Filed: May 30, 2013
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 12-1566 (11-0624)
MARINE REPAIR SERVICES, INCORPORATED; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED,
Petitioners,
v.
CHRISTOPHER E. FIFER; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
O R D E R
Upon Petitioners’ motion for publication of the Court’s
opinion,
IT IS ORDERED that the motion to publish is granted.
The Court amends its opinion filed May 2, 2013, as follows:
On the cover sheet, section 1 -- the status is changed from
“UNPUBLISHED” to “PUBLISHED.”
On the cover sheet, section 6 -- the status line is changed
to read “Vacated and remanded by published opinion.” On the cover sheet -– the reference to the use of
unpublished opinions as precedent is deleted.
For the Court – By Direction
/s/ Patricia S. Connor Clerk
2 PUBLISHED
No. 12-1566
MARINE REPAIR SERVICES, INCORPORATED; SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED,
CHRISTOPHER E. FIFER; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
On Petition for Review of an Order of the Benefits Review Board. (11-0624)
Argued: March 20, 2013 Decided: May 2, 2013
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Shedd joined.
Lawrence Philip Postol, SEYFARTH SHAW, LLP, Washington, D.C., for Petitioners. Michael J. Perticone, HARDWICK & HARRIS, Baltimore, Maryland, for Respondents. DUNCAN, Circuit Judge:
Marine Repair Services, Inc. (“Marine”) petitions for
review of the Decision and Order of the Benefits Review Board
(“BRB” or the “Board”) awarding permanent partial disability
benefits to Marine’s former employee, Christopher Fifer, under
the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).
Applying the burden-shifting scheme that governs LHWCA
disability claims, the administrative law judge (“ALJ”)
reviewing Fifer’s claim concluded that Marine failed to meet its
burden of presenting suitable alternative employment for Fifer.
The BRB affirmed. Because the ALJ made findings unsupported by
the record and demanded more of Marine than our precedent
requires, we grant Marine’s petition for review, vacate the
Decision and Order of the BRB, and remand for further
proceedings consistent with this opinion.
I.
A.
Prior to the events underlying this petition, Fifer earned
$1,219 weekly working for Marine as a repairman of large
shipping containers, a physically demanding job requiring
climbing, bending, and heavy lifting of over fifty pounds. On
October 26, 2007, Fifer suffered shoulder, arm, and back
injuries in an on-the-job car accident. After the accident,
2 Marine began paying Fifer temporary total disability benefits
while Fifer sought treatment.
Dr. Michael Franchetti became Fifer’s primary orthopedist,
to whom Fifer complained of back pain which radiated down his
legs, as well as back spasms. During his two-year course of
treatment, Dr. Franchetti encouraged Fifer to perform physical
therapy, prescribed muscle relaxers and painkillers, and
reviewed scans of Fifer’s spine. He also referred Fifer to
another physician for epidural steroid injections. Dr.
Franchetti ultimately diagnosed Fifer with chronic lumbosacral
strain, sciatica, and disc protrusion and herniation.
Fifer underwent his first functional capacity evaluation
(“FCE”) in June 2008. In addition to finding that Fifer did
“not meet the physical demands of his pre-injury occupation,”
the evaluator concluded that Fifer should limit himself to jobs
within “medium” work parameters, and that he should limit
lifting to twenty-five pounds on an occasional basis. J.A. 241.
In an attempt to prepare himself to return to Marine, Fifer
completed a round of work-hardening from July to September 2008. 1
The work-hardening evaluator released Fifer on September 12,
1 Work-hardening is a rehabilitation process through which injured employees perform tasks that simulate the physical demands of their jobs in an effort to condition them for return to employment.
3 2008, ascribing him “full time tolerance[] with the lower
parameters of heavy work, with limitations in bending and
material handling.” Id. at 263 (the “2008 work-hardening
release”). The evaluator instructed Fifer to see Dr. Franchetti
on September 15, 2008 for “a full release back to work.” Id.
