Appendix — Darby v. Ingalls Shipbuilding, Inc.
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“Supreme Court, U.S.
(z) FILED
99 1029 OCT 1 11999
No. i |
In the
Supreme Court of the Anited States
OCTOBER TERM, 1999
RENE M. DARBY,
and
DIRECTOR,
OFFICE WORKERS’ COMPENSATION PROGRAMS,
Petitioner,
VS.
INGALLS SHIPBUILDING, INC.
Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
BLEWETT W. THOMAS
PO Box 542237
Houston, Texas 77254
(713) 942-8771
Counsel for Petitioner,
Rene M. Darby
Riverside Printing, LL.C., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000
S| ep?
APPENDIX INDEX
APPENDIX A
Order Denying Claimant's Fee Petition
Fifth Circuit Court of Appeals
Cause No. 96-60029, dated June 11, 1999............cccceceee A-l
APPENDIX B
Order Denying Motion for Reconsideration
Fifth Circuit Court of Appeals
Cause No.96-60029, dated July 13, 1999.........
APPENDIX C
Order Denying Leave to File
Petition for en banc Consideration
Fifth Circuit Court of Appeals
Cause No.96-60029, dated August 19, 1999....
APPENDIX D
Order Denying Leave to File
Rebuttal to Respondent’s Reply to Petitioner's
Response to Respondent’s Motion to Dismiss
Cause No. 99-60567, dated December 2, 1999
APPENDIX E
Opinion and Order of Fifth Circuit Court of Appeals
Cause No.96-60029, dated November 13, 1996............ A-6
APPENDIX F
Decision and Order Awarding Compensation Benefits
Off ice of Administrative Law Judges
Case Nos. 91-LHC-0049/97-LHC-1556
OWCP Nos. 6-110624/6- 145508,
dated April 15, 1999..........scssessessssersessessesees
(Index continued)
APPENDIX G
Order Denying Motion for Reconsideration
Off ice of Administrative Law Judges
Case Nos. 91-LHC-0049/97-LHC-1556
OWCP Nos. 6-110624/6-145508,
dated June 25, 199B...cccccccccccccscssccosscccccsssosesesceecesssorcoeres A-63
APPENDIX H
Order Denying Fee Petition
Benefits Review Board
Cause No. BRB 92-1547, dated August 20, 1999......... A-68
APPENDIX I
Employer's Opposition to Modification Office of
District Director OWCP No. 6-110624,
dated October 13, 1999..........ssccscscceeseseeseeesssseseecessrees
APPENDIX J
Longshore and Harbor Workers' Compensation Act,
Section 8(f)(1) 33 US.C. § 9O8(E)(1)......---eseeseeeesseeeees A-75
APPENDIX K
Longshore and Harbor Workers’ Compensation Act,
Section 22 33 U.S.C. § 922.....cccccccsscccessscosescesecccessesceees
APPENDIX L
Longshore and Harbor Workers’ Compensation Act,
Section 28(a) 33 U.S.C. § 928(€)......-sccesceceeeeeessereeeee
RON EAIMI ME we oo
SOR E9 74 MP AANE EAB CPA ROLE ISIE PII ON TT NR OLD ERE TAD eR ORE EE Et aE TS
A-l
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60029
Filed June 11 1999
RENE M DARBY; DIRECTOR, OFFICE OF WORKER'S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF
LABOR
Petitioners
INGALLS SHIPBUILDING, INC., Self -Insured Employer
Respondent
Petition for Review of an Order of the
Benefits Review Board
Before SMITH, DUHE, and BARKSDALE, Circuit Judges
BY THE COURT:
IT IS ORDERED that the motion of petitioner for award of
attorney's fees is DENIED.
IT IS FURTHER ORDERED that the motion of respondent
for leave to file a response to the petitioner's reply to the
motion for award of attorney’s fees, is GRANTED.
A-2
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60029
Filed Jul 13 1999
RENE M DARBY; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U S DEPARTMENT OF
LABOR
Petitioners
Vv
INGALLS SHIPBUILDING-INC, Self-Insured Employer
Respondent
Petition for Review of an Order of the
Benefits Review Board
Before SMITH, DUHE and BARKSDALE, Circuit Judges.
BY THE COURT:
IT IS ORDERED that petitioner’s motion for
reconsideration of this court’s order of June 11, 1999, is
DENIED.
A-3
APPENDIX C
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60029
Filed Aug 19 1999
RENE M DARBY; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U S DEPARTMENT OF
LABOR
Petitioners
V.
INGALLS SHIPBUILDING INC, Self-Insured Employer
Respondent
Petition for Review of an order of the
Benefits Review Board
ORDER:
IT IS ORDERED that the motion of petitioner, Rene
M. Darby, for leave to file petition for en banc consideration
of the court’s order of July 13, 1999, is DENIED.
/S/ Jerry E. Smith
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE
A-4
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60567
RENE M. DARBY
Petitioner
VS.
INGALLS SHIPBUILDING, INC; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, US
DEPARTMENT OF LABOR
Respondents
Petition for Review of an Order of the
Benefits Review Board
Before SMITH, BARKSDALE and PARKER, Circuit
Judges
BY THE COURT:
A-5
IT IS ORDERED that the motion of the petitioner for
leave to file a rebuttal to the respondent’s reply to petition-
er’s response to respondent’s motion to dismiss the petition
for review as frivolous is DENIED AS MOOT.
IT IS FURTHER ORDERED that the motion of the
respondent Ingalls Shipbuilding Inc. to dismiss the petition
for review as frivolous is GRANTED.
FILED: December 2, 1999
A-6
APPENDIX E
DARBY V. INGALLS SHIPBUILDING, INC.
Cite as 99 F.3d 685 (Sth Cir. 1996)
Rene M. DARBY and Office of Worker’s
Compensation Programs, United States
Department of Labor, Petitioners,
Vv.
INGALLS SHIPBUILDING, INC., a Self-
Insured Employer, Respondent.
No. 96-60029
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Nov. 13, 1996.
Following injured worker’s return to employment, he
sought permanent total disability compensation under the
Longshore and Harbor Worker’s Compensation Act
(LHWCA), alleging that post-injury position to which he
was assigned by employer did not constitute suitable alter-
native employment, and that he was entitled to additional
medical benefits. Administrative law judge (ALJ) awarded
claimant various additional medical and compensation ben-
efits, but found that modified joiner position to which
claimant was assigned after his return was suitable alterna-
tive employment. The Benefits Review Board affirmed
A-7
ALJ's order, and claimant petitioned for review. The Court
of Appeals, Jerry E. Smith, Circuit Judge, held that: (1)
employer’s offer of suitable job within partially disabled
claimant’s current place of work was sufficient to discharge
its burden of establishing suitable employment, and employ-
er was not required to prove that job was realistically and
regularly available to claimant on the open job market: (2)
substantial evidence supported Board’s conclusion that
employment of claimant in modified joiner position was suf-
ficient to discharge employer’s burden under the LHWCA of
showing availability of suitable employment; (3) claimant
did not establish that modified joiner position was improper
on ground it constituted “sheltered employment”; and (4)
failure of ALJ to make finding that claimant’s actual post-
injury earnings fairly and reasonably represented his wage-
earning capacity required remand for finding.
Petition granted; affirmed in part; vacated and remand-
ed in part.
Blewett William Thomas, Gulfport, MS, for Darby.
Mark Ambrose Reinhalter, Office of the Solicitor of
Labor, Washington, DC, Thomas O. Shepherd, Jr., Clerk,
Benefits Review board, Washington, DC, Carol DeDeo,
Assoc. Solicitor, United States Department of Labor, Dir.,
Office of Workers Comp. Programs, Washington, DC, for
Director, Office of Worker’s compensation Programs, U.S.
Department of Labor, petitioner.
Paul B. Howell, Richard P. Salloum, Franke, Rainey &
Salloum, Gulfport, MS for respondent.
A-8
Petition for Review of an Order of the Benefits Review
Board.
Before SMITH, DUHE’ and BARKSDALE, Circuit
Judges.
JERRY E. SMITH, Circuit Judge:
Rene Darby petitions for review of a decision of the
Benefits Review Board (“BRB”) affirming an order by an
administrative law judge (“ALJ”) consisting of a Decision
and Order Awarding Additional Benefits, all pursuant to the
Longshore and Harbor Workers’ Compensation Act (the
“Act”), as amended, 33 U.S.C. § 901 et seq. We grant the
petition in part and vacate and remand in part.
I.
Darby was employed by Ingalls Shipbuilding, Inc.
(“Ingalls”), as a joiner and. during the course of this employ-
ment, was Injured when he slipped and fell down a flight of
stairs. He underwent medical treatment for the sustained
injuries, during which time Ingalls paid temporary total dis-
ability benefits. Darby returned to work nine months later in
the same position and transferred to a different department
for a short period of time before returning to the joiner
department and later being laid off because of a lack of
work.
In October 1990, nearly three years after his accident,
Darby returned to Ingalls as a joiner. Because of his phys-
ical limitations. however, he was assigned to a modified
joiner position with restrictions on his responsibilities to lift
and push heavy objects. Darby was instructed by his super-
A-9
visor that he was to work within the scope of his restrictions
but that he could exercise his own judgment where appro-
priate. Darby worked without incident in this new capacity
for approximately one year.
Following his return, Darby sought permanent total dis-
ability compensation under the Act, alleging that his post-
injury position at Ingalls did not constitute suitable alterna-
tive employment (§ 908(a)) and that he was entitled to addi-
tional medical benefits (§ 914(e)). After administrative pro-
cedures failed to resolve the parties’ differences, an ALJ held
a formal hearing on October 2, 1991, and awarded Darby
various additional medical and compensation benefits. Of
particular consequence to this appeal, however, is the ALJ’s
finding that Darby’s modified ‘Joiner position was suitable
alternative employment.
II.
[1] We review BRB decisions for errors of law and
adhere to the substantial evidence standard that governs the
BRB’s review of the ALJs factual determinations. See
Odarn Constr. Co. v. United States Dept of Labor, 622 F.2d
110, 115 (Sth Cir.1980), cert. denied, 450 U.S. 966, 101
S.CT. 1482, 67 L.Ed_2d 614 (1981). Thus, we must affirm
BRB decisions that conclude correctly that the ALJ’s find-
ings are supported by substantial evidence and are in accor-
dance with the law. See O’Keefe v. Smith, Hinchman &
Grylls Assoc., Inc., 380 U.S. 359. 362--63, 85 S.Ct. 1012,
1014-15, 13 L.Ed.2d 8915 (1965).
A.
[2] Darby first argues that the BRB erred in relying upon
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the modified joiner position to establish the availability of
suitable alternate employment, According to Darby, an
employer should be required to prove that a job offered as
suitable alternative employment is realistically and regular-
ly available to the claimant on the open job market. In so
suggesting, Darby reads our decision in P & M Crane Co. v.
Hayes, 930 F.2d 424, 430 (Sth Cir.1991), (i) to permit a sin-
gle job offer to discharge the employer's burden only where
the claimant is highly skilled and seeking specialized
employment in an area where the number of suitable appli-
cants is small and (ii) to require a demonstration of avail-
ability on the open job market where the claimant, as in the
instant case, is less skilled.”
We need not decide whether P & M Crane should be so
construed, as it is inapposite to the instant case. P & M
Crane dealt with claimants who alleged permanent and total
disabilities and whose employers proffered allegedly suit-
able jobs external to their current place of work, whereas
Darby suffers from a partial disability only and was offered
a new job within his current place of work. See id. at 427.
The BRB has opined, with respect to partial disability cases,
that an employer's offer of a suitable job within the partial-
ly disabled claimant's current place of work is sufficient to
discharge its burden of esiablishing suitable employment,
the employer need not show that the claimant can eam
wages in
1. Darby notes correctly that Diosdado v. John Bludworth Marine, No.
93-05422, 37 F.3d 629 (Sth Cir. Sept. 19, 1994) (unpublished), hinted at
such an interpretation of P & M Crane. but Diosdado is factually distinct
From the instant case. In Diosdado, the claimant was offered a single job
external to his current employer, and the employer had failed to demon-
strate that the claimant had any reasonable likelihood of obtaining that
job. Absent such a showing by the employer, we were not convinced that
the employer has discharged his burden adequately.
A-ll
in the open market. See Darden V. Newport News
Shipbuilding & Dry Dock Co., 18 BRBS 224, 226 (1986).
(3] P & M Crane did not disturb, and, in fact, cited
approvingly the Darden holding. See P & M Crane, 930 F.2d
at 430. Hence, we find no error in the BRB’s conclusion that
Ingalls’s employment of Darby in the modified joiner posi-
tion was sufficient to discharge its burden of showing avail-
ability of suitable employment.
Properly characterized, Darby’s challenge to the modi-
fied joiner position thus becomes one of the suitability of the
position with respect to his physical constraints. In support
of its finding of suitability, the BRB noted that Darby had
been granted wide latitude by Ingalls to determine his phys-
ical capabilities and to perform his duties in connection with
such determinations and that Darby had been instructed to
report any conflicts between an assigned job task and his
work restrictions to his supervisor. See Rene W. Darby v.
Ingalls Shipbuilding, Inc. No. 91-LHCA-0049 (Dep’t Labor
1992), at 3. The BRB also found sufficient evidence that, to
the extent Darby was in fact performing work in excess of
his physical limits as suggested by his physicians, he was
doing so on his own accord. Id. Finally, the BRB was influ-
enced by Darby’s satisfactory performance of his modified
job responsibilities for approximately one year prior to the
hearing and the juxtaposition of his complaints in close
proximity with the ALJ hearing. Id.
