Filed: Feb. 10, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-10-2009 Greenwich Term v. OWCP Precedential or Non-Precedential: Non-Precedential Docket No. 07-4732 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Greenwich Term v. OWCP" (2009). 2009 Decisions. Paper 1890. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1890 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 2-10-2009 Greenwich Term v. OWCP Precedential or Non-Precedential: Non-Precedential Docket No. 07-4732 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Greenwich Term v. OWCP" (2009). 2009 Decisions. Paper 1890. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1890 This decision is brought to you for free and open access by the Opinions o..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-10-2009
Greenwich Term v. OWCP
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4732
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Greenwich Term v. OWCP" (2009). 2009 Decisions. Paper 1890.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1890
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4732
_____________
GREENWICH TERMINALS, LLC;
AMERICAN MOTORIST/EAGLE INSURANCE COMPANIES,
Petitioners
v.
OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR;
THOMAS REDFIELD,
Respondents
Petition for Review of an Order of the
United States Department of Labor
Office of Workers’ Compensation Benefits Review Board
(Agency No. BRB-1: 07-0313)
Administrative Law Judge: Honorable Ralph A. Romano
Submitted Under Third Circuit LAR 34.1(a)
February 2, 2009
Before: RENDELL, JORDAN and ROTH, Circuit Judges.
(Filed: February 10, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Greenwich Terminals, LLC and American Motorist/Eagle Insurance Companies
(collectively “Greenwich”) seek review of the Administrative Law Judge’s final
determination granting the Respondent Redfield Thomas’ claim for benefits under the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et
seq., following Thomas’ injury in a workplace accident. The Benefits Review Board
affirmed,1 and Greenwich filed this appeal.2 Greenwich contends that the Administrative
Law Judge (“ALJ”) improperly applied the “true-doubt” rule to resolve factual issues,
improperly excluded evidence, discredited credible testimony from vocational and
medical experts, and determined, without evidentiary support, that Thomas diligently
pursued employment. Finding substantial evidence for each of the ALJ’s determinations,
we will deny the Petition for Review.
I.
In May of 2003, Respondent Redfield Thomas sustained serious, permanent
injuries to his spine and neck while working at Greenwich’s Packer Avenue Marine
Terminal, when a 200-pound flipper detached from a crane and crashed on top of him. A.
13a. The impact fractured multiple vertebrae in Thomas’ spine, requiring his temporary
placement in a body cast, six months of 24-hour supervision, and intensive physical
1
The Benefits Review Board (“BRB”) affirmed the ALJ’s grant of relief under the
Longshore and Harbor Workers’ Compensation Act but vacated the award of attorney’s
fees. A. 9a. Greenwich does not challenge the attorney’s fee award and, therefore, we do
not address the issue here.
2
33 U.S.C. § 901 confers appellate jurisdiction over appeals from the decisions of
the Benefits Review Board.
2
rehabilitation. A. 14a.
Approximately eighteen months after the accident, in January of 2005, Greenwich
approached Thomas about returning to work, offering him two positions at the company:
top pick operator and yard horse operator. A. 16a-17a. Against his doctor’s advice,
Thomas accepted the former position. A. 15a-16a. On April 4, 2005, his first day of
work, Thomas aggravated the nerves in his neck while attempting to operate the top pick,
and was immediately hospitalized, suited with a temporary neck brace, and prescribed
pain and anti-inflammation medication. A. 16a.
In evaluating Thomas’ ability to serve as a top pick operator, the ALJ considered,
but ultimately discredited, a video demonstration of that position proffered by Greenwich.
Thomas testified, and Burleson acknowledged on cross-examination, that the video
omitted certain physical maneuvers operators must perform. A. 15a-18a. Accordingly,
the ALJ concluded that the video did not completely and accurately represent the duties of
a top pick operator. A. 15a, 27a-29a.
