Hairston v. Todd Shipyards Corp.
| Decision Date | 14 June 1988 |
| Docket Number | No. 86-7572,86-7572 |
| Citation | 849 F.2d 1194 |
| Parties | Raleigh HAIRSTON, Petitioner, v. TODD SHIPYARDS CORPORATION; Aetna Casualty and Surety Company, Inc., Director, Office of Workers Compensation Programs, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James C. Causey, Jr., Aaby, Putnam, Albo & Causey, Seattle, Wash., for petitioner.
John W. Schedler, Lee, Smart, Cook, Martin & Patterson, Seattle, Wash., for respondents.
Petition to Review a Decision of the Benefits Review Board.
Before TANG and CANBY, Circuit Judges, and REED, * District Judge.
Raleigh Hairston appeals a decision of the Benefits Review Board ("the Board"). The Board reversed a ruling of an administrative law judge ("ALJ") that Hairston was entitled to receive permanent total disability benefits. The ALJ found that Hairston's injury prevented him from returning to his former work and that Todd Shipyards had failed to meet its burden of demonstrating the availability of suitable alternate work. We agree with the ALJ; therefore, we reverse the Board's decision and remand for reinstatement of the ALJ's finding of permanent disability.
Hairston suffered a back injury, sustained while he was employed as a rigger for Todd Shipyards. He brought a claim for benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901, et seq. The ALJ determined that Hairston's injury prevented him from continuing longshore work. Although Hairston had received post-injury vocational training in apartment-motel management, Todd Shipyards did not attempt to show the availability of this or any other work to meet its burden of demonstrating that suitable alternate work was available to Hairston. Instead, the company relied entirely on the fact that Hairston had obtained a brief maintenance position with a bank after he was injured. Hairston was fired from this position after seven weeks because an FBI search revealed that he had a prior criminal record for shoplifting. The ALJ held that, because of his past criminal record, a position in a bank was never realistically available to Hairston. Since Todd Shipyards offered no other evidence on job availability, the ALJ held that Todd Shipyards had not met its burden and Hairston's disability was deemed permanent and total.
On review, the Board agreed with the ALJ that Hairston could no longer continue his former work; however, the Board reversed the ALJ's finding that Todd Shipyards did not meet its burden of showing the availability of alternate work. The Board determined that the fact that Hairston had obtained the maintenance position at the bank was sufficient evidence to establish the availability of suitable alternate work. The Board held that Hairston's past criminal conviction should not be considered when evaluating job availability because, unlike age, education, or prior work experience, a past criminal record does not impair a worker's ability to perform the duties of a job. Thus, the Board vacated the ALJ's finding of permanent total disability.
We have jurisdiction to review the Board's final order pursuant to 33 U.S.C. Sec. 921(c). Thompson v. Potashnick Const. Co., 812 F.2d 574, 576 (9th Cir.1987). We review the Board's decision for errors of law and adherence to the substantial evidence standard that governs the Board's review of the ALJ's factual determinations. Long v. Director, Office Workers' Compensation Programs, 767 F.2d 1578, 1580 (9th Cir.1985).
It is undisputed that Hairston's injury prevented him from performing his former job as a rigger. Once Hairston proved that his work related injury prevented him from performing his former job, the burden shifted to his employer, Todd Shipyards, to prove that suitable alternate work was available in the community. Bumble Bee Seafoods v. Director, Office of Workers' Compensation, Programs, 629 F.2d 1327, 1329 (9th Cir.1980). If Todd Shipyards failed to meet its burden of showing the availability of suitable alternate work, Hairston's disability should have been considered permanent and total.
We have held that to show job availability, it is not sufficient for the employer to point to general work that a...
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