UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60051
Summary Calendar
PRIDE OFFSHORE, INC.; SIGNAL MUTUAL ASSOCIATION, LTD,
Petitioners,
VERSUS
JOHN S. BILLIOT; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, US DEPARTMENT OF LABOR,
Respondents.
On Appeal From the Benefits Review Board,
U.S. Department of Labor
(99-0282)
November 22, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Petitioners Pride Offshore and Signal Mutual Association
appeal the Decision and Order of the Benefits Review Board
affirming the Administrative Law Judge’s award of temporary total
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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disability and temporary partial disability to John Billiot under
the Longshoremen’s and Harbor Workers’ Compensation Act. See 33
U.S.C. § 908. We find that substantial evidence supports the
ALJ’s decision and therefore affirm.
I. Facts
Pride Offshore (Pride) hired Mr. Billiot in the Spring of
1995 as a floor hand on a fixed platform drilling rig on the
Outer Continental Shelf. Mr. Billiot suffered his alleged
shoulder injury on July 14, 1995. He reported his injury to the
supervisor three days later when the symptoms increased to
numbness and tingling in his right shoulder and arm. After
Billiot returned from his offshore duties, he visited Dr. St.
Martin, a physician designated by Pride. Dr. St. Martin examined
Billiot on two occasions immediately following Billiot’s July
offshore hitch. On August 8, 1995, he authorized Billiot to
resume his full duties as a floor hand.
Billiot returned to the platform for his next offshore hitch
on August 10, 1995. Billiot’s work performance declined
significantly between August and November 1995. On August 13, a
Pride toolpusher fired Billiot for failing to perform his duties.
Pride rehired Billiot in October, and Billiot continued to
perform his full duties as a floor hand. On November 14, Pride
demoted Billiot from floor hand to roustabout.
The continuing pain in his right shoulder, arm and neck
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prompted Billiot to see a doctor of his own choice in December of
1995. Dr. Edmund Landry examined Billiot and discovered a nerve-
stretch injury in Billiot’s right shoulder. Although a
toolpusher fired Billiot for the second time because of his
appointment with Dr. Landry, Pride rehired Billiot in February of
1996 and assigned him to light duty jobs. Pride wanted Billiot
to paint a building, but, after painting for three days, Billiot
found the work extremely painful. Billiot complained to his
foreman, but not to the personnel manager. The foreman did not
offer Billiot alternative assignments. Billiot left work on
February 15, 1996.
Dr. Landry examined Billiot a second time and discovered
that Billiot suffered carpal tunnel syndrome from his July 14,
1995 injury. Pride and its insurer, Signal Mutual, retained
their own doctor, who concurred with Dr. Landry’s diagnosis. Dr.
Landry concluded that Billiot could probably never return to his
full duties as a floor hand, and would most likely be regulated
to work requiring little physical exertion.
Billiot brought a claim for workers’ compensation benefits
under the Longshoremen and Harbor Workers’ Compensation Act
against Pride and Signal Mutual Insurance. The ALJ surmised that
Billiot incurred a temporary total disability on November, 14,
1995, the date when he was unable to perform floor hand duties.
The ALJ concluded that Billiot’s reassignment to the painting job
was not suited to his physical condition, and that Pride did not
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offer Billiot any suitable alternative or present Billiot with
other employment opportunities in the community until August 8,
1996. Beginning on August 8, 1996, the ALJ held that Billiot
sustained a temporary partial disability. The ALJ then modified
his original Decision and Order after both parties submitted
motions for reconsideration. He awarded temporary partial
disability based on an average of salaries from labor market
surveys in 1996 and 1997. Petitioners Pride Offshore and Signal
Mutual appealed to the Benefits Review Board, which affirmed the
ALJ’s decision.
Pride and Signal claim on appeal from the Board’s decison
that there was insubstantial evidence in the record to support
the Board’s and the ALJ’s conclusions. They assert that (1) the
court erred in finding that Pride did not offer suitable
employment; (2) the court miscalculated Billiot’s potential wage
earning capacity; and (3) the court miscalculated Billiot’s
average weekly wage.2
2
Billiot argues that this Court lacks jurisdiction because Pride
and Signal Mutual filed an untimely appeal. He claims that the
motion for reconsideration submitted to the ALJ pertained to
clerical errors only and did not delay the period for filing
appeals. There is no difference between motions for
reconsideration of clerical matters and motions for reconsideration
of substantive issues. See Aetna Cas. & Surety Co. v. Director,
Office of Worker’s Compensation Programs, U.S. Dept. of Labor, 97
F.3d 815, 820-21 (5th Cir. 1996). In fact, any notice of appeal
filed before the ALJ resolves issues presented in a motion for
reconsideration is nullified. See id. at 819 (citing 20 C.F.R. §
802.206(f)). Petitioners appeal is timely.
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II. Discussion
We review the Board’s conclusions for errors of law, “making
certain that the [Board] adhered to its statutory standard of
review of factual determinations, that is whether the ALJ’s
findings of fact are supported by substantial evidence and
consistent with the law.” New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031 (5th Cir. 1981). “Substantial evidence is
evidence that ‘a reasonable mind might accept as adequate to
support a conclusion.’” Avondale Indus., Inc. v. Pulliam, 137
F.3d 326, 328 (5th Cir. 1998). The ALJ’s analysis of conflicting
factual inferences and the ALJ’s assessment of witness
credibility controls on appeal if supported by the evidence and
the law. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685,
689 (5th Cir. 1996).
