Louisiana Ins. Guar. Ass'n v. Abbott

• Decision Date: 20 December 1994
• Docket Number: No. 93-5426,93-5426
• Citation: 40 F.3d 122
• Parties: LOUISIANA INSURANCE GUARANTY ASSOCIATION, Petitioner, v. Neil ABBOTT, Jr., and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 122

40 F.3d 122

1995 A.M.C. 2112

LOUISIANA INSURANCE GUARANTY ASSOCIATION, Petitioner, v. Neil ABBOTT, Jr., and Director, Office of Workers'

Compensation Programs, U.S. Department of Labor,

Respondents.

No. 93-5426.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1994.

Collins C. Rossi, Metairie, LA, for Louisiana Ins. Guar. Ass'n.

Marianne D. Smith, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Washington, DC, for Director.

David B. Allen, Samanie, Barnes & Allen, Houma, LA, for Abbott.

Paul E. Trayers, Clerk, Benefits Review Bd., Dept. of Labor, Washington, DC, for other interested parties.

Petition for Review of a Decision of the Benefits Review Board.

Before WHITE, Associate Justice (Ret.), ^* BARKSDALE and PARKER, Circuit Judges.

WHITE, Associate Justice (Ret.).

Appellant challenges certain portions of a decision of the United States Department of Labor Benefits Review Board (the "Board") awarding benefits to appellee under the Longshore and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. Sec. 901 et seq. Specifically, appellant contends that the Board erred in affirming the findings of the administrative law judge (the "ALJ") on three points: the date of appellee's "maximum medical improvement," the availability of permanent total disability benefits during the period of appellee's vocational rehabilitation, and the calculation of appellee's post-retraining wage earning capacity. This court's review of Board decisions is limited to considering whether the Board "correctly concluded that the ALJ's order was supported by substantial evidence on the record as a whole and is in accordance with the law." Avondale Industries, Inc. v. Director, OWCP, 977 F.2d 186, 189 (5th Cir.1992). Because we conclude that the Board's appraisal of the ALJ's careful decision was correct on each of the points outlined above, we affirm.

I.

On January 11, 1983, Neil Abbott, Jr., the appellee, injured his back while hanging tires, to be used as bumpers, around a vessel at the Universal Iron Works facility in Houma, Louisiana. Universal employed Abbott as a welder. Shortly after the injury, Abbott was diagnosed as having a herniated disc; he received treatment from an orthopedic specialist until April 1984, when he was released for return to work under significant restrictions. Because of the nature of his back injury, Abbott was unable to return to his previous, physically demanding job with Universal; the doctor recommended that Abbott seek vocational rehabilitation so that he could change to a more sedentary form of employment.

Following his medical release, Abbott sought vocational counseling through the Department of Labor and was referred to Jennifer Palmer, a licensed vocational rehabilitation specialist. Palmer believed that Abbott was a good candidate for vocational retraining rather than simple placement in an unskilled, minimum-wage job; she therefore designed a rehabilitation and retraining program that would allow Abbott to earn a salary equal to--if not greater than--that which he had earned as a welder with Universal. Accordingly, in the fall of 1985, Abbott began a four-year college program in medical technology at Nicholls State University in Thibodeaux, Louisiana. The Department of Labor paid Abbott's tuition and required him to attend school full-time throughout the year. Abbott also was required to maintain a certain minimum grade point average. Palmer believed that school and family pressures would have precluded Abbott from working, even on a part-time basis, had the Department of Labor allowed him to do so. Abbott completed his program, plus a one-year internship, on July 25, 1990; he began working as a medical technician the following month at Southern Louisiana Medical Center, a public hospital.

From the time of the accident until September 15, 1986, Abbott received voluntary worker's compensation payments from Universal's insurer or from Universal itself. These voluntary benefits were paid--and ended--while Abbott was enrolled in the retraining program at Nicholls State. Both Universal and its insurer apparently were aware of Abbott's rehabilitation program while they made the compensation payments, and neither objected. After September 15, because of the insolvency of Universal and its insurer, Abbott sought compensation benefits under the Longshore and Harbor Workers' Compensation Act from appellant, Louisiana Insurance Guaranty Association ("LIGA"), a non-profit, unincorporated entity created by the Louisiana legislature to pay claims when the primary insurer is insolvent. See LSA-R.S. 22:1375 et seq.