Crediting Thomas’ testimony, and the opinion of his treating orthopedist, Dr. Roy
Lefkoe, the ALJ concluded that Thomas could not physically perform the top pick or yard
horse operator positions. A. 20a-21a. After careful analysis, the ALJ rejected the medical
and vocational evidence proffered by Greenwich. This included testimony and medical
reports prepared by two orthopedists, Dr. Alexander Vacarro and Dr. Richard Mandel,
two physical therapists, Thomas Cantwell and Deborah Shore, and Greenwich’s
3
vocational consultant, Sonya Mocarski. The ALJ also excluded video surveillance of
Thomas climbing stairs and driving his car, urged by Greenwich to be relevant to his
ability to perform the job of top pick operator. A. 19a.
After his failed attempt to return to work, Thomas began vocational training with
Dr. Robert Chaiken, a vocational rehabilitation specialist with the Department of Labor.
A. 14a. Dr. Chaiken identified, and Thomas applied for, positions at six local companies.
A. 24a. Despite his complete cooperation with Dr. Chaiken, Thomas was unable to
obtain a job. A. 14a. Concurrently, a second vocational consultant, Sonya Mocarski,
prepared a survey of local employment opportunities at Greenwich’s request. A. 14a. Ms.
Mocarski identified twelve positions; however, the ALJ determined that Thomas’
physical restrictions would only allow him to perform four of these, the first of which
became available on April 10, 2005. A. 14a-15a, 20a-21a. Because April 10, 2005,
marked the earliest date on which suitable alternate employment became available to
Thomas, the ALJ determined, and the Benefits Review Board affirmed, that Thomas was
totally disabled prior to April 10, 2005, and partially disabled after that date. A. 21a.
II.
To establish a prima facie case of total disability under the LHWCA, the claimant
must show that he is unable to return to his usual employment due to the injury. McCabe
v. Sun Shipbuilding and Dry Dock Co., 602 F.2d 59, 62 n.7 (3d Cir. 1979). Once the
claimant establishes a prima facie case, the burden shifts to the employer, who must show
4
that suitable alternate employment exists. Id. The employer meets the burden of
establishing suitable alternate employment by identifying specific jobs at the claimant’s
current place of employment or in the local community that are available to the claimant,
given his particular physical restrictions. Id.; American Stevedores, Inc. v. Salzano,
538
F.2d 933, 935-36 (2d Cir. 1976). The fact finder is to determine the claimant’s
restrictions based on the medical evidence and decide whether the claimant is capable of
performing the jobs identified by the employer. If the employer meets this burden, the
claimant must then prove that he has made a diligent attempt to secure employment.
Palombo v. Director, OWCP,
937 F.2d 70, 73 (2d Cir. 1991). If the claimant
demonstrates that he diligently tried to obtain employment, without success, he prevails.
See Hairston v. Todd Shipyards Corp,
849 F.2d 1194, 1196 (9th Cir. 1988). If, on the
other hand, the claimant is unable to prove he diligently pursued suitable jobs identified
by the employer, but those jobs pay wages less than the claimant’s pre-disability
employment, then the claimant is deemed partially, rather than totally, disabled. See
Louisiana Ins. Guar. Ass’n v. Bunol,
211 F.3d 294, 297 (5th Cir. 2000); New Orleans
(Gulfwide) Stevedores v. Turner,
661 F.2d 1031, 1042 (Former 5th Cir. Nov. 1981).
An ALJ’s findings of fact are treated as conclusive if supported by substantial
evidence in the record considered as a whole. 33 U.S.C. § 921(b)(3). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Del. River Stevedores, Inc. v. Director, OWCP, 279 F.3d 233, 241
5
(3d Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
Here, Greenwich alleges errors of fact and law.
Greenwich assigns a single error of law – the ALJ applied the “true doubt rule” to
resolve factual issues, in violation of the Administrative Procedures Act. Under the “true
doubt rule,” fact issues are resolved in the claimant’s favor when the evidence is evenly
balanced. The Supreme Court has held that the rule violates the Administrative
Procedures Act. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
Here, the ALJ, citing Greenwich Collieries, expressly rejected the “true doubt rule”;
nonetheless, Greenwich maintains that the ALJ implicitly invoked the rule in its fact-
finding. Greenwich’s argument collapses by its own admission. The “true doubt rule,” a
decisional “tiebreaker,” applies only where the evidence is in equipoise. However,
Greenwich concedes in its brief that the ALJ found the evidence was not evenly balanced,
but rather decisively favored Thomas’ position. Petitioners’ Br. at 23. Hence, the ALJ,
who found no evidentiary “tie” to exist here, did not implicitly rely on the “true doubt
rule” for its fact-finding.3
Greenwich next contends that the ALJ’s factual determinations were unsupported.
