P & M Crane Co. v. Hayes

• Decision Date: 22 April 1991
• Docket Number: 90-4460,Nos. 90-4376,s. 90-4376
• Citation: 930 F.2d 424
• Parties: P & M CRANE CO. and Aetna Casualty & Surety Company, Petitioners, v. Arlo R. HAYES and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. SUDERMAN STEVEDORES and Texas Employers' Insurance Association, Petitioners, v. Godfrey A. GREEN and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 424

930 F.2d 424

1993 A.M.C. 2106

P & M CRANE CO. and Aetna Casualty & Surety Company, Petitioners, v. Arlo R. HAYES and Director, Office of Workers' Compensation

Programs, United States Department of Labor, Respondents.

SUDERMAN STEVEDORES and Texas Employers' Insurance

Association, Petitioners, v. Godfrey A. GREEN and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

Nos. 90-4376, 90-4460.

United States Court of Appeals Fifth Circuit.

April 22, 1991.

Rehearing and Rehearing En Banc

Denied June 3, 1991.

Steven L. Roberts, Fulbright & Jaworski, Houston, Tex., for petitioners in No. 90-4376.

David L. Monroe, Coleman, Bartlett & Assoc., Houston, Tex., for Hayes.

Karen B. Kracov, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Washington, D.C., for director in No. 90-4376.

Linda M. Meekins, Clerk, Dept. of Labor, BRB, Washington, D.C., for other interested parties.

Julia M. Adams, Fulbright & Jaworski, Houston, Tex., for petitioners in No. 90-4460.

Sarnie A. Randle, Jr., Houston, Tex., for Green.

Michael S. Hertzig, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Washington, D.C., for director in No. 90-4460.

On Petition for Review of Final Orders of the Benefits Review Board.

Before REAVLEY, JONES and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

These two cases, consolidated for oral argument, involve injured workers covered by the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950. In each instance, the employer petitioners ("employers") contest the holdings of the Benefits Review Board (BRB) that employers can satisfy their alternative employment burden of proof only by providing evidence of more than one specific job opening, in the local community, suitable for an injured claimant, considering his skills and physical limitations. The employers believe that the BRB erroneously applied the reasoning of Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir.1988), and Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327, 1330 (9th Cir.1980), instead of our decision in New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1040 (5th Cir. Unit A Nov. 1981), in which we held that evidence of specific employment openings is not required for an employer to satisfy its burden of proof on this issue.

We agree with the employers that the BRB failed adequately to apply the Turner standard, and we therefore vacate and remand. In doing so, it is not necessary for us to consider the second question presented by petitioner P & M Crane Company (P & M Crane) concerning respondent Arlo Hayes's average weekly wage under section 10(c) of the LHWCA, 33 U.S.C. Sec. 910(c).

I.

A. P & M Crane Co. v. Hayes.

Hayes had been employed as a crane mechanic by P & M Crane for about two and one-half weeks when, on April 10, 1984, he injured his lower back. As a result of that injury and subsequent operations, he was permanently disabled from employment as a crane mechanic and was prevented from undertaking employment that required heavy lifting, prolonged bending or stooping, or working on ladders or overhead. Although he claims to have attempted to locate suitable employment, he has not found a job since his injury. Testimony was presented at the hearing before the administrative law judge (ALJ) that Hayes informed his physician that he did not desire to obtain employment, even though he may have been able to do so, because he wanted to await the ALJ's decision.

Proceedings were held before the United States Department of Labor (DOL) concerning Hayes's claim for compensation benefits under the LHWCA. On January 19, 1988, an ALJ entered a decision and order awarding benefits, finding that Hayes was totally and permanently disabled under the LHWCA. The ALJ determined that his average weekly wage would be $744.65. P & M Crane and its insurer, Aetna Casualty & Surety Co. (Aetna), then appealed to the BRB, which affirmed.