In July 1988, an administrative law judge issued an order requiring LIGA to pay Abbott benefits for his continuing temporary total disability. The Board initially affirmed the ALJ's decision in all respects. Abbott v. Universal Iron Works, Inc., 23 BRBS 196 (1990). On reconsideration, however, the Board remanded for a new hearing on Abbott's entitlement to benefits under the Act because LIGA had never been given the opportunity to contest the nature and extent of Abbott's disability. ¹ Abbott v. Universal Iron Works, Inc., 24 BRBS 169 (1991).

On remand, the ALJ found that Abbott had reached maximum medical improvement on April 18, 1984, and determined that Abbott was entitled to compensation for temporary total disability ² until he completed vocational retraining on July 25, 1990, and to permanent partial disability compensation thereafter. LIGA appealed the ALJ's decision, and the Board affirmed in all relevant respects. Abbott v. Louisiana Ins. Guaranty Ass'n, 27 BRBS 192 (1993). We are now asked to review three aspects of the Board's decision, all of which concern the amount of benefits to which Abbott is entitled and not LIGA's liability therefor. We discuss each in turn.

II.

A.

A claimant is considered permanently disabled under the Act if he or she has any residual disability after reaching maximum medical improvement, the date of which is to be determined solely by medical evidence and is not dependent on economic factors. See Trask v. Lockheed Shipbuilding & Construction Co., 17 BRBS 56, 60-61 (1985). LIGA argues that the ALJ erred in concluding that Abbott did not reach maximum medical improvement until April 18, 1984, because Abbott's treating physician testified in a deposition that Abbott's physical condition had reached a "plateau" in August 1983. In finding April 18, 1984, to be the relevant date, the ALJ considered the doctor's estimation to have been a retrospective characterization. That is, the physician was saying only that, after the fact, it became clear that Abbott made no significant improvement after August 1983. The ALJ reasoned, however, that the later date represented the point of maximum medical improvement because the doctor continued to treat and evaluate Abbott between August 1983 and April 1984; it was only then that the doctor concluded that nothing further could be done for Abbott. The Board affirmed the ALJ's decision on this point; and LIGA apparently believes that the Board's holding delayed the point at which LIGA's compensation payments to Abbott could potentially be reduced for approximately eight months.

The Act provides coverage for four different categories of disabilities: permanent total disability, temporary total disability, permanent partial disability, and temporary partial disability. 33 U.S.C. Sec. 908. Thus, "[t]his statutory structure indicates two independent areas of analysis--nature (or duration) of disability and degree of disability." Stevens v. Director, OWCP, 909 F.2d 1256, 1259 (9th Cir.1990), cert. denied, 498 U.S. 1073, 111 S.Ct. 798, 112 L.Ed.2d 860 (1991). The Act does not define those terms, and hence the courts have been left to enunciate standards for distinguishing between the various categories. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1037 (5th Cir.1981). The statutory scheme does provide, however, for different amounts of compensation based on extent and permanence of a worker's disability.

The point of maximum medical improvement represents the beginning of permanent, as opposed to temporary, disability under the statutory scheme. This court has stated that an employee is permanently disabled when "his condition has continued for a lengthy period, and it appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period." Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1969). A claimant is thus entitled to temporary disability payments until he or she has attained what courts and the Board have termed the point of maximum medical improvement. The federal courts have provided various definitions of this point, all of which amount to the same concept. See, e.g., Palombo v. Director, OWCP, 937 F.2d 70, 76 (2d Cir.1991) (viewing the date of maximum medical improvement as "the point when the injury has healed to the full extent possible"); Director, OWCP v. Berkstresser, 921 F.2d 306, 312 (D.C.Cir.1990) (defining maximum medical improvement as "the time at which no further medical improvement is possible"); Stevens, 909 F.2d at 1257 (explaining that "[m]aximum medical improvement is attained when the injury has healed to the full extent possible"). Once an injury becomes permanent, an employee becomes eligible for federally-sponsored vocational rehabilitation programs, see 33 U.S.C. Sec. 939(c)(2), and an employer becomes entitled to relief from compensation liability under certain conditions, see 33 U.S.C. Sec. 908(f). An earlier date of maximum medical improvement is therefore likely to reduce an employer's overall compensation liability.

In this case, the Board held that a condition becomes permanent when the employee is no longer undergoing treatment with a view towards improving his condition. See also Brown v. Lykes Bros....