21 BRBS at 112-113(CRT). Thus, claimant would have the Board hold that the lone job identified as available in July 2001 is insufficient to change claimant's disability from total to partial at that time.
The vocational evidence consists of Ms. Salek's April 19, 2002, report. Jt. Ex. 27. Based on Dr. Roberts's decision to release claimant to medium work as of July 2001, and on claimant's restrictions and physical capabilities, Ms. Salek found eight positions she deemed suitable for claimant as a security officer, a janitor and a cashier. Five positions are classified as light duty, one is sedentary, and two are medium duty positions. Id. The administrative law judge rejected the two medium level positions as too strenuous for claimant and found that employer established the availability of six suitable jobs for claimant.
Contrary to claimant's argument, this is not a case involving only one identified alternate employment position. [4] Compare with Holland v. Holt Cargo Systems, Inc., 32 BRBS 179 (1998) (). The administrative law judge found six of the available positions to be suitable for claimant. Therefore, Lentz is not applicable, as the identification of six jobs satisfies the requirement that employer identify a "range of jobs." See also Bunge Corp. v. Carlisle, 227 F.3d 934, 34 BRBS 79(CRT) (7th Cir. 2000). Moreover, the Fourth Circuit has held that the jobs identified need only be available at any time after the claimant is able to work. Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988). Thus, we reject claimant's argument that his condition did not change from total to partial until sometime after July 2001 when additional...
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