Fifer’s September 15 visit to Dr. Franchetti resulted in
updated work restrictions (the “September 2008 restrictions”).
Dr. Franchetti indicated that Fifer could return “to restricted
work status,” so long as he performed “[n]o repetitive bending
or twisting with [his] back, no lifting more than 55 lbs., no
carrying more than 40 lbs., no overhead lifting more than 30
lbs., no lifting more than 30 lbs. frequently, and no sitting
more than 45 minutes without changing positions.” J.A. 211.
Marine would not employ Fifer while he was subject to the
September 2008 restrictions. As a result, Fifer began working
at his family’s seafood restaurant, where he earned $400 weekly
performing odd jobs, errands, and assisting with food
preparation. Prior to his work as a longshoreman, Fifer had
managed his family’s restaurant for two years.
Both parties agree that Fifer reached maximum medical
improvement in February 2009. On August 20, 2009, Fifer
underwent a second FCE. That evaluation showed reduced lifting
ability, as compared to the 2008 FCE, but also indicated that
Fifer could sit and stand “frequent[ly]” and walk “const[antly]”
4 at a slow pace, improvements from the 2008 FCE. J.A. 371. The
evaluator concluded that work in the family restaurant was
“consistent with [Fifer’s] demonstrated activity tolerances,”
that Fifer could not return to Marine as a container repairman,
and that he should “[m]aintain work activity within the light
work parameters.” Id. at 373. According to the FCE, “light
work” includes jobs that involve occasionally lifting up to
twenty pounds and require “walking or standing to a significant
degree.” Id. at 371.
During an October 2009 deposition in connection with this
case, Dr. Franchetti clarified that based on the results of the
August 2009 FCE, he would revise his September 2008
restrictions. Specifically, based on the August 2009 FCE, Dr.
Franchetti would reduce Fifer’s “lifting and carrying weight to
25 pounds,” reduce overhead lifting to twenty pounds, and “would
recommend no lifting more than about 10 to 15 pounds
frequently.” J.A. 390 (“the October 2009 restrictions”).
Fifer’s sitting restriction remained the same: no sitting
without changing position for forty-five or more minutes. Dr.
Franchetti confirmed that he did not see any problem with
Fifer’s work in the family restaurant.
5 B.
1.
After Marine discontinued temporary payments in January
2009, Fifer filed this claim for permanent disability benefits
under the LHWCA, 33 U.S.C. § 901 et seq. The ALJ conducted a
hearing on October 29, 2009.
At the hearing, Fifer and Dr. Franchetti testified that
physical limitations prevented Fifer from returning to work as a
repairman at Marine. 2 Dr. Franchetti testified that Fifer “has
sustained a permanent impairment to his person as a whole, as a
result of his lumbar spinal injury,” resulting in a “31 percent
whole person impairment.” J.A. 389.
Marine presented evidence of alternative employment for
Fifer in the relevant geographic area. Marine’s vocational
rehabilitation specialist, Brian Sappington, testified to three
labor market studies he had prepared to demonstrate alternative
employment. The first two were conducted in December 2008 and
relied on Fifer’s 2008 work-hardening release, which allowed
“[h]eavy duty [work] with limitations.” J.A. 276. The first
study listed positions as a welder, forklift driver, courier,
and security guard; the second included five restaurant
management positions with “light duty” physical requirements.
2 Dr. Franchetti testified by deposition.
6 Sappington’s third and final study took Dr. Franchetti’s
September 2008 restrictions into account. J.A. 359 (noting that
Fifer’s restrictions were “[u]nlimited standing with restricted
lifting per Dr. Franchetti”). That study provided a description
of the restaurant manager and assistant manager role from the
Dictionary of Occupational Titles (“DOT”) and listed six
restaurant management positions for which Sappington testified
Fifer would be vocationally qualified.
