The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0306p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MARATHON ASHLAND PETROLEUM;
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MARATHON ASHLAND PETROLEUM
COMPANY, L.L.C., c/o Frank Gates Service -
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No. 12-4377
Company,
Petitioners, ,>
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v.
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BILL B. WILLIAMS; DIRECTOR, OFFICE OF
Respondents. -
WORKERS’ COMPENSATION PROGRAMS,
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Upon Petition for Review of a Decision and Order
of the Benefits Review Board.
Nos. OWCP No. 06-1560; BRB No. 12-0051.
Decided and Filed: October 24, 2013
Before: COOK, GRIFFIN, and KETHLEDGE, Circuit Judges.
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COUNSEL
ON BRIEF: John L. Duvielh, JONES, WALKER, WAECHTER, POITEVENT,
CARRÈRE & DENÈGRE, L.L.P., New Orleans, Louisiana, for Petitioners. John J.
Osterhage, Florence, Kentucky, for Respondent Williams.
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OPINION
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GRIFFIN, Circuit Judge. Petitioners Marathon Ashland Petroleum and Marathon
Ashland Petroleum Company, LLC (“Marathon”) appeal—for the second time—a
decision of the Benefits Review Board of the U.S. Department of Labor affirming an
order of an administrative law judge awarding permanent and total disability benefits to
respondent Bill Williams under the Longshore and Harbor Workers’ Compensation Act,
1
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 2
33 U.S.C. § 901, et seq. In adjudicating Marathon’s first petition for review, a panel of
this court declined to address the substance of Marathon’s challenge and instead
remanded for further proceedings because we held that the administrative record was
inadequate regarding the date on which Williams became eligible for benefits. See
Marathon Ashland Petroleum v. Williams, 384 F. App’x 476 (6th Cir. 2010). On
remand, the ALJ and the board discussed in great detail the precise date on which
Williams became eligible for permanent and total disability benefits. In its second
petition for review, Marathon advances the same arguments that the previous panel did
not consider in the first petition, which are that the board erred in affirming the ALJ’s
findings that Williams is permanently and totally disabled and that he is unable to
perform the alternative employment identified by Marathon’s vocational expert. For the
reasons that follow, we deny the petition and grant Williams leave to file a motion for
attorney fees under 33 U.S.C. § 928(a).
I.
The following background facts are taken from this court’s previous opinion in
Marathon Ashland Petroleum v. Williams, 384 F. App’x 476 (6th Cir. 2010).
Bill Williams had worked at Marathon’s Ashland, Kentucky, facility for
twenty-five years, most recently as a senior barge welder. His job
required considerable overhead heavy lifting, such as repeatedly carrying
150-pound weights. Williams alleged that he sustained a long thoracic
nerve injury to his right shoulder while replacing parts of a barge at work
on February 13, 2003. He had been experiencing pains in his right
shoulder and right arm six to eight months prior to the accident, and his
injury was likely the result of the cumulative effect of his heavy lifting.
Since the injury, Williams has not returned to work and has been seen by
multiple physicians. These physicians, as explained more fully below,
do not agree on a common diagnosis for Williams.
Three days after the accident, Williams began treatment with Dr. Michael
Goodwin, an orthopedist, who ultimately diagnosed him with a long
thoracic nerve problem. Dr. Goodwin continued to see Williams roughly
once a month until Dr. Goodwin diagnosed him as permanently unable
to work in July 2003. Despite this diagnosis, on March 30, 2004, Dr.
Goodwin provided Williams with specific restrictions, including a
prohibition on lifting more than five pounds with his right arm and all
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 3
overhead work. Dr. Goodwin wrote a letter to Marathon on June 22,
2005, indicating that Williams could not return to work as a welder, since
it required heavy lifting and overhead work. Following an October 3,
2005, visit, Dr. Goodwin opined that Williams’ condition would never
improve.
Dr. Goodwin also referred Williams to Dr. John Brems, an orthopedist
and shoulder specialist. On April 17, 2003, Dr. Brems recommended that
Williams cease work until September 2003 and undergo an
Electromyogram test (“EMG”) in August to determine if the nerve was
healing. Dr. Goodwin, however, did not perform the repeat EMG
because, as he explained in his deposition testimony, he was more
interested in clinical recovery than nerve studies.
On May 25, 2004, Marathon sent Williams to Dr. Michael Best, an
orthopedic surgeon and expert in long thoracic nerve injuries. The visit,
and another on March 1, 2005, lasted approximately five minutes each.
