Bruce v. McBride v. Eastman Kodak Company, and Director, Office of Workers' Compensation Programs, U.S. Department of Labor

844 F.2d 797, 269 U.S. App. D.C. 179
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 26, 1988
Docket86-1606
StatusPublished
Cited by14 cases

This text of 844 F.2d 797 (Bruce v. McBride v. Eastman Kodak Company, and Director, Office of Workers' Compensation Programs, U.S. Department of Labor) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruce v. McBride v. Eastman Kodak Company, and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, 844 F.2d 797, 269 U.S. App. D.C. 179 (D.C. Cir. 1988).

Opinion

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In May 1978, petitioner Bruce McBride suffered a herniated disc while working as a sales representative for respondent Eastman Kodak Co. McBride underwent an operation and then recuperated for several months. As the administrative law judge (“AU”) subsequently found, McBride continued to suffer “some physical limitations and pain,” Joint Appendix (“J.A.”) at 13a, although the severity of either of these symptoms is disputed.

In early 1979, McBride returned part-time to a desk job at Kodak’s Washington, D.C. office. However, this position was not permanently available, and Kodak requested McBride to enroll in a retraining program for three months at the company’s Rochester headquarters. At no time was McBride offered his old job in Washington. Kodak maintained, instead, that a sedentary job would be available in Rochester upon successful completion of the retraining. McBride did not believe he was physically able to complete the retraining program or to work full-time thereafter, and he also did not want to relocate to Rochester. After discussions with Kodak, and unsuccessful requests by McBride for continued employment in Washington, McBride decided to leave Kodak. Thereafter, McBride worked part-time at Gordon’s Studio, a local camera store, for several months but ultimately quit when the owner insisted that he switch from an hourly wage to a commission arrangement.

As a result of his injury, McBride filed for permanent disability benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA). 33 U.S.C. §§ 901 et seq. (1982). At the time of McBride’s injury, pursuant to 36 D.C.Code §§ 501 et seq. (1973) (repealed 1980), the LHWCA applied to employees in the District of Columbia. A hearing was held on this claim before the AU in February 1983. The AU’s opinion, issued in July 1983, denied McBride’s claim on the ground that McBride was physically able to perform his old job as a technical sales representative. McBride appealed this decision to the Department of Labor’s Benefits Review Board (“the Board”), which affirmed the AU’s ruling. McBride then filed a ■ petition for review of the Board’s decision with this court. We find that the AU applied an incorrect legal standard in denying McBride’s claim and that the Board failed to correct this error in its review. We therefore reverse the Board’s decision and remand the case for further proceedings.

A worker’s disability — whether total or partial — is defined in the LHWCA 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.” 33 U.S.C. § 902(10) (Supp. Ill 1985). This Circuit has recognized “the well-established principle that disability is an economic as well as medical concept.” Crum v. General Adjustment Bureau, 738 F.2d 474, 479 (D.C.Cir.1984). Thus, a determination of wage-earning capacity must not rest solely on an evaluation of the work that an injured employee physically can perform; “there must be taken into consideration ... the availability of that type of work which he can do.” American Mutual Insurance Co. v. Jones, 426 F.2d 1263, 1265 (D.C.Cir.1970) (footnote omitted). See also Newport News Shipbuilding and Dry Dock Co. v. Director, OWCP, 592 F.2d 762, 765 (4th Cir.1979).

In addition to underscoring the economic nature of “disability,” the Crum court affirmed the use of a “burden-shifting device” in determining whether there is com-pensable disability. The court endorsed this description (formulated by the Benefits Review Board) of the parties’ burdens: “In order to be found disabled, claimant must establish an inability to return to his usual employment. Once claimant has made this showing, the burden shifts to the employer to establish suitable alternate employment opportunities available to claimant considering his age, education and work experience.” 738 F.2d at 479.

*799 In the present case, the AU held that McBride was capable of returning to his original employment, and thus the burden never shifted to Kodak to demonstrate the availability of alternative jobs that were comparable. The AU erred, however, in his initial finding, for the determination that McBride could perform his original job was based exclusively on medical, rather than economic, facts. The judge held that McBride could carry out his duties as a sales representative but neglected the other crucial issue — whether McBride’s former job was still open to him. The parties in this case agree that McBride’s prior position at Kodak is no longer available.

The final paragraphs of the AU’s opinion reveal the error in his approach. Having found that McBride could physically perform his dhties at the camera shop as well as at the temporary desk job in Kodak’s Washington, D.C. office, the AU observed that

[t]he only remaining distinction between these jobs and Claimant’s former full-time [technical sales representative] duties is frequent and long travel by automobile. Medical evidence ... persuades me that Claimant could engage in such car travel, despite Claimant’s untested assertions to the contrary. Lifting, pushing and pulling are not major aspects of the job and could be accomplished, if need be, with the assistance of others.
Even with restrictions, then, ... Claimant was capable of resuming his regular full-time duties as a [technical sales representative].

J.A. at 13a-14a. This exclusively physical view of disability defeats the purpose of the LHWCA. The statute’s equation of disability with “wage-earning capacity” reflects a concern for the economic consequence of job-related injuries, which the AU effectively disregarded.

On appeal, the Benefits Review Board perpetuated the AU’s error. Responding to McBride’s argument that he did not have the option of returning to his former job, the Board simply noted the AU’s finding that McBride was “able to perform” his former duties and then flatly asserted that “[substantial evidence supports the administrative law judge’s findings.” J.A. at 3a. This conclusion may be interpreted in two ways, but in either case the Board was incorrect.

First, it is conceivable that the Board simply misread the AU’s opinion. When the Board concluded that McBride had not met his “burden of establishing that [he] cannot return to his usual employment,” the Board may have meant that McBride had failed to demonstrate that the unavailability of his former job was related to his injury. There is no basis, however, for reading the AU’s opinion in this manner, for the judge simply did not address the availability of McBride’s former job.

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844 F.2d 797, 269 U.S. App. D.C. 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-mcbride-v-eastman-kodak-company-and-director-office-of-workers-cadc-1988.