Sappington supplemented the second and third study with his
testimony at the hearing before the ALJ. Specifically, upon
receiving Dr. Franchetti’s October 2009 work restrictions,
Sappington had contacted employers from the second and third
studies and performed site visits to determine whether the
restaurant management positions would comport with Fifer’s
revised lifting restrictions. Sappington testified that he
identified two restaurants where a person with a twenty-five
pound lifting restriction “would be a candidate” or where “the
restaurant would provide reasonable accommodation to someone
with Mr. Fifer’s background and restrictions,” J.A. 156, and two
more restaurant positions where employees told Sappington they
rarely lifted anything over twenty-five pounds and felt
accommodations were possible, id. at 157-58, even though the job
descriptions for those restaurant posts required an ability to
lift more than twenty-five pounds. Sappington identified three
7 additional restaurant positions which did not include a minimum
lifting requirement, although he was unable to verify actual
lifting requirements at those restaurants. Therefore,
Sappington concluded that of the seven restaurants he visited,
four of them would “definite[ly]” accommodate Fifer’s physical
limitations. Id. at 164. The annual salary for these positions
ranged from $28,000 to $40,000. Sappington also testified that
the security guard positions listed in the first labor market
study, which required “frequent standing and walking,” fit
within Dr. Franchetti’s October 2009 restrictions. J.A. 282.
2.
In an opinion issued on March 28, 2010, the ALJ concluded
that Fifer met his burden of establishing a prima facie case of
total disability since he could not return to his former
position at Marine. The ALJ then assessed whether Marine had
rebutted Fifer’s showing of disability by demonstrating the
availability of suitable alternative employment by comparing
Sappington’s labor market studies with Fifer’s vocational and
physical abilities. She found that none of Sappington’s studies
provided adequate levels of detail regarding the positions’
requirements. As such, the ALJ determined that Fifer’s job in
the family restaurant, where he earns $20,800 annually,
represented his wage earning capacity. She awarded permanent
partial disability benefits accordingly.
8 The ALJ credited Fifer’s testimony regarding his physical
limitations. Fifer testified that he chose to work at his
family’s restaurant because there, “if I need to take a break
and sit down I can sit down and . . . I’m not going to get
fired.” J.A. 96. While Fifer testified that he can “do
everything [at the restaurant] that needs to be done,” he has,
on at least one occasion, taken a thirty minute break to lay
down when he felt a muscle spasm developing in his back. J.A.
96-97. The ALJ also credited the testimony of Fifer’s brother,
Tracy, who manages the restaurant; Tracy Fifer testified that
his brother “has up days and down days” and sometimes “needs to
sit down right away” when he arrives to work. J.A. 129. The
ALJ also credited the deposition testimony of Dr. Franchetti,
who confirmed that Fifer’s restaurant work comported with the
October 2009 restrictions, which limited Fifer to lifting a
maximum of twenty-five pounds.
In rejecting the labor market studies, the ALJ found
Marine’s first study inconsistent with Fifer’s restrictions, as
some of the jobs--forklift operator and welder--“require[d] the
ability to perform medium or heavy work.” Id. at 32. The ALJ
rejected the security officer positions listed in the first
study after finding that Fifer’s pain medication regimen would
cause him to fail any required drug screenings, precluding
employment as a security guard. The ALJ rejected the five light
9 duty restaurant management positions in Marine’s second study
because “Mr. Sappington did not provide a description of the
positions, other than by their title,” nor did he indicate that
he “actually spoke to anyone about the job duties and
availability of these positions.” Id. Finally, although the
ALJ recognized that the third study, along with Sappington’s
testimony, identified four positions where “lifting over 25
pounds was not regularly required of the manager,” she faulted
that study for failing to “describe[] the specific duties of
these positions, in particular, whether they require standing
for long periods of time, and provide for rest breaks.” Id. at
33. The ALJ concluded that “Mr. Fifer’s credible complaints of
pain, his inability to stand for long periods of time, his need
for frequent rest breaks, and his regimen of medication” made
the restaurant jobs inapplicable “although [the jobs] may
accommodate the lifting restrictions.” Id.
