Chamblee v. Newport News Shipbld ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES M. CHAMBLEE,
Petitioner,
v.
No. 96-1100
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Respondent.
On Petition for Review of an Order
of the Benefits Review Board.
(92-2477)
Argued: March 5, 1997
Decided: June 24, 1997
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and BLACK, Senior United States District Judge for the
District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Benjamin McMullan Mason,
MASON & MASON, P.C., Newport News, Virginia, for Respondent.
ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Petitioner James M. Chamblee ("Chamblee") appeals a decision of
the Benefits Review Board ("BRB") affirming the decision of an
Administrative Law Judge ("ALJ"), which involved his workers'
compensation claim under the Longshore and Harbor Workers' Com-
pensation Act (LHWCA), 33 U.S.C. §§ 901-950 (West 1986 & Supp.
1997). The ALJ's Decision and Order required Chamblee's employer
to compensate Chamblee, pursuant to 33 U.S.C. § 908(c)(1), for a
twenty-five percent permanent partial disability due to an injury to
Chamblee's left arm. Chamblee contends that the ALJ erred in deter-
mining the extent of Chamblee's disability by adopting the impair-
ment rating of one of the many physicians who examined him. This,
in Chamblee's view, constituted a failure on the part of the ALJ to
consider all the relevant evidence necessary to make a proper assess-
ment of Chamblee's disability and violated the pertinent provisions of
the LHWCA.
I.
On July 25, 1985, Chamblee suffered a work-related injury to his
elbow while employed by the Newport News Shipbuilding and Dry
Dock Company ("NNS"). Chamblee, a twenty-three year employee of
NNS, has worked for most of his career as a shipfitter. As a shipfitter,
Chamblee's work entailed, to a great extent, repair work and tank
work on vessels in the shipyard. To do this work, Chamblee was
required to lift weights, climb vertical ladders, and operate a variety
of heavy tools. As a result of his injury, and the related pain, Cham-
blee no longer has the physical capacity to perform the same job at
work. NNS, however, has apparently found light duty work for
Chamblee since his injury.
As part of the extensive medical treatment Chamblee received after
2
his injury, a series of doctors offered assessments of Chamblee's
impairment.* Chamblee was first treated by Dr. Bartlett from August
1985 to March 1987, and again from January 19, 1990 to February
13, 1992. Dr. Bartlett made two assessments of the level of Cham-
blee's impairment: first, on March 6, 1986, Dr. Bartlett judged Cham-
blee had "about a 5% permanent partial disability" to his left arm, and
later, on March 18, 1987, Dr. Bartlett found Chamblee's injuries war-
ranted a "35% disability" rating. A NNS clinic referred Chamblee to
Dr. Giannotto who treated him from March 31, 1987 until he resumed
treatment with Dr. Bartlett. Dr. Giannotto found:"limited use of the
left upper extremity" and concluded that "the disability rating would
be a permanent partial disability of 10% referrable to the left upper
extremity." Lastly, Dr. Neff examined Chamblee on January 8, 1991.
On March 12, 1992, at NNS's request, and based on his notes of
Chamblee's prior visit and X-rays, Dr. Neff stated in a letter: "I would
rate Mr. Chamblee as having a twenty-five percent permanent impair-
ment to his left upper extremity."
In accordance with the LHWCA, Chamblee filed a claim for com-
pensation benefits. NNS voluntarily compensated Chamblee at a ten
percent permanent partial disability rate. Chamblee, not satisfied with
this compensation, requested a hearing on the issue of the extent of
his permanent partial disability, claiming he was entitled to compen-
sation at a fifty percent permanent partial disability rate, and a formal
hearing was held before the ALJ on March 5, 1992. The ALJ issued
a Decision and Order dated July 24, 1992 in which he reviewed the
aforementioned medical opinions and awarded benefits based on a
finding that Chamblee had a twenty-five percent permanent partial
disability to his left arm.
Chamblee filed a timely Notice of Appeal to the BRB. After brief-
ing on the issues by the parties, the BRB issued a Decision and Order
dated November 28, 1995 affirming the ALJ. This appeal followed.
