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Marine Repair Services v. Fifer, No. 12-1566

Date:  May 2, 2013

The Fourth Circuit vacated the decision and order of the Benefits Review Board (“BRB”) awarding permanent partial disability benefits to Marine Repair Services, Inc.’s (“Marine”) former employee under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

On October 26, 2007, Christopher Fifer suffered a shoulder, arm, and back injuries in an on-the-job car accident when he worked for Marine as a physically repairman of large shipping containers.  The job was physically demanding and the injuries he sustained precluded him from being able to work for Marine ever again.  Fifer was initially diagnosed with chronic lumbosacral strain, sciatica, and disc protrusion and herniation.  His first functional capacity evaluation (“FCE”) in June 2008 found that he did not meet the physical demands of the job he held at Marine.  The evaluator concluded that Fifer should limit himself to jobs within “medium” work parameters that would limit him to lifting twenty-five pounds or less on an “occasional basis.”  In order to prepare himself to go back to work, Fifer completed a round of work-hardening and was reevaluated in September 2008.  That evaluator found that he had ‘full time tolerance with the lower parameters of heavy work, with limitations in bending and material handling.’  He then saw his doctor for a release back to work; however it only resulted in more work restrictions.  As a result, Marine would not re-employ him and Fifer went to work for his family’s restaurant where he earned significantly less than he did at Marine.  In August 2009 Fifer underwent a second FCE that showed reduced lifting ability, but also showed that he could walk and stand without much hindrance at a slow pace.  His restrictions remained the same and Marine would still not hire him back.  Significantly, during an October 2009 deposition with the case, Fifer’s doctor clarified that based on the result of Fifer’s most recent FCE, he would have revised the September 2008 restrictions.  Marine then discontinued temporary payments in January 2009 and Fifer filed his claim for permanent disability benefits under LHWCA. The administrative law judge (“ALJ) conducted a hearing on October 29, 2009 where Marine presented evidence of alternative employment for Fifer in the geographic area.  Marine’s vocational rehabilitation specialist provided three labor market studies he prepared that showed alternative employment opportunities.  However, the ALJ concluded that Fifer met his burden establishing a prima facie case of total disability since he could not return to his former position at Marine and that Marine’s studies about alternative employment provided inadequate levels of detail to shift the burden back to Fifer.  As a result, the ALJ awarded permanent partial disability benefits to Fifer and the BRB affirmed the decision.

The Fourth Circuit held that Marine did, in fact, present suitable alternative employment options and that the ALJ’s conclusion and the BRB’s affirmation was erroneous.  The Fourth Circuit explained that because (1) the ALJ made findings of fact as to Fifer’s physical limitations which were unsupported because they were did not show any evidence that Fifer’s medications interfered with him finding work and (2) ALJ faulted Marine for failing to address the restrictions provided by Fifer’s doctor which were unavailable to Marine when it conducted its evaluation of alternative employment, the ALJ imposed too heavy a legal burden under the LHWCA’s burden-shifting scheme.  Therefore, the BRB’s order was vacated and remanded for further consideration.

Full opinion

John G. Tamasitis