The record reveals that the BRB’s review of the ALJ’s
factual findings ‘is supported by substantial evidence, and
we decline to disturb any credibility inferences. See
Mendoza v. Marine Personnel Co., 46 F.3d 498, W (Sth Cir-
1995) (noting that “[t]he ALJ is the factfinder and is entitled
A-12
to consider all credibility inferences.’ The ALJs selection
among inferences is conclusive if supported by the evidence
and the law. The ALJ determines the weight to be accorded
to evidence and makes credibility determinations.”) (cita-
tions omitted).
B.
[4] Darby next argues that the modified joiner position is
improper because it constitutes “sheltered employment.”
Darby points us to the cross-examination testimony of Carl
Robinson, Darby’s immediate Supervisor, in which
Robinson answered in the negative Darby’s question
whether, if Darby were to leave, he would “advertise the
position as a light duty joiner to be filled.” Darby so inter-
prets Robinson’s answer to mean that, were Darby to leave,
the position would not be filled at all and urges us to mar-
shal this “compelling evidence” toward the conclusion that
“the Employer created this position for the sole and express
purpose of escaping liability to the Claimant for his neck and
back injuries.”
Not only is Darby’s interpretation of Robinson’s answer
questionable, but the remaining eight pages of Robinson’s
testimony on cross-examination undermines Darby’s ulti-
mate conclusion. First, Darby’s question of Robinson asked
only whether, if Darby were to leave, Robinson would
advertise Darby’s position as a “light duty joiner,” not
whether Robinson would hire an employee to complete the
duties formerly executed by Darby. Robinson’s manner of
advertising a vacant position does nothing to support
Darby’s sheltered employment claim. Furthermore,
Robinson’s remaining testimony makes apparent the
ES on a Ri ead al
RE cL vt we oe
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frequency with which joiners work under various restric-
tions. That the joiner work was tailored to Darby’s physi-
cal limitations is insufficient to support Darby’s contention
that the position was sheltered. See Darden,18 BRBS at 226.
Rather, we find substantial evidence to Support the BRB’s
review of the ALJs finding that Darby’s position was part of
the regular work performed by his department.
.
[5,6] Finally, Darby asserts that the ALJ failed to make a
finding under 33 U.S.C. § 908(h) that Darby’s actual post-
injury earnings “fairly and reasonably represent his wage-
earning capacity.” Under 33 U.S.C. § 908(c)(21), an award
for permanent partial disability is based upon the difference
between claimant’s pre-injury average weekly wage and his
post-injury wage earning capacity. The ALJ is permitted to
approximate a claimant’s Wwage-earning capacity by using
his post-injury actual wages, but only if such actual earnings
fairly and reasonably represent his wage-earning capacity.
See Develier v. National Steel & Shipbuilding Co.. 10 BRBS
649, 660 (1979). Although the BRB said that the ALJ found
that Darby’s post-injury earnings were representative of his
wage-earning capacity, see Darby at 5, we find no such
determination in the ALJ's decision. Accordingly, we vacate
and remand for a finding consistent with § 908(h).
The petition for review is GRANTED, and the decision
of the BRB is AFFIRMED in part and VACATED and
REMANDED in part.
2. Robinson noted: “That happens all the time, though you know, like
you have guys that come in, they have a restriction, you know, I done
seen that before.”
A-14
APPENDIX F
U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
In the Matter of
RENE DARBY,
Claimant,
against
INGALLS SHIPBUILDING,
INC.,
Self-Insured Employer.
ee ee ee ee ee ee ee ee”
APPEARANCES:
BLEWETT THOMAS, ESQ.
Post Office Box 12484
San Antonio, Texas 78212
On Behalf of the Claimant
PAUL B. HOWELL, ESQ.
Franke, Rainey & Salloum, P.L.L.C.
2605 14th Street
Gulfport, Mississippi 39501
On Behalf of the Employer
BEFORE: RICHARD D. MILLS
Administrative Law Judge
Case Nos..
91-LHC49
97-LHC-1556
OWCP Nos. 06-110624
06-145508
ana eka So ae,
I NGI aac a
A-15
DECISION AND ORDER AWARDING
COMPENSATION BENEFIT’S
This is a claim for compensation benefits under the
Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. Section 901 et. seq., (hereinafter called “the Act”)
and the governing regulations thereunder. This claim was
filed by Rene Darby (“Claimant’’’) against Ingalls
Shipbuilding Incorporated “Employer”’). The present claim
consists of two OWCP claims. The first and original claim
arises out of a 1987 injury suffered in the course of employ-
ment with Employer. The original claim was tried before an
Administrative Law Judge (ALJ) in 1991. The Decision and
Order in that case granted Claimant partial relief but denied
permanent total disability. The denial of permanent total dis-
ability was appealed to both the Benefits Review Board and
the Fifth Circuit Court of Appeals. The original claim is
again before the Office of Administrative Law Judges pur-
suant to the Order entered by the Fifth Circuit on November
13, 1996, in which it was found that the previous ALJ had
failed to make a specific determination as to Claimants post-
injury wage earning capacity. The second claim arises out of
a May 8, 1992 injury which Claimant suffered while work-
ing at Employer’s facility after his return to a modified work
position.
The issues raised by the parties could not be resolved
administratively and the matter was referred to the Office of
Administrative Law Judges for resolution. Pursuant thereto
a formal hearing was held on Tuesday, December 9, 1997, in
Gulfport, Mississippi. All parties were afforded a full oppor-
tunity to adduce testimony, offer evidence and submit post
hearing briefs.
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Post-hearing briefs were received from both parties.
Based upon the stipulations of Counsel, the evidence pre-
sented, and my observations of the demeanor of the wit-
nesses, I make the following findings of fact, conclusions of
law and order.
STIPULATIONS
The Parties have stipulated as follows:
(1) Jurisdiction is not a contested issue as Claimant was
employed
as a joiner in the construction of naval vessels;
(2) The date(s) of injury/accident are September 24,
1987 and May
8. 1992;
(3) The injuries were in the course and scope of employ-
ment;
(4) There was an Employer/Employee relationship at the
time of
accident;
(5) Employer was advised of the injuries on 9/24/87 and
5/8/92;
(6) Notices of Controversion were filed on 7/11/88 and
9/8/92;
(7) No informal conference was held;
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(8) The average weekly wages at the respective times of
injury were $411.20 (9/24/87) and $412.51 (5/8/92);
(9) Medical Benefits have been paid;
(10) Dates of maximum medical improvement are
10/29/90 and 12/14/95;
(11) Benefits paid:
(a) Injury of 9/24/87
TTD: 4/7/89 through 10/28/90 at $274.13 per
week;
PPD: 15% to arm for 46.8 weeks at $274.13
per week;
(b) injury of 5/8/92 TTD: 5/12/92 through 10/2/92 at
$275.01
2/22/95 through 1/23/96 at $275.01 8/6/96
through 8/4/97 at $275.01.
ISSUES
The following issues are in dispute:
(1) Nature and extent of disability, if any;
(2) Whether Claimant’s post injury wage in 1990 fairly
and reasonably represented his wage earning capacity fol-
lowing the 1987 injury;
(3) Employer’s entitlement to Section 8(f) relief,
(4) Separation of claims;
(5) Attorney’s fees;
(6) Sanctions;
FACTS
Background of Prior Claim
On July 17, 1987, Claimant was hired by Employer as a
joiner. While working in that capacity Claimant slipped and
fell down some stairs, injuring his elbow and his neck.
Claimant was treated by Drs. Warfield, Bishop, Ross,
Buckley, Bazzone, Bridges, and Danielson for the effects of
his injuries. His treatment included ulnar nerve surgery on
his left elbow by Dr. Bishop and repeat left elbow surgery by
Dr. Bazzone. Claimant also had an anterior cervical diskec-
tomy and fusion at C4-5 and C5-6 performed by Dr.
Bazzone. Claimant was assigned a 15% permanent partial
disability to the arm as a result of the elbow condition,
and a 10% anatomical impairment due to the cervical condi
tion. Claimant was seen by Dr. William Bridges for an’ inde-
pendent medical evaluation at the request of the Department
of Labor. Dr. Bridges concluded that Claimant reached-
maximum medical improvement on August 13, 1990, and
was restricted from lifting over 30 pounds, performing over-
head work for extended periods of time, and from work
requiring constant head and neck motion. (EX-27).
During 1990, Claimant continued to complain of numb-
ness in the fingers of his left hand, as well as complaints of
back, neck, and upper extremity pain. Claimant sought treat-
ment from Dr. Harry Danielson. Dr. Danielson found that
Claimant’s reflexes in the upper extremities to be abnormal,
which led him to believe that Claimant might have a disk
Soi ge P:
So eR SN
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problem at C6-C7. A subsequent MRI performed on
Claimant’s thoracic spine on July 25, 1990 led to the diag-
nosis by Dr. Danielson that Claimant was suffering from a
bulging disk at T6-T7. (EX-27). In his deposition, Dr.
Danielson drew a causal relationship between Claimant’s
thoracic back condition and his September 24, 1987 injury.
Dr. Danielson believed that Claimant’s thoracic spine condi-
tion could be treated conservatively and that surgery was not
necessary. Moreover, he though that Claimant could remain
in his light duty job. He stated that occasional extension and
overhead work would be permissible, provided it was not
repetitive activity performed all day. As of September 23,
1991, Dr. Danielson assigned a 20-25 percent permanent
partial impairment to Claimant’s left arm and a 10-15 per-
cent permanent partial impairment to the whole person rela-
tive to the two levels in Claimant’s back that were fused.
Finally, he assigned a 5 percent permanent partial impair-
ment to the whole person for Claimant’s thoracic spine con-
dition. Dr. Danielson also admitted that there was a possi-
bility that Claimant’s thoracic spine could degenerate fur-
ther. (EX-27, pp. 8-9).
A functional capacities evaluation was performed in
1990 by Ms. Joan Sapp. The evaluation determined that
Claimant was only able to perform light duty work. Ms.
Sapp stated that Claimant could lift up to 20 pounds from the
floor to his waist, up to 15 pounds from his waist to his
shoulder, he could push/pull up to 50 pounds and he could
carry 30 pounds. Ms. Sapp noted that Claimant showed
good ability to squat, walk and climb stairs. Ms. Sapp
opined that Claimant’s maximum weight Capacities were not
compatible with the Department of Transportation’s defini-
tion of joiner work, which it classified as medium level
work. Specifically, medium level work requires the
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ability to lift SO pounds occasionally and 25 pounds fre-
quently. Ms. Sapp also noted that Claimant should be
restricted to crawling only 30 feet at one time, he should
limit his overhead work, and he should be permitted to alter-
nate positions frequently. Ms. Sapp concluded that she did
not believe that Claimant could return to his former job as a
joiner. (EX-27).
At the original hearing of October 2, 1991, Claimant
stated that he was currently working the same number of
hours as he had before he was injured. Claimant also stated
that he was earning more money ($12.28 per hour) than he
had been before his injury ($10.28 per hour). Claimant also
acknowledged that he had good attendance and had not
received any disciplinary notices for poor work since return-
ing to work on October 29, 1990. (EX-27, p. 11).
Claimant returned to work with Employer in a modified
joiner position on October 29, 1990. Claimant was instruct-
ed not to perform activities outside of his limitations. Mr.
Carl Robinson, Claimant’s supervisor at that time, testified
at the original hearing. Mr. Robinson stated that he was
shown Claimant’s restrictions on his return to work although
the only limitation he saw regarded the lifting restriction.
Mr. Robinson stated that he learned of the overhead work
restriction from Mr. Joe Walker, a vocational rehabilitation
counselor. Mr. Robinson testified that he told Claimant that
he would place him in the field working with the rest of the
crew, but within the scope of his restrictions. Claimant stat-
ed that although Mr. Robinson was aware of his restrictions,
he still received assignments which required activity above
those limitations. Mr. Robinson stated that he and Claimant
had a positive working relationship and that he had no com-
plaints about the quantity or quality of Claimant’ work. Mr.
ri
4
4
!
CPi RD dS
MAROON MR ONE PIN
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Robinson believed that he had suitable work for which
Claimant was capable of performing. (EX-27, pp. 11-12).
Mr. Joseph Walker, a vocational rehabilitation counselor,
provided an assessment of Claimant’s employment opportu-
nities and capabilities. Mr. Walker met with Claimant on
November 6, 1990. Mr. Walker reviewed the medical
records of Dr. Bridges and Dr. Danielson, as well as
Claimant’s functional capacities evaluation. Based on
Claimant’s age, education, vocational background and med-
ical limitations, Mr. Walker believed that Claimant could
continue working as a Joiner in the modified Capacity
arranged for by Employer. Mr. Walker was also retained by
the Department of Labor, as part of its OWCP Rehabilitation
Division, to monitor Claimant’s progress in Employer’s
return-to-work program. Mr. Walker informed the
Department of Labor that Employer had identified suitable
work activity for Claimant for his return to work withing his
old department and within his craft, albeit in a modified
Capacity.
Background of Present Claim
Claimant is currently 33 years old, married, and has four
children. Claimant stated that he had done some woodwork-
ing in high school and before his employment with employ-
er he had worked for Redman Homes for approximately
three and a half years. (Tr. pp. 62-63). During his employ-
ment with Redman Homes, Claimant did finishing work and
plumbing inspections. (Tr. p. 63).
Claimant stated that when he returned to work for
Employer in 1990 he was working as a “joiner,” which was
a position in which he would construct interior walls, bulk
A-22
storage areas, and curtain plate. Claimant worked in that
capacity for approximately two years. Claimant stated that
he was re-injured in May of 1992 while working in a capac-
ity similar to that of a joiner. Claimant stated that he was
doing the work of a tack welder in the hull. At that time,
Claimant had restrictions of limited use of his left arm, no
lifting over 30 pounds, and no overhead work. (Tr. p. 65).