The Board affirmed the ALJ’s decision. It concluded that
Sappington “did not provide all of the job duties or assess the
jobs’ suitability in terms of all of claimant’s restrictions,”
and “did not refer to any standard job descriptions.” Id. at
59. Because Sappington’s reports “lack[ed] . . . specific
information regarding all the physical duties required of the
positions,” the ALJ could not determine whether Fifer’s need for
10 “frequent breaks” and “limit[ations] in the amount of sitting
and standing he can do” would be accommodated. Id.
The Board issued its final opinion on April 5, 2012. This
appeal followed.
II.
On appeal, Marine contends that it met its burden of
showing suitable alternative employment for Fifer, and that the
ALJ’s conclusions are therefore unsupported by substantial
evidence. 3
In determining whether Marine met its burden of showing
suitable alternative employment, we review Board decisions for
errors of law and “to ascertain whether the Board adhered to its
statutorily mandated standard for reviewing the ALJ’s factual
findings.” Newport News Shipbldg. & Dry Dock Co. v. Riley, 262
F.3d 227, 231 (4th Cir. 2001). An ALJ’s factual findings
“‘shall be conclusive if supported by substantial evidence in
the record considered as a whole.’” Newport News Shipbldg. &
Dry Dock Co. v. Stallings, 250 F.3d 868, 871 (4th Cir. 2001)
(quoting 33 U.S.C. § 921(b)(3)).
3 Marine also raises several challenges related to Fifer’s attorney’s fee award. Attorney’s fees are available for successful prosecution of a LHWCA claim. 33 U.S.C. § 928. Because we vacate the Board’s Order and remand, we need not address the issue of attorney’s fees.
11 Our assessment of whether the Board complied with that
standard comprises “an independent review of the administrative
record”; “[l]ike the Board, [we] will uphold the factual
findings of the ALJ so long as they are supported by substantial
evidence.” Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d
378, 380 (4th Cir. 2000). We consider “substantial evidence” to
require “more than a scintilla but less than a preponderance”;
it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 380-81 (internal
quotation and citation omitted). We review the ALJ’s legal
determinations de novo. Dir., Office of Workers’ Comp. Programs
v. Newport News Shipbldg. & Dry Dock Co., 138 F.3d 134, 141 (4th
Cir. 1998).
The Act provides compensation to longshore workers who have
experienced on-the-job injuries “for the economic harm suffered
as a result of the decreased ability to earn wages.” Norfolk
Shipbldg. & Drydock Corp. v. Hord, 193 F.3d 797, 800 (4th Cir.
1999). LHWCA claims are governed by a burden-shifting scheme;
in order to make a successful compensation claim, “a claimant
must first establish a prima facie case by demonstrating an
inability to return to prior employment due to a work-related
injury.” Newport News Shipbldg. & Dry Dock Co. v. Dir., Office
of Workers’ Comp. Programs, 315 F.3d 286, 292 (4th Cir. 2002).
“If the claimant makes this showing, ‘the burden shifts to the
12 employer to demonstrate the availability of suitable alternative
employment which the claimant is capable of performing.’” Id.
(citation omitted). If the employer does not itself provide
suitable alternative employment, it “‘may demonstrate that
[such] employment is available to the injured worker in the
relevant labor market.’” Id. at 293 (citation omitted). If the
employer meets this burden, “its obligation to pay disability
benefits is either reduced or eliminated, unless the employee
shows ‘that he diligently but unsuccessfully sought appropriate
employment.’” Id. (citation omitted).
As Fifer established disability by showing that he is
unable to return to his job at Marine, this case turns on
whether Marine has met its burden of showing suitable
alternative employment. In particular, Marine contends that it
offered evidence of alternative employment more lucrative than
Fifer’s position at his family’s restaurant. A finding of
higher-paying alternative employment would increase Fifer’s
wage-earning capacity and decrease or nullify the disability
payments Marine owes Fifer.
