McBride v.Halter Marine, Inc.
| Decision Date | 10 January 2001 |
| Docket Number | 00-1092,00-0500,BRB 99-0852 |
| Parties | RICHARD MCBRIDE, Claimant-Petitioner v. HALTER MARINE, INCORPORATED and RELIANCE NATIONAL INSURANCE COMPANY, Employer/Carrier-Respondents |
| Court | Longshore Complaints Court of Appeals |
Appeals of the Decision and Order on Remand Awarding Benefits Decision and Order Denying Motion for Modification, and Decision on Motion for Modification of David W. DiNardi Administrative Law Judge, United States Department of Labor.
Richard McBride, Moss Point, Mississippi, pro se.
Donald P. Moore Franke, Rainey & Salloum, PLLC, Gulfport Mississippi, for employer/carrier.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON, Acting Administrative Appeals Judge.
DECISION and ORDER
Claimant without the assistance of counsel, appeals the Decision and Order on Remand Awarding Benefits, Decision and Order Denying Motion for Modification, and Decision on Motion for Modification (95-LHC-1175) of Administrative Law Judge David W. DiNardi 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). As claimant is not represented by counsel, the Board will review the administrative law judge's findings of fact and conclusions of law in order to determine whether they are rational, supported by substantial evidence, and in accordance with law; if so, they must be affirmed. O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3); 20 C.F.R. §§802.211(e), 802.220.
This case is before the Board for the third time. To briefly reiterate the facts relevant to the instant appeals, claimant sustained neck and back injuries resulting from two work-related incidents occurring on March 3, 1994, and April 13, 1994, respectively; claimant further alleged that he suffered a psychological injury as a result of these two work-related incidents. Claimant returned to work in a modified duty position at employer's facility on September 19, 1994, but, following a positive drug test, he was terminated on September 22, 1994, for violation of a company rule. In his initial Decision and Order issued on April 17, 1997, the administrative law judge found that claimant's physical injuries were related to his employment with employer, but that any psychological condition from which claimant may suffer was not related to the 1994 incidents. Accordingly, the administrative law judge awarded claimant temporary total disability compensation for disability due to his physical injuries from April 14, 1994, to September 18, 1994, at which time the administrative law judge determined that employer had established the availability of suitable alternate employment within its own facility. 33 U.S.C. §908(b).
Claimant appealed to the Board, challenging the administrative law judge's finding that his current psychological condition is unrelated to the two work incidents which he experienced while working for employer, and the administrative law judge's consequent denial of medical treatment and compensation under the Act for that alleged work-related condition. In its decision issued on June 5, 1998, the Board reversed the administrative law judge's finding that claimant's psychological condition is not work-related, and remanded the case for consideration of the remaining issues. McBride v. Halter Marine, Inc., BRB Nos. 97-1226/A (June 5, 1998)(unpublished).[1]
In his Decision and Order on Remand issued on April 5, 1999, the administrative law judge determined that claimant's psychological condition does not prevent him from performing the modified duty position at employer's facility which the administrative law judge had previously found to constitute suitable alternate employment. Accordingly, the administrative law judge denied compensation benefits for claimant's psychological condition. On the basis of the Board's holding as a matter of law that claimant's psychological condition is related to his employment, the administrative law judge next found employer to be responsible for any reasonable and necessary future medical treatment of claimant's psychological condition. 33 U.S.C. §907. The administrative law judge denied Section 7 medical benefits, however, for the past medical treatment of claimant's psychological condition.[2]
Both claimant and employer again appealed to the Board, claimant contesting the denial of compensation and past medical benefits, BRB No. 99-0852, and employer challenging the award of future medical benefits for claimant's psychological condition, BRB No. 99-0852A. Thereafter, claimant filed with the Board a request for modification accompanied by additional documents. Acting upon claimant's motion, the Board dismissed the appeals filed by both claimant and employer, and remanded the case for modification proceedings. 33 U.S.C. §922; 20 C.F.R. §§725.310, 802.301.[3]