Dr. Best agreed with Dr. Brems’ treatment recommendation and had
Williams undergo two EMGs and two functional capacity exams. Dr.
Joseph Zerga performed the EMGs and concluded after Williams’ EMG
in July 2004 that Williams could not perform the work of a barge welder
or any other work that required heavy lifting above shoulder-level on his
right-hand side but could do activity that did not require heavy lifting.
Dr. Zerga performed another EMG in November 2004 and concluded
that Williams’ nerve injury had healed.
Williams’ second exam with Dr. Best, which occurred on March 1, 2005,
showed that Williams’ long thoracic nerve injury had healed. Dr. Best
had Williams undergo functional capacity evaluations and concluded that
Williams possessed a full range of motion with no strength deficit and
had no long-term or permanent impairment. He therefore considered
Williams capable of returning to his former welding position, which had
since been modified to include the use of hoists and an additional
individual to assist with lifting and carrying duties. Despite this
conclusion, Dr. Best noted that Williams’ efforts throughout testing were
inconsistent and that he was unaware of the specifics of Williams’ prior
job description. Even more, Dr. Best later revised his prior opinion and
concluded that Williams was not capable of meeting the demands of his
former position and that his safe-work capabilities were within the
medium to heavy work category.
Based on Dr. Best’s March exam, Marathon sent Williams a
return-to-work notice on May 12, 2005. Williams reported to work on
May 31, 2005, but told Marathon officials that he could not perform his
duties. In the meantime, Williams continued to refrain from working.
More than a year later, Marathon had a vocational expert prepare a
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 4
transferable skills analysis/Labor Market Survey report to determine
Williams’ capabilities for alternate employment. The report noted that
Williams could not return to his pre-injury employer as a
welder/longshoreman, but listed nine alternate positions that he could
perform. The expert completed a second Labor Market Survey on
October 30, 2006, which listed ten employers within thirty miles of
Ashland, Kentucky, who indicated they were hiring for positions
Williams was capable of performing. Williams testified that he did not
contact any of the prospective alternate employers because he had a foot
gout ailment.
Following Williams’ claim for Longshore Act benefits, the ALJ entered
an order on May 7, 2008, awarding Williams total disability
compensation under the [Act]. The ALJ determined that Williams
reached maximum medical improvement (“MMI”) on May 31, 2005.
MMI is reached at that point where a physician believes that further
treatment will not improve a claimant’s condition. As a result, the ALJ
awarded Williams temporary total disability benefits from February 15,
2003, through May 31, 2005, and permanent total disability benefits
thereafter. The ALJ found that Williams could not return to his former
barge-welding position at Marathon and that Marathon had not satisfied
its burden of establishing the availability of suitable alternate
employment. The ALJ credited Dr. Goodwin’s opinion of October 5,
2005, that Williams’ shoulder would never improve and discredited Dr.
Best’s opinion because he indicated he was unaware of the physical
requirements of Williams’ job. Furthermore, the ALJ credited Williams’
own testimony.
Marathon appealed the ALJ’s decision to the [benefits review board],
which affirmed the decision on January 27, 2009. Marathon then
petitioned this [c]ourt for review.
Id. at 477–78 (internal quotation marks and citation omitted).
After reviewing the administrative record, this court concluded: “we find the
ALJ’s reasoning for its conclusion that Williams reached MMI on May 31, 2005, and
is therefore entitled to receive permanent disability benefits from that date, to be
‘inadequate . . . to accommodate a thorough review.’” Id. at 479 (quoting Dir., Office
of Workers’ Comp. Programs v. Congleton, 743 F.2d 428, 429 (6th Cir. 1984)). Our
court explained:
According to Dr. Best, Williams reached MMI on March 1, 2005. The
parties stipulated that, according to Dr. Goodwin, Williams has yet to
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 5
reach MMI. Yet, Dr. Goodwin’s office notes from October 3, 2005,
indicate that he did not anticipate that Williams’ shoulder would ever
improve. The ALJ found that Williams’ attempt to return to work on
May 31, 2005, established that this was his date of MMI. We question
whether this was appropriate. While Williams’ inability to perform his
prior job duties may indicate that he was permanently disabled as of May
31, 2005, it does not necessarily indicate that this was the date he reached
MMI. Especially given that Williams was examined by Dr. Goodwin on
two occasions subsequent to May 31, 2005, we think the ALJ’s
explanation for establishing May 31, 2005, as the date of MMI needs to
be more thoroughly explained.
Id. We therefore remanded for further administrative proceedings.
