Bunge Corp v. OWCP , 227 F.3d 934 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3853
Bunge Corporation and CIGNA Property
and Casualty,
Petitioners,
v.
Mark Carlisle and T. Michael Kerr, Deputy
Assistant Secretary of the Office of Worker
Compensation Programs,
Respondents.
Petition For Review of an Order
of the Benefits Review Board
BRB No. 98-1604.
Argued May 12, 2000--Decided September 19, 2000
Before Ripple, Manion, and Williams, Circuit Judges.
Williams, Circuit Judge. Respondent Mark Carlisle
worked for the Bunge Corporation from 1981 to
1996. From 1986 until he left Bunge, Carlisle
worked as a river operator. Upon leaving Bunge,
Carlisle filed a workers’ compensation claim with
Bunge and its insurer, CIGNA Property and
Casualty, pursuant to the provisions of the
Longshore and Harbor Workers’ Compensation Act
("LHWCA"), 33 U.S.C. sec. 901 et seq. The LHWCA
is a federal program created to compensate
maritime employees for on-the-job injuries
leading to death or disability. An administrative
law judge ("ALJ") awarded Carlisle temporary
total disability benefits from March 18, 1996,
until June 13, 1997, at which time the ALJ
awarded Carlisle permanent total disability
benefits. On appeal, the United States Department
of Labor Benefits Review Board ("BRB") affirmed
the ALJ’s decision. Bunge and CIGNA (collectively
"Petitioners") now petition the court for review.
Bunge asserts that: (1) Carlisle’s claim for
benefits was not timely filed; (2) Carlisle was
not permanently disabled; and (3) Bunge met its
burden to identify suitable alternative
employment options for Carlisle. Because we find
that the ALJ’s decision was consistent with
governing law and supported by substantial
evidence, we affirm.
I
For ten of the fifteen years Mark Carlisle
spent at Bunge, he worked as a river operator. As
a river operator, Carlisle spent a lot of his
time unloading barges, which contained various
beans and grains. To unload the barges, Carlisle
was required to lift heavy barge doors and to
operate a joystick designed to control and direct
the simultaneous movement of two huge "tugger"
buckets that lift the beans and grains from the
barges. On the job, Carlisle would usually have
to operate joysticks for three to four hours per
day, but occasionally, this would increase to
eight hours per day for several weeks at a time.
Bunge admits that operating the joystick involved
repetitive motion of Carlisle’s hand and arm.
In March 1996, Carlisle informed his supervisor
at Bunge that his arms were hurting. Initially,
he went to his family doctor, Dr. Gordon Jones
("Jones"), and reported that he felt pain,
weakness, and loss of grip strength while
performing certain work activities. Jones told
Carlisle he had epicondylitis, advised him to
wear his arm in a splint, and prescribed medicine
for the pain. In April 1996, Carlisle saw the
company physician, Dr. Gordon Eller ("Eller").
Eller twice conducted diagnostic studies of
Carlisle’s condition and ultimately concluded
that Carlisle suffered from bilateral carpal
tunnel syndrome and ulnar nerve fracture
neuritis. Eller did not attribute Carlisle’s
condition to his work. Rather, he opined that
Carlisle’s condition was the result of a more
gradual disease process. Eller recommended that
Carlisle either have surgery to try and repair
the damage or find alternative work.
On the advice of counsel, Carlisle later saw
another physician, Dr. McGinty ("McGinty"), who
made a similar diagnosis--carpal tunnel and
cubital tunnel syndromes-- but did not recommend
surgery./1 Unlike Eller, McGinty did attribute
Carlisle’s condition to the nature of his work.
McGinty concluded that Carlisle’s condition
resulted from the "repetitive and arduous use of
his wrists and arms" on the job and predicted
that surgery would not likely improve Carlisle’s
injuries. Carlisle took McGinty’s advice and
decided not to have surgery.
Although Carlisle stopped working in April 1996,
he did not file a notice of injury until June 25,
1997 or a claim for workers’ compensation until
July 30, 1997. Petitioners opposed the claim
arguing that Carlisle failed to file his claim
within the statute of limitations under Sections
12 and 13 of the LHWCA and that, alternatively,
Carlisle was not entitled to permanent total
disability benefits. After a hearing, the ALJ
concluded that (1) Carlisle’s disease was an
occupational disease, which entitled him to a
two-year statute of limitations; (2) Carlisle’s
condition had reached maximum medical improvement
and therefore he was permanently disabled; and
(3) Carlisle was totally disabled since
Petitioners failed to meet their burden of
finding that suitable alternative employment
existed for Carlisle. Now, Bunge and CIGNA
petition this court for review.
