The Sixth Circuit published a new Longshore and Harbor Workers’ Compensation Act (“LHWCA”) decision discussing Claimant’s vocational ability–or lack of ability–and Employer’s deficient labor market survey.   This was the second time the Sixth Circuit heard the claim, and the court reused its earlier recitation of the facts.  Claimant worked for Employer as a senior barge mechanic.  After twenty-five years of employment, Claimant alleged a shoulder injury.  Over the course of three years, Claimant treated with a number of health professionals.  One of those physician’s, Dr. Goodwin, determined that Claimant could not perform his usual work as a senior barge mechanic.

Thereafter, Employer’s vocational expert prepared a labor market survey identifying nine alternate positions that Claimant could perform.  A few months later, the vocational expert identified ten more jobs.  Claimant did not contact any of these employers because he had a foot gout ailment.

Following a 2008 trial, the assigned Administrative Law Judge awarded Claimant total disability.  Claimant had reached maximum medical improvement (“MMI”) in 2005, but Employer “had not satisfied its burden of establishing the availability of suitable alternative employment.”  The Benefits Review Board (“BRB”) affirmed this decision and Employer took the case up to the Sixth Circuit.  The Sixth Circuit determined that the ALJ’s decision was “inadequate . . . to accommodate a thorough review.”  It remanded for further administrative procedures.  After another go-round at the OALJ, the assigned judge modified the MMI date, but not the award of total disability.  The BRB again affirmed, and the Employer petitioned the Sixth Circuit for the second time.

The Sixth Circuit affirmed the ALJ’s determination that Claimant could not return to his usual and customary employment as a senior barge mechanic.  The ALJ is entitled to weigh medical evidence and make credibility determinations, and that is what happened here.  The ALJ assigned greater weight to Dr. Goodwin’s opinion (as treating physician) than Employer’s review doctor.

Because Claimant could not return to his usual and customary employment, Employer had to identify suitable alternative employment.  The Sixth Circuit agreed that Employer failed to do so, reasoning:

For example, Hathaway included a number of sedentary and light duty jobs in her report, but provided no information as to whether those jobs complied with Dr. Goodwin’s restrictions, specifically the prohibition on overhead lifting.  Instead, the jobs she identified are based on Dr. Best’s opinion of Williams’ abilities, which the ALJ afforded little weight.  If—as is the case here—an employer’s vocational expert does not identify jobs compatible with the claimant’s work restrictions, the expert’s opinion cannot satisfy the employer’s burden of establishing suitable alternative employment.  Uglesich v. Stevedoring Servs. of America, 24 Ben. Rev. Bd. Serv. 180 (1991).  Put a different way, the jobs in Hathaway’s reports are truly “mirages” as Williams suggests because they are based on functional limitations contained in a discredited medical opinion and are not jobs that Williams can “realistically perform.”  New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1043 (5th Cir.1981).  The board therefore properly affirmed the ALJ’s finding that Marathon failed to rebut Williams’ prima facie case of disability.

Marathon Ashland Petroleum v. Williams, — F.3d —- (6th Cir. 2013).