Marine Repair Services, Incorporated v. Christopher Fifer

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1566

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.

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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 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.

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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.

1.

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

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