New Orleans (Gulfwide) Stevedores v. Turner

• Decision Date: 20 November 1981
• Docket Number: No. 77-1697,77-1697
• Parties: NEW ORLEANS (GULFWIDE) STEVEDORES and Employers National Insurance Company, Petitioners, v. Edward TURNER, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1031

661 F.2d 1031

NEW ORLEANS (GULFWIDE) STEVEDORES and Employers National Insurance Company, Petitioners, v. Edward TURNER, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 77-1697.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Nov. 20, 1981.

Thomas W. Thorne, Jr., New Orleans, La., for petitioners.

Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D. C., Gerald J. Leydecker, New Orleans, La., for respondents.

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

Before BROWN, COLEMAN and GEE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case, arising under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.A. § 901 et seq., provides us with an opportunity to clarify an issue we left open in our recent opinion in Odom Construction Co. v. United States Department of Labor, 622 F.2d 110 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). In that case we reaffirmed our position that the burden rests on an employer contesting an award for permanent total disability under LHWCA to show the availability of other jobs that the claimant is capable of performing but left open the nature of the showing required. We now answer that question and define what is necessary to establish job availability to the claimant. Because we find that the Administrative Law Judge (ALJ) hearing the claim imposed too stringent a standard on the employer, we reverse and remand this case for further hearings to determine if the employer can satisfy the correct burden of proof.

How It All Began

Claimant Edward Turner, a freight handler for New Orleans (Gulfwide) Stevedores (NOS), injured his right knee on October 1, 1973, while securing a stack of lumber on a railroad flatcar. This injury was initially diagnosed as a knee strain and was treated conservatively by several doctors to whom Turner was referred to by NOS. Turner returned to work as a freight handler in January of 1974 and continued working from time to time until the end of June 1974, during which time he experienced continual discomfort from the knee, including pain and swelling. On June 28, 1974, Dr. Matko Milicic, Turner's private orthopedic physician, performed knee surgery which revealed a torn medial menicus as well as evidence of pre-existing degenerative arthritis which was aggravated by the injury.

Turner received post-surgery treatment from Dr. Milicic but continued to experience swelling, pain and weakness in the right knee, despite physical therapy. One year after surgery, the doctor indicated that Turner had some atrophy of the muscles, a moderate limp, and might at some point in the future require further surgery. He also recommended on September 15, 1975 that Turner return to gainful employment of a type less strenuous than that of a freight handler. Dr. Russell Grunsten, an orthopedic surgeon who examined Turner on August 8, 1975 and October 2, 1975 on behalf of NOS, also recommended that Turner return to work, on a trial basis, as a freight handler. Turner, however, neither sought nor obtained employment of any type from the time of his surgery.

Longshoremen Act Proceedings

Turner's Story

Pursuant to LHWCA, Turner filed a claim for disability benefits for which a formal hearing before an ALJ commenced on October 20, 1975. The evidence adduced at the hearing consisted of objective medical facts, diagnoses of examining physicians, subjective evidence of pain and disability as testified to by the claimant, and the claimant's age, education and work history.

The evidence showed that Turner was fifty-two years old at the time of his injury. He had an eighth or ninth grade education in day school and had subsequently attended night school for two or three years. Although he had not finished high school, Turner considered his schooling to amount to an eleventh grade education. During World War II, Turner worked as a longshore hatch foreman in the military. Both prior and subsequent to his military service, he had worked in a clothing shop, as a salesman, for ten or eleven or perhaps thirteen or fourteen years. In addition, following his discharge from the service, Turner had enrolled in, but did not complete, a course in tailoring. When the store for which he worked went out of business, Turner went to work on the waterfront, as a freight handler, at which job he worked for 18 years preceeding his injury.

Turner testified that after the injury but prior to his surgery, he worked as a freight handler from about the end of January 1974 until the end of June 1974, when work was available and when his knee was not swollen. Testimony was also given of continued difficulty in walking, especially on uneven pavement and getting on and off of buses. Several employers refused to hire him because of his injury. Following surgery, Turner did not seek work and testified that he did not know who would hire him at his age and in his condition, but that he would be willing to work if work were available. He indicated reluctance to accept employment outside his craft, fearing he would forfeit fringe benefits accrued from his membership in the Freight Handler's Union.

