On Petition for Review of an Order of the Benefits Review Board.
Before WIDENER and NIEMEYER, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Widener and Senior Judge Michael joined.
On appeal of an award to Frank Moore of benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section(s) 901 et seq., for permanent total disability, we reverse and remand because we conclude that (1) the Administrative Law Judge ("ALJ") erred as a matter of law in applying the statutory presumption under 33 U.S.C. Section(s) 920(a) to presume that Moore's back pain was caused by a work-related accident; (2) the ALJ erred in finding permanent total disability without any medical evidence of maximum improvement with respect to Moore's back problem; (3) the ALJ erred as a matter of law in refusing to credit a vocational survey on the ground that Moore's employer failed to interview potential employers in the community offering alternative jobs; and (4) the ALJ failed to follow 33 U.S.C. Section(s) 910 in computing Moore's average weekly wage. We reject the employer's other assignments of error and affirm the ALJ's rulings refusing to admit a surveillance videotape and finding that the employer's application for relief from the special fund under 33 U.S.C. Section(s) 908(f) was forfeited, although we affirm the latter ruling for reasons other than those given by the ALJ.
On November 18, 1991, Frank Moore fell from a ladder when it slipped, and he struck his knee on the floor, injuring it. At the time, Moore was working as a container repairman for Universal Maritime Corporation in Mt. Pleasant, South Carolina. Two months after the fall, Moore filed a workers' compensation claim for temporary total disability caused by injury to his "right leg and right knee joint."
Moore was a longtime employee who had completed the eighth grade and had reading and mathematical skills at the third grade level. He had worked for years as a self-trained repairman of large containers used for shipping. His job involved kneeling, crouching, and climbing, as well as strenuous lifting of at least up to 50 pounds. Prior to his November 1991 fall from the ladder, Moore had complained of back pain and had suffered injuries to his ribs, left hand and left knee. Even though he has a documented reduction of function in his left knee, he had been able to perform his job as a container repairman.
Following his November 1991 fall, Moore was treated by Dr. Howard Brilliant, an orthopedist who had regularly treated Moore for various ailments. When Moore's right knee did not respond to treatment, Dr. Brilliant performed arthroscopic surgery on the knee on March 2, 1992, removing loose debris from the joint. Dr. Brilliant believed his surgery to have secured all of the improvement to Moore's knee that was then available. But because Moore continued to complain of pain and to miss work, at Universal Maritime's urging, Moore was examined by Dr. Bright McConnell, a knee specialist. Dr. McConnell performed a second surgery on October 22, 1992 to repair a tear in the meniscus. This second surgery appeared to improve Moore's knee condition, which reached maximum improvement, in Dr. McConnell's opinion, in January 1993. Dr. McConnell concluded that Moore had suffered a permanent 15% impairment in his right knee as the combined result of the injury and of degenerative arthritis. He noted that this impairment would require some work restrictions. Dr. Brilliant, on the other hand, gave an opinion that Moore was totally and permanently disabled as of March 1992, when Dr. Brilliant performed the arthroscopic knee surgery.
Moore never returned to work after his second surgery, citing among other things the combination of the impairments in both knees, his need to wear a knee brace on the injured right knee, and his need to use a cane for balance.
At his hearing for workers' compensation, Moore presented evidence not only of his knee injury, but also of back problems which limited his ability to bend and lift. While the effects of Moore's back problem were adequately documented at the hearing, evidence regarding its nature and origin was sparse and confusing. Moore had a history of low back pain predating the 1991 fall from the ladder. But in a report dated January 1992, only two months after the fall, examining physician Dr. Warren specifically noted that Moore "does not complain of back pain." By the summer of 1992, some eight months after the accident, a first report of back pain was made by Dr. McConnell, who had performed the second surgery on Moore's knee, reporting that Moore "is complaining of some low back discomfort with pain down the lateral aspect of his right side and right lower leg." And on November 6, 1992, almost a year after the fall, Dr. Brilliant first reported a complaint from Moore of back pain, noting"since he was here last he had developed back pain."
At the hearing before the ALJ, Moore testified that when he woke up one day in November 1992, about a year after the fall, he experienced serious pain in his back:
I couldn't move and I did manage to get up out of the bed and make it, and get in my automobile and go to the hospital to find out what was going on because I had never had that pain before and I never was drawn up in a knot like that.
Elsewhere in his testimony, Moore acknowledged that he had also suffered back pain as a result of an earlier injury that preceded the 1991 fall. Medical records relating to that fact showed that within the month before the fall Moore complained of pain in his back. At another point during the hearing, Moore testified that after his fall, both his knee and his back were "bothering him" and that he had been "complaining about my back ever since I had the injury. No one has ever done anything about my back." This testimony replaced his prehearing statement that the back pain was a result of gait changes caused by the knee injury, a theory which would make the back pain secondary and not a direct result of the fall. No medical records provided support for the gait-change theory in any case, nor did any medical professional express any opinion as to the cause of the back pain, although Dr. Brilliant did state that Moore was suffering from arthritis of the back subsequent to his accident. Finally, medical records expressed no opinion as to the prognosis for Moore's back pain, including whether the condition had reached its maximum improvement.
In his opinion awarding benefits for permanent total disability under Section(s) 8(a) of the Longshore and Harbor Workers' Compensation Act, the ALJ stated that:
The medical reports of Dr. Brilliant as well as claimant's complaints and symptoms of pain established that his right knee and back injuries could have been caused by the November 18, 1991 work related accident, and thus, under Section(s) 20(a), it is presumed that claimant's right knee and back injuries were caused by the November, 1991 accident. (Emphasis added).
The ALJ also concluded that Universal Maritime had not rebutted the Section(s) 20(a) presumption of causation because "the reports of Dr. McConnell and Dr. Shutte are given less weight than those of Dr. Brilliant."
In finding permanent total disability, the ALJ determined that Moore was incapable of returning to his prior job and rejected evidence that suitable alternative work was available in the community because the employer had not adequately considered the limitations on Moore as a result of the pre-existing reduction of function in his left knee and his poor education and it had not contacted the prospective alternative employers to determine the full requirements for the available jobs. The ALJ rejected the employer's evidence of job descriptions taken from the Dictionary of Occupational Titles, published by the Department of Labor.
The decision of the ALJ was affirmed by the Benefits Review Board by operation of law, pursuant to the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Section(s) 101(d), 110 Stat. 1321, 1321-29 (1996), providing that certain decisions pending before the Benefits Review Board for more than one year are ...