Newport News Shipbuilding v. Wiggins(4th Cir. 2001)

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

================================================|
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,

v. No. 00-2532

QUEEN E. WIGGINS; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
================================================|

On Petition for Review of an Order
of the Benefits Review Board.
(99-699)

Argued: September 28, 2001

Decided: December 14, 2001

Before WILKINS, NIEMEYER, and GREGORY, Circuit Judges.

__________________________________________________________________________________

Affirmed by unpublished per curiam opinion.

__________________________________________________________________________________

COUNSEL

ARGUED: Jonathan Henry Walker, MASON, COWARDIN &
MASON, P.C., Newport News, Virginia, for Petitioner. Gregory
Edward Camden, MONTAGNA, KLEIN & CAMDEN, L.L.P., Nor-
folk, Virginia, for Respondents.

__________________________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

__________________________________________________________________________________

OPINION

PER CURIAM:

Newport News Shipbuilding & Dry Dock Co. ("Newport") appeals
from the Benefits Review Board's (the "Board") affirmance of an
Administrative Law Judge's (the "ALJ") award of permanent total
disability benefits to Queen Wiggins ("Wiggins") under the Long-
shore and Harbor Workers' Compensation Act, 33 U.S.C. S 901-950
(the "Act"), claiming that Wiggins' part-time job as a newspaper car-
rier constituted "suitable alternate employment." Because substantial
evidence supported the ALJ's finding that Wiggins' newspaper route
did not establish a continuing ability to earn wages, and thus did not
constitute suitable alternate employment, we affirm.

On May 9, 1995, Wiggins, who had worked at Newport as a welder
since 1974, complained of pain in her hands and wrists that her treat-
ing physician, Dr. Thomas M. Stiles ("Dr. Stiles"), later diagnosed as
bilateral carpal tunnel syndrome. After performing surgery on Wig-
gins' hands and wrists, Dr. Stiles assigned a two percent permanent
disability rating and imposed permanent work restrictions.1

On May 16, 1995, Wiggins fell at work and injured the anterior
portion of her left knee. A physician at the Newport clinic treated
Wiggins' injury and placed her on temporary work restrictions. On
August 31, 1995, however, Wiggins complained to Dr. Stiles that her
__________________________________________________________________________________

1 The August 7, 1996 restrictions limited, inter alia, pushing and pull-
ing involving the hands or arms and simple grasping involving the hands
to a maximum of 2.5-5 hours per day. Dr. Stiles also limited firm grasp-
ing to a maximum of 1-2.5 hours per day.

knee was still "catching," "popping," and "giving way." J.A. at 135.
Wiggins continued to experience problems, prompting Dr. Stiles to
perform arthroscopic surgery on the knee in November 1996. Dr.
Stiles imposed knee-related permanent work restrictions on February
6, 1997, which he amended sometime shortly after March 20, 1998.2
Based on continued loss of motion, loss of cartilage, and pain, he
assigned a permanent disability rating of fifteen percent to Wiggins'
knee on September 10, 1997.

Because Wiggins' physical limitations prevented her from continu-
ing her employment with Newport as a welder, in April 1996 the U.S.
Department of Labor referred her to Charles DeMark ("DeMark"), a
rehabilitation counselor, to assist her in finding alternate employment.
Given Wiggins' physical and educational limitations, as well as the
depressed nature of the job market near her hometown of Ahoskie,
North Carolina, DeMark found only one job for Wiggins, a position
as a newspaper carrier for the Roanoke-Chowan News Herald.
Although DeMark urged Wiggins to apply for a position at the News-
Herald, Wiggins actually was offered and accepted the carrier posi-
tion without DeMark's knowledge. Dr. Stiles actually approved the
position for Wiggins, but he did so on the basis of a general job
description, and on the condition that she avoid "excessive walking."
J.A. at 266-67.

