* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-60788

_______________

HERBERT ZENON,

PetitionerCross-Respondent,

VERSUS

PORT COOPER/T. SMITH STEVEDORING COMPANY, INC.,

RespondentCross-Petitioner.

_________________________

Appeal from an Order of

the Benefits Review Board

_________________________

May 24, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Petitioner Herbert Zenon petitions, and respondent, Port

Cooper/T. Smith Stevedoring Company, Inc. (“Port Cooper”), crosspetitions for review of a decision of an administrative law judge

("ALJ"), affirmed by operation of law by the Benefits Review Board

("BRB"), awarding longshore and harbor workers compensation

benefits. We grant the petition for review and reverse and remand

in part and affirm in part.
2

I.

A.

Zenon is a fifty-four-year-old man with only a fourth-grade

education who has worked most of his adult life as a longshoreman.

On October 2, 1988, he was cleaning up dunnage and debris for his

employer, Port Cooper, when he allegedly was struck from behind by

a plywood subwall that, he claims, hit him on the right side of his

head, neck, and back, causing him to fall. Attempting to brace

himself, he extended his left arm as he fell, purportedly causing

injury to his left shoulder.

Initially Zenon did not request medical attention but

continued working, feeling that his injuries were “insignificant”

and reporting the accident to his supervisors “for notation

purposes only.” One week later, however, he began to complain of

headaches, dizziness, and neck pain. On October 11, he met with

Dr. Mukand Arora, who treated him with medications, physical

therapy, and a cervical collar and placed him in an off-work

status. Zenon visited multiple doctors and received a variety of

examinations and treatments for about six months. 

In April 1989, Zenon returned to work as a walking foreman for

J.J. Flannagan Stevedores. In November 1989 and again in April

1990, he allegedly re-injured his neck and left shoulder. Needing

surgery, he filed a claim for “temporary total disability” pursuant

to the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.

§§ 901-950 (“LHWCA”). In November 1990, the parties settled this

claim, with Port Cooper agreeing to pay temporary total disability
3

payments from February 23, 1989, to April 1989, and then again

“once surgery is performed for a time period to be determined by

the treating physician.” It was also stipulated that “a release to

light duty work will allow [Zenon] to return to his job as a

walking foreman under normal circumstances.”

In April 1991, Zenon underwent surgery for his left shoulder,

then was put on a physical therapy regimen that lasted three to

four months. In July 1991, Dr. Bryan indicated that he could

return to his old position of walking foreman.

Because of scar tissue and a re-torn rotator cuff, Zenon

needed to undergo a second left shoulder operation in September

1991. In September 1992, Bryan wrote that Zenon could

return to his job as a walking foreman as long as he does

not climb or descend a ladder which has more than

8 rungs. He will not be able to operate a tow motor or

large vehicle. He will not be able to lift more than

35 lbs. with his left arm, and in no way can he perform

any tasks of lifting overhead.

B.

Claiming that he has been unable to return to work since his

shoulder operations, Zenon requests the continuation of his total

disability benefits, which Port Cooper stopped paying on

February 17, 1992. Zenon argues that such benefits are mandated by

the 1990 stipulation. Port Cooper contends that Dr. Bryan has

released Zenon back to work, thereby relieving it of its payment

obligations under the stipulation.

Six days before a scheduled April 28, 1993, administrative

hearing on this matter, Port Cooper offered Zenon employment
 

1 This position would entail much of the same work of an ordinary walking

foreman’s position, but with fewer and less taxing physical demands.

 

2 If the BRB does not take action on an ALJ's decision within one year, the

decision is deemed affirmed as a matter of law. See Omnibus Consolidated

Rescissions and Appropriations Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996).

4

purportedly tailored to his condition: a light-duty, walking

foreman’s position.1 Port Cooper argues that this offer

constitutes suitable alternative employment, thereby relieving it

of its total disability payment obligations to Zenon from April 22,

1993, onward.

The ALJ concluded that (1) Zenon should receive temporary

total compensation from February 18, 1992, through September 30,

1992 (the date of Zenon’s maximum medical recovery, as determined

by the ALJ), under the terms of the stipulation; (2) Zenon should

receive permanent total disability compensation from September 30,

1992, through April 22, 1993, as per the LHWCA; (3) Port Cooper’s

April 22, 1993, job offer was “suitable alternative employment,”

and therefore precluded Zenon for claiming his total compensation

benefits after that date; and (4) Zenon was entitled to an award

for the permanent partial (20%) impairment to his left arm.

