Ledet v. Phillips Petroleum ( 1999 )

Revised January 11, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60717
OREL J. LEDET,
Petitioner,
versus
PHILLIPS PETROLEUM COMPANY;
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
December 21, 1998
Before POLITZ, Chief Judge, JONES and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
Orel J. Ledet appeals the final order of the Benefits Review Board affirming
the Administrative Law Judge’s award of benefits under the Longshore and Harbor
Workers’ Compensation Act (LHWCA).1 For the reasons assigned, we affirm in
part and vacate and remand in part.
1
33 U.S.C. § 901, et seq.
BACKGROUND
Ledet was employed as a mechanic by Phillips Petroleum and, during the
course of this employment, was injured when he slipped and fell from a crane on
August 22, 1989. At the time of the accident he received first aid but did not
request or receive medical attention from a doctor. Ledet continued working until
October 20, 1989,2 when he called his immediate supervisor to report that he was
unable to work because of a back injury.
Ledet sought medical treatment from his family physician who referred him
to an orthopedic surgeon, Dr. Louis Blanda. Dr. Blanda recommended physical
therapy and pain killers for the back strain. Phillips, as part of its investigation of
Ledet’s absence from work, ordered Ledet to undergo a work fitness examination
by Dr. James Fournet, a company appointed physician. Dr. Fournet’s examination
of Ledet on December 5, 1989 revealed no objective signs of injury.
Ledet was contacted by his supervisor several times during December 1989
and January 1990 advising him that he should either provide medical evidence from
his attending physician showing that he was medically disqualified or return to
work immediately, cautioning that failure to do so would result in his termination.
2
After the accident, Ledet completed his shift and worked two additional ten day
shifts before October 20, 1989.
2
On February 8, 1990, Ledet was terminated retroactive to November 30, 1989 for
“abandonment of job.”
Ledet filed a claim for compensation and medical benefits under the
LHWCA on April 5, 1990. A hearing was held before an Administrative Law
Judge who found that: (1) Phillips’ termination of Ledet was not a discriminatory
act under the LHWCA; (2) Ledet was temporarily totally disabled from October 21,
1989 until September 4, 1990 when he reached maximum medical improvement;
(3) Phillips had knowledge that Ledet’s injury was work-related as of August 22,
1989, the day of the accident, and knowledge as of December 5, 1989 that Ledet
was seeking medical treatment for this injury; and (4) Ledet’s short-term position
as an automobile salesman post-injury constituted suitable alternative employment.
The ALJ awarded Ledet compensation for the period October 21, 1989 to
September 4, 1990. He then remanded the case, in part, to the Director because
there was no evidence in the record regarding Ledet’s post-injury wages. On
remand, Ledet was ordered to submit evidence of his wages as a car salesman to
the Director who was to determine how much, if any, compensation was due for the
period following September 5, 1990. The ALJ’s award was affirmed by the
3
Benefits Review Board and Ledet timely appealed to this court. 3
ANALYSIS
Ledet first contends that the ALJ erred in concluding that his termination was
not a discriminatory act. We are bound to uphold the ALJ’s decision if it is
supported by substantial evidence and is in accordance with law.4
Under the LHWCA, it is unlawful for an employer to terminate or otherwise
discriminate against an employee claiming or attempting to claim compensation.5
Phillips was notified in January 1990 that Ledet was represented by an attorney and
was pursuing his claim for LHWCA benefits. Inasmuch as Ledet was not
terminated until February 9, 1990, he claims that the decision to terminate him was
a direct result of his claim for benefits and that Phillips’ stated reason for his
termination, abandonment of work, is merely a pretext.
The ALJ found no evidence of discriminatory motive. Rather, according to
the ALJ, the evidence established that Ledet was terminated for failure to present
medical evidence to substantiate his absence from work. Our review of the record
3
The ALJ’s award was affirmed as a matter of law when the Board did not act
on the appeal within a year. See Omnibus Appropriations for Fiscal Year 1996, Pub.L.
No. 104-134, § 101(d), 110 Stat. 1321-219.
4
New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028 (5th Cir. 1997).
5
33 U.S.C. § 948a.
4
discloses that Ledet was repeatedly asked by Phillips to submit medical proof of his
injury. As of the termination date, however, Phillips had only received one brief
and undetailed report from Dr. Blanda, dated December 26, 1989, which stated
that Ledet would be unable to return to work for approximately three to four weeks
without disclosing the medical reason for same. Thus, the record supports the
ALJ’s rejection of Ledet’s discrimination claim.
Ledet next objects to the ALJ’s finding that his post-injury employment as
a car salesman constituted suitable alternative employment, and to the ALJ’s order
that he submit evidence of his earnings from such employment to the Director.6
Disability under the LHWCA 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.”7 Disability thus is an economic as well as a medical concept. 8
6
The ALJ awarded Ledet benefits for temporary total disability from the date of
the accident, August 22, 1989, to the date of maximum medical improvement,
September 4, 1990. The ALJ determined the date of maximum medical improvement
from Dr. Blanda’s observation that Ledet was capable of light duty work as of
September 4, 1990. This finding is not challenged on appeal. Additionally, he awarded
Ledet benefits for permanent total disability from the date of maximum medical
improvement to January 1, 1991 when Ledet began working as a car salesman. After
January 1, 1991 Ledet was to receive benefits for permanent partial disability based on
his earnings as a car salesman.
7
33 U.S.C. § 902(10).
8
Quick v. Martin, 397 F.2d 644 (D.C. Cir. 1968).