Prior to 1992, Claimant stated that he only exceeded these
restrictions one time, when he was working with Carl
Robinson installing curtain plating. (Tr. p. 66).
On May 8, 1992, Claimant stated that he was pulling a
welding line through a ship when he was caused to twist
suddenly, which created a burning sensation through his
head and neck and all through his arm. Claimant recalls
falling to his knees and informing Mr. Richard Gibson that
he had been injured. Claimant was taken to the infirmary at
Employer’s facility and then pulled out of work pending an
appointment with Dr. Danielson. (Tr. p. 68). Claimant testi-
fied that he went to see Dr. Danielson, who prescribed ther-
apy. Claimant recalls undergoing the rehabilitation therapy
and then being released to return to work. Claimant returned
to work in October of 1992 and was employed installing
bunks on a ship. (Tr. p. 70). Claimant stated that the work of
installing bunks included the drilling the pop rivets, which
aggravated his arm. Claimant stated that even though this
aggravated his previous injury, he stayed with it and as a
result, never had a problem with supervisors or never got in
trouble for missing work. Claimant was under the impres-
sion that he would have pain for the rest of his life and need-
ed to find ways to cope with it. (Tr. p. 70).
Claimant stated that he was chosen as a leadman for a
different project. According to Claimant, Mr. Vince Moran
3
f
'
;
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A-23
chose him as a leadman partly because he knew that
Claimant’s arm and hand were bothering him and he would
not have to do as much manual work. (Tr. pp. 71-72).
Claimant testified that he worked through to the end of this
project but his arm was starting to hurt and his hand would
become numb to where he had difficulty holding on to a cof-
fee cup. (Tr. p. 72). Claimant eventually went to see Dr.
Danielson again on February 7, 1995, who scheduled him
for an MRI. Claimant underwent the MRI and when the
results came back in, Dr. Danielson again pulled him from
work and scheduled Claimant for a myelogram. According
to Claimant, Dr. Danielson recommended surgery. Claimant
stated that he went to Dr. Smith for a second opinion and Dr.
Smith concurred wiih Dr. Danielson on the need for surgery.
Claimant stated that he went ahead and had the surgery and
when he was done with the healing process, he returned to
work, which was in January of 1996. (Tr. p. 74).
Claimant stated that he was returned to work doing lay-
out work behind the pin shooter. Claimant stated that this job
required him to climb over beams to mark things. Claimant
stated that he could not physically handle this job and whet
to Mr. Bill Thompson, the foreman of the insulation crew
and told him so. Claimant also stated that he had an allergic
reaction to the insulation for which he was sent to a derma-
tologist to have checked. Claimant alleges that Employer
has never paid the bill for the visit to the dermatologist. (Tr.
p. 119). After attempting the insulation job, Claimant stated
that he was then sent to “roll tape.” Claimant stated that he
proceeded to do this job for approximately seven months,
when it began to aggravate his condition, at which time he
mentioned it to his supervisors. (Tr. pp. 76, 121). After men-
tioning it three times, Claimant was sent to Employer’s infir-
mary and from there was sent to Dr. Danielson who again
A-24
pulled Claimant from work. (Tr. p. 76). Claimant stated that
he underwent nerve conduction studies with Dr. Lew who
gave him injections. Claimant then returned to Dr
Danielson after obtaining minimal relief with the injections.
According to Claimant, he was told by Dr. Danielson that
there was nothing more that could be done and he should
Stay out of the shipyard. (Tr. p. 77).
According to Claimant, he left the shipyard but was later
contacted by Ms. Melinda Wiley who told Claimant that
there were jobs available to him at Employer's facility.
Claimant stated that he was told that there was a job avail-
able pulling tape. Claimant stated that he took Dr. Danielson
to the facility to show him the tape pulling job and Dr.
Danielson concurred with Claimant that the job would
aggravate his injury. Claimant testified that after that he did
not return to Employer's facility and his benefits were cut
off. (Tr. pp. 77-78). Regarding the tape roller job, Claimant
stated that the reason the job aggravates his condition is
because of the constant pressure from pulling the tape up to
the head area. (Tr. p. 97).
Regarding a surveillance tape taken of him during a
Mardi Gras parade where he was throwing beads from a
float, Claimant admitted that he was riding on the float and
throwing beads but he also stated that he only had to reach
and grasp beads that were hanging on hooks directly in front
of him and that he did not throw the beads on a repetitive
basis. Claimant stated that during the second half of the
parade he started hurting and sat down. (Tr. pp. 105-106).
Claimant recalled that after deciding not to return to
work with Employer he was hired by a friend to be a ground
man for an antenna construction. Claimant stated that when
he took the job he understood that it was a one-time thing.
A-25
(Tr. p. 78). Claimant stated that he made approximately
$2300.00 on the job. (Tr. p. 79). Claimant testified that while
he was working that job, his niece and nephew moved into a
trailer home built by Grand Housing. Claimant was asked to
look at the mobile home and when he did, he found it was
not set up right. Claimant then contacted Grand Housing
about the problems and was, as a result of his in-depth
knowledge on the homes, was asked if he would “trim out’
houses for them. Claimant agreed and recruited a crew to do
the work. (Tr. p. 80).
Claimant stated that with his business, the crew does
most of the work and he does not work if he feels like he
cannot do it that day or if he feels tired, or if his back starts
to hurt. Claimant stated that he sees a chiropractor on a reg-
ular basis as that is what was recommended by Dr.
Danielson. According to Claimant, he has no intentions of
returning to Employer’s employ under any circumstances.
Claimant. stated that his wife would divorce him if he
returned. (Tr. p. 81).
Claimant stated that none of his expenses were reim-
bursed to him by Grand Housing. According to Claimant, he
pays himself $250.00 per week from the profits his business
earns. Claimant stated that any money that is left over after
he pays his employees and himself is reinvested back into
the company. Claimant testified that he has so far reinvested
$3,395.25 back into the company. Claimant stated that he
has bought air guns, generators, and air compressors. (Tr. pp.
131-132). Claimant stated that he will soon have additional
expenditures in the form of liability insurance, medical cov-
erage, additional taxes, and the hiring of an accountant. (Tr.
pp. 110- 111).
A-26
Claimant reviewed a listing of jobs sent to him by Mr.
Walker on September 30, 1997. (Tr. p. 85) Claimant stated
that the job of “task activity layout work” involved laying
out pins that are shot into the walls and ceiling. Claimant
testified that he did this job before he started rolling tape and
the job involved climbing over various things, which
Claimant found that he could not do. (Tr. p. 86). The second
job sent to Claimant was that of “bulkhead insulator.”
Claimant stated that this job was basically no different that
“layout” and entailed climbing over various beams and
equipment. The third position identified to Claimant was
“insulation runner” which entailed unloading a truck full
fireproof insulation and stacking them in the warehouse,
after which a worker would distribute the material through-
out the shipyard by putting six to twelve cases of insulation
on a buggy and puffing them throughout the shipyard.
Claimant stated that the cart he would be required to pull
was heavy and that the man who was doing the job when he
was there was under no restrictions. (Tr. pp. 87-88). The
fourth position identified was that of “insulation tape seam
applicator.” Claimant stated that the job required the worker
to bend constantly to get underneath beams. Claimant fur-
ther stated that the job also requires constant use of the
hands which he cannot do. (Tr. p. 89).
According to Claimant, he has problems using screw-
drivers and hand tools, which he attributes to the effects of
multiple neck surgeries on the nerves in his neck. Claimant
stated that both his hands will go numb. (Tr. pp. 89-90). The
fifth position identified was that of insulation panel cutter.
Claimant stated that the job entails cutting insulation panels
with a razor knife. Claimant stated that he could do this job,
but not on an everyday, all-day basis, as his hands go numb
and cramp when using tools. (Tr. p. 90). The sixth position
ee ee
A-27
identified was that of “DC board holder” installer. Claimant
stated that this is a job that is only done when a ship is being
finished and hence, it is not a job that is done every day
throughout the shipyard. Claimant also stated that the job
requires constant climbing of the stairs to every compart-
ment. (Tr. pp. 90-91). The seventh position is that of “furni-
ture refinisher’ in the trim shop. Claimant testified that this
job entails the constant use of drills and sanders. (Tr. p. 91).
Claimant testified that overall, there is no job in the ship-
yard that he can do on a eight-hour a day, 40 hour per week
basis, because there are days when he cannot work as his
hands are in significant pain and his neck is restrictively
stiff. (Tr. p. 123). Claimant stated that he will not go back to
work for Employer, but that he does not want to live off the
“system”’ either, so he will continue to run his own business
until there are no more homes to be sold or Grand Housing
goes out of business. (Tr. p. 125).
Claimant was also deposed on November 5, 1997.
During that deposition, Claimant explained his physical lim-
itations. Claimant stated that on occasion he can work or
stack overhead, but he cannot do it on a continual basis.
Claimant stated that he could not look up for a prolonged
period of time where he was bending his head back.
Claimant stated that he can do some ladder climbing but he
could not work on a ladder for an extended period of time.
Claimant felt that he could do some activities where it
required bending, as long as that bending was not constant.
Claimant stated that he could often stoop or squat, but not
constantly. Claimant stated that he is able to sit for medium
periods of time and could stand for long periods of time.
(EX-56, pp. 66-67).
A-28
Regarding his new company, Claimant stated that, on
average, he makes about $250.00 per week. However,
Claimant stated that the amount of work every week win
vary, so some weeks he will make more than $250.00, and
other weeks he will make less. (EX-56, p. 59).
Ms. Barbara Melinda Wiley testified in this matter. Ms.
Wiley has worked for Employer for approximately 24 years.
Presently, Ms. Wiley woks as the Employee Relations
Representative and her duties include assisting people that
have been injured at work to get back to work. (Tr. p. 152).
Ms. Wiley stated that Claimant, should he return to work,
would be accommodated to the best of her ability within the
restrictions that his doctor has outlined for him. Ms. Wiley
stated that Claimant would be returned to the same classifi-
cation that he had when he left and Claimant would receive
the same hourly rate or greater than when he had left. (Tr. p.
155). Regarding the jobs sent to Claimant that would be
available should Claimant return to work for Employer, Ms.
Wiley stated that those jobs were more complicated than the
tape-rolling job but were not necessarily more difficult. Ms.
Wiley stated that she was aware that Dr. Danielson rejected
the tape-rolfing job due to its repetitive nature. (Tr. p. 159).
Ms. Wiley stated that Claimant, at the time of the report set-
ting forth the available positions, did not meet the criteria to
be returned to work as a work leaderman. (Tr. p. 159). Ms.
Wiley stated that after August 4, 1997, Claimant was sent a
letter asking him to report for an interview. Ms. Wiley stat-
ed that Claimant did not report for the interview. (Tr. pp.
165-166). Ms. Wiley stated that Employer continues to have
work available for Claimant. (Tr. p. 171).
Mr. Joseph Walker testified in this matter. Mr. Walker is
a certified vocational rehabilitation counselor as well as a
Se ee
A-29
certified rehabilitation counselor with the Department of
Labor and a contract vocational expert with the Office of
Hearing and Appeals of the Social Security Administration.
Mr. Walker stated that he was aware of the types of work
that would be offered Claimant as well as the restrictions
that would be applicable. (Tr. pp. 173-175). Mr. Walker stat-
ed that, regarding Claimant’s alleged allergies to the fiber-
glass insulation, the insulation now being used is known as
polymide insulation that should not affect Claimant. (Tr. p.
177). Mr. Walker opined that Employer did have suitable
alternative jobs availabie for Claimant within the
joiner/insulator department. (Tr. pp. 178, 181). Mr. Walker
also stated that the jobs identified would be modified to
allow Claimant to perform within his restrictions from a
safety standpoint. (Tr. p. 180). Mr. Walker clarified that the
jobs identified were modified tasks or functions within the
context of the joiner/insulator position and were not specif-
ic and permanent jobs. (Tr. p. 18 1). Rather, they were tasks
that a person may be assigned to perform one week and then
that person may be assigned an alternative task the next
week. (Tr. p. 182).
Dr. Harry A. Danielson was deposed on November 3,
1997. Dr. Danielson had previously been deposed regarding
the prior claim on September 21, 1991. Dr. Danielson stated
that on December 14, 1995, Claimant had reached maxi-
mum medical improvement from his cervical fusion. At that
time, Dr. Danielson opined that Claimant was vulnerable to
repeat injury and should be employed in a light-duty super-
visory capacity. Dr. Danielson opined that shipwork was not
suitable for Claimant because the working conditions were
such that a person was always subject to bumping his head
and overhead working was not in Claimant’s best interests.
(EX-43, p. 9).
A-30
Regarding Claimant’s employment as a tape roller, Dr.
Danielson stated that he viewed a video of the task and, at
that time, understood why Claimant became symptomatic
from engaging in that activity. Dr. Danielson stated that
Claimant could not do that particular job as the activity it
entailed aggravated his symptoms. Dr. Danielson stated that
the constant repetitive motion caused Claimant strain in the
thoracic outlet of his neck. (EX43, p. 11).
Dr. Danielson stated that, regarding post cervical fusion
pain from a three level cervical fusion, the amount of pain
varies with the patient and the amount of repetitive activi-
ties, ranges of motion, and sudden twists. Dr. Danielson stat-
ed that looking overhead for long periods of time can be
painful. Dr. Danielson stated that motivation will also play a
role, as wen as secondary gain, litigation, neurosis, and
addictive behavior. Dr. Danielson stated that he attempts to
gain an understanding of the patient’s history and counsel
them appropriately. Dr. Danielson stated that when he has a
patient who is willing, cooperative, and motivated, the
whole process is made a lot easier. Dr. Danielson felt that in
this situation, Claimant was angry with Employer and some-
what paranoid about their intentions, and this made it more
difficult to direct Claimant. (EX-43, pp. 17-18).