By operation of law, the ALJ’s decision was affirmed by the

BRB.2 Both parties seek review. We review the ALJ's factual

determinations under the substantial evidence standard and his

resolution of legal issues de novo. Darby v. Ingalls Shipbuilding,

Inc., 99 F.3d 685, 688 (5th Cir. 1996).

II.
 

3 We also find this determination linked to the separate issue of whether

Zenon has achieved maximum medical recovery, because at that point he no longer

would be entitled to temporary total disability, but rather to permanent total

disability. See infra.

5

Pursuant to the settlement agreement and stipulation, Port

Cooper paid Zenon temporary total disability from October 10, 1988

(one week following Zenon’s first injury), to April 23, 1989, and

from April 15, 1991 (the date of Zenon’s first shoulder surgery),

to February 17, 1992. These payments are not in dispute. What is

contested is whether Port Cooper was obligated to continue paying

Zenon temporary total disability benefits after February 17, 1992.

Under the stipulation, Port Cooper is obligated to pay Zenon

temporary total disability benefits “once surgery is performed for

a time period to be determined by the treating physician [Dr.

Bryan].” Surgery was performed on April 15 and September 17, 1991.

The factual question before the ALJ was the date on which Dr. Bryan

determined that Zenon should stop receiving temporary total

disability benefits. Both parties agree that this question is

integrally tied to the interpretation of the following sentence of

the stipulation: “It is stipulated that a release to light duty

work will allow [Zenon] to return to his job as a walking foreman

under normal circumstances.”3

Zenon apparently was released by Dr. Bryan to light duty work

following each of his shoulder operations: in July 1991 and on

May 5, 1992 (with subsequent revisions to the terms of his release

promulgated on September 30, 1992, and October 7, 1992). As

stated, the parties do not litigate whether the July 1991 release
 

4 Unfortunately, Zenon, Port Cooper, and the ALJ seem to have overlooked the

effect of Dr. Bryan’s July 24, 1991, statement regarding Zenon’s employability.

Under the terms of the stipulation, which were controlling from April 15, 1991 (the

date of Zenon’s first shoulder surgery), Port Cooper would be relieved of its

obligation to provide Zenon with temporary total disability compensation at that

time “determined by the treating physician.” Dr. Bryan’s July 24, 1991, statement

appears to serve as such a release. Because, however, this has not been argued by

either party, we decline to decide it.

6

discharges Port Cooper of its obligations under the stipulation,

so we will not consider that date in our analysis.4

Each side goes to great lengths to explain the meaning of the

above-quoted language. Zenon claims that the phrase “under normal

circumstances” means “without significant restrictions” and

modifies “release.” That is, because Zenon’s release was

accompanied by lifting and climbing restrictions, he contends he

was not released to work “under normal circumstances,” therefore

obligating Port Cooper to continue making total disability

payments. Conversely, Port Cooper contends that “under normal

circumstances” modifies “walking foreman” and that a release to

light duty work means (by power of the stipulation) that Zenon

could return to his job as a walking foreman under normal

circumstances (that is, so long as no additional burdens are added

to the responsibilities of the walking foreman). 

The ALJ appears to have read the stipulation as meaning that

Port Cooper was obligated to make disability payments until such

time as Zenon was able to return to his former position of walking

foreman. “Under normal circumstances,” therefore, was interpreted

by the ALJ to apply to the conditions of Zenon’s release, in that

a release with significant restrictions would not enable him to

return to his job as walking foreman and thus would not constitute
 

5 This issue of fact has already been determined by the ALJ, and we uphold it

because it is supported by substantial evidence. Once the date of maximum medical

recovery is reached, compensation entitlements switch from “temporary” to

“permanent.” Cf. SGS Control Servs. v. Director, Office of Worker’s Compensation

Programs, 86 F.3d 438, 443-44 (5th Cir. 1996).

7

a determination by Dr. Bryan that Zenon could return to work under

the stipulation.

The application of conventional canons of construction lead us

to read “under normal circumstances” as referring unambiguously to

“walking foreman.” Thus, a release to light duty work permits

Zenon to return to his former position of walking foremanSSthat is,

a walking foreman “under normal circumstances.”

We therefore remand this matter to the ALJ for a determination

of the date on which Zenon was released to light duty work; on that

date, his temporary total disability benefits should cease. Should

the ALJ find that Zenon was never released to light duty work, then

Zenon’s temporary total disability payments must nevertheless cease

on September 30, 1992SSthe date of maximum medical recovery.5

III.

The ALJ awarded Zenon permanent total disability payments

following September 30, 1992, the date of maximum medical recovery.

