See v. Washington Metropolitan Area Transit Authority

Decision Date28 September 1994
Docket NumberNo. 93-1794,93-1794
Citation36 F.3d 375
CourtU.S. Court of Appeals — Fourth Circuit
PartiesElwood L. SEE, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

ARGUED: Fred Calvin Alexander, Jr., McGuire, Woods, Battle & Boothe, Alexandria, VA, for petitioner. Laura Jessica Stomski, Office of the Solicitor, U.S. Dept. of Labor, Washington, DC, for respondent Director; Gary Lewis Crawford, Clarke, Crawford & Bonifant, Gaithersburg, MD, for respondent WMATA. ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Carol A De Deo, Associate Solicitor, Janet R. Dunlop, Counsel for Longshore, Office of the Solicitor, U.S. Dept. of Labor, Washington, DC, for respondent Director.

Before MURNAGHAN and WILLIAMS, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MURNAGHAN and Judge HILTON joined.


WILLIAMS, Circuit Judge:

Elwood See appeals from the final decision of the Benefits Review Board (BRB) denying his petition for temporary total disability benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Secs. 901-950 (1988). 1 Our review of the record and the decisions by the administrative law judge (ALJ) and the BRB reveals several errors warranting reversal and remand for further proceedings consistent with this opinion.


On June 22, 1981, during the course of his employment as a bus driver for the Washington Metropolitan Area Transit Authority (WMATA), the forty-two year old See was injured in Arlington, Virginia, when an automobile ran a stop sign and struck the commuter bus See was driving. At the time of his injury, See resided with his family in Falls Church, Virginia, a suburb of Washington, D.C.

During the following nine months, See complained of constant pain extending down his neck and through his back into both legs. The general consensus of five physicians who examined See during this period, including an orthopedic surgeon and a neurosurgeon, was that See had suffered a cervical and lumbar strain. At least one doctor noted a degenerative arthritic condition that predated See's accident.

In March 1982, See received medical clearance to return to limited job duties, but continuing pain rendered him incapable of driving a bus. WMATA later permitted See to test for the alternative position of station attendant. In January 1983, WMATA Medical Director Dr. Maurice Sislen declared See medically disqualified for the station attendant position. See retired from WMATA on total disability the following month, and, in May 1983, See moved 167 miles away to Franklin, West Virginia.

Medical evaluations and treatments continued after See's retirement, with differing results as to the degree of his physical impairments. On April 20, 1985, accepting the medical opinions of some of the examining physicians that See was no longer disabled, WMATA unilaterally suspended its voluntary payments of temporary total disability benefits. Thereafter, See petitioned for the continuation of benefits and medical expenses.


Because irregularities in the administrative proceedings are significant in our review of this case, a detailed description of the various proceedings before the ALJ and the BRB is necessary.

At the January 1987 hearing on See's petition for benefits, the ALJ considered the medical evidence and See's testimony that continuing pain had kept him from working since March 1982. Jeffrey Nathan, executive vice president of the Safari Land Hunting Corporation, testified on behalf of WMATA to statements by his father concerning several tasks of manual labor performed by See and his brother Elmer See in 1984 at a hunting lodge in Mathias, West Virginia, owned and operated by the company. Nathan personally observed See engaging in general farming duties and operating a sanding machine at the lodge in the fall of 1983. In rebuttal, See denied performing any manual labor at the lodge. Finally, WMATA proffered a November/December 1986 labor market survey of the Washington metropolitan area by Vocational Consultant Carmela Rega.