Regarding Claimant’s restrictions, Dr. Danielson stated
that Claimant needs to avoid rapid head/neck movements,
working overhead, prolonged extension of the head and
neck, ladder climbing, repetitive bending, stooping, squat-
ting, and crawling. Dr. Danielson opined that Claimant has a
maximum weight lifting limit of 20 to 25 pounds and will
need to change positions from sitting to standing to ambu-
lating as his tolerance demands. Due to the two operative
procedures on on the left ulnar nerve, Claimant should
AGA ESS wk ROTOR ELS,
Bs PR a CIE YS
A-31
avoid repetitive movements with the left upper extremity.
Dr. Danielson stated that Claimant should not work on ships
under construction unless he was working in a supervisory
capacity and should avoid prolonged extension of his head
and neck. Dr. Danielson stated that Claimant cannot work in
or with insulation due to an allergic reaction. Dr. Danielson
felt that Claimant could not work as a tape roller because of
the strain to his neck and arms. Dr. Danielson opined that it
was not in Claimant’s best interests to remain at the ship-
yard. Dr. Danielson noted that Claimant would be most at
risk in situations where he would have to turn or twist rap-
idly. (EX-43, pp. 18-20). Dr. Danielson repeatedly empha-
sized that Claimant should avoid repetitive motion over-
head. Such repetitive motions would be involved in any
overhead work and ladder climbing. (EX-43, pp. 40-52). Dr.
Danielson stated that as long as Claimant’s work fits within
his limitations, whether it be in a supervisory capacity or
not, he would release him to do that work. Dr. Danielson
also stated that he would encourage Claimant to return to
gainful employment. (EX-43, p. 45).
Dr. Danielson stated that he was aware of the prior sur-
gery by Dr. Bazzone and that Claimant had been released as
having reached maximum medical improvement in 1990. In
light of this, Dr. Danielson opined that his previous injury
combined with and contributed to the effects of his injury of
May 8, 1992 to make Claimant materially and substantially
more disabled than he would have been from the May 8,
1992 injury alone. Dr. Danielson also felt that the increase in
Claimant’s physical limitations, after his date of maximum
medical improvement in 1990, was due to the second injury
of May 8, 1992. Dr. Danielson felt that no further surgery
was anticipated. (EX-43, pp. 47-48).
A-32
Claimant was first seen by Dr. Harry A. Danielson on
June 9, 1992. In taking a history from Claimant, Dr.
Danielson noted that Claimant has neck pain, shoulder pain,
back pain between the shoulders, pain in his arms, numbness
in his hands, aching in his toes and legs, and pain in the tho-
racic area. Dr. Danielson noted that Claimant’s pain is
brought on or made worse by turning his head to either side,
bending his neck down, and bending his neck backward. Dr.
Danielson noted that Claimant last worked on May 11, 1992.
Dr. Danielson’s impression was that Claimant was in need of
a cervical and thoracic MRI scans with a special emphasis
on T6-7. (EX43, Dep. Ex-8).
On July 9, 1992, Dr. Danielson stated that the cervical
and thoracic MRI scans taken on 6/27/92 indicated “some-
thing strange” in the bone on the back side in the body of C6
on the Tl weighted image. There appeared to be defects at
T3-4 and T6-7 with the situation appearing worse on the left
side. Dr. Danielson felt that Claimant needed to have a cer-
vical and thoracic myelogram. The results of the myelogram
indicated a post operative interbody fusion at C4-5 and 6.
Otherwise, the myelogram was normal. Dr. Danielson noted
that the myelogram looked good, although there was a lot of
movement on the cervical CT scan. Dr. Danielson noted
small spurring at T5-6, and the CT scan showed Claimant to
have central disc herniations at LS-S1 and L4-5 although it
was not indicated on the myelogram. Claimant reported to
Dr. Danielson that he was having a lot of pain in his legs and
that sitting up straight caused him pain. (EX-43, Dep. Ex-8).
Dr. Danielson again saw Claimant on September 3,
1992. Claimant reported increased pain between his shoul-
der blades. Dr. Danielson opined that Claimant had three
areas of trouble: the spur at T5-6 and the central disc bulges
A-33
at L5-S1 and L4-S, yet none of these were severe enough at
that time to warrant operative intervention. (EX-43, Dep.
Ex-8).
In a letter to Ms. Pam Clark of FA. Richard &
Associates, Dr. Danielson stated that it was his medical
opinion that Claimant’s neck pain was an aggravation of a
pre-existing problem and that his back pain was causally
related to his on-the-job injury of May 8, 1992. In a letter to
Richard Hastings of F.A. Richard & Associates, Dr.
Danielson stated that, based upon Claimant’s history and the
absence of other trauma, it was his opinion that with proba-
ble medical certainty that the continuing cervical problems
and the recent anterior cervical discectomy at C6-7 are relat-
ed to his on-the-job accident of May 8, 1992. (EX-43, Dep.
Ex-8).
Claimant was seen by Dr.. Danielson on February 7,
1995, at which time he reported that he was having such
neck pain that he could not extend his head to shave.
Claimant reported that his neck pain was on the left side. Dr.
Danielson stated that he wished Claimant to undergo anoth-
er cervical and thoracic MRI scan. According to Dr.
Danielson, these MRI scans, which were taken on 2/13/95,
showed a small central disc herniation at T3/4 and a disc
herniation at C6/7. Dr. Danielson ordered another myelo-
gram. On March 23, 1995, Dr. Danielson stated that after
viewing the results of the myelogram, Claimant was shown
to have a central disc herniation at L5-S1 and a large disc
herniation at C6/7 which was pressing upon the spinal cord.
Dr. Danielson found a possible minimal herniation of T3/4
to the left of the midline. Dr. Danielson recommended that
Claimant get the disc at C6n cleaned out, as he was at risk
for spinal cord injury. This procedure was completed on
A-34
May 21, 1995. (EX-43, Dep. Ex-8).
Dr. Danielson saw Claimant on August 17, 1995, at
which time Claimant reported that when he tries to write, his
fingers “get stuck.” Dr. Danielson noted that the plug at C6/7
looked good. On December 14, 1995, Dr. Danielson stated
that the most current myelograms and CT scans did not indi-
cate that operative intervention was required. Dr. Danielson
stated that it was in the best interests of Claimant to get into
a different career and do something light. Dr. Danielson stat-
ed that Claimant had reached maximum medical improve-
ment. On December 28, 1995, Dr. Danielson reiterated that
Claimant had reached MMI as of December 14, 1995. Dr.
Danielson also set forth Claimant’s restrictions as needing to
avoid rapid head-neck movement, working overhead, pro-
longed extension of his head and neck, ladder climbing. Dr.
Danielson also stated that Claimant should not do repetitive
bending, stooping, squatting, or crawling. Claimant was to
have a maximum weight lifting limit of 20 to 25 pounds
occasionally while using proper body mechanics. Dr.
Danielson also stated that Claimant will need to change
positions from sitting to standing to ambulating as his toler-
ance demands. (EX-43, Dep. Ex-8).
On May 6, 1997, Dr. Danielson stated that there was
nothing further to offer Claimant from a neurosurgical
standpoint. Dr. Danielson assigned Claimant a 12%
anatomical impairment rating for the person as a whole as a
result of his trauma and subsequent herniated disc, the oper-
ative procedure at C6/7, and his herniated disc at L5/S1. Dr.
Danielson stated that Claimant is unable to work on ships
under construction and is unable to work overhead. Dr.
Danielson stated that Claimant cannot work with insulation
due to his allergies to it. Dr. Danielson opined that it was in
A dS a Sh I a ok tc ev tas ela as aA Lode gis ce ie As OC at
A-35
Claimant's best interest that he no longer work at the ship-
yard. (EX-43, Dep. Ex-6).
Claimant was referred by Dr. Danielson to Dr.
Christopher Y. Lew. Dr. Lew first saw Claimant on August
29, 1996. Dr. Lew reported that Claimant had suffered his
initial injury in June of 1987, after which he underwent two
ulnar nerve transpositions as well as a two level anterior cer-
vical fusion at C4-5 and C5-6. Dr. Lew stated that Claimant
began complaining again in 1992 of persistent pain. In May
of 1995, Claimant underwent a second anterior cervical
fusion, this time at the C6-7 level. Dr. Lew stated that
Claimant returned to work on a light duty basis, but after
approximately six months of work, he found that the physi-
cal demands of the job were still to strenuous and were mak-
ing the pain much worse. Dr. Lew noted that Claimant’s pain
was constant and was aggravated by the movements of the
head and neck, as well as by various sleeping positions and
activities involving the upper extremities. Dr. Lew stated
that Claimant had some radiation of pain into both upper
extremities although the left side tended to by worse.
Claimant was found to have degenerative changes on imag-
ing studies affecting the lumbosacral, lumbar, and cervical
spine. For an assessment, Dr. Lew found post cervical fusion
pain syndrome with recurrent disc disease, persistent
myofascial pain arising from underlying spine dysfunction.
Dr. Lew also found a lumbosacral strain with lumbar degen-
erative disc disease. Dr. Lew recommended work restric-
tions, myoneural injections on a weekly basis to facilitate
physical therapy, and continued physical therapy and med-
ications. (EX-43, Dep. Ex-2)'.
| “—EX.43, Dep. Ex- “ stands for “Employer's Exhibits 43, Deposition
Exhibits number_.” These deposition exhibits follow the deposition of
Dr. Danielson.
Dr. Lew again saw Claimant on 2/18/97. At that time, Dr.
Lew reported that Claimant’s symptoms were stable. Dr.
Lew noted that Claimant should be limited in his work activ-
ities to light duty. Dr. Lew stated that Claimant should be
considered at maximum medical improvement (“MMI”) at
this time with the provision of ongoing an as needed basis
for flare-ups of pain. (EX43, Dep. Ex-3). Claimant saw Dr.
Lew on 3/19/97. At this time, Dr. Lew stated that Claimant
was stable and at MMI. Dr. Lew stated that in order to pre-
serve his current physical level, it was very important that
activity restrictions be adhered to. Dr. Lew felt that Claimant
must not do work that will put any strain or pressure on his
neck. (EX-43, Dep. Ex-4).
Mr. Joseph R. Walker, vocational rehabilitation coun-
selor, performed rehabilitation consulting services in rela-
tion to this matter. On September 30, 1997, Mr. Walker sent
a report to Ms. Pam Hale. Mr. Walker found that, in all prob-
ability, Claimant could return to modified work activity in
the Insulation Department with Employer. Mr. Walker noted
that Claimant would not be able to perform the full range of
work activity as a joiner/insulation worker. However, Mr.
Walker believed that there would be modified task activity
in the Insulation Department that would be compatible with
Claimant’s restrictions. Mr. Walker stated that Claimant
could perform the following work activities:
1) Handling boxes or pieces of insulation for storage or
movement from the storage area on rubber tired carts;
2) Taking insulation supplies, packages of tape, broken
packages of pins or caps to the ship for use and distribution
to other insulation workers;
A-37
3) Cutting insulation panels to prescribed specifications,
lengths, and measurements as called out by another co-
worker;
4) Cut insulation panels in a preparatory manner in the
Insulation storage area or in the passageways, compart-
ments, or storage areas of the ship;
5) Insulation application consisting of applying insula-
tion to the bulkheads from shoulder level down. This would
include performing the work activity from the bottom two or
three steps of a stepladder and work shoulder level down,
applying the insulation panels to pins that are on the bulk-
head wall;
6) Seaming the insulation panels with the adhesive tape;
7) Prep work, consisting of doing layout in the earlier
phases of construction, marking the bulkhead wall, using a
six by twelve rectangular blade with a handle such as a
masonry or dry wall trowel to mark and utilize measure-
ments to identify locations on the bulkheads where insula-
tion pins would be applied;
8) Tape rolling;
9) Taping over the D.C. Boards (information brackets)
installed in the compartments and passageways which are
taped and the tape trimmed with the backing applied. At a
subsequent time, the information holders would be installed
at approximately shoulder or chest level in various compart-
ments in passageways on the ships.
(EX-49, pp. 1-13).
A-38
Mr. Tommy Sanders also performed vocational rehabili-
tation services in connection with this case. W. Sanders
issued a report dated October 13, 1997 after interviewing
Claimant, reviewing his medical records and working histo-
ry, and completing a labor market survey in the area in prox-
imity to Claimant's home. Mr. Sanders stated that, in con-
sideration of Claimant's age, education, hobbies, work his-
tory, and physical restrictions, he believed that Claimant
could presently work at a range of unskilled, sedentary to
light jobs in his surrounding labor market. Mr. Sanders iden-
tified several job openings that he believed were within the
capabilities of Claimant. These were:
1) Gulf Coast Security Services: Opening for Security
Guard at a pay rate of $5.15 per hour at 40 hours per week.
Involved sitting at a guard shack, checking vehicles and peo-
ple in and out, occasionally walking rounds;
2) Day Security Services: Opening for Security Guard at
a pay rate of $5.15 to $5.50 per hour for up to 40 hours per
week. Activities involved guarding an assigned commercial
customer's property, observing for trespassers and fire haz-
ards, and walking rounds;
3) Dixie Gas: Opening for a cashier at $5.15 per hour for
up to 40 hours per week. Duties are cashiering with some
light stocking and cleaning on an occasional basis;
4) Days Inn: Opening for a Front Desk Clerk at a wage
of $5.50 per hour for 36 hours per week. The opening is for
the 11 pm to 7 am shift. Duties involve checking guests in
and out of the motel and handling payments from guests.