5
The amount of compensation awarded is dependent on the nature and extent
of the disability.9 An employee is considered permanently disabled when he has
any residual disability following the date of maximum medical improvement.10
Any disability before reaching maximum medical improvement is thus considered
temporary in nature.
The extent of the disability is characterized as either total or partial. To
establish a prima facie case of total disability, the claimant must show that he is
unable to return to his former employment. If the claimant is successful in
establishing a prima facie case of total disability, the burden of proof then shifts to
the employer to establish suitable alternative employment.11
9
If a claimant is totally disabled, he would receive two-thirds of his pre-injury
salary for the remainder of his life. 33 U.S.C. § 908(a). If partially disabled, the
claimant’s award would be determined under § 908(c) which provides a schedule of
benefits for certain identified injuries, limiting the two-thirds of the pre-injury wages
to a finite number of weeks. Where a specific injury is not listed in the schedule, §
908(c)(21) provides in “all other cases” for an award equal to two-thirds of the
difference between pre-injury average wages and post-injury wage earning capacity.
The wage earning capacity of the claimant is determined under § 908(h) by his actual
post-injury earnings or, if the claimant does not have any actual post-injury earnings or
the earnings do not fairly and reasonably represent his wage earning capacity, the fact
finder may determine same.
10
Trask v. Lockheed Shipbuilding Construction Co., 17 BRBS 56 (1985).
11
New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031 (5th Cir.
1981).
6
Ledet contends that the ALJ erred in finding that his job as a car salesman
constituted suitable alternative employment and, therefore, erred in awarding him
benefits for permanent partial disability rather than for permanent total disability
after January 1, 1991. The record shows that Ledet worked as a car salesman for
Martin Chevrolet in Breaux Bridge, Louisiana for approximately six months
beginning in January 1991. He was dismissed, however, for failing to meet his
sales quotas.
Nevertheless, the ALJ found that because Ledet was physically able to
perform the car salesman’s job, Phillips had carried its burden of establishing the
availability of suitable alternative employment. This finding must be rejected as
neither in accordance with law, nor supported by substantial evidence.
We recognized in New Orleans (Gulfwide) Stevedores v. Turner, that the
physical ability to perform a job is not the exclusive determinant whether the job
constitutes suitable alternative employment. In addition to physical ability, the fact
finder, here the ALJ, must also consider the “specific capabilities of the claimant,
that is, his age, background, employment history and experience, and intellectual
and physical capacities.”12 In the instant case, the ALJ did not consider whether
Ledet had the mental ability or skills to work successfully as a car salesman. The
12
Id. at 1042.
7
reasons underlying his dismissal for poor sales performance must be parsed
carefully. Further, as the ALJ properly noted in his Decision and Order, Phillips
presented no meaningful evidence of suitable alternative employment.
After concluding that Ledet’s position as a car salesman constituted suitable
alternative employment, the ALJ noted that the record was devoid of any evidence
showing Ledet’s earnings from such employment. The ALJ then remanded the
case to the Director and ordered Ledet to provide sufficient evidence to establish
the amount of his actual post-injury earnings. From this information the Director
was to determine whether Ledet was entitled to compensation after January 1,
1991, and, if so, the amount of benefits due.13 As we previously have held, “[t]o
constitute a ‘final decision and order’ of the ALJ, the order must at a minimum
specify the amount of compensation due or provide a means of calculating the
correct amount without resort to extra-record facts which are potentially subject to
13
Based on the evidence provided by Ledet, the Director was to determine
Ledet’s earning capacity by calculating Ledet’s average weekly earnings from Martin
Chevrolet, adjusted to reflect 1989 wage levels. The Director was then to compare
Ledet’s earning capacity to the stipulated average weekly wages of $696.45 he earned
prior to the accident. If Ledet’s earning capacity was lower than $696.45 then Ledet
would be entitled to the difference between the stipulated average weekly wage and his
earning capacity. If not, Ledet would not be entitled to any benefits for the period after
January 1, 1991 because he would not have sustained any loss of wage-earning
capacity.
8
genuine dispute between the parties.”14 Although the ALJ provided a means of
calculating the amount of benefits due, he impermissibly delegated his fact-finding
duty to the Director. In order to determine Ledet’s post-injury earnings the
Director would have to “resort to extra-record facts.” Such is impermissible.
Finally, counsel for Ledet objects to the ALJ’s reduction of the hourly
attorney fee and of the time and expenses billed in the fee application. These
determinations will be affirmed on appeal unless they are arbitrary, capricious, or
an abuse of discretion.15 We find that the ALJ’s reductions were rational and,
therefore, affirm the award of attorney’s fees.
Accordingly, we VACATE the finding that the car salesman position was
suitable alternative employment and the order remanding to the Director to gather
evidence of Ledet’s earnings as a car salesman and to calculate the compensation
due therefrom. That is a matter for the ALJ to complete. The judgment appealed
is AFFIRMED in all other respects.
AFFIRMED in part, VACATED in part, and REMANDED to the ALJ for
further proceedings consistent herewith.
14
Severin v. Exxon Corp., 910 F.2d 286, 289 (5th Cir. 1990).
15
Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).
9
EDITH H. JONES, Circuit Judge, concurring:
I concur in this good opinion on the understanding that in vacating and
remanding to the ALJ we do not foreclose the possibility that, based on a more
complete record, the ALJ could conclude that Ledet’s car sales position may be
found to be suitable alternative employment, or the employer may otherwise carry
its burden under P&M Crane Co. v. Hayes, 930 F.2d 424 (5th Cir. 1991).
10