A. Suitable Alternative Employment
An employer has the burden of establishing suitable
alternative employment to rebut a claimant’s prima facie case of
total disability. See P & M Crane Co. v. Hayes, 930 F.2d 424,
430 (5th Cir. 1991). An employer can establish suitable
alternative employment by demonstrating that there are job
opportunities available within the claimant’s capabilities or by
giving the claimant a suitable job within the employer’s
workplace. See id.; Darby, 99 F.3d at 688. The employer is not
required to offer the claimant a job or tell the claimant about
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employment opportunities to satisfy this burden. See Hayes, 930
F.2d at 430. Rather, the employer need only show that there were
suitable jobs reasonably available during the time in which a
claimant alleges total disability. See id. “[I]f alternative
jobs exist which the claimant could reasonably perform and secure
had he diligently tried, the employer, after demonstrating the
existence of such jobs has met his burden.” Turner, 661 F.2d at
1043. The claimant must then demonstrate that despite diligent
efforts, he could not find suitable employment. See id.
Pride and Signal Mutual contend that the ALJ erred by
concluding that Pride did not offer suitable alternative
employment before August 8, 1996. They specifically argue that
the painting job given to Billiot was suitable and, in the
alternative, that other jobs were available at Pride’s facility.
Substantial evidence exists to support the ALJ’s determination
that the painting job was not suitable to Billiot’s injury.
First, the ALJ concluded that Dr. Landry previously advised
Billiot that he should not perform any work involving overhead
activities. Second, Billiot testified that the hard hat he wore
while painting aggravated his injury. He testified that painting
caused him extreme pain and that he reported his condition to his
foreman, who did not suggest any other alternative. The ALJ also
chose to discredit the testimony of two Pride employees who
stated that other light duty jobs were available to Billiot at
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the Pride facility after his injury. We decline to disturb the
ALJ’s credibility inferences. See Darby, 99 F.3d at 688-89;
Mendoza v. Marine Personnel Co., Inc., 46 F.3d 498, 500-01 (5th
Cir. 1995). Because the ALJ’s conclusions are supported by
substantial evidence and in accordance with the law, the Board’s
decision concerning suitable alternative employment is affirmed.3
III. Billiot’s Average Weekly Wage
Section 910(b) of the LHWCA requires the ALJ to assess the
average weekly wage of employees in the same class who worked
substantially the whole year in the same or similar employment.
See 33 U.S.C. § 910(b). Pride and Signal Mutual do not discount
the ALJ’s application of § 910(b), rather they argue that the ALJ
erred in determining that Billiot was employed as a floor hand
instead of a roustabout. They claim that at the time of his
injury, he was performing roustabout duties. While the work that
caused Billiot’s injury may have been part of the general duties
of a roustabout, he was hired as a floor hand. He was also paid
3
Pride and Signal Mutual claim that Billiot failed to diligently
search for other employment at Pride’s facility after his injury.
This argument lacks merit because the burden never shifted back to
Billiot once he established his prima facie case. The petitioners
must show that suitable alternative employment existed before
Billiot was required to demonstrate diligence in pursuing other job
opportunities. See Roger’s Terminal and Shipping Corp. v. Director,
Office fo Worker’s Compensation Programs, Dep’t of Labor, 784 F.2d
687, 691 (5th Cir. 1986). “[F]ailure to present any evidence of
job availability can support a determination of . . . total
disability if the claimant is incapable of returning to his former
job.” Id.
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floor hand wages. Just because an employee performs a task
outside his general job description does not mean that the
employee no longer holds his previous position. Although Pride
demoted Billiot to a roustabout position on November 14, 1996, he
worked the majority of his time with Pride as a floor hand. The
Board of Review correctly determined that substantial evidence
supported the ALJ’s conclusion that Billiot’s average weekly wage
should be calculated using the wages of floor hands instead of
roustabouts. See LeBlanc v. Cooper/T. Smith Stevedoring, Inc.,
130 F.3d 157, 161 (5th Cir. 1997); Bourgeois v. Avondale
Shipyards, Inc., 121 F.3d 219, 221 (5th Cir. 1997); Harrison v.
Todd Pacific Shipyards Corp., 21 BRBS 339 (1988).
IV. Billiot’s Earning Capacity
Finally, Pride and Signal Mutual contend that the ALJ did
not properly consider a 1997 wage survey in calculating Billiot’s
earning capacity. The ALJ averaged a 1996 labor market survey
with a 1997 survey in his November 2, 1996 modification of his
original order. The petitioners contend that the ALJ should have
used only the 1997 survey when reconsidering claimant’s earning
capacity.
“[A] disability award may be modified under [33 U.S.C. § 22]
where there is a change in the employee’s wage-earning capacity,
even without any change in the employee’s physical condition.”
Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 301 (1995).
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This Court gives deference to an ALJ’s determination of a
claimant’s wage-earning capacity. See Hole v. Miami Shipyards
Corp., 640 F.2d 769, 773 (5th Cir. Unit B 1981) (deferring to the
ALJ’s decision to award claimant compensation on the basis of a
one percent permanent partial disability in order to assess the
full extent of the claimant’s earning capacity in the future);
Pulliam, 137 F.3d at 328 (holding that an ALJ may average
alternate jobs to calculate a claimants wage-earning capacity).
The ALJ, in its November 2, 1998 order, concluded that the jobs
listed in petitioners’ August 1997 labor survey averaged with the
jobs set out in the August 1996 survey represented a
comprehensive estimation of Billiot’s wage-earning capacity.
Section 922 of the LHWCA specifically allows for the modification
of an original compensation award for the purpose of reassessing
a claimant’s wage-earning capacity. See 33 U.S.C. § 922; Rambo,
515 U.S. at 301. We find no reason to doubt the merits of the
ALJ’s determination. Because substantial evidence supports the
ALJ’s conclusions, we affirm the Benefits Review Board’s
decision.
AFFIRMED
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