(EX-53, pp. 1-6).
On November 14, 1997, Mr. Sanders sent two additional
jobs to Claimant. These jobs were:
1) Munro Petroleum, Inc.: Opening for Cashier with a
pay rate of $5.50 per hour for 39 or more hours per week. A
stool is provided for sitting;
2) Coastal Energy, Inc.,: Opening for Fuel Booth Cashier
with a pay rate of $5.15 per hour. Weekly hours between 35
and 40. A stool is provided.
(EX-53, p. 12).
DISCUSSION
In arriving at a decision in this matter, it is well-settled
that the fact-finder is entitled to determine the credibility of
the witnesses, to weigh the evidence, and draw his own
inferences from it, and he is not bound to accept the opinion
or theory of any particular medical examiners. Todd
Shipyards _v. Donovan, 300 F.2d 741 (Sth Cir. 1962):
Co. v. Bruce, 661 F.2d 898, 900 (Sth Cir. 1981); Bank v.
Chicago Grain Trimmers Association, Inc., 390 U.S. 459,
467, reh’g. It has been consistently held that the Act must be
construed liberally in favor of the claimants. Voris v. Eikel,
346 U.S. 328, 333 (1953); LB. Vozzolo. Inc, v. Britton, 377
F.2d 144 (D.C. Cir. 1967).
However, the United States Supreme Court has deter-
mined that the “true-doubt” rule, which resolves factual
doubt in favor of the Claimant when the evidence is evenly
balanced, violates Section 7(c) of the Administrative
Procedure Act, 5 U.S.C. Section 556(d), which specifies that
A-40
the proponent of a rule or position has the burden of proof.
Director OWCP v. Geenwich Collieries 5 12 U. S.267, 114
S. Ct. 2251 (1994), affig 990 F.2d 730 (3rd Cir.. 1993).
Consolidation
Employer in this case has opposed the consolidation of
the two claims. I see no reason why the two claims should
not be consolidated. Consolidation would avoid needless
delay in resolving the issues presented. Further, the one
issue remaining from the original claim, a determination of
Claimant's post-injury wage earning capacity, is a relatively
minor issue. Separate proceedings for the determination of
this issue are unnecessary.
Remand Issue: Claimant’s Post-Injury Wage Earning
Capacity
The first issue for discussion is the determination of
whether Claimant’s post injury wages fairly and reasonably
represented his wage earning capacity following his return
to work with Employer after his 1987 accident. This issue is
before me per the remand order of the Fifth Circuit dated
November 13, 1996. Specifically, the Fifth Circuit stated
that the Administrative Law Judge (ALJ) in the initial
Decision and Order made no finding that Claimant's post
injury earnings were representative of his wage-earning
capacity under Section 908(h) of the Act. To determine post-
injury wage earning capacity, Section 8(h) of the Act pro-
vides:
(h) The wage-earning capacity of an injured employ-
ee in cases of partial disability under subdivision
(c)(21) of this section or under subdivision (e) of this
=e
A-41
section shall be determined by his actual earnings if
such actual earnings fairly and reasonably represent
his wage-earning capacity: Provided, however, that
if the employee has no actual earnings or his actual
earnings do not fairly and reasonably represent his
wage-earnings capacity, the deputy commissioner
may, in the interest of justice, fix such wage-earning
capacity as shall be reasonable, having due regard to
the nature of his injury, the degree of physical
impairment, his usual employment, and any other
factors or circumstances in the case which may
affect his capacity to earn wages in his disabled con-
dition, including the effect of disability as it may
naturally extend into the future.
33 U.S.C. Section 908(h).
It is widely accepted that where a claimant seeks bene-
fits for total disability and the employer establishes suitable
alternate employment, the earnings established for the alter-
nate employment show the claimant’s wage-earning capaci-
ty. See Berkstresser v. Washington Metro, Area Transit
Auth., 16 BRBS 231, 233 (1984). In the original claim,
Claimant sought benefits for total disability and Employer
established suitable alternate employment by offering suit-
able light duty employment in its facility. There was no indi-
cation that the employment offered was sheltered employ-
ment. Thus, the earrings established for the light duty
employment, which were also Claimant’s actual wages at
that time, were representative of Claimant’s wage earning
capacity. Under the Act, the party that contends that
Claimant’s actual wages were not representative of his
wage-earning capacity has the burden of establishing an
alternative reasonable wage-earning capacity. See Grage v.
J.M. Martinac Shipbuilding, v. Director, OWCP 900 F.2d
A-42
180, 23 BRBS 127 (CRT) (9th Cir. 1990); Misho_v.
17 BRBS 188, 190 (1985);
Spencer _v. Baker Agric. Co., 16 BRBS 205, 208 (1984);
Burch v. Superior Oil Co., 15 BRBS 423, 427 (1983). Here
there is no indication that Claimant attempted to establish an
alternative reasonable wage-earning capacity other than to
assert that Claimant was totally disabled and had no wage
earning capacity. As such, Claimant's wage earning capaci-
ty was represented by his post-injury wages. This is the
result that should have been presumed by the Fifth Circuit.
However, it was not and since an actual determination of the
post injury wage earning capacity was ordered, I will com-
ply.
Wage earning capacity refers to “an injured employee’s
ability to command regular income as the result of his per-
sonal labor.” Seidel v. General Dynamics Corp., 22 BRBS
403, 405 (1989)(citing 2 A. Larson, The Law of Workmen’s
Compensation Section 57.51 at 10- 164.64 (1987). Section
8(c)(21) provides that an award for unscheduled permanent
partial disability is based on the difference between the
claimant's pre-injury average weekly wage and his post-
injury wage-earning capacity. If Claimant has a physical
impairment but it can be found that Claimant has suffered no
loss in his wage-earning capacity, he has suffered no finan-
cial loss and therefore is not disabled. 33 U.S.C. Section
908(h); Del Vacchio v. Sun Shipbuilding & Dry Dock Co.,
16 BRBS 190, 194 (1984).
Section 8(h) mandates a two-part analysis in order to
determine the claimant's post-injury wage-earning capacity.
Devillier v. National Steel & Shipbuilding Co., 10 BRBS
649, 660 (1979). The first inquiry requires the judge to
determine& whether the claimant's actual post injury wages
A-43
reasonably and fairly represent his wage-earning capacity.
Randall v. Comfort Control, Inc., 725 F.2d 791,796, 16BRBS
56, 64 (CRT) (D.C. Cir 1984). If the actual wages are unrep-
resentative of the claimant’s wage earning capacity, the sec-
ond inquiry requires that the judge arrive at a dollar amount
which fairly and reasonably represents the claimant’s wage-
earning capacity. Id. at 796-97, 16 BRBS at 64. If the
claimant’s actual wages are representative of his wage-earn-
ing capacity, the second inquiry need not be made. Devillier
10 BRBS at 660.
For both parts of the wage-earning capacity analysis, the
judge must take a number of factors into consideration. The
judge must consider the claimant’s physical condition, age,
education, industria! history, availability of employment,
claimants earning power on the open market, continuity and
stability of claimant’s post-injury work, and whether med-
ical and other circumstances indicate a probable future wage
loss due to the work-related injury. Devillier 10 BRBS at
651, Warren v. National Steel & Shipbuilding Co., 21 BRBS
149,153 (1988).
Accordingly, I must first determine whether claimant’s
actual post injury wages reasonably and fairly represent his
wage-earing capacity. Claimant returned to work with
Employer in a modified joiner position on October 29, 1990.
At that time, Claimant was still of young age and his educa-
tion was adequate for employment as a joiner. At the origi-
nal hearing of October 2, 1991, Claimant stated that he was
currently working the same number of hours as he had
before he was injured. Claimant also stated that he was earn-
ing more money ($12.28 per hour) than he had been before
his injury ($10.28 per hour). Claimant also acknowledged
that he had good attendance and had not received any disci-
A-44
plinary notices for poor work since returning to work on
October 29, 1990. (EX-27, p. 11). As such, Claimant's work
was stable and there was no indication, at that time, that
Claimant would have a future wage loss due to his original
work related injury. Further, Dr. Danielson testified at his
original deposition that the fact that Claimant had performed
his fight duty work for almost a year and continuing was a
good indication of his ability to be able to perform that work
into the future. Accordingly, Claimant’s actual post injury
wages both reasonably and fairly represented his wage-earn-
ing capacity.
Causation
We now turn to the second claim filed in this case. This
claim has arisen due to an accident occurring on May 8,
1992. Initially, the claimant has the burden of establishing a
prima facie case of compensability, namely to demonstrate a
physical and/or mental harm was sustained and prove that
working conditions existed or an accident occurred which
could have caused the harm. Graham _v. Newport News
Shipbuilding & Dry Dock Co., 13 BRBS 336, 338 (1981);
U.S. Industries/Federal Sheet Metal Inc. v, Director. OWCP.
United States Department of Labor, 455 U.S.608, 616, 102
S.Ct. 1312, 1318 (1982). Once Claimant establishes these
two elements of a prima facie case, Section 20(a) of the Act
favors Claimant with a presumption that links the harm suf-
fered with Claimant’s employment. Kelaita_v. Triple A
Machine Shop, 13 BRBS 326 (1981); Hampton _v,
Bethlehem Steel Corp. 24 BRBS 141, 143 (1990); Noble
Drilling Co, v, Drake, 795 F.2d 478, 481 (Sth Cir. 1986).
Moreover, Section 20(d) of the Act favors Claimant with a
presumption that the injury suffered was not occasioned by
the willful intention of the injured employee to injure or kill
A-45
himself or another. Green v. Atlantic & Gulf Stevedores-
Incorporated, 18 BRBS 116 (1986).
The mere existence of a physical impairment is plainly
insufficient to shift the burden of proof to the employer. U.S.
Indus./Fed, Sheet Metal v. Director OWCP, 455 U.S. 608
(1982), rev’g Riley v, U.S. Indus./Fed, Sheet Metal 627 F.2d
455 (D.C. Cir. 1980). The claimant’s theory as to how the
injury occurred must go beyond “mere fancy.” Champion v,
S&M Traylor Bros., 690 F.2d 285, 295 (D:C. Cir. 1982).
A claimant’s uncontradicted, credible testimony alone
may constitute sufficient proof of physical injury and form
the basis of an award of compensation. Golden v, Eller &
Co. 8 BRBS 846, 849 (1978), aff'd 620 F.2d 71, 74 (Sth Cir,
1980); Avondale Shipyards. Inc. v, Kennell, 914 F.2d 88, 91
(Sth Cir. 1990).
After the presumption has been established, the employ-
er must introduce “substantial evidence” to rebut the pre-
sumption of compensability and show that the claim is not
one “arising out of or in the course of employment.” 33
U.S.C. Sections 902(2), 903. Only after the employer offers
substantial evidence does the presumption fall “out of the
case.” Del Vecchio v. Bowers, 296 U.S. 280, 186, 56 S.Ct.
190, 193 (1935). Substantial evidence has been defined as
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Sprague vy. Director
OWCP, United States Department of Labor, 688 F.2d 862,
865 (Ist Cir. 1982). Such evidence must be specific and
comprehensive enough to sever the potential question
between the liability and the work environment. Parsons
-Labor, 619 F.2d 3 8, 41 (9th Cir. 1980).
A-46
If the Employer succeeds in its burden, the issue of cau-
sation must be resolved based upon the evidence as a whole.
Kier v, Bethlehem Steel Corp., 16 BRBS 128, 129 (1984);
Devine v, Atlantic Container Lines, G.LE., et.al, 25 BRBS
15, 21 (1991). When the evidence as a whole is considered,
it is the proponent (Claimant) who has the burden of proof
See Greenwhich Collieries, 512 U.S. 267.
Here, there is no question of a work related accident and
injury which occurred on May 8, 1992. While it is clear that
Claimant had an underlying condition in his neck and elbow,
under the Act, a work-related aggravation of a pre-existing
condition is an injury pursuant to Section 2(2) of the Act.
Preziosi_v. Controlled Indus., 22 BRBS 468 (1989);
Janusziewicz_v. Sun Shipbuilding & Dry Dock Co., 22
BRBS 376 (1989) (Decision and Order on Remand).
Clearly, Claimant aggravated his neck condition on May 8,
1992.
Accordingly, Claimant has proved his prima facie case.
Employer has not attempted to introduce “substantial evi-
dence” to rebut the presumption of compensability and show
that the claim is not one “arising out of or in the course of
employment.” Accordingiy, causation has been proved by
Claimant
Nature and Extent of Disability
“Disability” under the LHWCA means incapacity as a
result of the injury in question to earn wages which the
employee was receiving at the time of the injury at the same
or any other employment. 33 U.S.C.§902(10). Therefore, in
order for a claimant to receive a disability award, he must
have an economic loss coupled with a physical or psycho-
FRO Le te ees
Las ee had A ate a
si
A-47
logical impairment. Sproull_v. Stevedoring Servs. of
America, 25 BRBS 100, 110 (1991).
Regarding the nature and extent of disability, in the ini-
tial stage, the claimant need not establish that he could not
return to any employment, only that he could not return to
his former and “usual” employment. Elliot v. C&P Tel, Co..
16 BRBS 89 (1984). The same standard applies regardless
of whether the claim is for temporary total or permanent
total disability. If the claimant meets this burden, he is pre-
sumed to be totally disabled. Walker v. Sun Shipbuilding &
Dry Dock Co. (Walker 11) 19 BRBS 171 (1986). Here,
Claimant must establish that he could not return to his usual
employment and that his inability to return to his employ-
ment is at least partially connected to his injuries sustained
on August 2, 1996.