The ALJ's decision dealt with two main issues ¹: (1) the extent of Hayes's disability and (2) his average weekly wage. ² While it was undisputed that Hayes was permanently disabled from resuming his employment as a crane mechanic, a question existed as to whether he was able to secure suitable employment in the local community, given his physical restrictions. At the ALJ's hearing, Aetna's vocational rehabilitation expert, William Kramberg, produced a report claiming that there was alternative work available to Hayes which he could perform, given his medical restrictions. The report, however, identified only one specific job, a marine dispatcher. ³

Nevertheless, Kramberg also testified that security, light delivery, cashier, and courier jobs currently were available in the local community. Kramberg further stated that Hayes was eligible for vocational rehabilitation. Such training, Kramberg believed, would take from one to three years to complete. ⁴

The ALJ determined that Hayes had made a prima facie showing of total and permanent disability. Pursuant to Turner, the ALJ held that the burden of proof then shifted to P & M Crane to show that suitable alternative employment was available to the claimant. See Turner, 661 F.2d at 1038. But since P & M Crane only demonstrated that one specific job was available, the ALJ found that it had failed to establish suitable alternative employment and held that Hayes was totally disabled. The ALJ relied heavily upon the Fourth Circuit's decision in Lentz, which held that a single specific job identified by a vocational rehabilitation expert does not establish suitable alternative employment. See Lentz, 852 F.2d at 131. The ALJ also did not give much consideration to the other more general employment opportunities available to Hayes in the local community.

P & M Crane and Aetna petitioned the BRB for review. The BRB held that the findings of fact and conclusions of law of the ALJ were rational, supported by substantial evidence, and in accordance with the law. It maintained that Kramberg's vocational rehabilitation testimony was insufficient to establish alternative employment because he did not identify the precise nature and terms of jobs available after June 1986, other than one opening. The BRB further held that the ALJ's reliance upon Lentz was not error under the law of this circuit. It also upheld the ALJ's calculation of Hayes's average weekly wage rate. ⁵

B. Suderman Stevedores v. Green.

Respondent Godfrey Green filed for compensation under the LHWCA for a lower back injury he sustained on June 13, 1983, in the course of his employment with petitioner Suderman Stevedores (Suderman). A hearing was held before the ALJ on June 2, 1987, and over a year later he found that Green was entitled to temporary total disability from June 13, 1983, through October 5, 1985, based upon an average weekly wage of $169.83, and permanent total disability from October 5, 1985, and continuing, based upon the same average rate.

Green's inability to perform his usual longshore work was not disputed, and the ALJ found that Suderman failed to establish the availability of suitable alternative employment. The ALJ held that three of the four specific jobs found by Suderman's expert, William Quintanilla, were not suitable. ⁶ Quintanilla mistakenly failed to inform the prospective employers of Green's prescribed medication, which decreased his concentration and made him groggy, a fact the expert concedes. Although Quintanilla did discuss, with Green, general employment as a bookkeeper, manager, paralegal, bank teller and customer service representative, ⁷ such a discussion was initiated by Green, and Quintanilla made no inquiries into the availability of such jobs in the local community.

The ALJ then relied upon Lentz and concluded that, without more, the existence of the sole remaining position could not constitute suitable alternate employment. Suderman appealed to the BRB, which, in a decision and order dated April 26, 1990, affirmed the ALJ's decision, holding that the ALJ's reliance upon Lentz was proper.

II.

We review decisions of the BRB for errors of law and adhere to the substantial evidence standard that governs the BRB's review of the ALJ's factual determinations. Odom Constr. Co. v. DOL, 622 F.2d 110, 115 (5th Cir.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981); Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1005 (5th Cir.1978). Thus, the BRB's decision must be affirmed if it correctly concluded that the ALJ's findings are supported by substantial evidence and are in accordance with the law. O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 362-63, 85 S.Ct. 1012, 1014-15, 13 L.Ed.2d 895 (1965).

III.

The employers in these two cases claim that the ALJ and the BRB applied the wrong legal standard in holding that they, as employers, did not establish the availability of suitable alternative employment. They maintain that by presenting evidence of the availability of one specific job, along with more general information concerning other existing jobs that each claimant is qualified to hold, they should be able to rebut the claimants' prima facie case of total disability.

In P & M Crane, the vocational rehabilitation expert employed by the employer found one specific job suitable for Hayes, and he had general information on a number of possible other jobs available in the area. In Suderman, the employer's expert had information on only one specific job. Although he claimed that Green was eligible to obtain various types of minimum wage jobs, the expert did not specify whether such jobs were available in the local community.

Both employers believe that the higher standard advocated by the BRB and by the Fourth Circuit in Lentz is simply a restatement of the theory embraced by the Ninth Circuit in Bumble Bee Seafoods. Such a standard, they contend, violates Turner because it would force employers to...