The ALJ concluded that See was, and remained to that date, totally disabled, and awarded the appropriate benefits and medical expenses. Based on See's inability to return to his position as bus driver, the absence of proof within Rega's labor survey that the proposed alternative positions were available between 1982 and 1985, and See's "credible" and "emphatic denial[s]" of Nathan's hearsay-ridden testimony, the ALJ found that WMATA had not rebutted See's showing of total disability between 1982 and 1985. (J.A. at 10-12.) The ALJ further ruled, based on the medical evidence and See's "credible" testimony about his pain and physical condition, that See suffered from severe neck and back problems stemming from the 1981 accident that rendered him "[in]capable of returning to work as a bus driver during the period from April 20, 1985 through the present." (J.A. at 12, 13.) Finally, citing See's testimony concerning his move 2 and the "common knowledge that Washington, D.C. is one of the most expensive metropolitan areas in the nation," the ALJ found that See had moved from Washington to West Virginia for "legitimate economic reasons," and rejected Rega's labor survey of the Washington market. (J.A. at 14.) WMATA's failure to proffer evidence of suitable alternative employment in West Virginia prevented WMATA from rebutting See's demonstrated total disability since April 20, 1985.

On appeal, the BRB affirmed the ALJ's conclusion that See was unable to perform his usual job after the 1981 accident. However, the BRB identified two bases for vacatur of the ALJ's finding that WMATA had failed to demonstrate suitable alternative employment or post-retirement wage-earning capacity. First, the BRB rejected the ALJ's disavowal of Nathan's testimony because of the ALJ's failure to account for inconsistencies between See's testimony and other evidence of record, including checks made payable to See for various services rendered at the lodge and Nathan's personal observations of See performing manual labor at the lodge. Second, the BRB found error in the ALJ's renunciation of Rega's labor survey because, according to the BRB, "there is no evidence to support claimant's statement that he moved to West Virginia from the Washington, D.C. area for economic reasons" and, as the situs of See's injury, the Washington area "is a relevant labor market for purposes of establishing suitable alternative employment." (J.A. at 21.) The BRB therefore remanded the case for reconsideration of the issue of the availability of suitable alternative employment.

On remand, the case took a curious twist. After describing the evidence of record relating to Nathan's testimony, the ALJ "[a]ccept[ed] Mr. Nathan's testimony in its entirety, since the Board ha[d] found it credible." (J.A. at 24.) However, the ALJ rejected Nathan's testimony as evidence of suitable alternative employment because the alleged sundry tasks did not establish a particular job, range of regular and continuing employment opportunities, or potential wage-earning capacity.

Because of the BRB's identification of Washington as the relevant labor market, the ALJ then considered "whether the positions [in Rega's survey] are consistent with the claimant's complex of symptoms." (J.A. at 25.) The ALJ conclusorily determined that the jobs described in Rega's survey "do not require the physical exertion necessary to drive a bus." (J.A. at 25.) Relying on Nathan's testimony of See's activities at the lodge, the ALJ opined that See's "complaint about pain is exaggerated, and the testimony about physical movements quite vague and consistent with the performance of light work." (J.A. at 25.) The ALJ also ruled that most of the jobs described in Rega's labor survey "are consistent with claimant's mental and physical capabilities." (J.A. at 25.) In conclusion, the ALJ found that See was totally disabled from the date of his accident through April 20, 1985, and only partially disabled thereafter. Temporary partial disability benefits and medical expenses dating back to April 25, 1985, were awarded.

On appeal by See, the BRB affirmed the ALJ's determination that Rega's labor survey adequately established the availability of suitable alternative employment. However, because November 1986 was the earliest date of employment availability established by the survey, the BRB modified the award to provide for temporary total disability benefits through October 1986 and partial disability benefits beginning in November 1986. See now appeals to this court, claiming entitlement to total disability benefits continuing beyond October 1986 to the present.


A claimant for disability benefits under the LHWCA must first establish total disability by demonstrating his inability to return to his former employ. Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir.1988). The burden then shifts to the employer to rebut disability by proving suitable alternative employment available upon a reasonably diligent search by the claimant. Id. An employer may satisfy this burden "[b]y proving that the injured employee retains the capacity to earn wages in regular, continuous employment." Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir.1988). Relevant factors in this inquiry include the claimant's age, background, employment history and experience, and intellectual and physical capabilities, and the reasonable availability of jobs "in the community for which the claimant is able to compete and which he could realistically and likely secure." Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir.1984) (qu...

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