UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60171
CERES MARINE TERMINAL,
Petitioner,
VERSUS
DAVID HINTON; and DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR
Respondents.
Petition for Review of an Order of the
Benefits Review Board
March 8, 2001
Before POLITZ, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
This case arises out of a claim for disability benefits by
David Hinton pursuant to the Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. § 901-950 (1994). Ceres Marine
Terminals (“Employer”) petitions for review of an order in favor of
claimant Hinton entered by the United States Department of Labor
Benefits Review Board (“the Board”). We enforce the order.
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FACTS AND PROCEDURAL HISTORY
On December 3, 1992, while working on the Houston waterfront
as a longshoreman, Hinton was crushed between cargo containers. He
was hospitalized for approximately a month, suffering from a
dislocation and tear of the cartilage from the sternum. He
received temporary total disability payments from December 4, 1992
to May 6, 1993. Hinton is currently 72 years old. He left school
after completing the third grade in rural Arkansas. He cannot read
or write or do simple math. He worked his entire life doing hard
manual labor. In addition to the 1992 injury, Hinton’s medical
history included various back problems, including pain related to
a fall of 18 or 20 feet in 1988 and back surgery performed in 1978.
The Employer disputed Hinton’s eligibility for total permanent
disability compensation. At trial before an Administrative Law
Judge (“ALJ”) on August 11, 1998, the Employer contended that
Hinton was capable of returning to his former employment or of
obtaining suitable alternative employment. During the hearing, the
Employer and Hinton stipulated to the following:
[Counsel for the Employer]: Yes, your Honor, specifically
on page four, Employer’s Exhibit 13. We are withdrawing
as our prior offer of evidence of suitable alternate
employment the listing for the Thrifty Car Rental sales
agent position. However, we – counsel and I have agreed
to allow the remainder of the jobs to be before the Court
for consideration. If you decide Mr. Hinton cannot
return to this former employment as to whether or not
these positions – which one of them would equate to his
residual earning capacity.
In a decision issued on December 29, 1998, the ALJ found that
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Hinton was totally and permanently disabled to perform his usual
occupation due to restrictions on use of the muscles that insert
into the chest wall, which restrictions preclude lifting and
reaching, and due to ongoing pain. The ALJ further found that
Ceres had failed to carry its burden to show availability of
suitable alternative employment. The ALJ concluded that Hinton was
entitled to total and permanent disability benefits.
The Employer filed a motion for reconsideration of the order,
along with Employer’s counsel’s affidavit, stating that he had
agreed with Hinton’s counsel to offer a labor market survey
prepared by vocational expert Lorie McQuade-Johnson, but to forego
calling her as a witness. The Employer argued that he understood
that Hinton was stipulating to the ability to perform the jobs
listed in the labor market survey admitted into evidence at the
hearing. The ALJ found that the stipulation did not speak to
Hinton’s ability to perform the identified jobs, but that the
parties had a bona fide misunderstanding as to the nature of the
stipulation. The ALJ reopened the record “for the limited purpose
of allowing the Employer to offer the deposition testimony of its
vocational expert, Ms. [McQuade-]Johnson, and for the Claimant to
offer any appropriate rebuttal evidence.”
On February 2, 1999, the Employer deposed its vocational
expert. In a letter that same day to the ALJ, the Employer, for
the first time, stated that it was requesting partial relief of its
liability for Hinton’s permanent disability benefits under 33
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U.S.C. § 908(f)(“§ 8(f) relief”). The Employer served the
Solicitor of Labor with its request for § 8(f) relief on February
9, 1999.
After considering the evidence, the ALJ concluded that the
employer failed to establish the existence of jobs that Hinton
could secure or retain, considering his age, cognitive skills,
education, and physical impairments. The ALJ also denied the
Employer’s request for § 8(f) relief, finding that the request was
untimely. The Board affirmed the ALJ’s decision in full.
DISCUSSION
A. Standard of review
“[F]indings of fact in the decision under review by the Board
shall be conclusive if supported by substantial evidence in the
record considered as a whole.” 33 U.S.C. § 921(b)(3). On further
review, the Court’s “only function is to correct errors of law and
to determine if the [Board] . . . deferred to the ALJ’s fact-
finding. . . .” Avondale Shipyards, Inc. v. Vinson, 623 F.2d 1117,
1119 n.1(5th Cir. 1980). Accordingly, we will not disturb an ALJ’s
factual findings unless they are unsupported by substantial
evidence in the record. Director, OWCP v. Ingalls Shipbuilding,
Inc. (Ladner), 125 F.3d 303, 305 (5th Cir. 1997).
