Hole v. Miami Shipyards Corp.
| Decision Date | 27 March 1981 |
| Docket Number | Nos. 80-5351,80-5352,s. 80-5351 |
| Citation | 640 F.2d 769 |
| Parties | James Gordon HOLE, Petitioner, v. MIAMI SHIPYARDS CORPORATION, Continental Insurance Company and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Petitioner, v. MIAMI SHIPYARDS CORPORATION and Continental Insurance Company, Respondents. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gladson & Sullivan, Guy A. Gladson, Jr., Miami, Fla., for James Gordon hole.
Williams, and Zientz, Mark L. Zientz, Coral Gables, Fla., for Miami Shipyards and Continental Ins.
Joshua T. Gillelan, II, Washington, D. C., for Office of Workers' Compensation.
Petitions for Review of a Final Order of the Benefits Review Board.
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
An Administrative Law Judge found that Gordon Hole, a claimant under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., was one percent permanently partially disabled. The Benefits Review Board reversed. In these consolidated cases we find that substantial evidence supports the ALJ's determination and therefore reverse the Board.
The basic facts are not in dispute. On April 18, 1975 Hole ruptured a disc in his back while performing his duties as machine shop supervisor and yard supervisor for respondent Miami Shipyards Corp. Miami's compensation carrier voluntarily paid temporary total disability compensation for some 24 weeks, during which time Hole's disc was surgically repaired. Hole returned to work at Miami on October 2, 1975 in a light duty status but resigned February 22, 1976 because of progressive pain making it impossible for him adequately to fulfill his duties. Two weeks later he secured employment for a period of five years managing a desalination plant at a salary greater than his earnings at Miami. This employment will terminate in 1981.
The ALJ found, and the record supports, that all of Hole's employment prior to his injury required heavy physical labor, including lifting in excess of 100 pounds and climbing and moving about in the confined quarters of ships, and that his physical condition precludes his returning to this type of work. Hole experiences continual pain in both buttocks and down the right leg and is unable to bend fully. His present employment is his first managerial position. The ALJ found that this is the only type of job Hole can perform that makes use of the knowledge and expertise he acquired in his years as a marine machinist or mechanical engineer.
Because of Hole's virtually undisputed physical disability, his relative lack of managerial experience, and the uncertainty that he will be able to transfer his expertise to other managerial employment at a substantial salary when his present employment contract expires, the ALJ concluded that Hole's post-injury earnings are not a fair and reasonable measure of his earning capacity. Having found that the precise degree of impairment of Hole's earning capacity could not be determined at this time, the ALJ awarded compensation on the basis of a one percent permanent partial disability in order to "keep( ) the case alive for purposes of sensible modification of the Order if and when demonstrable change occurs in (Hole's) earning power." ALJ opinion at 4.
Miami and its insurer appealed the ALJ's order to the Benefits Review Board, contesting the conclusion that Hole's present earnings do not fairly and reasonably represent his earning capacity and the resulting finding of one percent permanent partial disability. The Board reversed, concluding that Hole had not established any possibility of future economic harm and that the ALJ's order was based on speculation alone. Judge Miller, dissenting, argued that the majority had impermissibly substituted its judgment for that of the ALJ.
Under 33 U.S.C. § 921(b)(3) the standard of review to be applied by the Board is clear: "The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole."
(T)he Board does not have authority to engage in a de novo review of the evidence, or to substitute its views for that of the administrative law judge. ... Rather, the findings of the administrative law judge must be accepted unless unsupported by substantial evidence in the record considered as a whole, ... or unless they are "irrational," .... Moreover, if supported by the evidence and not inconsistent with the law, the administrative law judge's inference is conclusive. That the facts may permit diverse inferences is immaterial. The administrative law judge alone is charged with the duty of selecting the inference which seems most reasonable and his choice, if supported by the evidence, may not be disturbed.
Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976) (citations omitted). "Although the standard of review in this Court is not set out in the statute, it is evident that we are to review only for errors of law, and to make certain that the Board adhered to its statutory standard of review of factual determinations." Id.
The LWHCA does not provide compensation to injured workers for physical injuries standing alone but only for "disability," defined by 33 U.S.C. § 902(10) as "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." However, it will often be impossible at the time a claim is filed to determine the precise degree of economic harm suffered by a claimant. Therefore, 33 U.S.C. § 922 provides that an award of compensation may be modified at any time within one year after the last payment of compensation. Such a modification may be made either on the ground of changed conditions or on the ground of a mistake in the original determination of disability. Thus, if an initial determination is made that a claimant has suffered some degree of economic harm, however slight, and circumstances later develop indicating that the claimant was harmed to a greater or lesser degree than was originally apparent, the compensation award may be modified years later to reflect this greater or lesser economic injury.
An initial finding of no economic disability, however, may only be modified within one year of such finding, even though subsequent events make it apparent that the claimant has suffered severe economic harm. Congress realized the potentially harsh effect of this relatively short statute of limitations in a case where a claimant's immediate post-injury earnings are equal to or greater than his earnings prior to his injury, if those earnings were taken as a conclusive measure of earning capacity, and, therefore, provided in 33 U.S.C. § 908(h),
(t)hat if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner 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 in the case 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.
The Board has consistently recognized that 33 U.S.C. §§ 908(h) and 922 require a "forward looking" perspective in considering whether a claimant has suffered a decline in wage-earning capacity. Hughes v. Litton Systems, Inc., 6 BRBS 301, 304 (1977); Cooper v. Sursum Corda, Inc., 1 BRBS 60, aff'd 521 F.2d 324 (D.C.Cir.1975). In reversing the order in the instant case, however, the Board stated that "we in no way intended to imply that this forward looking concept for determining claimant's post-injury wage-earning capacity is any reason for 'removing' the one-year statute of limitations when there is no evidence on which to reasonably base a conclusion...
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