1 33 U.S.C. § 901, et seq. Revised January 11, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60717

OREL J. LEDET,

Petitioner,

versus

PHILLIPS PETROLEUM COMPANY;

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

Petition for Review of an Order of the

Benefits Review Board

December 21, 1998 Before POLITZ, Chief Judge, JONES and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Orel J. Ledet appeals the final order of the Benefits Review Board affirming

the Administrative Law Judge’s award of benefits under the Longshore and Harbor

Workers’ Compensation Act (LHWCA). 1 For the reasons assigned, we affirm in

part and vacate and remand in part.2 After the accident, Ledet completed his shift and worked two additional ten day

shifts before October 20, 1989.

2 BACKGROUND

Ledet was employed as a mechanic by Phillips Petroleum and, during the

course of this employment, was injured when he slipped and fell from a crane on

August 22, 1989. At the time of the accident he received first aid but did not

request or receive medical attention from a doctor. Ledet continued working until

October 20, 1989, 2 when he called his immediate supervisor to report that he was

unable to work because of a back injury.

Ledet sought medical treatment from his family physician who referred him

to an ortho pedic surgeon, Dr. Louis Blanda. Dr. Blanda recommended physical

therapy and pain killers for the back strain. Phillips, as part of its investigation of

Ledet’s absence from work, ordered Ledet to undergo a work fitness examination

by Dr. James Fournet, a company appointed physician. Dr. Fournet’s examination

of Ledet on December 5, 1989 revealed no objective signs of injury.

Ledet was contacted by his supervisor several times during December 1989

a nd January 1990 advising him that he should either provide medical evidence from

his attending physician showing that he was medically disqualified or return to

work immediately, cautioning that failure to do so would result in his termination.3

On February 8, 1990, Ledet was terminated retroactive to November 30, 1989 for

“abandonment of job.”

Ledet filed a claim for compensation and medical benefits un der the

LHWCA on April 5, 1990. A hearing was held before an Administrative Law

Judge who found that: (1) Phillips’ termination of Ledet was not a discriminatory

act under the LHWCA; (2) Ledet was temporarily totally disabled f rom October 21,

1989 until September 4, 1990 when he reached maximum medical improvement;

(3) Phillips had knowledge that Ledet’s injury was work-related as of August 22,

1989, the day of the accident, and knowledge as of December 5, 1989 that Ledet

was seeking medical treatment for this injury; and (4) Ledet’s short-term position

as an automobile salesman post-injury constituted suitable alternat ive employment.

The ALJ awarded Ledet compensation for the period October 21, 1989 to

September 4, 1990. He then remanded the case, in part, to the Director because

there was no evid ence in the record regarding Ledet’s post-injury wages. On

remand, Ledet was ordered to submit evidence of his wages as a car salesman to

the Director who was to determine how much, if any, compensation was due for the

period following September 5, 1990. The ALJ’s award was affirmed by the3 The ALJ’s award was affirmed as a matter of law when the Board did not act

on the appeal within a year. See Omnibus Appropriations for Fiscal Year 1996, Pub.L.

No. 104-134, § 101(d), 110 Stat. 1321-219.

4 New Thoughts Finishing Co. v. Chilton , 118 F.3d 1028 (5th Cir. 1997).

5 33 U.S.C. § 948a.

4 Benefits Review Board and Ledet timely appealed to this court. 3

ANALYSIS

Ledet first contends that the ALJ erred in concluding that his termination was

n ot a discriminatory act. We are bound to uphold the ALJ’s decision if it is

supported by substantial evidence and is in accordance with law. 4

Under the LHWCA, it is unlawful for an employer to terminate or otherwise

discriminate against an employee claiming or attempting to claim compensation. 5

Phillips was notified in January 1990 that Ledet was represented by an attorney and

was pursuing his claim for LHWCA b enefits. Inasmuch as Ledet was not

terminated until February 9, 1990, he claims that the decision to terminate him was

a direct result of his claim for benefits and that Phillips’ stated reason for his

termination, abandonment of work, is merely a pretext.

The ALJ found no evidence of discriminatory motive. Rather, according to

the ALJ, the evidence established that Ledet was terminated for failure to present

medical evidence to substantiate his absence from work. Our review of the record6 The ALJ awarded Ledet benefits for temporary total disability from the date of

the accident, Augus t 22, 1989, to the date of maximum medical improvement,

September 4, 1990. The ALJ determined the date of maximum medical improvement

from Dr. Blanda’s observation that Ledet was capable of li ght duty work as of

September 4, 1990. This finding is not challenged on appeal. Additionally, he awarded

Ledet b enefits for permanent total disability from the date of maximum medical

improvement to January 1, 1991 when Ledet began working as a car salesman. After

January 1, 1991 Ledet was to receive benefits for permanent partial disability based on

his earnings as a car salesman.

7 33 U.S.C. § 902(10).

8 Quick v. Martin , 397 F.2d 644 (D.C. Cir. 1968).

5 discloses that Ledet was repeatedly asked by Phillips to submit medical proof of his

injury. As of the termination date, however, Phillips had only received one brief

and und etailed report from Dr. Blanda, dated December 26, 1989, which stated

that Ledet would be unable to return to work for approximately three to four weeks

without disclosing the medical reason for same. Thus, the record supports the

ALJ’s rejection of Ledet’s discrimination claim.