I find that Claimant has established his prima facie case
of total disability. No doctor in this case has suggested that
Claimant was able to resume his “usual”’ unmodified
employment after August 2, 1996, nor has Employer argued
that he could. The evidence shows that Claimant’s previous
neck condition was aggravated by his injury on May 8,
1992, and as such, the injury was a contributing factor in
Claimant’s inability to return to his employment.
Accordingly, Claimant has established his prima facie case
of total disability.
Once a claimant establishes a prima facie case of total
disability, the burden shifts to the employer to establish suit-
able alternate employment. An employer must show the
existence of realistically available job opportunities within
the geographic area where the employee resides which he is
capable of performing, considering his age, education, work
A-48
experience and physical restrictions, and which he could
secure if he diligently tries. New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (Sth Cir.
1981), rev’g 5 BRBS 418 (1977); Diamond M_ Drilling Co.
y. Marshall, 577 F.2d 1003, 8 BRBS 658 (Sth Cir. 1978)
aff’g Kilsby_v, Diamond M Drilling Co., 6 BRBS 114
(1977).
An employer can meet its burden of showing suitable
alternate employment by offering the claimant a job in its
facility, Spencer v. Baker Agricultural Co., 16 BRBS 205
(1984), including a light duty job, so long as it does not con-
stitute sheltered employment. Darden _y. Newport News
Shipbuilding & Dry Dock Co. 18 BRBS 224 (1986); Harrod
v. Newport News Shipbuilding & Dry Dock Co., 12 BRBS
10, 12-13 (1980). Here, Employer returned Claimant to
work following his May 8, 1992 injury. Claimant returned to
work in October of 1992 and was employed installing bunks
on a ship. (Tr. p. 70). Claimant stated that the work of
installing bunks included the drilling the pop rivets, which
aggravated his arm. Claimant stated that even though this
aggravated his previous injury, he stayed with it and as a
result, never had a problem with supervisors or never got in
trouble for missing work. Claimant was under the impres-
sion that he would have pain for the rest of his life and need-
ed to find ways to cope with it. (Tr. p. 70). Claimant had sur-
gery on his neck early in 1995 due to extreme pain and stiff-
ness. Claimant then returned to work as in a modified joiner
position in January of 1996. In Claimant’s return, he first
was employed doing layout work, then as a tape roller.
Claimant worked as a tape roller for approximately seven
months when he was forced to quit due to increased pain
from the repetitious nature of the task.
A-49
Normally, under the Act, suitable alternate employment
would be established where a claimant returned to work in
the employer’s facility. However, in this case, we have a sit-
uation where it is not clear that the work offered was “suit-
able” as Claimant alleges it caused him aggravation of his
injuries. Thus, our question now is whether the light duty
employment offered to Claimant was too physically
demanding for Claimant to perform.
Under the Act, an employer’s job offer which is too
physically demanding for a claimant to perform is not suit-
able alternate employment. Bumble Bee Seafoods vy.
Director, OWCP, 629 F.2d 1327, 1330, 12 BRBS 660, 662
(9th Cir. 1980); Perini Corp. v. Heyde, 306 F. Supp. 1321,
1328 (D.R.I. 1969); Mason v, Bender Welding & Mach
Co.,” 16 BRBS 307, 309 (1984). Here, Claimant was able to
work for a period of time in a modified joiner Capacity but
eventually was forced to leave work and undergo additional
surgical procedures on his neck. Later, in 1996, Claimant
was able to perform the tape rolling job for approximately
seven months. After seven months, Claimant complained of
increasing pain due to the repetitious nature of the task.
Claimant was sent to Employer's infirmary and from there
was sent to Dr. Danielson who again pulled Claimant from
work. (Tr. p. 76). Dr. Danielson later opined that Claimant
could not work as a tape roller because of the strain to his
neck and arms. (EX-43, p. 45).
It is clear that Claimant had substantial difficulty in per-
forming the duties of the modified joiner position. His job
activities aggravated his condition to such an extent that fur-
ther surgery was required on his neck. This being so, it is
apparent that the modified employment undertaken by
Claimant after 1992 was too physically demanding for
A-50
Claimant to handle. The same may be said for the tape
rolling job which ultimately aggravated Claimant’s condi-
tion. As such, I think that there is no question that the tape
rolling job was not suitable for Claimant either. Accordingly,
Employer’s proffering of the modified joiner position and
the tape roller position do not constitute suitable alternate
employment. I note that there are no medical opinions sub-
mitted that state a contrary finding.
Employer asserts that their further offering of a modified
joiner position on August 5, 1997, which paid the regular
wage of a first class joiner constituted suitable alternate
employment. Again, the following job activities were sub-
mitted by Employer as a modified joiner position which
would constitute suitable alternate employment:
1) Handling boxes or pieces of insulation for storage or
movement from the storage area on rubber tired carts,
2) Taking insulation supplies, packages of tape, broken
packages of pins or caps to the ship for use and distribution
to other insulation workers;
3) Cutting insulation panels to prescribed specifications,
lengths, and measurements as called out by another co-
worker;
4) Cutting insulation panels in a preparatory manner in
the insulation storage area or in the passageways, compart-
ments, or storage areas of the ship;
5) Insulation application consisting of applying insula-
tion to the bulkheads from shoulder level down. This would
include performing the work activity from the bottom two or
macs en
pes
NR hy
ne ERY 4 wah SR SS CR Rae ty SRL
A-51
three steps of a stepladder and work shoulder level down,
applying the insulation panels to pins that are on the bulk-
head wall;
6) Seaming the insulation panels with the adhesive tape;
7) Prep work, consisting of doing layout in the earlier
phases of construction, marking the bulkhead wall, using a
six by twelve rectangular blade with a handle such as a
masonry or dry wall trowel to mark and utilize measure-
ments to identify locations on the bulkheads where insula-
tion pins would be applied;
8) Tape rolling;
9) Taping over the D.C. Boards (information brackets)
installed in the compartments and passageways which are
taped and the tape trimmed with the backing applied. At a
subsequent time, the information holders would be installed
at approximately shoulder or chest level in various compart-
ments in passageways on the ships.
(EX49, pp. 1-13).
The job offered was full time and within Claimant’s
same department. The job was suitable according to Mr. Joe
Walker, who is an independent certified rehabilitation coun-
selor. According to Employer, Claimant would have been
allowed a wide latitude to refuse work that was outside of
his limitations. Claimant was invited to an interview in
which the specific requirements of the job(s) would have
been discussed. However, Claimant refused to come to the
interview. Claimant later stated that he refused to do further
work for Employer under any circumstances.
A-52
| find that the modified joiner position offered by
Employer is not acceptable as suitable alternative employ-
ment. Regarding the medical opinions in the record, there is
only one opinion that is of note, that being the opinion of Dr.
Danielson. No other medical opinions on the subject of
whether or not Claimant could work in the shipyard have
been offered. Dr. Lew, while not addressing this issue, did
state that Claimant must not do work that will put any strain
or pressure on his neck. (EX-43, Dep. Ex-4).
In regard to the tape roller position, which was one of the
activities slated for Claimant's modified joiner position, Dr.
Danielson felt that Claimant could not work as a tape roller
because of the strain to his neck and arms. Dr. Danielson did
state that as long as Claimant’s work fits within his limita-
tions, whether it be in a supervisory capacity or not, he
would release him to do that work. (EX-43, p. 45). However,
in general, Dr. Danielson opined that it was not in
Claimant’s best interests to remain at the shipyard. Dr.
Danielson noted that Claimant would be most at risk in sit-
uations where he would have to turn or twist rapidly. (EX-
43, pp. 18-20). Dr. Danielson also repeatedly emphasized
that Claimant should avoid repetitive motion overhead and
that such repetitive motions would be involved in any Over-
head work and ladder climbing. (EX-43, pp. 40-52).
Dr. Danielson, in his deposition, again stated that it was
in the best interests of Claimant to get into a different career
and do something light. (EX-43, Dep. Ex-8). At that time,
Dr. Danielson opined that Claimant was vulnerable to repeat
injury and should be employed in a light-duty supervisory
capacity. Dr. Danielson opined that shipwork was not suit-
able for Claimant because the working conditions were such
that a person was always subject to bumping his head and
A-53
overhead working was not in Ciaimant’s best interests. (EX-
43, p. 9).
Accordingly, it is overwhelmingly clear that Dr.
Danielson is not in favor of Claimant returning to work in
the shipyard in any capacity, with the possible exception of
a supervisor position. No other medical opinion on this issue
is in evidence, thus, the weight of medical evidence in this
case does not support a finding of suitable alternate employ-
ment based on the offering of a modified joiner position.
Further, Claimant has testified that overall, there is no
job in the shipyard that he can do on a eight-hour a day, 40
hour per week basis, because there are days when he cannot
work as his hands are in significant pain and his neck is
restrictively stiff. (Tr. p. 123). 1 have found no reason to
question the credibility of Claimant’s testimony, thus I will
credit it in full and afford it substantial weight.
In reviewing the task descriptions submitted by
Employer, it is also fairly reasonable to conclude that the
tape rolling task was one of, if not the least strenuous of all
of the tasks listed. It would seem that if the tape rolling task
exceeded his restrictions and aggravated Claimant’s condi-
tion, the more strenuous tasks that were listed would do the
same or worse. Also, Claimant, should he work in the mod-
ified joiner position, would be put back to work in the ship-
yard and would, in many instances, be working with a regu-
lar crew. In such a situation, the chances of Claimant
exceeding his restrictions on occasion would be great. Such
was the case when Claimant previously worked for
Employer and I see no reason why such instances would not
occur again. These instances would put Claimant at an
increased peril for re-injury or aggravation.
A-54 \
Accordingly, based on the medical opinion in this case, the
testimony of Claimant, and my own observations, I find that
the offering of a modified joiner position does not constitute
suitable alternate employment.
Employer next argues that Claimant has suffered no loss
of wage earning capacity as he has worked on a job con-
structing a tower and earned an average of approximately
$2,000.00 per week, which would far exceed the average
weekly wage earned with Employer. As stated previously, if
Claimant has a physical impairment but it can be found that
Claimant has suffered no loss in his wage-earnings capacity,
he has suffered no financial loss and therefore is not dis-
abled. 33 U.S.C. Section 908(h). Here however, it is clear
that the temporary job Claimant undertook was a one time
job on a limited basis (eight days). Thus, I find that
Claimant’s work on the tower construction and his pay
earned from his labor was in no way representative of his
wage earning capacity on the open market.
Next Employer asserts that Claimant has suffered no loss
of wage earning capacity as he is presently making more
now running his own business than he did when he was
working for Employer. While Claimant presently pays him-
self approximately $250.00 per week, Employer argues that
this figure should be much higher as it does not incorporate
the amounts voluntarily reinvested back into the company.
Employer states that Claimant’s company has profited over
$3,395.25 in the 13 weeks it has been running. Employer
asserts that had Claimant pocketed all of the profits instead
of reinvesting a substantial portion of them, his average
weekly wage would be approximately $511.17, which
would be higher than the stipulated weekly wage of
$412.51.
A-55
First, Claimant has not been pocketing al! of his profits,
but instead has only been taking approximately $250.00 per
week. Thus, regardless of what Claimant could do with the
profits, he is still only pocketing $250.00 per week. Also,
with the failure rate of first-time small business, it is quite
likely that Claimant’s business will require re-investment in
order to stay financially secure. Thus, Claimant will likely
be re-investing additional funds in the future. Secondly, even
if Claimant did not re-invest all of the profits, the profit
money will likely be diverted elsewhere. Claimant will soon
have additional expenditures in the form of liability insur-
ance, medical coverage, additional taxes, and the hiring of
an accountant. (Tr. pp. 110-111). Third, Claimant also makes
his money dependent on how many jobs are available to
him. Thus, Claimant is dependent on the market for mobile
homes and the number of houses sold by Grand Housing.
Should that market stall, Claimant would not make any
money. Accordingly, I find that the profits made by
Claimant's fledgling company are not indicative of
Claimant's wage earning capacity. Instead, I find that the his
actual average earnings of $250.00 per week are much more
reasonable. Thus, I find that Claimant's present wages of
$250.00 fairly and reasonably represent his wage earning
capacity.
Employer has also submitted evidence of other suitable
alternate employment. Clearly, the positions of cashier at
Dixie Gas, Munro Petroleum, Inc., and Coastal Energy, Inc.,
fall within the restrictions of Claimant. Again, the restric-
tions set out by Dr. Danielson were as follows: no rapid
head-neck movement, working overhead, prolonged exten-
sion of his head and neck, ladder climbing, repetitive bend-
ing, stooping, squatting, or crawling. Claimant was to have
a maximum weight lifting limit of 20 to 25 pounds occa-
A-56
sionally while using proper body mechanics. Dr. Danielson
also stated that Claimant will need to change positions from
sitting to standing to ambulating as his tolerance demands.
(EX-43, Dep. Ex-8). At the cashier position, Claimant will
have a stool and will be able to change positions from sitting
to standing. Claimant will not be in a situation where he win
have to repetitively bend, stoop, squat, or crawl.
Accordingly, 1 find that the cashier positions identified by
Employer would constitute suitable alternate employment.
However, as none of the positions pay more than $5.50 per
hour, Claimant’s present job, which pays him $250.00 per
week, shall be used in determining his loss of wage earning
capacity.
The evidence indicates that Claimant began his self-
employment on August 31, 1997. Accordingly, as of August
31, 1997, Claimant’s disability becomes partial in nature.
