J.R. v. Bollinger Shipyard, Inc.
| Decision Date | 19 December 2008 |
| Docket Number | BRB 08-0508 |
| Parties | J.R. Claimant-Respondent v. BOLLINGER SHIPYARD, INCORPORATED and AMERICAN LONGSHORE MUTUAL ASSOCIATION, LIMITED, Employer/Carrier- Petitioners |
| Court | Longshore Complaints Court of Appeals |
Appeal of the Decision and Order Granting Benefits of Clement J Kennington, Administrative Law Judge, United States Department of Labor.
Danilo Peralta, Metairie, Louisiana, lay representative for claimant.
Kevin A. Marks and Jessie Schott Haynes (Galloway, Johnson Tompkins, Burr & Smith), New Orleans, Louisiana, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION & ORDER
Employer appeals the Decision and Order Granting Benefits (2007-LHC-1112) of Administrative Law Judge Clement J Kennington 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, who was hired by employer to work as a pipe fitter in March 2003, sustained injuries to his back and ribs as a result of an on-the-job accident on October 22, 2003. Claimant, who was initially diagnosed with lumbar and chest contusions, continued to work for employer, performing light-duty jobs in its tool room for an additional three or four weeks. However, persistent pain prompted claimant to quit this work on or about November 18, 2003. He has not worked since that time. Having seen no improvement in his condition, claimant visited an orthopedist, Dr. Hamsa, who thereafter became his regular treating physician. Based on an MRI performed on December 30, 2003, Dr. Hasma diagnosed a disc rupture at L5-S1 and a probable disc rupture at L4-5. Dr. Hasma opined that claimant was unable to work, he prescribed pain medication and physical therapy, and he recommended epidural steroid injections, along with surgical intervention.
On August 27, 2004, Dr. Nutik stated that he concurred with the recommendation for epidural steroid injections, but that he would otherwise try to avoid surgery on this patient since he felt that any surgery would not yield a good result. In follow-up, Dr. Nutik recommended, on August 7, 2007, that due to the failure to improve with conservative treatment, additional diagnostic testing and treatment, including a possible decompression of the disc at L5-S1 and fusion from L4 to the sacrum, would be in order, although he again expressed concern about the eventual outcome of any surgery because there appears “to be significant disability related behavior on the part of the patient.” Employer’s Exhibit (EX) 4.
Employer paid temporary total disability benefits from November 19, 2003, through November 1, 2005, and some medical benefits but refused to authorize the surgery recommended by Dr. Hamas. Claimant thereafter filed a claim seeking additional benefits under the Act. Additionally, claimant refused to see employer’s vocational expert, Larry Stokes, Ph.D., and admitted not looking for work since the date of his injury because of his significant pain. Dr. Stokes, nonetheless, prepared an assessment and identified a number of positions which he believed would be suitable for claimant given his post-injury condition and general capabilities.
In his decision, the administrative law judge found that claimant is unable to work due to the severe pain associated with his October 22, 2003, back injury. In making this determination, the administrative law judge rejected employer’s argument that claimant is not entitled to any additional compensation because of his status as an illegal alien. He thus found claimant entitled to temporary total disability benefits, [1] based on an average weekly wage of $568, as calculated pursuant to Section 10(c), 33 U.S.C. §910(c), and medical benefits from October 22, 2003.
On appeal, employer challenges the ALJ’s award of temporary total disability and medical benefits. Claimant responds, urging affirmance. [2] Employer has filed a reply brief, reiterating the arguments it has raised on appeal.
Employer argues that the administrative law judge erred in finding that claimant is entitled to temporary total disability benefits. Employer first contends that it properly terminated claimant’s disability benefits as of November 1, 2005, because of claimant’s continued refusal to participate in vocational rehabilitation. In this regard, employer argues that the administrative law judge ignored Dr. Stokes’s testimony that he attempted to contact claimant on multiple occasions to arrange for vocational rehabilitation counseling, and furthermore, that the administrative law judge did not address claimant’s refusal to meet with its vocational expert, Dr. Stokes, despite these numerous attempts to advise claimant. Employer also contends that the administrative law judge did not sufficiently address the vocational report of Dr. Stokes identifying suitable alternate employment prior to finding that claimant is entitled to total disability benefits.
