Marine Repair Services, Incorporated v. Christopher Fifer, No. 12-1566 (4th Cir. 2013)

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The court issued a subsequent related opinion or order on May 30, 2013.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1566 MARINE REPAIR SERVICES, INCORPORATED; INDEMNITY ASSOCIATION, LIMITED, SIGNAL MUTUAL Petitioners, v. CHRISTOPHER E. FIFER; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. 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 Vacated and remanded by unpublished opinion.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. Unpublished opinions are not binding precedent in this circuit. 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 disability burden-shifting claims, the scheme that administrative law governs judge LHWCA ( ALJ ) reviewing Fifer s claim concluded that Marine failed to meet its burden of presenting suitable alternative employment for Fifer. The BRB affirmed. the record and requires, we Decision and Because the ALJ made findings unsupported by demanded grant more Marine s Order of of Marine petition the BRB, for and than our review, remand precedent vacate for the further proceedings consistent with this opinion. I. A. Prior to the events underlying this petition, Fifer earned $1,219 shipping weekly working containers, for a Marine physically as a repairman demanding job of large requiring climbing, bending, and heavy lifting of over fifty pounds. October 26, 2007, Fifer suffered shoulder, injuries in an on-the-job car accident. 2 arm, and On back After the accident, 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 reviewed scans of Fifer s spine. another physician for epidural and painkillers, and He also referred Fifer to steroid injections. Dr. Franchetti ultimately diagnosed Fifer with chronic lumbosacral strain, sciatica, and disc protrusion and herniation. Fifer underwent his ( FCE ) in June 2008. first functional capacity evaluation 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 lifting to twenty-five pounds on an occasional basis. limit 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 1 Fifer on September 12, 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 parameters material full time tolerance[] with heavy of him work, with limitations in handling. release ). Id. at 263 (the 2008 the lower bending and work-hardening 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. Marine would not employ Fifer September 2008 restrictions. while he was J.A. 211. subject to the As a result, Fifer began working at his family s seafood restaurant, where he earned $400 weekly performing odd preparation. jobs, errands, and assisting with food Prior to his work as a longshoreman, Fifer had managed his family s restaurant for two years. Both improvement parties in agree February underwent a second FCE. that Fifer 2009. On reached August maximum 20, 2009, medical Fifer 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 restaurant was concluded consistent with that work [Fifer s] in the family 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. work includes Id. at 373. jobs that According to the FCE, light 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 restrictions. FCE, he would revise his September 2008 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 frequently. Fifer s sitting J.A. more 390 than ( the restriction about October remained 10 2009 the to 15 pounds restrictions ). same: no sitting without changing position for forty-five or more minutes. Franchetti confirmed that he did not Fifer s work in the family restaurant. 5 see any problem Dr. with 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. Marine Fifer in presented the J.A. 389. evidence relevant of alternative geographic area. employment Marine s for vocational rehabilitation specialist, Brian Sappington, testified to three labor market studies he had prepared to demonstrate alternative employment. relied on The first two were conducted in December 2008 and Fifer s 2008 work-hardening [h]eavy duty [work] with limitations. release, which J.A. 276. allowed The first study listed positions as a welder, forklift driver, courier, and security management 2 guard; positions the with second light included duty physical Dr. Franchetti testified by deposition. 6 five restaurant requirements. Sappington s third and final study took September 2008 restrictions into account. Dr. Franchetti s 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. receiving Dr. Franchetti s October 2009 Specifically, upon work restrictions, Sappington had contacted employers from the second and third studies and restaurant revised performed management lifting site visits positions restrictions. to would determine comport Sappington whether with testified the Fifer s 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. 7 Sappington identified three 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, within Dr. Franchetti s October 2009 restrictions. fit 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 position at Marine. rebutted Fifer s availability of he could not return to his former The ALJ then assessed whether Marine had showing suitable of disability alternative by demonstrating employment by the comparing Sappington s labor market studies with Fifer s vocational and physical abilities. provided adequate requirements. the family She found that none of Sappington s studies levels of detail regarding the positions As such, the ALJ determined that Fifer s job in restaurant, where he earns represented his wage earning capacity. partial disability benefits accordingly. 