Employer will not be liable for compensation benefits for
the eight days Claimant spent working on the tower con-
struction. As the parties have stipulated that Claimant has
reached maximum medical improvement on December 14,
1995, Claimant’s disability is also permanent. Previous to
the date of August 31, 1997, Claimant is entitled to total dis-
ability for the dates on which he was not working due to his
work related injuries. The parties have stipulated to an aver-
age weekly wage of $412.51. Past the date of August 31,
1997, Claimant is entitled to permanent partial benefits
based upon a loss of wage earning capacity of $162.51
($412.51 - $250.00 (Claimant's present wage earning capac-
ity)).
Section 8(f) Relief
Employer has requested Section 8(f) relief. Section 8(f)
A-57
shifts part of the liability for permanent disability from the
employer to the Special Fund established by Section 44,
when the disability is not due solely to the injury which is
the subject of the claim.
Section 8(f) relief is available if three requirements are
met: (1) that the claimant had a pre-existing permanent dis-
ability, (2) that this partial disability was manifest to the
employer-, and (3) that it rendered the second injury more
serious than it otherwise would have been. Director, OWCP
v. Berkstresser, 921 F.2d 306, 309, 24 BRBS 69 (CRT) (D.C.
Cir. 1990), rev’g 16 BRBS 231 (1984), 22 BRBS 280
(1989). In cases of permanent total or permanent partial dis-
ability there are an additional three requirements: (1) a new
injury; (2) the disability must not be due solely to the new
injury; (3) the disability must be materially and substantial-
ly greater than that which would have resulted from the new
injury alone. Jacksonville Shipyards v. Director, QWCP 851
F.2d 1314, 1316-17 (11th Cir, 1988), Director _v. Newport
News Shipbuilding & Dock Co., 8 F.3d 175 (4th Cir. 1993).
In assessing Employer’s entitlement to Section 8(f)
relief, it must first be established that Claimant had a pre-
existing disability. Clearly, Claimant suffered an injury to
his neck and elbow in 1987 while in the employ of
Employer. Afterward the recovery process, Claimant was
once again employed by Employer. Accordingly, Employer
has shown that Claimant had a pre-existing disability to his
neck and elbow.
The next question is whether this disability was manifest
to Employer. Clearly, Employer was aware of Claimant’s
accident and resulting injury on September 24, 1987.
Employer was also aware of the resulting disability and
A-58
work limitations based on that disability.
The next issue is whether the initial disability/injury ren-
dered the second injury more serious than it otherwise would
have been. Here, the initial injury to Claimant’s neck
undoubtedly made Claimant's second neck injury worse. Dr.
Danielson stated that it was his medical opinion that
Claimant’s neck pain was an aggravation of a pre-existing
problem. (EX-43, Dep. Ex-8). Dr. Danielson later specifi-
cally testified that Claimant’s pre-existing 1987 injury com-
bined with and contributed to the effects of the injury of
May 8, 1992 to make the Claimant materially and substan-
tially more disabled than he would have been as a result of
the injury of May 8, 1992 alone. From my viewpoint, it 1s
clear that Claimant’s prior injury and operation on his neck
made the second injury more severe, especially in light of
the fact that Claimant’s second injury was not traumatic and
the injury was caused only by a quick twisting of the neck.
Accordingly, I think there is no question that Claimant’s pre-
existing injury due to his accident in September of 1987, had
combined with Claimant's second injury in 1992, to make
Claimant’s injury more serious than it otherwise would have
been.
To restate, in cases of permanent total or permanent par-
tial disability there are an additional three requirements: (1)
a new injury; (2) the disability must not be due solely to the
new injury; (3) the disability must be materially and sub-
stantially greater than that which would have resulted from
the new injury alone.
Clearly, there was a new injury on May 8, 1992. It is also
clear that the present disabilities are due to both the new
injury and the past injuries. Finally, it is readily apparent that
A-59
Claimant’s underlying neck condition made the resulting
disability materially and substantially greater than that
which would have resulted from the new injury alone. I base
this on Dr. Danielson’s opinion and the fact that Claimant’s
second injury was a simple twist that was not traumatic.
Thus, it is clear that Claimant’s underlying condition had to
have combined with his injury to make his present disabili-
ty significantly worse. Accordingly, Employer is entitled to
Section 8(f) relief.
Under Section 8(f)(1), if the employment injury is a non-
scheduled injury which results in permanent partial or per-
manent total disability, the employer’s liability is limited to
104 weeks of compensation; thereafter, the Special Fund
makes the compensation payments. Therefore, Employer’s
and Carrier’s 104 weeks of liability begins when Claimant
has permanency status regarding his disability. Disability,
either partial or total, will be considered permanent -if, and
when, the claimant’s condition reaches the point of maxi-
mum medical improvement. James v. Pate Stevedoring Co.,
22 BRBS 271, 274 (i989). Thus, Employer’s liability for
permanent partial disability payments will end 104 weeks
past the date of maximum medical improvement. Thereafter,
the Special Fund would assume the payment of benefits.
Here, the date of maximum medical improvement is
December 14, 1995, as assigned by Dr. Danielson and stip-
ulated to by the parties.
Sanctions
Claimant has also requested sanctions for alleged dis-
covery abuses committed by Employer. Specifically,
Claimant suggests that Employer ignored discovery requests
through evasive and incomplete answers and that Employer
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failed to respond to the requests within ten days of the due
date. Claimant submitted Interrogatories and Request for
Production of Documents to Employer which were received
on September 10, 1997. Employer submitted answers to the
discovery requests on October 20, 1997. I find that the any
delay in the submission of discovery responses was not prej-
udicial to Claimant. Claimant further alleges that the
answers given by Employer in it responses to discovery
requests were evasive. In reviewing Employer's responses, I
did not find anything so unusual or egregious as to warrant
sanctions.
Interest and Attorneys Fees
Claimant is entitled to interest on any accrued unpaid
compensation — benefits. Watkins v. Newport News
Shipbuilding & Dry Dock Company 8 BRBS 556, 559
(1978), aff'd in part, rev'd in part sub nom., Newport News
eee : v Di W
594 F.2d 986 (4th Cor. 1979). Interest is mandatory and can-
not be waived in contested cases. Byrum vy. Newport News
Shipbuilding and Dry Dock Co., 14 BRBS 833 (1982); Mac
DonaldBuilding & Dry Dock, Co.,10 BRBS 734 (1978).
Section 28 of the Act and implementing Code of Federal
Regulations Section 702.132 provide for approval of attor-
ney fees. Claimant's counsel, Blewett Thomas, is hereby
directed to file attorney fee petitions within 30 days of
receipt of this Decision and Order while at the time serving
copies on Employer's counsel who shall then have 30 days
from receipt in which to respond to the fee applications.
A-61
ORDER
It is therefore ORDERED that:
(1) Employer shall pay Claimant compensation for tem-
porary total disability from May 9, 1992 to December 14,
1995, the date of maximum medical improvement, but will
exclude those days in which Claimant was working, based
on an average weekly wage of $412.51, and in accordance
with the provisions of Section 8(b) of the Act. 33 U.S.C.
§908(b);
(2) Employer shall pay Claimant compensation for per-
manent total disability from December 14, 1995 to August
31,1997, the date suitable alternative employment was
undertaken by Claimant, but will exclude those days in
which Claimant was working, based on an average weekly
wage 0 f $412.51, and in accordance with the provisions of
Section 8(a) of the Act. 33 U.S.C. §908(a);
(3) Employer shall pay Claimant compensation for per-
manent partial disability from August 3 1, 1997, and contin-
uing, based upon a loss in wage earning capacity of $162.51,
and in accordance with Section 8(c) of the Act. 33 U.S.C.
§908(c).
(4) Employer's request that they be afforded Section 8(f)
relief commencing December 14, 1997 is hereby GRANT-
ED. Section 8(f) relief is granted to Employer to relieve
Employer of any liability for disability benefits 104 weeks
after the December 14, 1995 maximum medical improve-
ment date;
(5) Employer is entitled to credits for any compensation
A-62
paid to Claimant for the above noted periods;
(6) Employer shall pay for or reimburse Claimant for all
necessary and reasonable medical care and treatment related
to his May 8, 1992 work-related injury and aggravations;
(7) Employer shall pay Claimant interest on any accrued
unpaid compensation benefits. The rate of interest shall be
calculated at a rate equal to the coupon issue yield equiva-
lent (as determined by the Secretary of the Treasury) of the
average auction price for the last auction of 52 week United
States Treasury bills as of the date this Decision and Order
is filed with the District Director;
(8) Claimant’s counsel, Blewett Thomas, shall have 30
days from receipt of this Order in which to file an attorney
fee petition and simultaneously serve a copy of the petition
on opposing counsel. Thereafter, Respondents shall have 30
days from receipt of the fee petition in which to respond to
the petition.
So ORDERED this the 15! of April, 1998 at Metairie,
Louisiana.
/s/ Richard D. Mills
RICHARD D. MILLS
Administrative Law Judge
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A-63
APPENDIX G
U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
In the Matter of )
)
RENE DARBY, ) Case Nos. 91-LHC49
Claimant ) 97-LHC-1556
against )
) OWCP Nos. 06-110624
INGALLS SHIPBUILDING.) 06-145508
INC., )
Self-Insured Employer )
ORDER DENYING CLAIMANT’S MOTION FOR
RECONSIDERATION
Claimant on May 11, 1998, filed a Motion for
Clarification of my April 15, 1998 Decision and Order
Awarding Compensation Benefits, or alternatively, for
Reconsideration of the claims made by Claimant.
Claimant first requests clarification of whether the
two claims in this case were fully and formally consolida-
tion. First, as stated on page 15 of the Decision and Order,
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the two claims were consolidated for purposes of the hear-
ing. Separate proceedings for the determination of the
remand issue were found to be unwarranted. Thus, for pur-
poses of the hearing, the claim were consolidated. Both
claim numbers shall continue to be used. The two claims,
however, will not be termed as a single cause of action. The
two claim represented two separate and distinct injuries,
although the second claim arose out of an aggravation of the
original injury.
Second, the only issue on remand from the Board
was that of whether Claimant’s post injury wages fairly and
reasonably represented his wage earning capacity following
his return to work with Employer after his 1987 accident.
The Decision and Order of April 15, 1998 effectively
addressed this Remand issue. As such all issues arising out
of the first claim have been properly adjudicated. If
Claimant wishes to appeal, his appeal will be limited to that
Remand issue only. Claimant has filed a Motion for
Reconsideration, dependent on whether the two aforemen-
tioned claims were consolidated in a single cause of action.
Since they are obviously not a single cause of action, I will
now address Claimant Motion for Reconsideration.
Claimant first asserts that, regarding his 1987 injury,
he is entitled to a de minimus award based on the Supreme
Court’s in Rambo IL. I disagree. The decision in Rambo Il
solidified the Fifth Circuit’s established position of allowing
de minimus or nominal awards in certain situations where
the claimant has a proven work-related medical disability
which has not diminished his present wage earning capacity.
See generally, Hole v. Miami Shipyards. Corp., 640 F.2d
769, 772, 13 BRBS 237 (Sth Cir. 1981). The Court will
allow these type of awards where there is “significant
» ar wate SRE A EE Ne EP eh Sie He CT.
A-65
potential thatthe injury will cause diminished capacity
under future conditions.” Rambo II, __U.S.__. 117 S.Ct. at
1963. This holds open the possibility for modification of an
award under 33 U.S.C. § 922 if future events or circum-
stances change a potential disability into an actual one. Id.
While Claimant appears to fulfill the requirements
necessary for a de minimus award, upon closer examination
it is clear that the danger for which the de minimus award
was designed to guard against are not present in this case.
Claimant, in his second claim, sustained an aggravation to
his original injury for which he was granted permanent par-
tial benefits. While under the Act, this aggravation was a
“new injury,” it clearly arose out of the original 1987 injury.
Thus, any present loss in wage earning capacity is a product
of the combination of the 1987 injury and the 1992 aggra-
vation. As such, the loss in wage earning capacity is duly
represented by the award of permanent partial disability
benefits which takes into consideration Claimant’s physical
capabilities as they existed at the time of the award. In other
words, the original injuries suffered in 1987 are accounted
for in the award of permanent partial disability benefits.
The intent behind Rambo-II is to ensure that
Claimant’s are not left without recourse when they have no
present loss of wage earning Capacity but will likely have a
future loss of wage earning capacity. Such claimants, since
they have no present loss of wage earning capacity and no
right to an award of disability, lose the right to a Section 22
modification after one year. The de minimus award howev-
er, allows the window of opportunity in which to file for a
Section 22 modification to stay open indefinitely. Thus, in
regards to whom the de minimus award is designed to pro-
A-66
tect, we see that the de minimus award is granted only to
those claimant’s who have no present loss of wage earning
capacity. In this case, Claimant certainly has a present loss
of wage earning capacity, due to both his 1987 injury and his
1992 aggravation. As such, he cannot be awarded a de min-
imus award. To note, Claimant’s permanent partial disabili-
ty benefits leave open the possibility of modification under
Section 22 at a later date.
Claimant next asserts that a de minimus award is
proper as the 1987 injury may have contributed to the onset
of carpal tunnel syndrome in Claimant’s hands. To clarify,
the de minimus award is designed to protect a claimant’s
rights for a Section 22 modification for a probable future
loss of wage earning capacity. However, the loss in wage
earning capacity must relate back to the injury which was
the source of the claim. Claimant’ s claim of carpal tunnel
syndrome has not been substantiated, evidenced, or adjudi-
cated in the previous claims. As such a Section 22 modifica-
tion could not even address it.
Claimant next asserts that he is entitled to a Section
22 modification. Apparently, Claimant requests a Section 22
Modification based on the assertion that he suffered a loss of
wage-earning capacity while he was receiving temporary
total disability in that he was only receiving 2/3rds of his
average weekly wage as temporary total compensation.