_________________________________________________________________
*The doctors involved in this case used both the"permanent partial
disability" language of the LHWCA, and the term"impairment." It is
unclear from the record whether or not the doctors involved in this case
used these terms in a synonymous fashion, or whether they used these
terms with an appreciation of the differences between them under the
LHWCA.
3
II.
The ALJ's decision must be upheld so long as it is supported by
substantial evidence. Newport News Shipbuilding and Dry Dock Co.
v. Tann, 841 F.2d 540, 543 (4th Cir. 1988)."On review, the ALJ's
findings may not be disregarded on the basis that other inferences
might have been more reasonable. Deference must be given the fact-
finder's inferences and credibility assessments, and we have empha-
sized the scope of review of ALJ findings is limited." Id. Conse-
quently, we must affirm the BRB's decision "if it correctly concluded
that the ALJ's findings are supported by substantial evidence and are
in accordance with the law." P & M Crane Co. v. Hayes, 930 F.2d
424, 428 (5th Cir. 1991).
Chamblee attempts to create a question of law for this Court to
review by asserting that the ALJ was unaware of the difference
between a LHWCA disability assessment and an impairment rating,
and hence, failed to consider all the relevant evidence necessary to
make an independent assessment of his disability. Under the
LHWCA, "disability" is defined as:
incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or
any other employment; but such term shall mean permanent
impairment, determined (to the extent covered thereby)
under the guides to the evaluation of permanent impairment
promulgated and modified from time to time by the Ameri-
can Medical Association, in the case of an individual whose
claim is described in section 910(d)(2) of this title.
33 U.S.C. § 902(10). Applicable LHWCA caselaw demonstrates that
disability is an inclusive concept which recognizes the economic
effects of a physical impairment. See, e.g., Owens v. Traynor, 274 F.
Supp. 770, 774 (D. Md. 1966) ("Anatomical impairment and indus-
trial disability must be distinguished."), aff'd, 396 F.2d 783 (4th Cir.),
cert. denied, 393 U.S. 962 (1968). Pointing to this principle, Cham-
blee objects to the ALJ's reliance on Dr. Neff's twenty-five percent
impairment rating as an appropriate measure of Chamblee's disabil-
ity. Chamblee, understandably, would have preferred that the ALJ use
4
Dr. Neff's impairment rating as a beginning point from which to
award even greater compensation based on other evidence.
The fact that the ALJ credited the "impairment" rating of Dr. Neff
and awarded Chamblee compensation based on a twenty-five percent
permanent partial disability does not, however, lead to the conclusion
that the ALJ improperly equated disability and impairment, or other-
wise shirked his adjudicatory duties. Not only did the ALJ enunciate
the proper definition for disability under the LHWCA-- citing
Owens, 274 F. Supp. at 774, for the proposition that "[d]isability is
an economic concept based on a medical foundation" -- but the
ALJ's opinion properly noted and considered a variety of evidence in
addition to Dr. Neff's medical opinion, including Chamblee's testi-
mony with regard to pain and suffering, and job restrictions due to his
injury. The ALJ is entitled to weigh all the evidence, medical or oth-
erwise, before him and to rely on that evidence which he finds most
credible. Todd Shipyards Corp. v. Donovan, 300 F.2d 741, 742 (5th
Cir. 1962); Ennis v. O'Hearne, 223 F.2d 755, 758 (4th Cir. 1955).
Moreover, while adherence to an impairment rating, consistent with
the American Medical Association guidelines, is not required in a
scheduled loss case, neither is the fact-finder constrained to any set
technique for the determination of a disability rating. Mazze v. Hol-
leran, Inc. & State Ins. Fund, 9 BRBS 1053, 1055 (1978); see also
Maryland Shipbuilding and Drydock Co. v. Director, Office of Work-
ers' Compensation Programs, 618 F.2d 1082 (4th Cir. 1980) (analyz-
ing a claim brought under Section 908(f) of the LHWCA which also
utilizes the term "disability," and finding that the percentages adduced
from the medical testimony can be representative of the entire disabil-
ity). As there is no evidence in this record which suggests that the
ALJ's twenty five percent disability rating did not accurately reflect
the entire compensable disability, the BRB correctly found the ALJ's
award supported by substantial evidence.
AFFIRMED
5