8 $20,800 annually, She awarded permanent 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. 96-97. J.A. 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. rejected the security officer positions Id. at 32. listed in The ALJ the first study after finding that Fifer s pain medication regimen would cause him to fail any required employment as a security guard. drug screenings, precluding 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 availability of these positions. Id. the job duties and 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. 33. Id. at 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 accommodate the lifting restrictions. [the jobs] may 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. 59. Because Sappington s reports lack[ed] . . . Id. at 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. F.3d 227, Newport News Shipbldg. & Dry Dock Co. v. Riley, 262 231 (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 review and citation determinations de novo. omitted). We the ALJ s legal 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. (citation omitted). suitable [such] If the employer does not itself provide alternative employment is Id. employment, available relevant labor market. it to the may demonstrate injured worker that in Id. at 293 (citation omitted). the 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. As unable whether Id. (citation omitted). Fifer to established return Marine to his has met alternative employment. disability job at its by showing Marine, burden this of that showing is turns case he on suitable In particular, Marine contends that it offered evidence of alternative employment more lucrative than Fifer s position higher-paying wage-earning at his alternative capacity and family s restaurant. employment decrease or would A finding increase nullify the of Fifer s 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. 1. First, in rejecting Marine s labor market studies, the ALJ emphasized time, Fifer s need medication, for inability frequent physical to rest limitations evidence in the record. J.A. 33. stand for breaks, long and unsupported periods of regimen of by substantial 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 workhardening 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. down to rest his back; his On one occasion, he had to lay brother Fifer needs to sit down right away. 14 testified that Id. at 129. sometimes While the 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 September 2008 or October 2009 work restrictions. or in the In fact, Dr. Franchetti indicated that Fifer s physical limitations did not bar him from restaurant work. indicated that Fifer could Further, the most recent FCE stand frequent[ly] const[antly] within light work parameters. and walk 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 market medication-related studies. The ALJ restrictions indicated that the in its labor 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. that There was no evidence to support the ALJ s conclusion 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 unsupported by any evidence, much less substantial evidence. 15 thus 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 LHWCA s burden-shifting scheme. a responsibility under the 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); TransState 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. (4th Cir. 1988). Lentz v. Cottman Co., 852 F.2d 129, 131 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. Rather, if specific jobs occupational the in employer a local descriptions performing such jobs. demonstrates market, to fill the Id. availability he may rely on out the qualifications of standard for Id. at 265. Marine relied on the physical restrictions of which it was aware to present a range of suitable positions for Fifer. to the hearing, Dr. Franchetti never indicated a Prior 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 restrictions conclusion be which were underscored faulted for failing unannounced by the prior ALJ s to to account the unfounded record corroborated manage his testimony the fact pain, neither supports the that his Fifer nor his conclusion took Fifer s interfered with his ability to obtain employment. a with While the medication treating that hearing, findings respect to Fifer s medication-related restrictions. for to physician s medication 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. have expressly occupational approved descriptions the to use fill of out the the DOT s 126 F.3d at 265. standard qualifications suitable alternative employment in LHWCA cases. We of Universal Mar., 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. 264-65. Therefore, the ALJ s rejection of the Id. at third labor market study for failing to describe the specific duties of the[] positions demands more than we require. Further, Marine produced at J.A. 33. least four alternative positions which the ALJ recognized would accommodate [Fifer s] lifting restrictions. not contact J.A. prospective 33. Although the employer need 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 available to Fifer, J.A. 168. the jobs were realistically Because Dr. Franchetti s lifting and sitting restrictions were the only restrictions of which Marine was aware presented several comported with prior to suitable those the hearing, positions restrictions, we and which because the conclude Marine ALJ that found 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 20

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