Hence, Claimant asserts that he has suffered a 1/3rd loss in
his wage-earning capacity during the 1992 and 1995 tempo-
rary total disability periods.
From the outset, I note that there is absolutely no
A-67
basis, legal or otherwise, for Claimant’s assertion. I would
direct Claimant’s attention to Section 8(b) of the Act which
states:
(b) Temporary total disability: In case of disability
total in character but temporary in quality 66 2/3 per
centum of the average weekly wages shall be paid
to the employee during the continuance there-of
33 U.S.C. §908(b).
Simply put, an injured worker who receives benefits
under ihe Act for total disability receives 2/3rds of his wages
during the period of total disability. There are no deviations
from the statute and the judge has no discretion in this mat-
ter. A claimant has no right to recover the remaining one third.
Upon consideration of Claimant’s Motion for
Reconsideration, any opposition thereto, and the record
herein, Claimant’s Motion for Reconsideration is hereby
DENIED.
So ORDERED this the 25th day of JUNE, 1998 at
Metairie, Louisiana.
/S/ Richard Mills
RICHARD D. MILLS
Administrative Law Judge
A-68
APPENDIX H
U.S. Department of Labor _ Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601
BRB No. 92-1547
RENE M. DARBY
Claimant-Petitioner
V.
INGALLS SHIPBUILDING, DATE ISSUED: Aug 20 99
INCORPORATED
Self-Insured
Employer-Respondent
ORDER
Claimant has filed a timely motion for reconsidera-
tion of the Board’s May 24, 1999 Order denying an attor-
ney’s fee to claimant’s counsel for work performed before
the Board. 33 U.S.C. §921(b)(5); 20 C.ER. §802.407(a).
Employer responds, urging denial of claimant’s motion. We
deny the motion for reconsideration for the reasons that fol-
low, and we therefore affirm the denial of an attorney’s fee.
Claimant sustained left elbow and cervical spine
injuries in September 1987 for which employer paid tempo-
rary total disability benefits. In his initial decision, the
administrative law judge found claimant’s thoracic spinal
condition unrelated to the work injury, that employer pro-
vided suitable alternate employment in its facility, that
———————————
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5 a ica eS ad a a bea aa Ty ae ea oo Rte ty
A-69
claimant has no loss in wage-earning capacity, that claimant
is entitled to an award under the schedule for a 15 percent
impairment to his left arm, that claimant’s average weekly
wage is higher than that paid by employer, and that employ-
er is not liable for the treatment provided by Dr. Danielson.
Claimant appealed this decision to the Board, raising issues
relating to suitable alternate employment and wage-earning
capacity. The Board affirmed the admini strative law judge’s
decision in all respects. Darby v. Ingalls Shipbuilding, Inc.,
BRB No. 92-1547 (Feb. 24, 1995).
Claimant appealed the Board’s decision to the
United States Court of Appeals for the Fifth Circuit. The
court affirmed the finding that employer established suitable
alternate employment by virtue of a light duty job in its
facility, but remanded for additional findings concerning
claimant’s post-injury wage-earning capacity. Darby v.
Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)
(Sth Cir. 1996).
On remand, the administrative law judge consolidat-
ed the pending claim with a claim for a new injury that
occurred in 1992 while claimant was working in the light
duty position. The administrative law judge found that
claimant had no loss in wage-earning capacity from the 1987
injury. With regard to the new injury, the administrative law
judge, found that claimant is unable to return to the modified
job, and that claimant was totally disabled from May 1992
until claimant became self-employed as of August 31, 1997.
Thereafter, the administrative law judge found claimant
entitled to permanent partial disability benefits. 33 U.S.C.
§908(c)(21). Claimant filed a motion for reconsideration.
The administrative law judge rejected claimant’s contention
that he is entitled to a nominal award for the 1987 injury.
A-70
The administrative law judge further stated that the 1992
“agpravation” is a new injury under the Act but that it arose
out of the 1987 injury; “[t]hus, any present loss in wage
earning capacity is a, product of the combination of the 1987
injury and the 1992 aggravation.” Order on Recon. at he
Claimant did not appeal these decisions.
Claimant’s counsel sought an attorney’s fee of
$14,984, plus expenses, for work performed before the
Board in his initial appeal, to which employer objected. The
Board denied the fee in its entirety, stating that claimant was
unsuccessful on appeal.
In his motion for reconsideration, claimant contends
that in denying a fee, the Board ignored the fact that the
administrative law judge stated on reconsideration that
claimant’s present disability is due to both the 1987 injury
and the 1992 aggravation thereof. Thus, claimant contends
he was successful because, in effect he obtained concurrent
awards for the two injuries; he alleges that the two injuries
are interrelated such that he is entitled to the attorney's fee
requested, citing Hensley v. Eckerhart, 461 U.S. 424 (1983).
We reject claimant’s contentions. Initially, we note
that the Board and the Fifth Circuit affirmed the administra-
tive law judge’s finding that employer established suitable
alternate employment at its facility. Moreover, on remand
from the court the administrative law judge found that
claimant has no loss in wage-earning capacity due to the
| The administrative law judge subsequently awarded claimant’s coun-
sel an attorney’s fee of $21,800, plus expenses, after reducing the fee
requested by 25 percent to reflect what he termed claimant’s limited suc-
cess. Claimant has appealed this fee award. BRB No. 99-0618.
Pe Ge eS
DE tk ay
A-71
1987 injury, and is not entitled to a nominal award for this
injury. These findings were not appealed. The fact that the
administrative law judge stated on reconsideration that the
present loss in wage-earning capacity is due to both the 1987
and 1992 injuries does not make claimant successful for the
period of time prior to the second injury, which is the only
period of time in question for the attorney services per-
formed before the Board. Prior to the second injury, the
administrative law judge found that claimant was able to
work at the modified job with no loss in wage-earning
capacity. it is only since the 1992 “aggravation”’ (which is a
“new” injury under the Act) that claimant is unable to work
at the light duty job. Thus, that the two injuries may be
anatomically related, based on the medical evidence of
record, does not mean that claimant’s economic disability,
which is being compensated, is due to both injuries.
The cases cited by claimant for the proposition that
an -inchoate right will entitle counsel to an attorney’s fee are
inapposite. These cases present the situation where the
claimant would be entitled to benefits if not for the employ-
er’s credit of some kind. See, e.g., E.P. Paup Co. v. Director,
OWCP, 999 F.2d 1341,27 BRBS 41(CRT) (9th Cir. 1993);
Kinnes v. General Dynamics Corp., 25 BRBS 311 (1992). In
this case, there is no entitlement to benefits, inchoate or oth-
erwise, for the 1987 injury, and counsel therefore was unsuc-
cessful on appeal to the Board. Furthermore, although
Hensley permits a fee for interrelated claims, the claims here
clearly are severable as the work performed before the
Board represents time expended prior to the 1992 injury. See
generally George Hyman Construction Co. v. Brooks, 963
F.2d 1532, 26 BRBS 161(CRT) (D.C. Cir. 1991). inasmuch
as claimant was unsuccessful in obtaining benefits for the
1987 injury by virtue of his appeals to the Board and the
A-72
Fifth Circuit, we affirm the Board’s denial of an attorney’s
fee for work performed in BRB No. 92-1547.
Accordingly, claimant’s motion for reconsideration
is denied. The Board’s May 24, 1999 Order is affirmed.
SO ORDERED.
/S/ Betty Jean Hall
BE TTY JEAN HALL, Chief
Administrative Appeals Judge
/S/ James F. Brown
JAMES F. BROWN
Administrative Appeals Judge
/S/ Regina C. McGranery
REGINA C. McGRANERY
Administrative Appeals Judge
* We note that the Fifth Circuit summarily denied claimant's request for
an attorney’s fee for work performed before the court, as well as
claimant’s motion for reconsideration thereof.
A-73
APPENDIX I
BEFORE THE UNITED STATES DEPARTMENT OF
LABOR OFFICE OF WORKERS’ COMPENSATION
PROGRAMS
OWCP NO. 6-110624
RENE M. DARBY CLAIMANT
VERSUS
INGALLS SHIPBUILDING, INC. EMPLOYER
(A Self-Insured)
OBJECTION TO MOTION FOR MODIFICATION
COMES NOW, the self-insured employer, Ingalls
Shipbuilding, Inc., by and through its undersigned attorneys
of record, and submits this, its Objection to Claimant’s
Petition for Modification of the judicial determination in
connection with the above referenced claim and in objection
to claimant’s request for modification, the self-insured
employer would submit as follows, to-wit:
I.
That the resolution of the above referenced claim on
the merits was fully and finally reached with entry of the
Administrative Law Judge’s Order Denying
Reconsideration which was entered on July 17, 1998. The
Judge’s decision effectively denied the claim for any addi-
tional permanent disability benefits due to the injury of
September 24, 1987. Section 22 provides that a claimant
A-74
may apply for modification based upon a change of condi-
tions within one year of the last payment of compensation or
the denial of the claim. In the case at bar, the employer
would submit that the claim for additional compensation
was not filed until September 20, 1999. See correspondence
with filing date attached hereto as Exhibit “A.” Accordingly,
the claim for additional compensation was not filed until
more than one year after the denial of the claim for addi-
tional compensation. Therefore, the claim for additional
compensation due to the 1987 injury should be summarily
denied as untimely.
II.
That the claimant has failed to prove a change of
conditions or a mistake of fact as required by § 22.
Ii.
That the medical attached to the claim for modifica-
tion fails to establish a change of conditions or a mistake of
fact.
Based upon the foregoing, and other grounds to be
raised at a hearing hereon, the employer would assert that
the claim for modification of the injury of September 24,
1987, should be denied.
Respectfully submitted, this the 13th day of
October, 1999.
INGALLS SHIPBUILDING, INC.
BY: FRANKE, RAINEY & SALLOUM, PLLC
(S/ PAUL B. HOWELL
A-75
APPENDIX J
§ 908. Compensation for disability
(f) Injury increasing disability:
(1) In any case in which an employee hav-
ing an existing permanent partial disability suffers
injury, the employer shall provide compensation for
such disability as is found to be attributable to that
injury based upon the average weekly wages of the
employee at the time of the injury. If following an
injury falling within the provisions of subsection
(c)(1)-(20) of this section, the employee is totally and
permanently disabled, and the disability is found not
to be due solely to that injury, the employer shall pro-
vide compensation for the applicable prescribed peri-
od of weeks provided for in that section for the subse-
quent injury, or for one hundred and four weeks,
whichever is the greater, except that, in the case of an
injury falling within the provisions of subsection (13)
of this section, the employer shall provide compensa-
tion for the lesser of such periods. In all other cases of
total permanent disability or of death, found not to be
due solely to that injury, of an employee having an
existing permanent partiai disability, the employer
shall provide in addition to compensation under sub-
sections (b) and (e) of this section, compensation pay-
ments or death benefits for one hundred and four
weeks only. If following an injury falling within the
provisions of subsection (c)(1)-(20) of this section, the
employee has a permanent partial disability and the
disability is found not to be due solely to that injury,
and such disability is materially and substantially
greater than that which would have resulted from the
A-76
subsequent injury alone, the employer shall provide
compensation for the applicable period of weeks
provided for in that section for the subsequent injury,
or for one hundred and four weeks, whichever is the
greater, except that, in the case of an injury failing
within the provisions of subsection (c)(13) of this sec-
tion, the employer shall provide compensation for the
lesser of such periods.
In all other cases in which the employee
has a permanent partial disability, found not to be due
solely to that injury, and such disability is materially
and substantially greater than that which would have
resulted from the subsequent injury alone, the
employer shall provide in addition to compensation
under subsections (b) and (e) of this section, compen-
sation for one hundred and four weeks only.
SORE:
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A-77
APPENDIX K
§ 922. Modification of awards
Upon his own initiative, or upon the application of
any party in interest (including an employer or carrier which
has been granted relief under section 908(f) of this title), on
the ground of a change in conditions or because of a mistake
in a determination of fact by the deputy commissioner, the
deputy commissioner may, at any time prior to one year after
the date of the last payment of compensation, whether or not
a compensation order has been issued, or at any time prior to
one year after the rejection of a claim, review a compensa-
tion case (including a case under which payments are made
pursuant to section 944(i) of this title) in accordance with the
procedure prescribed in respect of claims in section 919 of
this title, and in accordance with such section issue a new
compensation order which may terminate, continue, rein-
state, increase, or decrease such compensation, or award
compensation. Such new order shall not affect any compen-
sation previously paid, except that an award increasing the
compensation rate may be made effective from the date of
the injury, and if any part of the compensation due or to
become due is unpaid, an award decreasing the compensa-
tion rate may be made effective from the date of the injury,
and any payment made prior thereto in excess of such
decreased rate shall be deducted from any unpaid compen-
sation, in such manner and by such method as may be deter-
mined by the deputy commissioner with the approval of the
Secretary. This section does not authorize the modification
of settlements. ;
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APPENDIX L
§ 928. Fees for services
(a) Attorney’s fee; successful prosecution of claim
If the employer or carrier declines to pay any com-
pensation on or before the thirtieth day after receiving writ-
ten notice of a claim for compensation having been filed
from the duty commissioner, on the ground that there is no
liability for compensation within the provisions of this chap-
ter, and the person seeking benefits shall thereafter have uti-
lized the services of an attorney at law in the successful
prosecution of his claim, there shall be awarded, in addition
to the award of compensation, in a compensation order, a
reasonable attorney’s fee against the employer or carrier in
an amount approved by the deputy commissioner, Board, or
court, as the case may be, which shall be paid directly by the
employer or carrier to the attorney for the claimant in a lump
sum after the compensation order becomes final.
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