In a Decision and Order Denying Motion for Modification issued on January 18, 2000, the administrative law judge denied modification on the basis that the medical evidence accompanying claimant's modification request had already been admitted into evidence and the other documents submitted by claimant are irrelevant. Thereafter, claimant filed an appeal of the administrative law judge's denial of modification and additionally requested that his prior appeal, BRB No. 99-0852, be reinstated. By Order dated February 15, 2000, the Board acknowledged claimant's appeal of the modification denial, BRB No. 00-0500, reinstated claimant's appeal in BRB No. 99-0852, and consolidated the two appeals for purposes of rendering a decision. Claimant subsequently filed an additional motion for modification with the administrative law judge, which was summarily denied on July 26, 2000; claimant subsequently appealed this decision to the Board. By Order dated September 5, 2000, the Board acknowledged claimant's additional appeal, assigned that appeal the BRB No. 00-1092, and consolidated that appeal with claimant's appeals in BRB Nos. 99-0852 and 00-0500 for purposes of decision. Thus, in the appeals presently pending before the Board, claimant challenges the administrative law judge's Decision and Order on Remand denying disability benefits and past medical benefits for claimant's psychological condition, as well as the administrative law judge's two decisions denying claimant's request for modification. Employer responds, urging affirmance of the administrative law judge's denial of modification.
We first address claimant's challenge to the administrative law judge's denial of disability benefits for claimant's psychological condition in the Decision and Order on Remand. As it is undisputed that claimant cannot perform his usual work due to his work injury, the burden shifted to employer to demonstrate the availability of suitable alternate employment that claimant is capable of performing. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996); Mijangos v. Avondale Shipyards, 948 F.2d 941, 25 BRBS 78 (CRT)(5th Cir. 1991); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (CRT) (5th Cir. 1981). Employer may meet its burden of showing suitable alternate employment by offering claimant a job which he can perform within its own facility. See Darby, 99 F.3d at 688, 30 BRBS at 94(CRT); Darden v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986). The Board has held that where claimant has been discharged from a light duty job within employer's own facility for violation of a company rule, and not for reasons related to his disability, employer may use that position to satisfy its burden of showing suitable alternate employment if it has established that claimant is, in fact, capable of performing the duties of that position. Thus, if employer has demonstrated that claimant is able to perform the job within its facility, the fact that the position is no longer available to claimant, due to his discharge for reasons unrelated to his disability, does not impose upon employer the additional requirement to show different suitable alternate employment outside its facility. See Brooks v. Newport News Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993); see also Manship v. Norfolk & Western Ry. Co., 30 BRBS 175 (1996). Regarding this issue, the physical ability to perform a job is not the exclusive determinant whether the identified position constitutes suitable alternate employment; rather, the administrative law judge must consider whether claimant has the ability, from a mental or psychological standpoint, to successfully perform the requirements of the position. See Ledet v. Phillips Petroleum Co., 163 F.3d 901, 32 BRBS 212 (CRT)(5th Cir. 1999); Armfield v. Shell Offshore, Inc., 30 BRBS 122 (1996).
Thus in the case at bar, the relevant inquiry in determining whether the modified duty position in employer's facility satisfies employer's burden of establishing the availability of suitable alternate employment is whether claimant's work-related psychological problems prevent him from performing the duties of that job. See Armfield, 30 BRBS at 123. The administrative law judge determined, in this regard, that claimant's psychological condition does not preclude his performance of the job in employer's facility. In reaching this conclusion, the administrative law judge credited the opinion of Dr. Maggio, a psychiatrist who reviewed claimant's medical records and, on February 7, 1997, conducted a psychiatric examination of claimant on behalf of employer.[4] The administrative law judge found the opinions of claimant's treating psychiatrist Dr. Gupta and treating psychologist Dr. Hearne that claimant is totally disabled by his psychological condition were outweighed...
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