We find the ALJ’s conclusion that Marine failed to present
suitable alternative employment erroneous for two reasons: (1)
the ALJ made findings of fact as to Fifer’s physical limitations
which were unsupported by substantial evidence in the record,
and (2), the ALJ faulted Marine for failing to address these
13 limitations, imposing a heavier legal burden than our precedent
requires.
First, in rejecting Marine’s labor market studies, the ALJ
emphasized Fifer’s “inability to stand for long periods of
time,” “need for frequent rest breaks,” and “regimen of
medication,” physical limitations unsupported by substantial
evidence in the record. J.A. 33. Although we may not disregard
the ALJ’s findings “‘on the basis that other inferences might
have been more reasonable,’” Ceres Marine Terminals, Inc. v.
Green, 656 F.3d 235, 240 (4th Cir. 2011) (citing Newport News
Shipbldg. & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.
1988)), there must be some evidence in the record to support the
findings.
The ALJ’s conclusions regarding Fifer’s problems standing
and need for breaks were unsupported by the evidence in the
record. Fifer did not testify that he had trouble standing;
instead, he indicated that he needed to take breaks during work-
hardening in 2008 (while performing tasks targeted towards
returning him to “hard” work parameters) and that he chose to
return to his family’s restaurant because he knew he could take
breaks there without reprimand. On one occasion, he had to lay
down to rest his back; his brother testified that sometimes
Fifer “needs to sit down right away.” Id. at 129. While the
14 ALJ credited Fifer’s testimony, she also credited the testimony
of Dr. Franchetti, who never mentioned standing restrictions or
rest break requirements, either in his testimony or in the
September 2008 or October 2009 work restrictions. In fact, Dr.
Franchetti indicated that Fifer’s physical limitations did not
bar him from restaurant work. Further, the most recent FCE
indicated that Fifer could stand “frequent[ly]” and walk
“const[antly]” within light work parameters. J.A. 371.
The ALJ also emphasized Fifer’s medication regimen as a
barrier to employment, ultimately faulting Marine for failing to
address Fifer’s medication-related restrictions in its labor
market studies. The ALJ indicated that the security guard
positions Marine offered would likely require drug tests which
Fifer would fail. Nothing in the record, however, indicated
that Fifer’s medications interfered with his ability to find
work. There was no evidence to support the ALJ’s conclusion
that security guards routinely undergo drug testing, that
prescription painkillers cause applicants to fail required drug
tests, or that Fifer’s regimen would bar Fifer from employment.
The ALJ’s determination that Fifer could not qualify for the
security guard positions because of his medication was thus
unsupported by any evidence, much less substantial evidence.
15 2.
Second, the ALJ’s emphasis on Fifer’s standing, rest break,
and medication-related restrictions led her to fault Marine for
overlooking them in its labor market studies. The ALJ thus
penalized Marine for failing to address restrictions of which it
was unaware, imposing too heavy a responsibility under the
LHWCA’s burden-shifting scheme. This was legal error, for which
we vacate the underlying decision and order. See Universal Mar.
Corp. v. Moore, 126 F.3d 256, 264-65 (4th Cir. 1997) (vacating
the BRB’s decision and remanding after holding that the ALJ’s
imposition of too great a burden on the employer to demonstrate
suitable alternative employment was an error of law); Trans-
State Dredging v. Benefits Review Board, 731 F.2d 199, 201 (4th
Cir. 1984) (reversing the BRB and remanding after finding that
requiring the employer to contact prospective employers to
determine whether they would hire someone with the claimant’s
abilities “place[d] too heavy a burden upon the employer”).
We have held that, to meet its burden, “an employer must
present evidence that a range of jobs exists which is reasonably
available and which the disabled employee is realistically able
to secure and perform.” Lentz v. Cottman Co., 852 F.2d 129, 131
(4th Cir. 1988). There must be “a reasonable likelihood, given
the claimant’s age, education, and vocational background that he
would be hired if he diligently sought the job[s]” the employer
16 presents. Id. (quoting Trans-State Dredging, 731 F.2d at 201).