First, Greenwich maintains that the ALJ misapprehended the physical demands imposed
by the top pick operator position. Greenwich complains that the ALJ improperly credited
3
To the extent Greenwich is contending that the ALJ improperly weighed the
evidence in the record, we reject that argument for the reasons set forth below.
6
Thomas’ testimony over a video demonstration depicting a top pick operator’s duties. We
find that the ALJ reasonably rejected the video demonstration proffered by Greenwich.
Thomas testified, and Greenwich’s assistant terminal manager, John Burleson,
acknowledged on cross-examination, that the video demonstration was deficient, omitting
five activities top pick operators regularly perform: (1) neck- and torso-twisting to view
traffic behind the machine; (2) ascending and descending two flights of stairs to enter and
exit the machine; (3) using both hands simultaneously to steer the machine and
manipulate control levers; (4) looking upwards and downwards to stack containers; and
(5) sitting continuously for over four hours. A. 15a, 27a-29a. Thomas and Burleson’s
testimony about the video’s shortcomings was uncontroverted. Thus, the ALJ’s
determination of the physical requirements of the position was supported by substantial
evidence.
Next, Greenwich contends that, after the accident, it offered Thomas suitable
employment as a top pick operator or yard horse operator. The ALJ reasonably
concluded that both positions exceeded Thomas’ physical capabilities, and that his
participation in either activity could exacerbate his injuries. A. 27a-28a. Thomas and
Burleson identified specific activities that a top pick operator must regularly perform,
including twisting his neck and torso, ascending and descending stairs, looking upwards
and downwards, sitting continuously for several hours, and simultaneously using both
hands. A. 21a, 27a-29a. Dr. Lefkoe opined that Thomas’ injuries precluded his
7
repeatedly performing these activities on a daily basis. A. 27a-28a.
The ALJ’s conclusion that Thomas could not perform either job offered to him
was also supported by Thomas’ own testimony, which the ALJ found credible. Thomas
testified that he was physically incapable of twisting his torso, looking up and down,
sitting continuously for several hours, using both hands simultaneously, and climbing in
and out of the vehicle, on a regular basis. A. 15a. Practical experience confirmed these
limitations: attempting to operate the top pick machine on his first day of work, Thomas
struggled to manipulate levers while steering the vehicle, and was ultimately hospitalized
with neck injuries. A. 16a. Thus, we find substantial evidence to support the ALJ’s
determination that Thomas was unable to operate the top pick machine.4
Greenwich, in turn, contends that the ALJ failed adequately to consider the
opinions of Drs. Vacarro and Mandel, as well as Thomas’ physical therapists, Mr.
Cantwell and Ms. Shore. Greenwich contends, moreover, that the ALJ erroneously
excluded video surveillance of Thomas driving his car and climbing stairs – tasks
4
Likewise, substantial evidence supports Thomas’ inability to perform the job of
yard horse operator. Thomas testified, and Burleson concurred, that the position, which
required using a “hustle truck” to move containers around a yard filled with potholes,
imposed greater physical demands on the operator than the top pick position. A. 15a, 29a.
Because a yard horse operator must slam the hustle truck into a container to make a
connection, he must engage in a “lot of bending and being thrown around.” A. 15a. Dr.
Lefkoe specifically proscribed such activities, noting that frequent twisting and jostling
would exacerbate Thomas’ injuries. A. 21a-22a. Thus, the ALJ’s determination that
Thomas could not perform the job of yard horse operator finds substantial support in the
record.
8
purportedly relevant to his ability to perform the jobs offered to him.