II
We review the ALJ decision to determine whether
it was "rational, supported by substantial
evidence, and consistent with governing law."
Freeman United Coal Co. v. Hunter, 82 F.3d 764,
767 (7th Cir. 1996). Here, "substantial evidence"
means more than a scintilla, but not necessarily
a preponderance. Id. It differs from the
preponderance of evidence standard in that it is
"such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion," rather than evidence showing that
"it is more likely than not that the evidence
establishes the proposition in question."
American Grain Trimmers v. Office of Workers’
Compensation Programs, 181 F.3d 810, 817 (7th
Cir. 1999) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971)). Our job on review of an
ALJ decision to grant or deny workers’
compensation benefits is simply to consider
whether the ALJ looked at all relevant medical
evidence, substituted his or her judgment for
that of a qualified expert, or disregarded the
opinion of a qualified expert absent evidence to
the contrary or a legal basis for doing so. See
Peabody Coal Co. v. Vigna, 22 F.3d 1388, 1392
(7th Cir. 1994). After examining the ALJ’s
findings, we must look to the BRB’s decision to
confirm that the BRB appropriately reviewed the
ALJ’s determination and committed no legal error.
As in most other instances, any question of law
is reviewed de novo. Shelton v. Old Ben Coal Co.,
933 F.2d 504, 506 (7th Cir. 1991).
A. Occupational Disease/Statute of Limitations
Petitioners contend that Carlisle did not file
his claim for disability benefits within the
appropriate statute of limitations ("SOL")
period. Ordinarily, the SOL for bringing a claim
under the LHWCA is one year. See 33 U.S.C. sec.
913(a). However, the ALJ found that because
Carlisle’s condition was an occupational disease,
he was entitled to an extended two-year SOL,
whereby a claim is timely
if filed within two years after the employee or
claimant becomes aware, or in the exercise of
reasonable diligence or by reason of medical
advice should have been aware, of the
relationship between the employment, the disease,
and the death or disability, or within one year
of the date of the last payment of compensation,
whichever is later.
33 U.S.C. sec. 913(b)(2).
Petitioners argue that the ALJ erred in
classifying Carlisle’s condition as an
occupational disease. On March 19, 1996, Carlisle
reported pain in his arm to his supervisors at
Bunge. Dr. Eller examined Carlisle on April 11,
1996. He diagnosed Carlisle’s condition and
advised him to have surgery. However, it was not
until June 13, 1997, that Dr. McGinty informed
Carlisle that his condition was directly related
to his work as a river operator. Carlisle filed
his formal claim for compensation on July 30,
1997, which is within two years after even the
earliest possible date (April 11, 1996) he could
be said to have known (constructively or
otherwise) about the connection between his job
and his condition. Therefore, the question for
the court is whether the ALJ properly classified
Carlisle’s condition as an occupational disease.
Congress has not explicitly defined occupational
disease for LHWCA purposes. In its decision and
order awarding benefits, the ALJ defined
"occupational disease" as "any disease arising
out of exposure to harmful conditions of the
employment, when those conditions are present in
a peculiar or increased degree by comparison with
employment generally." Accord 1B A. Larsen, The
Law of Workmen’s Compensation, sec. 41.00, at 7-
353. Other courts have adopted this definition as
well. See LeBlanc v. Cooper/T. Smith Stevedoring,
Inc., 130 F.3d 157, 160 (5th Cir. 1997) (citing
Larsen’s definition of occupational disease);
Gencarelle v. General Dynamics Corp., 892 F.2d
173, 176 (2nd Cir. 1989) (classifying the Larsen
definition as "the generally accepted definition
of an occupational disease")./2 Two specific
characteristics of an occupational disease are
(1) an inherent hazard from continued exposure to
conditions of a particular employment and (2) a
gradual, rather than sudden onset. See 1B A.
Larsen, Workman’s Compensation Law, sec. 41.31
(1992).
Petitioners argue that Carlisle’s condition
cannot be classified as an occupational disease
because the harmful conditions of his employment
are not present in a "peculiar or increased
degree by comparison with employment generally."
