ADM/Growmark River System, Inc. v. Director, Office of Workers' Compensation Programs , 251 F. App'x 865 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-60923 September 26, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
ADM/GROWMARK RIVER SYSTEM, INC.
Petitioner
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
US DEPARTMENT OF LABOR; ROOSEVELT JOHNSON
Respondents
Appeal from the Benefits and Review Board Decision and Order,
BRB No. 05-0962
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
ADM/Growmark River System, Inc. (“ADM”), claimant’s employer, appeals
the Benefits Review Board decision and order, upholding the award of benefits
under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901,
et seq. by an Administrative Law Judge (“ALJ”) to appellee, Roosevelt Johnson.
Johnson suffered an undisputed knee injury at work; he claims the knee injury
caused another accident at work, which lead to serious back injury. The
appellant contends that: (1) the evidence was insufficient to trigger the Section
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-60923
20(a), 33 U.S.C. 920(a) presumption; (2) the Section 20(a) presumption was
rebutted; (3) Johnson is not entitled to temporary total disability benefits; (4)
suitable employment was established for Johnson; (5) Johnson did not find
suitable employment; (6) reliance on claimant’s testimony was patently
unreasonable; (7) that expert testimony was required to explain the
circumstances of claimant’s alleged accident; (8) the administrative decisions are
not supported by substantial evidence based on the record as a whole.
We review the Benefits and Review Board (“BRB”) only to consider “errors
of law and [to] mak[e] certain that the BRB adhered to its statutory standard of
review of factual determinations, that is, [to determine] whether the ALJ's
findings of fact are supported by substantial evidence and are consistent with
the law.” Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 287 (5th Cir.
2003) (internal quotes and citations omitted).
We find no error in the ALJ’s decision that the evidence was sufficient to
invoke the 20(a)1 rebuttable presumption, that the employer failed to rebut it,
and that Collins carried his burden of persuasion that his condition is causally
related to his work injury. Under the LHWCA, a claimant must prove a prima
facie case for coverage, which consists of proof that (1) an injury was suffered,
and (2) the injury occurred in the course of employment or was caused,
aggravated or accelerated by conditions at the work place. Ortco, 332 F.3d at287 (citing Conoco v. Director, Office of Worker’s Compensation Programs, U.S.
Dept. of Labor, 194 F.3d 684, 687 (5th Cir. 1999)). Once he does so, the 20(a)
presumption that the injury is work-related and that the claimant is entitled to
coverage is triggered. Id. To avoid coverage, the burden shifts to the employer
to affirmatively rebut the presumption with “substantial evidence to the
contrary.” Id. This evidentiary standard is less demanding than proof by a
1
33 U.S.C. § 920(a).
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No. 06-60923
preponderance of evidence. Id. If the employer is successful in rebutting the
presumption, the ALJ must assess the issue of causation by looking at all record
evidence. Id. at 290.
There is substantial evidence supporting the ALJ’s determination that
Johnson suffered an accident at work. The employer does not dispute the first
accident leading to his knee injury. However, the employer does contend the
second accident, as Johnson described, would defy the laws of physics and was
staged. There is substantial evidence to support the ALJ’s decision to credit
Johnson’s view of the events. Photographs and the general consistency in
Johnson’s description of events supported the ALJ’s decision. The ALJ’s
determination that Johnson suffered a real injury from which he has not fully
recovered is also backed with substantial evidence. Two doctors opined that
Johnson was limited in the tasks he could safely perform, because of his back
and neck pain and the continuing and worsening problems with his knee. Their
opinions qualify as substantial evidence to support the ALJ’s finding that the
Section 20(a) presumption was triggered. Further the employer did not rebut
the presumption with substantial evidence to the contrary. The employer could
not provide any witness challenging Johnson’s narrative of events. The
employer also did not provide an expert to testify that Johnson’s account of
events was physically impossible. Instead, the employer relies on conclusory
statements that Johnson’s account is not possible. Though the employer offered
the testimony of another doctor who opined, based on videotapes provided by the
defendant, that Johnson could work without restriction and identified some
inconsistencies in Johnson’s testimony, the ALJ is entitled to weigh the evidence,
assess the credibility of the witnesses, and draw inferences and conclusions from
the evidence. Id. at 292. The ALJ’s reliance on his testimony is also not
patently unreasonable in light of the employer’s failure to provide substantial
evidence to the contrary.
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No. 06-60923
The ALJ did not err in finding that Johnson is entitled to temporary total
disability benefits. Once a claimant has demonstrated that he is unable to
perform his former longshore employment due to his job-related injury, he has
made a prima facie case of total disability. SGS Control Services v. Director,
Office of Worker's Compensation Programs, U.S., 86 F.3d 438 (5th Cir. 1996)
(citing Louisiana Ins. Guar. Ass’n v. Abbott, 40 F.3d 122, 127 (5th Cir. 1994)).
The burden then shifts to the employer to rebut the prima facie showing by
establishing that the employee is (1) capable of performing (2) other realistically
available jobs. Id. (citing Abbott, 40 F.3d at 127). The claimant, by virtue of his
age, education, work experience, and physical restrictions must be capable of
performing these jobs. Ledet v. Phillips Petroleum, Co., 163 F.3d 901, 905 (5th
Cir. 1998). Once an employer makes this showing, the burden shifts back to the
claimant to show that he diligently looked for work and was unable to find a job.
Ceres Marine Terminal v. Hinton, 243 F.3d 222, 225 (5th Cir. 2001) (citing New
Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1040 (5th Cir. 1981)).
In the instant case, substantial evidence supports the ALJ’s determination that
Johnson presented a prima facie case of disability. Two physicians opined that
Johnson could not return to his old job and had restrictions on the type of work
he could perform. Though the employer provides evidence that Johnson was
performing work post-injury that is similar to the work he performed at his job,
the ALJ was justified in concluding that Johnson’s alleged work in short bursts
does not contradict the expert testimony that he could not return to the same job
where the work is sustained over a much longer duration.
To determine whether there is possible alternative employment, we must
consider whether the employer established that: (1) considering claimant's age,
background, education, etc., what can the claimant physically and mentally do
following his injury, that is, what types of jobs is he capable of performing or
capable of being trained to do?; and (2) within this category of jobs that the
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No. 06-60923
claimant is reasonably capable of performing, are there jobs reasonably available
in the community for which the claimant is able to compete and which he could
realistically and likely secure? The employer is correct to note that evidence
that one job was available could satisfy the employer’s burden. However,
whether a single job satisfies the burden is a case-specific factual determination.
P & M Crane Co. v. Hayes, 930 F.2d 424, 431 (5th Cir. 1991). As we noted in P
& M Crane Co., the burden on the employer heightens if it only offers a single
possible opportunity and the employer would have to show that “an employee
may have a reasonable likelihood of obtaining such a single employment
opportunity under appropriate circumstances.” Id. Such “appropriate
circumstances” identified in P & M Crane Co., such as the fact that an employee
is highly skilled, the employer is specialized, and the number of qualified
workers is limited in the community, do not exist in this case. Therefore, we
find sufficient evidence for the ALJ’s determination that the employer failed to
satisfy its burden for the time period between November 2003 to March 2005.
Since the ALJ had sufficient evidence to determine that Johnson had restrictions
limiting the jobs he could pursue, he also was justified in relying on Dr. Stokes’
testimony concerning the types of jobs and wages Johnson would earn if he
pursued those jobs. Based on the foregoing, we find substantial evidence to
support the ALJ’s findings, and therefore his decision is not patently
unreasonable and he did not abuse his discretion.
Accordingly, we AFFIRM.
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