Ledet v. Phillips Petroleum Co.

• Decision Date: 21 December 1998
• Docket Number: No. 96-60717,96-60717
• Citation: 163 F.3d 901
• Parties: Orel J. LEDET, Petitioner, v. PHILLIPS PETROLEUM COMPANY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 901

163 F.3d 901

Orel J. LEDET, Petitioner, v. PHILLIPS PETROLEUM COMPANY; Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 96-60717.

United States Court of Appeals, Fifth Circuit.

Dec. 21, 1998.

William J. Aubrey, Lafayette, LA, for Petitioner.

Michael Ray Mangham, Dawn Mayeux Fuqua, Mangham, Hardy & Stevens, Lafayette, LA, for Phillips Petroleum Co.

Janet R. Dunlop, U.S. Dept. of Labor, Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Joshua T. Gillelan, II, Office of the Sol. of Labor, Washington, DC, for Director, Office of Worker's Cimp. Programs, U.S. Dept. of Labor.

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

Before POLITZ, Chief Judge, and JONES and DUHE, Circuit Judges.

POLITZ, Chief Judge:

Orel J. Ledet appeals the final order of the Benefits Review Board affirming the Administrative Law Judge's award of benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA). ¹ For the reasons assigned, we affirm in part and vacate and remand in part.

BACKGROUND

Ledet was employed as a mechanic by Phillips Petroleum and, during the course of this employment, was injured when he slipped and fell from a crane on August 22, 1989. At the time of the accident he received first aid but did not request or receive medical attention from a doctor. Ledet continued working until October 20, 1989, ² when he called his immediate supervisor to report that he was unable to work because of a back injury.

Ledet sought medical treatment from his family physician who referred him to an orthopedic surgeon, Dr. Louis Blanda. Dr. Blanda recommended physical therapy and pain killers for the back strain. Phillips, as part of its investigation of Ledet's absence from work, ordered Ledet to undergo a work fitness examination by Dr. James Fournet, a company appointed physician. Dr. Fournet's examination of Ledet on December 5, 1989 revealed no objective signs of injury.

Ledet was contacted by his supervisor several times during December 1989 and January 1990 advising him that he should either provide medical evidence from his attending physician showing that he was medically disqualified or return to work immediately, cautioning that failure to do so would result in his termination. On February 8, 1990, Ledet was terminated retroactive to November 30, 1989 for "abandonment of job."

Ledet filed a claim for compensation and medical benefits under the LHWCA on April 5, 1990. A hearing was held before an Administrative Law Judge who found that: (1) Phillips' termination of Ledet was not a discriminatory act under the LHWCA; (2) Ledet was temporarily totally disabled from October 21, 1989 until September 4, 1990 when he reached maximum medical improvement; (3) Phillips had knowledge that Ledet's injury was work-related as of August 22, 1989, the day of the accident, and knowledge as of December 5, 1989 that Ledet was seeking medical treatment for this injury; and (4) Ledet's short-term position as an automobile salesman post-injury constituted suitable alternative employment. The ALJ awarded Ledet compensation for the period

October 21, 1989 to September 4, 1990. He then remanded the case, in part, to the Director because there was no evidence in the record regarding Ledet's post-injury wages. On remand, Ledet was ordered to submit evidence of his wages as a car salesman to the Director who was to determine how much, if any, compensation was due for the period following September 5, 1990. The ALJ's award was affirmed by the Benefits Review Board and Ledet timely appealed to this court. ³

ANALYSIS

Ledet first contends that the ALJ erred in concluding that his termination was not a discriminatory act. We are bound to uphold the ALJ's decision if it is supported by substantial evidence and is in accordance with law. ⁴

Under the LHWCA, it is unlawful for an employer to terminate or otherwise discriminate against an employee claiming or attempting to claim compensation. ⁵ Phillips was notified in January 1990 that Ledet was represented by an attorney and was pursuing his claim for LHWCA benefits. Inasmuch as Ledet was not terminated until February 9, 1990, he claims that the decision to terminate him was a direct result of his claim for benefits and that Phillips' stated reason for his termination, abandonment of work, is merely a pretext.

The ALJ found no evidence of discriminatory motive. Rather, according to the ALJ, the evidence established that Ledet was terminated for failure to present medical evidence to substantiate his absence from work. Our review of the record discloses that Ledet was repeatedly asked by Phillips to submit medical proof of his injury. As of the termination date, however, Phillips had only received one brief and undetailed report from Dr. Blanda, dated December 26, 1989, which stated that Ledet would be unable to return to work for approximately three to four weeks without disclosing the medical reason for same. Thus, the record supports the ALJ's rejection of Ledet's discrimination claim.

Ledet next objects to the ALJ's finding that his post-injury employment as a car salesman constituted suitable alternative employment, and to the ALJ's order that he submit evidence of his earnings from such employment to the Director. ⁶ Disability under the LHWCA is defined 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." ⁷ Disability thus is an economic as well as a medical concept. ⁸

The amount of compensation awarded is dependent on the nature and extent of the disability. ⁹ An employee is considered permanently disabled when he has any residual disability following the date of maximum medical improvement. ¹⁰ Any disability before reaching maximum medical improvement is thus considered temporary in nature.

The extent of the disability is characterized as either total or partial. To establish a prima facie case of total disability, the claimant must show that he is unable to return to his former employment. If the claimant is successful in establishing a prima facie case of total disability, the burden of proof then shifts to the employer to establish suitable alternative employment. ¹¹

Ledet contends that the ALJ erred in finding that his job as a car salesman constituted suitable alternative employment and, therefore, erred in awarding him benefits for permanent partial disability rather than for permanent total disability after January 1, 1991. The record shows that Ledet worked as a car salesman for Martin Chevrolet in Breaux Bridge, Louisiana for approximately six months beginning in January 1991. He was dismissed, however, for failing to meet his sales quotas.

Nevertheless, the ALJ found that because Ledet was physically able to perform the car salesman's job, Phillips had carried its burden of establishing the availability of suitable alternative employment. This finding must be rejected as neither in accordance with law, nor supported by substantial evidence.

We recognized in New Orleans (Gulfwide) Stevedores v. Turner, that the physical ability to perform a job is not the exclusive determinant whether the job constitutes suitable alternative employment. In addition to physical ability, the fact finder, here the ALJ, must also consider the "specific capabilities of the claimant, that is, his age, background, employment history and experience, and intellectual and physical capacities." ¹² In the instant case, the ALJ did not consider whether Ledet had the mental ability or skills to work successfully as a car salesman. The reasons underlying his dismissal for poor sales performance must be parsed carefully. Further, as the ALJ properly noted in his Decision and Order, Phillips presented no meaningful evidence of suitable alternative employment.

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