The Doctors Say

The medical evidence from three doctors indicated that the knee injury was permanent. Dr. Milicic testified that he believed Turner should be able to return to work of a sedentary type, which did not involve prolonged walking, or standing, heavy lifting, or jumping. He estimated the disability to the whole right leg to be 25%, with the possibility that the knee could worsen. Dr. Brown, also employed by the claimant, estimated the injury as approximately 33% partial disability to the knee, allowing Turner to engage in employment that did not require climbing, walking, or standing. The physician for NOS, Dr. Grunsten, estimated permanent partial disability to the right lower extremity at 15% to 20% and recommended that Turner undertake a trial work period, including as a freight handler, to determine the effect of such activity on the knee.

The Hired (Gun) Expert

The testimony of most interest is that of a Department of Labor "rehabilitation expert", David Firebaugh, called not by the Director but by NOS to testify. ¹ Firebaugh was employed as a vocational rehabilitation expert for the Department of Labor, Office of Workmen's Compensation Programs, serving in that capacity for claims under both LHWCA and Federal Employees' Compensation Act. ² He testified about jobs available within the New Orleans area for which he believed Turner would be qualified, including employment with the federal government, Louisiana State Civil Service, and in the private sector. According to him, of the jobs available from the State Civil Service, Turner "could perform" positions as a bridge tender, lock operator, forest tower man, elevator operator, positions paying less than Turner's previous salary as a freight handler. ³ Approached from the standpoint of available federal civil service, Turner "would be eligible for" file clerk, elevator operator, watchman and guard, and with some training, draftsman and clerical typist. ⁴ Within private industry, the witness found jobs available and in many cases want ads in the local newspaper for service station attendant (paying minimum wage), flower seller, catering truck driver, parking lot attendant, guard, watchman, retail sales, hotel and motel clerks, ragman for pool hall, debit book, and private employment counselor. With training, Turner could do drafting, light welding, and orthodontic prosthetics.

The expert, Firebaugh, indicated that Turner's age would be no stumbling block since "(w)e have equal employment now ...." Upon cross-examination, Firebaugh admitted no psychological tests had been conducted and no conferences on interest had been held with Turner. Firebaugh assumed Turner to be of average intelligence, relying on the claim examiner's statement that Turner was "a very articulate fellow." In fact, Firebaugh admitted that if he had talked with Turner previously he would have been able to narrow down possible jobs available. ⁵

The ALJ Decision

The ALJ issued an order awarding benefits, including compensation for total permanent disability from August 1975, the point at which medical testimony indicated maximum medical improvement from surgery, and making the following findings:

The Claimant has been working as a freight handler for about 18 years. He did not finish high school. He will need training for any new type of employment except a menial job paying the minimum wage which would be at a pay scale of $87.00 to $112.00 per week. He will have trouble with this knee for the rest of his life.

Claimant feels that he cannot return to his prior work....

....

Claimant's testimony that he is unable to perform the duties of a freight handler is supported by the medical testimony. Considering this limitation, as well as Claimant's age and education, it is apparent that his actual opportunity to obtain employment is severely restricted and will remain so restricted. The Carrier and (NOS) presented evidence pertaining to advertisements for jobs that the Claimant might be able to perform or, with additional training, probably could perform. They did not show any actual job offers to the Claimant. The Claimant could have submitted an application for the jobs advertised and, thereby, compete with all other applicants for the jobs advertised.

In this situation, (NOS) has the burden of proving that an employee, who establishes that he is disabled from his regular employment, has actual opportunities to obtain other suitable employment.... I find that the Employer has failed to meet this burden.

....

A careful review has been made of all the medical evidence in this case, and it leads to the conclusion that the Claimant is not capable of performing any kind of work for which he is trained by...