However, the ALJ found otherwise. The ALJ
reasoned that because both Ellers and McGinty
believed Carlisle’s condition to be caused by
"repetitive hand and arm movements which require
flexion and extension of the hands, wrists, and
arms," he found persuasive McGinty’s conclusion
that Carlisle’s condition was caused by the
repetitive joystick work he had to perform as a
river operator. The ALJ explained:
The duties involving repetitive hand and arm
movements are peculiar to Claimant’s job as River
Operator, a job which he performed since August
of 1986. There is no evidence of record that
Claimant engaged in any other activities which
required sustained repetitive movements nor is
there any evidence that Claimant’s condition
could develop in the absence of some form of
long-term repetitive hand and arm movement. Dr.
McGinty persuasively states . . . that Claimant’s
use of joysticks would require "a marked amount
of flexion/extension, ulnar and radial flexion in
alternating movements."
The ALJ went on to note that Carlisle found the
pain he experienced intolerable and that it had
worsened over time and that even Eller admitted
that Carlisle’s condition was part of an ongoing
disease process that would continue to worsen.
Given the substantial evidence standard, we see
no reason to disturb the ALJ’s findings. As we
noted above, the standard of substantial evidence
requires no more than "such relevant evidence as
a reasonable mind might accept as adequate to
support a conclusion." Diaz v. Chater, 55 F.3d
300, 305 (7th Cir. 1995) (quoting Richardson, 402
U.S. at 401 (1971)). There is certainly more than
a scintilla of evidence to suggest that Carlisle
has an occupational disease. Bunge itself
indicated that one of Carlisle’s duties was
repetitive joystick and bobcat lever work. It is
not unreasonable to conclude that spending even
fifteen percent of the time, using hands and
arms, repetitively controlling a joystick or
lever, is a potentially harmful work condition of
a peculiar or increased degree. Further, both
physicians who examined Carlisle agree that his
work activities contributed to his condition.
McGinty testified that the joystick and lever
work Carlisle had to perform was a direct cause
of his condition. Eller admitted that the work at
least aggravated Carlisle’s condition. Therefore,
the ALJ’s conclusion that the "repetitive
biomechanical stresses" inherent in Carlisle’s
job led to an occupational disease is both
rational and supported by substantial evidence
and governing law. Accordingly, the ALJ did not
err in applying the two-year SOL available to
claimants with an occupational disease to
Carlisle’s claim.
B. Permanent and Total Disability
Next, Petitioners argue that the ALJ erred in
finding Carlisle permanently and totally disabled
and to grant him workers’ compensation benefits.
The LHWCA provides coverage for four separate
categories of disabilities: (1) permanent total
disability, (2) temporary total disability, (3)
permanent partial disability, and (4) temporary
partial disability. This statutory structure
contemplates two independent areas of analysis:
nature or duration of disability (temporary or
permanent) and degree of disability (total or
partial). See 33 U.S.C. sec. 908(a)-(d). Courts
have looked to two separate indicators as proof
of permanent and total disability. Once an
employee reaches maximum medical improvement, he
is often considered permanently disabled. When no
suitable alternative employment can be found for
a disabled employee, he is usually deemed totally
disabled. See SGS Control Servs. v. Director,
Office of Workers’ Compensation Programs, 86 F.3d
438, 443-44 (5th Cir. 1996); Stevens v. Director,
Office of Workers’ Compensation Programs, 909
F.2d 1256, 1259 (9th Cir. 1990). Petitioners
argue that there was insufficient evidence to
establish that Carlisle was either permanently or
totally disabled.
1. Permanent Disability
The ALJ held that Carlisle had reached maximum
medical improvement for a work-related
occupational disease and therefore was
permanently disabled and eligible for permanent
disability benefits. Petitioners contend that
because Carlisle unreasonably refused to undergo
surgery, the ALJ’s ruling was wrong. "Maximum
medical improvement is attained when the injury
has healed to the full extent possible." Stevens,
909 F.2d at 1257. According to Petitioners,
before Carlisle can be considered to have reached
maximum medical improvement, he needed to have
surgery and attempt to improve his condition./3
Petitioners base much of their argument on
Eller’s opinion and recommendation that Carlisle
have surgery. In contrast, the ALJ found
persuasive McGinty’s assessment of Carlisle’s
condition and concluded that surgery was not
necessary before a finding of maximum medical
improvement could be made.
