Marathon Ashland Petroleum v. Bill Williams

384 F. App'x 476
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 2, 2010
Docket09-3317
StatusUnpublished
Cited by1 cases

This text of 384 F. App'x 476 (Marathon Ashland Petroleum v. Bill Williams) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marathon Ashland Petroleum v. Bill Williams, 384 F. App'x 476 (6th Cir. 2010).

Opinion

OPINION

COLE, Circuit Judge.

This case arises out of a claim for workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “Longshore Act”), 33 U.S.C. § 901, et seq., which provides for compensation to injured maritime employees. Petitioners Marathon Ashland *477 Petroleum and Marathon Ashland Petroleum Co. (“Marathon”) appeal the decision of the Benefits Review Board of the United States Department of Labor (“BRB”) affirming an order of the Administrative Law Judge (“ALJ”) awarding benefits to Respondent Bill Williams. Williams had worked at Marathon for a quarter-century, most recently as a barge welder, and injured his right shoulder in February 2003. Marathon argues that the ALJ’s decision is not supported by substantial evidence. Because the ALJ’s decision is inadequate to accommodate a thorough review, we REMAND to the ALJ for further development.

I. BACKGROUND

Bill Williams had worked at Marathon’s Ashland, Kentucky, facility for twenty-five years, most recently as a senior barge welder. His job required considerable overhead heavy lifting, such as repeatedly carrying 150-pound weights. Williams alleged that he sustained a long thoracic nerve injury to his right shoulder while replacing parts of a barge at work on February 13, 2003. He had been experiencing pains in his right shoulder and right arm six to eight months prior to the accident, and his injury was likely the result of the cumulative effect of his heavy lifting. Since the injury, Williams has not returned to work and has been seen by multiple physicians. These physicians, as explained more fully below, do not agree on a common diagnosis for Williams.

Three days after the accident, Williams began treatment with Dr. Michael Goodwin, an orthopedist, who ultimately diagnosed him with a long thoracic nerve problem. Dr. Goodwin continued to see Williams roughly once a month until Dr. Goodwin diagnosed him as permanently unable to work in July 2003. Despite this diagnosis, on March 30, 2004, Dr. Goodwin provided Williams with specific restrictions, including a prohibition on lifting more than five pounds with his right arm and all overhead work. Dr. Goodwin wrote a letter to Marathon on June 22, 2005, indicating that Williams could not return to work as a welder, since it required heavy lifting and overhead work. Following an October 3, 2005, visit, Dr. Goodwin opined that Williams’ condition would never improve.

Dr. Goodwin also referred Williams to Dr. John Brems, an orthopedist and shoulder specialist. On April 17, 2003, Dr. Brems recommended that Williams cease work until September 2003 and undergo an Electromyogram test (“EMG”) in August to determine if the nerve was healing. Dr. Goodwin, however, did not perform the repeat EMG because, as he explained in his deposition testimony, he was more interested in clinical recovery than nerve studies.

On May 25, 2004, Marathon sent Williams to Dr. Michael Best, an orthopedic surgeon and expert in long thoracic nerve injuries. The visit, and another on March 1, 2005, lasted approximately five minutes each. Dr. Best agreed with Dr. Brems’ treatment recommendation and had Williams undergo two EMGs and two functional capacity exams. Dr. Joseph Zerga performed the EMGs and concluded after Williams’ EMG in July 2004 that Williams could not perform the work of a barge welder or any other work that required heavy lifting above shoulder-level on his right-hand side but could do activity that did not require heavy lifting. Dr. Zerga performed another EMG in November 2004 and concluded that Williams’ nerve injury had healed.

Williams’ second exam with Dr. Best, which occurred on March 1, 2005, showed that Williams’ long thoracic nerve injury had healed. Dr. Best had Williams undergo functional capacity evaluations and concluded that Williams possessed a full range *478 of motion with no strength deficit and had no long-term or permanent impairment. He therefore considered Williams capable of returning to his former welding position, which had since been modified to include the use of hoists and an additional individual to assist with lifting and carrying duties. Despite this conclusion, Dr. Best noted that Williams’ efforts throughout testing were inconsistent and that he was unaware of the specifics of Williams’ prior job description. Even more, Dr. Best later revised his prior opinion and concluded that Williams was not capable of meeting the demands of his fonner position and that his safe-work capabilities were within the medium to heavy work category.

Based on Dr. Best’s March exam, Marathon sent Williams a return-to-work notice on May 12, 2005. Williams reported to work on May 31, 2005, but told Marathon officials that he could not perform his duties. In the meantime, Williams continued to refrain from working. More than a year later, Marathon had a vocational expert prepare a transferable skills analysis/Labor Market Survey report to determine Williams’ capabilities for alternate employment. The report noted that Williams could not return to his pre-injury employer as a welder/longshoreman, but listed nine alternate positions that he could perform. The expert completed a second Labor Market Survey on October 30, 2006, which listed ten employers within thirty miles of Ashland, Kentucky, who indicated they were hiring for positions Williams was capable of performing. Williams testified that he did not contact any of the prospective alternate employers because he had a foot gout ailment.

Following Williams’ claim for Longshore Act benefits, the ALJ entered an order on May 7, 2008, awarding Williams total disability compensation under the LHWCA. The ALJ determined that Williams reached maximum medical improvement (“MMI”) on May 31, 2005. MMI “is reached at that point where a physician believes that further treatment will not improve a claimant’s condition.” Morehead Marine Servs., Inc. v. Washnock, 135 F.3d 366, 375 (6th Cir.1998). As a result, the ALJ awarded Williams temporary total disability benefits from February 15, 2003, through May 31, 2005, and permanent total disability benefits thereafter. The ALJ found that Williams could not return to his former barge-welding position at Marathon and that Marathon had not satisfied its burden of establishing the availability of suitable alternate employment. The ALJ credited Dr. Goodwin’s opinion of October 5, 2005, that Williams’ shoulder would never improve and discredited Dr. Best’s opinion because he indicated he was unaware of the physical requirements of Williams’ job. Furthermore, the ALJ credited Williams’ own testimony.

Marathon appealed the ALJ’s decision to the BRB, which affirmed the decision on January 27, 2009. Marathon then petitioned this Court for review.

II. ANALYSIS

A. Standard of review

“This court reviews ALJ and BRB decisions on a limited basis.” Pittsburgh & Conneaut Dock Co. v. Dirs., Office of Workers’ Comp. Programs, 473 F.3d 253, 258 (6th Cir.2007).

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Related

Marathon Ashland Petroleum v. Bill Williams
733 F.3d 182 (Sixth Circuit, 2013)

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384 F. App'x 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marathon-ashland-petroleum-v-bill-williams-ca6-2010.