Demonstrating a single job opening is not enough. Id. Once the
employer has presented a range of appropriate jobs, however,
“the employer need not contact prospective employers to inform
them of the qualifications and limitations of the claimant and
to determine if they would in fact consider hiring the candidate
for their position.” Universal Mar., 126 F.3d at 264. Nor must
the employer “contact the prospective employers in his survey to
obtain their specific job requirements before determining
whether the claimant would be qualified for such work.” Id.
Rather, if the employer demonstrates “the availability of
specific jobs in a local market,” he may rely “on standard
occupational descriptions to fill out the qualifications for
performing such jobs.” Id. at 265.
Marine relied on the physical restrictions of which it was
aware to present a range of suitable positions for Fifer. Prior
to the hearing, Dr. Franchetti never indicated a standing
restriction or a rest break requirement; to the contrary, after
giving his revised October 2009 restrictions, he indicated that
“cooking, deliveries and takeout,” as well as managerial work,
would comport with Fifer’s physical restrictions. J.A. 390.
Marine relied on the restrictions it knew of to prepare labor
market studies, updating those reports as it became aware of
revised restrictions.
17 Marine cannot be faulted for failing to account for
restrictions which were unannounced prior to the hearing, a
conclusion underscored by the ALJ’s unfounded findings with
respect to Fifer’s medication-related restrictions. While the
record corroborated the fact that Fifer took medication to
manage his pain, neither his nor his treating physician’s
testimony supports the conclusion that Fifer’s medication
interfered with his ability to obtain employment. Indeed, as
discussed above, nothing in the record indicated that security
guards must undergo drug tests to qualify for employment.
Faulting Marine for failing to address unfounded restrictions
turns the employer’s showing of suitable alternative employment
into a moving target.
Moreover, the ALJ overstated Marine’s burden of presenting
suitable alternative employment. The third labor study, at
least, described with requisite specificity the responsibilities
of a restaurant manager or assistant manager using the DOT. We
have expressly approved the use of the DOT’s “standard
occupational descriptions to fill out the qualifications” of
suitable alternative employment in LHWCA cases. Universal Mar.,
126 F.3d at 265. In Universal Maritime, we explained that we
sanction the use of the DOT’s occupational descriptions because
“the claimant is able to correct any overbreadth in a survey by
demonstrating the failure of his good faith effort to secure
18 employment” once the burden shifts back to the employee. Id. at
264-65. Therefore, the ALJ’s rejection of the third labor
market study for failing to describe “the specific duties of
the[] positions” demands more than we require. J.A. 33.
Further, Marine produced at least four alternative
positions which the ALJ recognized would “accommodate [Fifer’s]
lifting restrictions.” J.A. 33. Although “the employer need
not contact prospective employers to inform them of the
qualifications and limitations of the claimant,” Universal Mar.,
126 F.3d at 264, Sappington communicated Fifer’s “physical
limitations as [he] understood them” to the potential employers
in order to determine whether the jobs were realistically
available to Fifer, J.A. 168. Because Dr. Franchetti’s lifting
and sitting restrictions were the only restrictions of which
Marine was aware prior to the hearing, and because Marine
presented several suitable positions which the ALJ found
comported with those restrictions, we conclude that the ALJ
erred in finding that Marine failed to meet its burden under the
Act.
Since Marine demonstrated the availability of suitable
alternative employment which Fifer is capable of performing, the
burden should have shifted to Fifer to prove he could not obtain
more lucrative employment despite his diligent effort. We
therefore vacate the final Decision and Order of the BRB, and
19 remand this matter for further proceedings consistent with this
opinion.
III.
For the foregoing reasons, Marine’s petition for review is
granted, the Decision and Order of the BRB is vacated, and the
claim is remanded for further proceedings.
VACATED AND REMANDED