Rene M. Darby vs. Ingalls Shipbuilding, ALJ Rosenow

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2010/DARBY_RENE_M_v_INGALLS_SHIPBUILDING_2010LHC02275_(MAY_08_2012)_095545_CADEC_SD.PDF

ALJ Rosenow 


Excerpts



ISSUES IN DISPUTE AND POSITIONS OF THE PARTIES
Claimant asserts that he has been totally and permanently disabled since 7 Oct 03, as a
result of the worsening of his cervical condition and the onset of a chronic pain condition
secondary to the injury, and should be compensated according to his change in circumstances.7
Claimant also asserts that he should receive an additional disability payment for permanent
disability to his left arm above the 15% disability that was initially established. Employer
counters that Claimant’s motion for modification of the award for his left arm injury was
untimely and is barred, and in the alternative, that there is no evidence of an increase in disability
for that arm. Employer also argues that Claimant has not experienced a change in conditions that
qualifies the later order for modification. Alternatively, Employer argues that any change in
conditions is due to causes other than the work injury, such as intervening health problems. ...

...  the real issue here is Claimant’s Request for Modification of Judge Mills’ 1998
compensation order, which addressed the 1992 cervical injury. Employer concedes that any
motion for modification of the award for the 1992 injury is not time-barred.66 There has been no
denial of benefits to start the clock running, nor has Employer made a last payment of
compensation. Employer has continued to pay permanent partial disability benefits, so the statute
of limitations on a modification request has not begun to run. The question then becomes
whether or not Claimant has met his threshold burden of showing a right to a modification of the
1998 Order.

... For the 2011 follow-up labor market survey reports, Mr. Stewart relied upon his previous
employability profiles of Claimant, the medical report of Dr. Kesterson, the restrictions assigned
by Dr. Jackson in 2005, and a Social Security FCE. Mr. Stewart found that all the jobs identified
previously were still in keeping with Claimant’s various limitations.
Ultimately, however, it is the weight of the probative evidence that determines whether
Employer carried its burden to show Claimant has the physical capacity to do the jobs Mr.
Stewart identified.

I found Dr. Danielson’s May 2005 report to be vague and contrary to most of his own
prior medical assessments, Dr. Wu did not opine on Claimant’s abilities to work, and Dr. Vives
testified that Claimant could do some sort of light duty work, as long as he avoided repetitive
motions, heavy lifting, and working with tools. Those restrictions are no greater than those
placed on Claimant by his treating doctors, and are generally consistent with the predicate
applied by Mr. Stewart’s labor market surveys as a result of his application of Dr. Kesterson’s
evaluation and the Social Security Administration FCE....


... Nonetheless, I find that the jobs do not adequately meet Employer’s burden to find
suitable alternate employment for Claimant, because though they allegedly incorporate the
restrictions placed on Claimant by his treating physicians, they are all full-time positions.69
Claimant’s doctors clearly stated they thought a functional capacity evaluation would be the best
measure of his capabilities, but none was undertaken for this case. The skeletal Social Security
FCE report, although admissible evidence, provides little probative value.


In sum, I find that the record does not show it is more likely than not that Claimant could
reasonably do any of the jobs identified and consequently, Employer failed to establish suitable
alternative employment. Claimant has therefore been totally disabled since 29 Aug 05.