An Administrative Law Judge is entitled to weigh the evidence and draw his own
inferences, and is not required to accept the opinion or theory of a particular medical
examiner. Avondale Shipyards v. Kennel, 914 F.2d 88, 91 (5th Cir. 1988). Although the
ALJ may not employ his own expertise against that of a physician who presents
competent medical evidence, he may choose whom to credit, provided he articulates a
rational explanation for doing so. See Plummer v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999)
(citing Stewart v. Secretary of H.E.W.,
714 F.2d 287, 290 (3d Cir. 1983)). Here, Dr.
Vacarro, who treated Thomas until March 2004, concluded that Thomas’ physical
restrictions did not preclude employment as a top pick operator. We find that the ALJ
rationally credited Dr. Lefkoe’s opinion over that of Dr. Vacarro. Dr. Vacarro formulated
his recommendation based on physical restrictions placed on Thomas in November of
2003 – over two years before his disability hearing. As the ALJ observed, Dr. Vacarro’s
opinion failed to reflect the subsequent deterioration in Thomas’ condition.5 A. 28a. Dr.
Lefkoe, by contrast, based his opinion on monthly examinations of the claimant
conducted since June of 2004. A. 21a. See
Plummer, 186 F.3d at 429 (quoting Rocco v.
5
Thomas aggravated his injuries when he attempted to operate the top pick
machine in April of 2004, and an MRI completed in November 2005 revealed
deterioration of Thomas’ spine, including degenerative disc disease and a bulging disk. A.
22a. Indeed, Thomas’ doctors agreed that he attained MMI, i.e., a state in which his
condition would not improve, several months after Dr. Vacarro’s initial determination of
Thomas’ physical restrictions in November of 2003. A. 19a, 22a.
9
Heckler, 886 F.2d 1348, 1350 (3d Cir. 1987) (noting that “treating physicians’ reports
should be accorded great weight, especially ‘when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged period of
time.’”). We find that the ALJ articulated a reasonable basis for adopting Dr. Lefkoe’s
opinion over that of Dr. Vacarro and, therefore, discern no error. See
id. (citing Stewart,
714 F.2d at 290) (noting that ALJ must articulate “some reason for discounting the
evidence she rejects”).
Greenwich also cites the opinion of a second orthopedist, Dr. Mandel, who
examined Thomas at Greenwich’s request, but did not treat him. We find that Dr.
Mandel’s testimony undermines rather than aids Greenwich’s position. After Thomas
described the duties of a top pick operator to Dr. Mandel, he concluded that Thomas
could not perform the job. A. 20a. Only after reviewing the video demonstration of the
job – which we find the ALJ properly rejected -- did Dr. Mandel modify his conclusion.
A. 20a. Because Dr. Mandel predicated his revised opinion on erroneous assumptions
about the position, the ALJ correctly discredited it.
Greenwich also contends that the ALJ erred in rejecting the opinions of Mr.
Cantwell and Ms. Shore, Thomas’ physical therapists, who concluded that Thomas could
perform the job of top pick operator. Like Dr. Mandel, Mr. Cantwell relied on the video
demonstration of the position to formulate his opinion and, therefore, the ALJ properly
rejected his opinion. A. 29a. The ALJ identified a separate defect in the opinion of Ms.
10
Shore, who formulated her conclusions without consulting Thomas’ medical restrictions.
A. 29a. Accordingly, we find that the ALJ articulated a rational basis for discrediting
each of the medical and vocational opinions upon which Greenwich relies.
Lastly, Greenwich contends that the ALJ improperly excluded video surveillance
of Thomas occasionally climbing the stairs in his home and driving his car – activities
purportedly relevant to his ability to perform the job of top pick operator and yard horse
operator. We need not decide whether exclusion of the video was error, for even if it
was, it was harmless. On cross-examination, Thomas acknowledged his occasional use of
a car and the stairs in his home – the primary activities depicted in the surveillance
footage. Further, the ALJ rationally determined that whether Thomas could climb stairs
occasionally, or drive his car, was irrelevant to his ability to operate a top pick, a piece of
heavy machinery imposing unique physical demands on its operator. As discussed earlier,
the ALJ identified several specific tasks that top pick operators must regularly perform,
but which Thomas’ physical restrictions prohibited his doing frequently.6 The ALJ
reasonably determined that Thomas’ occasional use of his car or the stairs in his home
had no bearing on his ability to perform these five tasks on a frequent basis. Accordingly,
the ALJ’s exclusion of the surveillance video, even if it was admissible, was harmless.
Greenwich complains that Thomas did not diligently pursue employment after his
6
Frequently is characterized as 1/3 to 2/3 of the time.