On remand, the ALJ determined that, based on Dr. Goodwin’s controlling
medical opinion, Williams reached MMI on October 3, 2005, not May 31, 2005. Other
than altering the MMI date, the benefits award remained unchanged. The benefits
review board affirmed, and Marathon’s timely petition for review followed.
II.
A.
Our review of decisions of an ALJ and the benefits review board is limited.
Pittsburgh & Conneaut Dock Co. v. Dir., Office of Workers’ Comp. Programs, 473 F.3d
253, 258 (6th Cir. 2007). An ALJ’s decision is reviewed to determine whether it is
consistent with applicable law and supported by substantial evidence. Id. “Substantial
evidence is more than a scintilla of evidence but less than a preponderance and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 259 (internal quotation marks and citation omitted). Our scope of
review is “exceedingly narrow” when the question is whether the ALJ reached the
correct result after weighing conflicting medical evidence. Id. (internal quotation marks
and citation omitted). As for the board’s decision, we review its legal conclusions de
novo and independently review the record to see if it properly determined whether the
ALJ’s findings are supported by substantial evidence. Id. at 258. “The record must be
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 6
reviewed as a whole, including whatever in the record fairly detracts from its weight.”
Id. at 259 (internal quotation marks and citation omitted).
B.
The parties dispute whether the board erred in affirming the ALJ’s determination
that Williams was permanently and totally disabled as of October 3, 2005. Disability
claims under the Longshore Act are governed by a burden-shifting scheme. Morehead
Marine Servs., Inc. v. Washnock, 135 F.3d 366, 372 (6th Cir. 1998). A claimant
establishes a prima facie case of total disability by showing that he can no longer
perform his “usual work” because of a work-related injury. Id.; see also Bunge Corp.
v. Carlisle, 227 F.3d 934, 941 (7th Cir. 2000) (“To gain an award of benefits for total
disability under the [Longshore Act], a claimant must first establish a prima facie case
by demonstrating that he cannot perform his prior employment due to the effects of a
work-related injury.”). A claimant’s “usual work” is defined by his regular duties at the
time of his injury. Manigault v. Stevens Shipping Co., 22 Ben. Rev. Bd. Serv. 332
(1989). In determining whether a claimant can return to his “usual work,” the ALJ must
compare the claimant’s medical restrictions with the physical requirements of his job.
See Newport News Shipbuilding & Dry Dock Co. v. Riley, 262 F.3d 227, 232 (4th Cir.
2001) (“Whether an injury is a disability is determined by comparing the employee’s
medical restrictions to her job responsibilities.”). If a claimant establishes a prima facie
case, “the burden shifts to the employer to demonstrate the availability of suitable
alternative employment that the claimant is capable of performing in the geographical
area and that he or she could secure if he or she diligently tried.” Washnock, 135 F.3d
at 372; see also Universal Mar. Corp. v. Moore, 126 F.3d 256, 264 (4th Cir. 1997)
(employer rebuts a prima facie case of disability “by presenting evidence of other jobs
that are available in the relevant geographic market for which the claimant is physically
and educationally qualified”).
The board did not err in concluding that the record contains substantial evidence
to support the ALJ’s finding that Williams established a prima facie case because he
cannot return to his “usual work” as a senior barge welder. First, Dr. Goodwin,
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 7
Williams’ treating doctor who is board certified in orthopedic surgery, testified that
Williams would not be able to return to his previous position because his permanent
right-shoulder weaknesses and functional limitations, which include a twenty-pound lift
restriction upon his right arm and no overhead work, prevent him from performing the
very heavy-duty work of a barge welder. Second, Williams, a twenty-five year veteran
employee of Marathon, testified that there was simply “no way” he could return to his
former position. The ALJ placed “great weight” on Williams’ testimony. Third, Dr.
Kleykamp, Williams’ general care physician, opined that because Williams cannot lift
or work overhead, he is unable to perform the duties associated with a senior barge
welder.
Additionally, and contrary to Marathon’s assertion, the board and the ALJ did
not irrationally discount the conflicting medical opinion of Dr. Best, Marathon’s review
doctor. Although Dr. Best opined that Williams was fully healed and ready to return to
work in March 2005 with no functional limitations, Williams treated with Dr. Goowin
three times after Dr. Best last saw him, and Dr. Goodwin observed that the winging of
Williams’ right scapula was still present and opined that his patient had not yet
recovered and was unlikely to ever fully recover. And although Dr. Best opined that
Williams could return to work because his former position had since been modified to
reduce his work load, as the board correctly noted, this opinion does not support a
finding that he could return to the “usual work” Williams performed at the time of
injury. Also, Williams testified that when he attempted to return to work in May 2005,
he could not perform even the “modified” position. Ultimately, the ALJ acted within her
discretion when crediting Williams’ testimony and the medical opinion of his treating
doctor over that of Marathon’s review doctor. See Bunge, 227 F.3d at 940 (“[T]he ALJ
determines the weight to be accorded to evidence and makes credibility determinations.