“Whether the matter of Section 8(f) relief may be considered
is a procedural legal matter and not a question of fact which
requires the ALJ to make a finding based upon substantial
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evidence.” Brady-Hamilton Stevedore Co. v. Director, OWCP, 779
F.2d 512, 513 (9th Cir. 1985). The Director’s interpretations of
the Act and articulations of administrative policy are accepted as
controlling, unless they are unreasonable readings of the statutory
terms or contrary to clearly expressed legislative intent on the
point in issue. See generally, Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 & nn. 9, 11
(1984).
B. ALJ’S disability and job availability findings
The Employer contends that the ALJ erred in crediting the
testimony of Dr. Gold, Hinton’s treating physician, over the
testimony of Dr. Stevens, the physician selected by the Department
of Labor to perform an Independent Medical Examination. In related
arguments, the Employer argues that the ALJ erred in referring to
Dr. Gold’s conclusions based on Hinton’s consistent complaints of
pain as “objective” and erred in crediting Dr. Gold’s conclusions
concerning Hinton’s pain despite discrediting Hinton’s own hearing
testimony concerning the extent of his pain. The ALJ’s conclusions
are supported by substantial evidence in the record as a whole.
See Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir.
1962)(ALJ may consider a variety of medical opinions as well as
claimant’s testimony in determining the extent of the claimant’s
disability).
The Employer also challenges the ALJ’s factual determination
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that the jobs identified in a 1993 labor market survey, as
described by vocational expert McQuade-Johnson, do not establish
the availability of suitable alternate employment. Specifically,
the ALJ found that the Employer established that there are jobs
within claimant’s physical abilities available, for which an
illiterate person would receive consideration. Nevertheless, he
found that these jobs are unsuitable for claimant given his lack of
mathematical skills, his age, and the fact that his entire
employment history is limited to unskilled, heavy, manual labor.
When an employer demonstrates the availability of suitable
alternative employment, the burden shifts to the claimant to show
he diligently looked for work and was unable to find a job. New
Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1040 (5th
Cir. Unit A. 1981). The ALJ disposed of this case on the first
prong. The Employer contends that was error because the expert
expressed the opinion that the jobs she had identified, including
two cashier positions, were appropriate for Hinton and that Hinton
offered no expert or other evidence to controvert the expert’s
opinion. The Employer also complains that the ALJ’s “judicial
notice” of Social Security regulations violated its due process
rights arising under Federal Rule of Evidence 201.
First, the ALJ’s discussion of regulations promulgated by the
Social Security Administration in regard to its disability
assessments was merely an illustration of the valid point that a
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variety of factors relevant in assessing the vocational potential
of an individual had not been taken into consideration by the
vocational expert in this case. The ALJ took no “judicial notice”
of any fact as contemplated by Federal Rule of Evidence 201 which
would require prior notice and an opportunity to submit rebuttal
evidence. Second, the ALJ’s determination that the evidence
offered did not sustain the Employer’s burden of proving that
suitable alternative employment existed for Hinton is a rational
conclusion based on the evidence presented. The ALJ was not
satisfied that the vocational expert’s opinion adequately took into
consideration all of the circumstances that affected Hinton’s
employability, and therefore rejected the expert’s conclusion. The
ALJ’s factual determination concerning the availability of suitable
alternative employment is supported by substantial evidence in the
record as a whole.
In sum, we find no merit in the Employer’s contention that the
ALJ erred in concluding that Hinton was permanently and totally
disabled and that no suitable alternative employment was available
for him.
C. Did Hinton’s prior injury increase his disability under § 8(f)?
Section 8(f) of the Longshore and Harbor Workers Compensation
Act, 33 U.S.C. § 908(f), was enacted to alleviate potential
employment discrimination against handicapped employees. American
Bridge Div., U.S. Steel Corp. v. Director, OWCP, 679 F.2d 81, 82
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n.3 (5th Cir. 1982). Under the Act’s aggravation rule, if an
employment injury aggravates, accelerates, exacerbates, contributes
to, or combines with, a previous infirmity, disease or underlying
condition, the employer is liable for compensation for, not just
the disability resulting from the employment injury, but the
employee’s total resulting disability. Strachen Shipping Co. v.
Nash, 782 F.2d 513, 517 (5th Cir. 1986). Where certain conditions
are met, § 8(f) limits an employer’s compensation liability, with
any additional compensation being paid from the special fund
established by § 44 of the Act. 33 U.S.C. § 944.
Section 8(f)(3) provides that any request for § 8(f) relief
must be presented to the District Director; that failure to make
such request shall be an absolute defense to special fund
liability; and that the failure to timely file such a request will
be excused if “the employer could not have reasonably anticipated
the liability of the special fund prior to the issuance of a
compensation order.” 33 U.S.C. § 908(f)(3).1 Prior to 1984, §
8(f) contained no explicit restrictions on the time for raising a
claim for relief under its provisions. See Pub.L. No. 98-426, §
8(e)(5), 98 Stat. 1646 (amending 33 U.S.C. § 908(f) to add
1
The District Director is a person “authorized by the Director
to perform functions with respect to the processing and
determination of claims for compensation under [the] Act.” 20
C.F.R. § 701.301(a)(7). The regulation substitutes the term
“district director” for the term “deputy commissioner” which is
used in the Act. Id.