Ledet next objects to the ALJ’s finding that his post-injury employment as

a car salesman constituted suitable alternative employment, and to the ALJ’s order

that he submit evidence of his earnings fro m such employment to the Director. 6

Disability under the LHWCA is defined as “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.” 7 Disability thus is an economic as well as a medical concept. 89 If a claimant is totally disabled, he would receive two-thirds of his pre-injury

salary for the re mainder of his life. 33 U.S.C. § 908(a). If partially disabled, the

cl aimant’s award would be determined under § 908(c) which provides a schedule of

benefits for certain identified injuries, limiting the two-thirds of the pre-injury wages

to a finite number of weeks. Where a specific injury is not listed in the schedule, §

908(c)(21) provides in “all other cases” for an a ward equal to two-thirds of the

difference between pre-injury average wages and post-injury wage earning capacity.

The wage earning capacity of the claimant is determined under § 908(h) by his actual

post-injury earnings or, if the claimant does not have any actual post-injury earnings or

the earnings do not fairly and reasonably represent his wage earning capacity, the fact

finder may determine same.

10 Trask v. Lockheed Shipbuilding Construction Co. , 17 BRBS 56 (1985).

11 New Orleans (Gulfwide) Stevedore s v. Turner , 661 F.2d 1031 (5th Cir.

1981).

6 The amount of compensation awarded is dependent on the nature and extent

of the disability. 9 An employee is considered permanently disabled when he has

any residual disabi lity following the date of maximum medical improvement. 1 0

Any disability before reaching maximum medical improvement is thus considered

temporary in nature.

The extent of the disability is char acterized as either total or partial. To

establish a prima facie case of total disability, the claimant must show that he is

unable to return to his f ormer employment. If the claimant is successful in

establishing a prima facie case of total disability, the burden of proof then shifts to

the employer to establish suitable alternative employment. 1112 Id. at 1042.

7

Ledet contends that the ALJ erred in finding that his j o b as a car salesman

constituted suitable alternative employment and, therefore, erred in awarding him

benefits for permanent partial disability rather than for permanent total disability

after January 1, 1991. The record shows that Ledet worked as a car salesman for

Martin Chevrolet in Breaux Bridge, Loui s iana for approximately six months

beginning in Januar y 1991. He was dismissed, however, for failing to meet his

sales quotas.

Nevertheless, the ALJ found that b ecause Ledet was physically able to

perform the car salesman’s job, Phillips had carried its burden of establishing the

availability of suitable alternative employment. This finding must be rejected as

neither in accordance with law, nor supported by substantial evidence.

We recognized in New Orleans (Gulfwide) Stevedores v. Turner, that the

physical ability to perform a job is not the exclusive determinant whether the job

constitutes suitable alternative employment. In addition to physical ability, the fact

finder, here the ALJ, must also consider the “specific capabilities of the claimant,

that is, his age, background, employment history and experience, and intellectual

and physical capacities.” 12 In the instant case, the ALJ did not consider whether

Ledet had the mental ability or skills to work successfully as a car salesman. The13 Based on the evidence provided by Led et, the Director was to determ ine

Ledet’s earning capacity by calculating Ledet’s average weekly earnings from Martin

Chevrolet, adjusted to reflect 1989 wage levels. The Director was then to com pare

Ledet’s earning capacity to the stipulated average weekly wages of $696.45 he earned

prior to the accident. If Ledet’s earning capacity was lower than $696.45 then Ledet

would be entitled to the difference between the stipulated average weekly wage and his

earning capacity. If not, Ledet would not be entitled to any benefits for the period after

January 1, 1991 because he would not have sustained any loss of wage-earning

capacity.

8 reasons underlying his dismissal for poor sales performance mus t be parsed

carefully. Further, as the ALJ properly noted in his Decision and Order, Phillips

presented no meaningful evidence of suitable alternative employment.

After concluding that Ledet’s position as a car salesman constituted suitable

alternative employment, the ALJ noted that the record was devoid of any evidence

showing Ledet’s earnings from s uch employment. The ALJ then remanded the

case to the Director and ordered Ledet to provide sufficient evidence to establish

the amount of his actual post-injury earnings. From this information the Director

was to dete rmine whether Ledet was entitled to compensation after January 1,

1991, and, if so, the amount of benefits due. 13 As we previously have held, “[t]o

constitute a ‘final decision and order’ of the ALJ, the orde r must at a minimum

specify the amount of compensation due or pro vide a means of calculating the

correct amount without resort to extra-record facts which are potentially subject to14 Severin v. Exxon Corp. , 910 F.2d 286, 289 (5th Cir. 1990).

15 Muscella v. Sun Shipbuilding & Dry Dock Co. , 12 BRBS 272 (1980).

9 genuine dispute between the parties.” 14 Although the ALJ provided a means of

calculating the amount of benefits due, he impermissibly delegated his fact-finding

duty to the Director. In order to determine Ledet’s post-injury earnings the

Director would have to “resort to extra-record facts.” Such is impermissible.

Finally, counsel for Ledet objects to the ALJ’s reduction of the hourly

attorney fee and of the time and expenses billed in the fee application. These

determinations will be affirmed on appeal unless they are arbitrary, capricious, or

an abuse of discretion. 15 We find that the ALJ’s reductions were rational and,

therefore, affirm the award of attorney’s fees.

Accordingly, we VACATE the finding that the car salesman position was

suitable alternative employment and the order remanding to the Director to gather

evidence of Ledet’s earnings as a car salesman and to calculate the compensation

due therefrom. That is a matter for the ALJ to complete. The judgment appealed

is AFFIRMED in all other respects.

AFFIRMED in part, VACATED in part, and REMAND ED to the ALJ for

further proceedings consistent herewith.10

EDITH H. JONES, Circuit Judge, concurring:

I concur in this good opinion on the understanding that in vacating and

remanding to the ALJ we do not foreclose the possibility that, based on a more

complete record, the ALJ could conclude that Ledet’s ca r sales position may be

found to be suitable alternative employment, or the employer may otherwise carry

its burden under P&M Crane Co. v. Hayes , 930 F.2d 424 (5th Cir. 1991).