Lentz v. Cottman Co.

• Decision Date: 25 July 1988
• Docket Number: No. 87-2601,87-2601
• Citation: 852 F.2d 129
• Parties: Irvin LENTZ; Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioner, v. The COTTMAN COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 129

852 F.2d 129

Irvin LENTZ; Director, Office of Workers' Compensation Programs, United States Department of Labor, Petitioner, v. The COTTMAN COMPANY, Respondent.

No. 87-2601.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1988.

Decided July 25, 1988.

Harold R. Weisbaum (Jerome Blum, Benjamin Lipsitz, Baltimore, Md., on brief), Michael S. Hertzig, Dept. of Labor, Washington, D.C. (George R. Salem, Donald S. Shire, Dept. of Labor, J. Michael O'Neill, Washington, D.C., for Longshore, Dept. of Labor on brief), for petitioner.

J. Edward Martin (Allen, Thieblot & Alexander, Baltimore, Md., on brief), for respondent.

Before HALL, CHAPMAN and WILKINSON, Circuit Judges.

K.K. HALL, Circuit Judge:

Irvin Lentz ("claimant") appeals the decision of the Benefits Review Board ("BRB") affirming the decision of the Administrative Law Judge ("ALJ") that the claimant in this case is only partially disabled. Because the Board's decision is inconsistent with this Court's prior holdings, we reverse and remand with directions to award claimant benefits based on permanent and total disability.

I.

Lentz was seriously injured when he fell from the back of a tractor ("fifth wheel") while on the job at the Cottman Company ("the employer"). He suffered a compound fracture of the pelvis, severe laceration of the left groin, and severe contusions and crush injuries to his back. Lentz continues to suffer from swelling of his legs and pain in the injured parts of his body. Claimant and employer agree that Lentz is unable to return to his former job as a longshoreman. Although Lentz is unable to read and write, his doctors testified that he may be able to work.

Lentz sought benefits pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950. On February 23, 1983, the ALJ awarded claimant compensation for temporary total disability from June 3, 1977, through April 14, 1981, and compensation for permanent partial disability commencing on April 15, 1981. The ALJ based his decision on a finding that a single elevator operator job, which a vocational counselor testified was available, constituted "suitable, alternate employment" for Lentz. By order of April 15, 1987, the BRB affirmed the ALJ's finding that Lentz was only partially disabled. ¹ Lentz appeals.

II.

On appeal, Lentz, joined by the Director, Office of Workers' Compensation Programs, contends that the BRB erred in finding that the establishment of "one suitable available job is sufficient to meet [the] employer's burden" of proving suitable alternate employment. Lentz argues that evidence of one suitable alternate employment opportunity cannot, as a matter of law, satisfy an employer's burden under this Court's decision in Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199 (4th Cir.1984). We are persuaded by appellant's submissions.

Once an individual demonstrates an inability to perform his former longshore employment because of a job-related injury, the burden shifts to the employer to establish the availability of other jobs that the claimant could perform, i.e., suitable alternate employment, demonstrating that the injured employee retains the capacity to earn wages in a regular job. Trans-State Dredging v. Benefits Review Board, 731 F.2d 199, 203 (4th Cir.1984); Newport News Shipbuilding and Dry Dock Co. v. Director, OWCP, 592 F.2d 762, 765 (4th Cir.1979); Roger's Terminal and Shipping Corp. v. Director, OWCP, 784 F.2d 687, 691 (5th Cir.1986); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir.1981). By proving that the injured employee retains the capacity to earn wages in regular, continuous employment, the employer's compensation liability is reduced or eliminated.

In Trans-State, we approved the Fifth Circuit's standard for showing available suitable alternate employment:

Job availability should incorporate the answer to two questions. (1) Considering claimant's age, background, etc., what can the claimant physically and mentally do following his injury, that is, what types of jobs is he capable of performing or capable of being trained to do? (2) Within this category of jobs that the claimant is reasonably capable of performing, are there jobs reasonably available in the community for which the claimant is able to compete and which he could realistically and likely secure? This second question in effect requires a...