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paragraph (f)(3)). In a case decided under the pre-1984 version of
§ 8(f), we nonetheless construed it as requiring the claim for
special fund apportionment to be raised before or at the initial
hearing, and precluding an employer from raising a § 8(f) claim for
the first time on review of the ALJ’s award of total disability
benefits. American Bridge, 679 F.2d at 83. Under the pre-1984
version of the law, the Director of OWCP, who is charged with
representing the special injury fund, was usually unrepresented at
the hearing before the ALJ, and thus, assertions of entitlement to
§ 8(f) relief often went uncontradicted when raised for the first
time at the hearing. See 51 Fed.Reg. 4270, 4277-78 (February 3,
1986)(reviewing history of actions under prior 33 U.S.C. § 908(f)
and legislative history of new § 908(f)(3)). To remedy this
problem, Congress amended § 8(f) in 1984 to require that
entitlement to § 8(f) relief be raised earlier, during informal
proceedings before the deputy commissioner. When the claim cannot
be resolved without a formal hearing and is referred to an ALJ for
a hearing, the implementing regulation provides:
Where the claimant’s condition has not reached maximum
medical improvement and no claim for permanency is raised
by the date the case is referred to the OALJ, an
application need not be submitted to the district
director to preserve the employer’s right to later seek
relief under section 8(f) of the Act. In all other
cases, failure to submit a fully documented application
by the date established by the district director shall be
an absolute defense to the liability of the special fund.
This defense is an affirmative defense which must be
raised and pleaded by the Director. The absolute defense
will not be raised where permanency was not an issue
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before the district director. In all other cases, where
permanency has been raised, the failure of an employer to
submit a timely and fully documented application for
section 8(f) relief shall not prevent the district
director, at his/her discretion, from considering the
claim for compensation and transmitting the case for
formal hearing. The failure of an employer to present a
timely and fully documented application for section 8(f)
relief may be excused only where the employer could not
have reasonably anticipated the liability of the special
fund prior to the consideration of the claim by the
district director.
20 C.F.R. § 702.321(b)(3).
The Employer raised his claim for § 8(f) relief for the first
time when it moved for modification of the ALJ’s initial decision,
citing Hinton’s preexisting back problems as the basis of a claim
that it ought not bear the entire liability of Hinton’s total
permanent disability. The Employer contends that because the
Director did not raise the affirmative defense of untimeliness
defined by 20 C.F.R. § 702.321(b)(3), that affirmative defense was
waived. Thus it was improper for the ALJ to base his denial of §
8(f) relief on untimeliness.
The Employer is correct that the affirmative defense of
untimeliness set out in 20 C.F.R. § 702.321(b)(3) is inapplicable
to this case. However, the Employer remained obligated to submit
an application for § 8(f) relief at or before the initial hearing
unless special circumstances excused its delay in raising the
issue. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 267
(4th Cir. 1997). The 1984 amendment to the Act was designed to
advance to a point even earlier in the claim process the employer’s
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obligation to raise entitlement to § 8(f) relief. Id. Although
the regulations promulgated under the 1984 amendments were designed
to preserve the availability of the relief in cases in which the
issue of § 8(f) relief could not be anticipated during the period
of informal claim consideration before the deputy commissioner –
cases in which there was then no claim of permanency – in general,
they do not provide for a bifurcated liability determination
process. Id. The Director argues that the 1984 amendment and its
regulations did not abrogate our previously-established requirement
that special fund liability be raised timely unless excused by
special circumstances. Absent clear congressional intent to the
contrary, we afford deference to a reasonable construction of the
Act by the Director because of his policy-making authority with
regard to the Act. Chevron U.S.A., 467 U.S. at 842-45 & nn. 9, 11.
The ALJ held that “post-hearing requests for section 8(f)
relief are generally denied as untimely where the employer could
have requested such relief at the time of the initial hearing but
failed to do so, absent compelling circumstances[,]” citing
American Bridge, 679 F.2d at 82-83. After examining and rejecting
any potential special circumstances that may have excused the
Employer’s delay in making its § 8(f) claim, the ALJ concluded that
he was “constrained to find that the Employer’s request for section
8(f) relief is untimely.” Significantly, the ALJ did not rely on
or make any reference to 20 C.F.R. § 720.321 timeliness.
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The Employer makes no argument on appeal that circumstances
excused it from presenting its § 8(f) claim prior to or at the
hearing, nor does our review of the record reveal that any such
circumstances existed.
We therefore conclude that the ALJ did not err in rejecting as
untimely the Employer’s § 8(f) claim, presented for the first time
on motion for modification.
CONCLUSION
Based on the foregoing, we enforce the Board’s order.
ENFORCED.
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