The Fifth Circuit has held that a claimant
under the LHWCA is considered permanently
disabled "when [a claimant’s] condition has
continued for a lengthy period, and it appears to
be of lasting or indefinite duration, as
distinguished from one in which recovery merely
awaits a normal healing period." SGS Control
Services, 86 F.3d at 443-44 (internal quotations
omitted). While Eller and McGinty ultimately
disagreed as to which treatment Carlisle should
have sought, both doctors agreed that Carlisle’s
condition would always affect his ability to
engage in activity requiring use of his hands and
arms and that if Carlisle tried to return to his
old job, the symptoms of his condition would be
likely to recur. Eller concluded that if Carlisle
were to undergo surgery, he had a fifty percent
chance of being able to return to his prior job.
McGinty did not recommend surgery and concluded
that Carlisle was permanently disabled. He
testified that "[Carlisle] cannot do the work
that he was [formerly] doing and the chance of
being able to return to that type of activity is
very limited even with an attempt to repair these
problems surgically." Both doctors’ testimony
suggests the permanence of Carlisle’s condition.
Petitioners maintain that the ALJ should have
accepted Eller’s medical conclusion instead of
McGinty’s. However, the ALJ determines the weight
to be accorded to evidence and makes credibility
determinations. Moreover, where the testimony of
medical experts is at issue, the ALJ is entitled
to accept any part of an expert’s testimony or
reject it completely. See Mendoza v. Marine
Personnel Co., Inc., 46 F.3d 498, 500-01 (5th
Cir. 1995) (citations omitted). Here, upon review
of both McGinty’s and Eller’s testimony, the ALJ
concluded that the surgery Eller recommended
"would fail to alleviate or cure Claimant’s
underlying conditions" and that "surgery which
only addresses the symptoms of a condition, but
not the condition itself, is not a viable
option." We find that there was substantial
medical evidence to support the ALJ’s conclusion.
Nothing in the ALJ’s decision was irrational,
unsupported by substantial evidence, or
prohibited by governing law.
2. Total Disability
Petitioners also dispute the ALJ’s finding as
to Carlisle’s total disability. Disability under
the LHWCA is "incapacity because of injury to
earn the wages which the employee was receiving
at the time of injury in the same or any other
employment." 33 U.S.C. sec. 902(10). To gain an
award of benefits for total disability under the
LHWCA, a claimant must first establish a prima
facie case by demonstrating that he cannot
perform his prior employment due to the effects
of a work-related injury. See Universal Maritime
Corp. v. Moore, 126 F.3d 256, 264 (4th Cir.
1997). Once a prima facie case has been
established, the burden shifts to the employer to
demonstrate "the availability of suitable
alternative employment which the claimant is
capable of performing." Brooks v. Director,
Office of Workers’ Compensation Programs, 2 F.3d
64, 65 (4th Cir. 1993) (per curiam). If the
employer fails to meet this burden, the
employee’s disability is classified as "total,
and most likely, permanent." Stevens, 909 F.2d at
1258, and the claimant is entitled to total
disability benefits.
Both parties agree that Carlisle has established
a prima facie case of total disability.
Petitioners, however, insist that the ALJ erred
in finding Carlisle totally disabled because they
met their burden to show that suitable
alternative employment opportunities existed for
Carlisle. Bunge claims that its expert presented
numerous suitable job options that were available
to Carlisle. The ALJ, however, found that the
report Bunge’s expert offered was insufficient to
show that suitable job opportunities existed.
There is some disagreement among the circuits
as to what information employers must provide to
meet the burden of showing suitable employment
alternatives for claimants. The Ninth Circuit
requires the employer to identify specific
positions for a specific employer, that the
claimant can perform and that the claimant could
likely obtain, see Hairston v. Todd Shipyards
Corp., 849 F.2d 1194, 1196 (9th Cir. 1988);
Bumble Bee Seafoods v. Director, Office of
Workers’ Compensation Programs, 629 F.2d 1327,
1329 (9th Cir. 1980), while the First, Fourth and
Fifth Circuits utilize a more moderate test in
which employers must simply present evidence that
a range of jobs exists that is reasonably
available and that the disabled employee could
realistically secure and perform, see Trans-State
Dredging v. Benefits Review Bd., 731 F.2d 199,
201 (4th Cir. 1984); New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 1042-43 (5th
Cir. 1981); Air America, Inc. v. Director, Office
of Workers’ Compensation Programs, 597 F.2d 773(1st Cir. 1979). We find the latter test to be
the more reasonable one. A more stringent test
might result in more claimants choosing to forgo
rehabilitation and the opportunity to find
gainful employment in an alternative environment.