Moreover, where the testimony of medical experts is at issue, the ALJ is entitled to
accept any part of an expert’s testimony or reject it completely.”). Accordingly, the
board did not err in affirming the ALJ’s determination that Williams established a prima
facie case of total disability.
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 8
C.
Because Williams established a prima facie case, the burden shifts to Marathon
to “demonstrate the availability of suitable alternative employment that the claimant is
capable of performing in the geographical area and that he or she could secure if he or
she diligently tried.” Washnock, 135 F.3d at 372. To meet this burden, Marathon must
offer sufficient evidence from which the ALJ could determine that there were jobs
available in Williams’ community that he could likely secure and realistically perform,
taking into consideration his functional capabilities, age, background, education, and
training. See Bunge, 227 F.3d at 941; Moore, 126 F.3d at 264; Louisiana Ins. Guar.
Ass’n v. Abbott, 40 F.3d 122, 127 (5th Cir. 1994).
The board did not err in affirming the ALJ’s determination that Marathon had
failed to carry its burden of identifying “suitable alternative employment” that Williams
is capable of performing. We conclude that the decision by the board is supported by
substantial evidence. Marathon’s vocational expert Julie Hathaway identified twenty
jobs in two separate reports that she believed Williams could perform. However, she
failed to consider Dr. Goodwin’s work restrictions when drafting her report, which the
ALJ determined were controlling. For example, Hathaway included a number of
sedentary and light duty jobs in her report, but provided no information as to whether
those jobs complied with Dr. Goodwin’s restrictions, specifically the prohibition on
overhead lifting. Instead, the jobs she identified are based on Dr. Best’s opinion of
Williams’ abilities, which the ALJ afforded little weight. If—as is the case here—an
employer’s vocational expert does not identify jobs compatible with the claimant’s work
restrictions, the expert’s opinion cannot satisfy the employer’s burden of establishing
suitable alternative employment. Uglesich v. Stevedoring Servs. of America, 24 Ben.
Rev. Bd. Serv. 180 (1991). Put a different way, the jobs in Hathaway’s reports are truly
“mirages” as Williams suggests because they are based on functional limitations
contained in a discredited medical opinion and are not jobs that Williams can
“realistically perform.” New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,
1043 (5th Cir. 1981). The board therefore properly affirmed the ALJ’s finding that
No. 12-4377 Marathon Ashland Petroleum, et al. v. Williams, et al. Page 9
Marathon failed to rebut Williams’ prima facie case of disability. Accordingly, we deny
Marathon’s petition for review.
III.
Finally, Williams requests leave to file a motion for appellate attorney fees.
Pursuant to 33 U.S.C. § 928(a), a Longshore Act claimant who utilizes the services of
an attorney and successfully prosecutes a disputed liability claim for benefits is entitled
to an award of attorney fees for work done on appeal from the board. See 33 U.S.C.
§ 928(a) (“If the employer . . . declines to pay any compensation on . . . a claim . . . on
the ground that there is no liability . . . and the person seeking benefits shall thereafter
have utilized the services of an attorney at law in the successful prosecution of his claim,
there shall be awarded . . . a reasonable attorney’s fee against the employer . . . in an
amount approved by the . . . court . . . which shall be paid directly by the employer . . .
to the attorney for the claimant in a lump sum after the compensation order becomes
final.”); 20 C.F.R. § 702.132 (“Any person seeking a fee for services performed on
behalf of a claimant with respect to claims filed under the [Longshore] Act shall make
application therefor to the . . . court . . . before whom the services were performed[.]”);
see also Ford Aerospace & Commc’ns Corp. v. Boling, 684 F.2d 640, 643 (9th Cir.
1982) (court of appeals has authority to grant attorney fees for work done on appeal from
the board, but no authority to grant fees for work at the administrative level).
We grant the request by Williams to file a motion for appellate attorney fees.
Williams may file within 21 days of the date of this opinion a motion for attorney fees,
supported by an affidavit of counsel. Marathon may respond within 14 days thereafter.
We retain further jurisdiction regarding the award of attorney’s fees.
IV.
For these reasons, we deny the petition and grant respondent Williams leave to
file a motion for attorney fees under 33 U.S.C. § 928(a).