Zenon, however, was not entitled to permanent total disability

payments under the terms of the stipulation, but only to temporary

total disability. Because his claim for permanent total disability

payments is not covered by the stipulation, Zenon must establish
 

6 Because of the context of this stipulation within a LHWCA claim, we infer

that the physician's determination needed to cut off Zenon’s temporary total

disability payments can be either one indicating that he may return to his former

job (in which case his temporary total benefits would cease), or one indicating that

he may not ever return to his former work (in which case he has reached the point

of maximum medical recovery, and his temporary total benefits are replaced by

permanent total benefits).

 

7 See 33 U.S.C. § 919(d) (requiring benefit decisions issued by an ALJ

pursuant to the LHWCA to comply with the Administrative Procedures Act, 5 U.S.C. §§

554, 556, 557, which compels that decisions rendered by an ALJ contain “findings and

conclusions, and the reasons or basis therefor, on all material issues of fact, law,

or discretion presented on the record”); see also Gooden, 135 F.3d at 1068; McCurley

v. Kiewest Co., 22 BRBS 115, 119-20 (1989).

8

his right to such compensation under the provisions of the LHWCA.6

An employee is entitled to compensation under the LHWCA when

he suffers “accidental injury or death arising out of and in the

course of employment.” Shell Offshore, Inc. v. Director, Office of

Worker's Compensation Programs, 122 F.3d 312, 316 (5th Cir. 1997),

cert. denied, 118 S. Ct. 1563 (1998) (citing 33 U.S.C. § 903).

Zenon has assuredly satisfied the injury element, leaving causation

to be established. Under 33 U.S.C. § 920(a), courts presume that

an injury was causally related to an employee’s work when he

produces evidence of an accident at work or of conditions at work

that could have caused such an injury. Gooden v. Director, Office

of Worker’s Compensation Programs, 135 F.3d 1066, 1068 (5th Cir.

1998). Zenon has met this requirement, for he has produced

evidence of an accident at work.

Port Cooper has challenged Zenon’s prima facie LHWCA claim by

offering evidence that rebuts the presumption of causation. See

id. This obliges the ALJ to consider and discuss all of the record

before deciding causation.7 The ALJ did not do so, for he based

his award on the stipulation. Therefore, we remand the issue of
9

permanent total disability payments so that the ALJ can resolve

the causation issue in accordance with the guidelines set forth in

the LHWCA and the Administrative Procedures Act.

IV.

Port Cooper contends that its April 1992 offer of employment

constitutes “suitable alternative employment” and terminates

Zenon’s right to receive total disability payments, temporary or

permanent. Zenon argues that the offer was not made in good faith

and does not measure up to the standard of “suitable alternative

employment” as enunciated by this court. See Darby v. Ingalls

Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996).

The doctrine of suitable alternative employment derives from

the fact that one who is employable is no longer totally disabled.

To demonstrate that Zenon is employable, Port Cooper must produce

evidence that answers the following questions:

(1) Considering claimant’s age, background, etc., what

can a claimant physically and mentally do following his

injury, that is, what types of jobs is he capable of

performing or capable of being trained to do? (2) Within

this category of jobs that the claimant is reasonably

capable of performing, are there jobs reasonably

available in the community for which the claimant is

likely to compete and which he could realistically likely

secure.

New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1042

(5th Cir. Unit A Nov. 1981). Port Cooper can satisfy its burden by

offering a job that Zenon is able to perform. See Darby, 99 F.3d

at 688. 

The ALJ correctly found that Port Cooper’s offer qualified.
 

8 We note, for the sake of clarity, that the stipulation did not concede

causation for the injury giving rise to Zenon’s temporary total disability

compensation, but rather merely provided for such compensation. A finding of no

causation of the issue of permanent partial disability a fortiori constitutes a

finding of no causation on the issue of temporary total disability, as well.

10

This finding is factual in nature, so we will not disturb it unless

it lacks substantial evidentiary basis. Because the record is

replete with evidence suggesting that the job offer matched Zenon’s

abilities, we find no error.

V.

As with an award for permanent total disability, any award for

permanent partial compensation requires a showing of causation, for

the stipulation does not cover this claim. Contingent, therefore,

upon a finding of causation, Zenon is entitled to a permanent

partial disability award for his shoulder injury.8

Both parties agree that the ALJ erred as a matter of law by

awarding benefits for a scheduled injury to the left arm when,

instead, Zenon had suffered a non-scheduled injury to his left

shoulder. The receipt of a bona fide job offer from Port Cooper

precludes Zenon from recovering permanent partial disability

payments for this non-scheduled injury. See Welch v. Leavey,

397 F.2d 189, 191 (5th Cir. 1968).

The petition for review is GRANTED, and the decision of the

BRB is AFFIRMED IN PART and REVERSED and REMANDED IN PART, in

accordance with this opinion.