Therefore,"if it is established that there are
jobs which the claimant can realistically perform
and secure, there may not be a finding of total
and permanent disability under LHWCA." Turner,
661 F.2d at 1043. An employer may satisfy its
burden in two ways. First, the employer may
itself make available to the injured employee
suitable alternative employment. See Darby v.
Ingalls Shipbuilding, Inc., 99 F.3d 685, 688 (5th
Cir. 1996). Second, the employer may demonstrate
that suitable alternative employment is available
to the injured worker in the relevant labor
market. See Norfolk Shipbuilding & Drydock Corp.
v. Hord, 193 F.3d 797, 800 (4th Cir. 1999). To
rebut Carlisle’s showing of total disability,
Bunge needed to answer two questions: (1) whether
there were jobs Carlisle was capable of
performing, taking into consideration his age,
background, education, training, etc.; and (2)
whether those jobs were reasonably available in
the community in which Carlisle was able to
compete and whether they could realistically be
secured. See Trans-State Dredging, 731 F.2d at
201.
At the hearing before the ALJ, Petitioners
offered the testimony of a vocational
rehabilitation counselor, Mary McKnight, who
conducted a market survey of potentially
available job positions for Carlisle. McKnight
limited her search to jobs with no tasks
requiring heavy lifting or repetitive movement of
the arms, hands or wrists and to jobs located
within thirty miles of Carlisle’s residence. She
produced a list of jobs that included openings
for a part-time cashier, a police officer, and an
inspector at a plastics factory. She also
identified other jobs that were available but
that she was not sure would meet Carlisle’s work
limitations. None of her reports contained
descriptions of the duties that Carlisle would be
required to perform however. The ALJ reviewed the
offerings McKnight presented and concluded that
Petitioners "failed to provide information
regarding the duties of the jobs it located." He
then compared the requirements for the proffered
jobs as listed in the Dictionary of Occupational
Titles with the physical, educational, age, and
skill limitations Carlisle had that were
demonstrated in the record and found that
Petitioners did not present suitable alternative
employment for Carlisle.
Petitioners maintain that the ALJ was wrong to
require more specific information from its
vocational expert and that in so doing, he was
applying a more stringent test than was
necessary. This argument misses the mark. The
problem with the expert testimony Petitioners
provided was not that it failed to be specific in
naming actual employers who would hire claimant,
but that it failed to be specific in considering
Carlisle’s capabilities when it attempted to
identify potential jobs. While Petitioners did
not need to show that there were specific,
prospective employers in the area ready and
willing to hire Carlisle, a report simply
matching general statements of Carlisle’s job
skills with general descriptions of jobs fitting
those skills is not enough to show that suitable
employment alternatives existed for Carlisle. We
give great deference to the ALJ’s decision not to
credit the vocational expert’s testimony, and we
conclude that the decision was a reasonable one.
As such, we find that the ALJ did not err in
deciding that Petitioners failed to establish
that suitable job opportunities existed for
Carlisle and that Carlisle was therefore totally
and permanently disabled.
III
For the reasons set forth above, we DENY the
petition for review and AFFIRM the judgment of the
Benefits Review Board.
/1 Although the diagnoses of Eller and McGinty
originally differed slightly, the parties have
stipulated that the nature of Carlisle’s claimed
injury is carpal tunnel syndrome.
/2 Both Carlisle and the Office of Workers’
Compensation Programs (OWCP) filed briefs as
appellees. The OWCP urges the court to reject the
ALJ’s use of the "peculiar or increase degree"
standard and define occupational disease as one
which simply "arises naturally out of such
employment." See 33 U.S.C. sec. 902(2). Bunge
claims that we lack jurisdiction to even consider
this argument, as it should have been brought in
a cross-appeal. We see no reason to go beyond the
issue at hand to reach this broader, policy-
oriented question. A number of courts have used
the "peculiar or increased degree" standard and
we find that it is a reasonable test, in light of
both the legislative history and policy
objectives.
/3 Bunge also contends that Carlisle’s refusal to
undergo surgery was unreasonable. We need not
entertain this argument. What we think about
Carlisle’s decision not to have surgery is
irrelevant. What does matter is whether the ALJ’s
decision to rely upon McGinty’s medical opinion
as to the permanency of Carlisle’s condition was
a reasonable and legally sound one. As such, our
discussion centers around this question.