Trans-State Dredging and Hartford Accident and Indemnity Company v. Benefits Review Board, U.S. Department of Labor and David E. Tarner ( 1984 )

SPROUSE, Circuit Judge,

dissenting:

I respectfully dissent.

Newport News requires the employer to prove that “there [are] jobs available in the local economy which the claimant, considering his age, past experience and disability, [is] capable of performing.” 592 F.2d at 765 (quoting Hicks v. Gardner, 393 F.2d 299 (4th Cir.1968)). I agree with the majority that the quantum of proof required to satisfy this standard does not necessarily include telephoning prospective employers or performing any specific mechanical job search on the claimant’s behalf. I disagree, however, with the majority’s apparent belief that a vocational expert’s testimony is in all cases sufficient to meet this standard. The proof of employability must pertain to the availability of jobs for the particular claimant, not for the world at large, nor for some shadow of a person possessing roughly the same demographic profile as the claimant’s. Newport News, 592 F.2d at 765. See also American Stevedores, Inc. v. Salzano, 538 F.2d 933 (2d Cir.1976); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I.1969). A vocational expert may be able to provide such proof in specific cases, but ritualistic reliance on his expertise in all instances runs counter to the broad remedial purposes of the Longshoremen’s and Harbor Workers’ Act.

I also disagree with the majority’s perception that there is a need to define further the Newport News rule. Newport states that the employer has the burden of proof on the claimant’s employability, once it has been established that he no longer can perform his regular work. The various methods available to the employer to meet this burden cannot be standardized in a single formula, applicable to every factual circumstance. Ultimately, it is the proba-tiveness of the employer’s evidence that determines the outcome, not the format in which it is presented.

In Tamer’s case, the vocational expert reached the conclusion that the claimant was employable by searching the local want ads and examining the Employment Security Office’s job listings. Many of the jobs he identified as available to Tarner had been posted eighteen months before the disability hearing. His most recent survey had occurred six months before he testified that openings existed for a man of Tamer’s obvious disabilities. In my mind, testimony of job availability so remote in time to the claimant’s hearing is not even sufficient to show that the jobs exist for an able-bodied individual, much less for a man with Tamer’s handicap.

The vocational expert concededly interviewed Tarner twice, although each time the meeting was brief. His testimony concerning Tamer’s ability to perform certain categories of sedentary work, therefore, deserved some weight. It is quite a precarious leap, however, to conclude that he or any other expert could know whether jobs are actually available to a person with Tar-ner’s physical limitations merely by examining the stale job listings of a state employment office or a local newspaper.

I believe, moreover, that the majority opinion goes far astray when it questions Tamer’s willingness to work. Tarner sustained his injury on June 25, 1971, yet he continued to hold various jobs in the occupation for which he was trained over the next five years. He was forced to leave each of these because the work so exacerbated his physical condition that he was unable to perform his tasks satisfactorily. From May 10,1976 to the present, Tamer’s condition has worsened to the point that he is unable to perform any work. His disability, as presently diagnosed, consists of a ruptured disc in the C-5, 6, and 7 areas of the neck.

In Newport News we held that

[a] claimant seeking an award for total disability must prove that he is disabled by reason of his industrial injury from performing his regular employment. Having shown such a disability, the claimant is entitled to an award under the Act unless the employer alleges that he is substantially and gainfully employable. Then the burden shifts to the employer, the proponent of a finding of less than total disability, to prove that alternate employment is available.

592 F.2d at 765. The key element of our holding in Newport News was that the proponent of a finding of less than total disability shoulders the burden of proving that the injured worker is employable. The majority would impermissibly reverse that burden by using Tamer’s commendable but unsuccessful attempts to work in spite of his painful physical condition, as evidence of his employability. Judge Winter exposed the perverseness of such logic in Haughton Elevator Co. v. Lewis, 572 F.2d 447, 451 (4th Cir.1978) (concurring):

Both the administrative law judge and the Benefits Review Board were of the opinion that “if [the claimant] were not working at all, he would probably be found to be permanently totally disabled.” I agree with the Board that “it would be unfair to penalize [the claimant] by denying him compensation for permanent total disability because he made an extraordinary effort to keep working” and that a man “having a severe physical disability as a result of an employment-related injury should not be required to continue enduring excruciating pain and subjecting himself to the possibility of further injury by performing work which is more strenuous than that type of ‘light’ work he was advised to do.”

Finally, I disagree with the majority’s conclusion that the administrative law judge did not make a factual determination concerning Tamer’s inability to perform even light and sedentary work. The AU in his finding stated:

Based upon the Claimant’s testimony which is credible, it is very doubtful that the Claimant could even perform light and sedentary work or jobs on a regular sustained basis in his present condition based upon pain and very limited used [sic ] of his neck with problems in his left arm and hand. Furthermore, Mr. Thompson testified that he did not contact any potential employers and cannot testify that any of the job listing [sic ] in the employment office are available to this Claimant therefore it is concluded that the Respondents have failed to sustain their burden in establishing that there is work available to this Claimant that he can perform and do on a regular sustained basis within the area of his residence.

I would affirm the decision of the Benefits Review Board.