Employer further argues that claimant’s violation of the Immigrant Reform and Control Act, 8 U.S.C. §1101 et. seq., which could lead to his deportation, prevents him from receiving benefits under the Act. Employer proffers that claimant admitted that he is an illegal alien who has unlawfully resided and worked in the United States for the past seventeen years, and that his status as an illegal alien establishes that he has no legal wage-earning capacity. As such, employer contends that the administrative law judge wrongly rejected its assertion that an undocumented alien cannot achieve legitimate employment.
It is well established that where, as in the instant case, claimant has established a prima facie case of total disability by demonstrating his inability to perform his usual employment duties with employer, the burden shifts to employer to establish the availability of suitable alternate employment. [3] See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5 th Cir. 1991); see also Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26 BRBS 30(CRT) (5 th Cir. 1992); Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS 70 (1997). The United States Court of Appeals for the Fifth Circuit, within whose jurisdiction this case arises, has held that in order to meet this burden, employer must establish that job opportunities are available within the geographic area in which claimant resides, which he is capable of performing, considering his age, education, work experience, and physical restrictions, and which he could realistically secure if he diligently tried. See Ledet v. Phillips Petroleum Co., 163 F.3d 901, 32 BRBS 212(CRT) (5 th Cir. 1998); P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS 116(CRT) (5 th Cir.), reh’g denied, 935 F.2d 1293 (5 th Cir. 1991); Turner, 661 F.2d 1031, 14 BRBS 156.
Substantial evidence supports the administrative law judge’s finding that claimant is incapable of performing any work. Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5 th Cir. 1991); Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005). In reaching this conclusion, the administrative law judge rationally accorded greatest weight to claimant’s description of the back pain he experienced since the October 22, 2003, accident, Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979), along with the opinion of his treating physician, Dr. Hamsa, who has consistently stated that the October 22, 2003, back injury prevents claimant from performing any work. See Calbeck v. Strachan Shipping Co., 306 F.2d 741 (5 th Cir. 1962). Specifically, the administrative law judge found that claimant’s ongoing use of medication and steroid injections combined with the objective evidence that he has a disc herniation and limited motion supports the conclusion that claimant is unable to perform any work. As the administrative law judge’s finding that claimant is entitled to temporary total disability due to his persistent pain as a result of his October 22, 2003, work injury is rational and supported by substantial evidence, it is affirmed. Mijangos, 948 F.2d 941, 25 BRBS 78(CRT); see also SGS Control Serv. v. Director, OWCP, 86 F.3d 438, 30 BRBS 57(CRT) (5 th Cir. 1996).
The administrative law judge’s finding that claimant is incapable of performing any employment renders employer’s vocational evidence, consisting of the report of Dr. Stokes, moot. Id. Nonetheless, we reject employer’s contention that the administrative law judge erred by ignoring Dr. Stokes’s testimony that claimant did not cooperate with his efforts to provide vocational rehabilitation. A claimant’s refusal to cooperate with employer’s vocational expert is a factor which should be considered by the administrative law judge in evaluating the expert’s testimony. See Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989); Villasenor v. Marine Maintenance Industries, Inc. 17 BRBS 99 (1985), aff'd on recon., 17 BRBS 160 (1985). The administrative law judge explicitly acknowledged that Dr. Stokes “testified that he tried on a number of occasions to obtain a vocational assessment of claimant but claimant never showed for any scheduled evaluation.” Decision and Order at 5. The administrative law judge found that Dr. Stokes was nevertheless able to prepare a vocational assessment and identify possible suitable alternate employment following a review of claimant’s medical reports and vocational skills and background. As the administrative law judge rationally found, however, that cla...
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