11
accident.7 As evidence of Thomas’ inadequate efforts, Greenwich cites his refusal to
submit to personal examination by Ms. Mocarski, a vocational consultant retained by
Greenwich; the attachment of his functional capacity evaluation, detailing his physical
limitations, to his job applications; and finally, Greenwich’s purported offer of any
position at the company to Thomas. Rejecting each of these arguments, the ALJ
concluded that Thomas pursued employment with Greenwich and other companies in
good-faith after the accident. Substantial evidence supports the ALJ’s determination.
Thomas was eager to return to work after his accident. Against Dr. Lefkoe’s advice, he
accepted a position as a top pick operator in April of 2005, but sustained neck injuries on
his first day of work. A. 16a. Greenwich responds that it was eager to “accommodate him
[Thomas] as necessary if these positions [top pick operator or yard horse operator] proved
to be too difficult”, but that its overtures were met by inaction on the part of Thomas.
Petitioners’ Br. at 29. Greenwich’s assertion is unsupported. Greenwich offered Thomas
only two positions at the company -- top pick operator and yard horse operator. A. 17a.
Even after Thomas expressed interest in a job as a crane operator, a less strenuous
position, and even after Thomas strained his neck while operating the top pick,
7
Although diligence is directly relevant to Thomas’ claim for total disability,
Palombo, 937 F.2d at 73, it is also relevant to the ALJ’s award of partial disability. Had
Thomas obtained alternative employment, even at lesser pay, it would be significant
evidence of his residual earning capacity. See 33 U.S.C. § 908 (allowing determination of
partial disability to be based on “any other factors or circumstances in the case which may
affect [the claimant’s] capacity to earn wages in his disabled condition).
12
Greenwich offered him no other position. A. 15a. We decline to interpret Greenwich’s
failure to offer Thomas suitable employment as evidence of Thomas’ bad-faith in
returning to work.
We also find that Thomas displayed vigilance in seeking employment outside his
current place of employment. Dr. Chaiken testified that Thomas was highly cooperative
during the placement process, applying for positions at six different companies. A. 24a.
Contrary to Greenwich’s contention, Thomas appended his functional capacity evaluation
to job applications at Dr. Chaiken’s suggestion in order to provide an accurate picture of
his physical capabilities – not to sabotage his employment prospects. A. 24a.
Finally, Greenwich makes much of Thomas’ refusal to submit to a personal
examination by Ms. Mocarski. Whether or not Thomas should have done so, Greenwich
suffered no prejudice by his refusal. Using Thomas’ extensive medical records, Ms.
Mocarski prepared a comprehensive survey of suitable employment opportunities in the
area. A. 24a-25a. The ALJ determined that four of the positions identified were within
Thomas’ job restrictions. Greenwich does not explain why Ms. Mocarski had to examine
Thomas to prepare the survey, or identify material information that such an examination
of Thomas would have produced, which could not be gleaned from Thomas’ detailed
medical records. Thus, Thomas’ refusal to submit to a personal examination did not
13
prejudice Greenwich.8
III.
For the foregoing reasons, we will DENY the Petition for Review.
8
Alternatively, Greenwich argues that the ALJ employed an improper
methodology to calculate the reduction in Thomas’ wages resulting from his disability. To
determine Thomas’ post-injury, wage-earning capacity, the ALJ averaged the salary
ranges of the four suitable positions identified by Ms. Mocarski. Greenwich maintains
that this was error. The ALJ, Greenwich contends, should have used the salary of the
highest-paying position identified by Ms. Mocarski, rather than the average salary of all
suitable positions identified. Greenwich offers no authority or analysis for its position, to
which it devotes a single sentence of its brief. Petitioners’ Br. at 39. We conclude, as the
BRB did, that the ALJ’s method for calculating Thomas’ post-injury, wage-earning
capacity was reasonable and within the administrative law judge’s substantial discretion
on the issue. See Avondale Industries, Inc. v. Pulliam, 137 F.3d 326, 328 (5th Cir. 1998);
Shell Offshore, Inc. v. Director, OWCP,
122 F.3d 312, 318 (5th Cir. 1997), cert. denied,
523 U.S. 1095 (1998).
14