Wiggins began her new job in July 1997, working four to five
hours per day on each of three days per week. She devoted a fourth
day of each week to collecting weekly payments from her customers.
These efforts earned Wiggins seventeen cents per paper and approxi-
mately $102 per week, excluding vehicle, insurance, and fuel costs of
approximately $25 to $35 dollars per week. The job required Wiggins
to retrieve the papers from the News-Herald office, take them home
to "re-roll" them, load them into her car, and deliver them to various
customers around town. Wiggins testified that she re-rolled and deliv-
__________________________________________________________________________________

2 This set of permanent restrictions prohibited, inter alia, walking in
excess of 2-3 hours per day, standing and twisting for more than 4-5
hours per day, and any kneeling or squatting whatsoever. Dr. Stiles also
limited Wiggins to jobs requiring her to carry no more than 10-20
pounds.

ered approximately 200 newspapers per day. The delivery process
itself was undertaken largely on foot.

The evidence clearly shows that Wiggins experienced problems
with her hands, wrists, and knee while discharging her new responsi-
bilities. Wiggins testified, for example, that she experienced a "burn-
ing sensation" in her knee, and that it swelled and gave way if she
walked too much or too quickly. J.A. at 87-89. "[A] lot of times,"
according to Wiggins, she was forced to halt the newspaper delivery
process after three to five blocks of walking "[t]o help [her] knee." Id.
She also testified that her right hand would "lock" while re-rolling the
newspapers, causing pain to run, at times, up her entire arm to her
shoulder. Id. at 87-89. Wiggins further testified that she sometimes
received help from her children in carrying out her duties.

DeMark testified that while he had originally identified the carrier
job for Wiggins, he later came to believe that it was inappropriate in
light of her physical limitations. In this regard, DeMark testified to his
belief that the job violated Wiggins' work restrictions and required
her to put forth "extra effort" simply to perform her basic duties. J.A.
at 240. DeMark expressed particular concern about Wiggins' ability
to comply with the restrictions pertaining to pushing, pulling, simple
grasping, squatting, and kneeling, particularly in cold weather. He
further testified to his belief that Wiggins took the job because her
temporary workers' compensation payments had been cut off and she
desperately needed the money.

Although DeMark's testimony largely indicated that he deemed the
carrier job unsuitable, notes he took while monitoring Wiggins' prog-
ress indicate that both Wiggins and Newport reported to him on mul-
tiple occasions during the late summer and early fall of 1997 that
Wiggins was progressing well and experiencing "no problems" in her
new position. J.A. at 260. On February 10, 1998, however, Dr. Stiles
noted that Wiggins was "having a marked amount of difficulty with
her left knee," id. at 121, and that the carrier job was causing her "a
lot of pain in her knee." Id. Dr. Stiles thus prescribed medication and
a knee brace to ease Wiggins' pain and stabilize her knee.

While still employed as a paper carrier, Wiggins filed a claim seek-
ing benefits under the Act for permanent total disability. See 33

U.S.C.A. S 908(a) (West 1986 & Supp. 2000). Newport opposed her
claim, contending that Wiggins' job established the availability of
"suitable alternate employment," thereby rendering an award of total
disability improper. Newport also identified numerous additional jobs
it claimed established a wage-earning capacity on Wiggins' part.

The ALJ found that none of the positions Newport had identified
were suitable, based on Wiggins' physical or mental limitations, or on
the distance of the required commute. The ALJ also concluded that
Wiggins' carrier job did not constitute suitable alternate employment,
reasoning that Wiggins required "undue help" from family members
in re-rolling newspapers for delivery. The ALJ thus determined that
the wages Wiggins earned from her new job did not establish a
"wage-earning capacity," and that because Newport had failed to meet
its burden to show that any other suitable employment existed, Wig-
gins qualified for total disability benefits. In denying Newport's
motion for reconsideration, the ALJ specifically found, inter alia, that
DeMark had never approved the carrier job, and that Dr. Stiles had
not been fully informed that Wiggins would be required to re-roll
large numbers of newspapers when he approved the position.

On appeal, the Board affirmed the ALJ's holding that Newport had
failed to demonstrate that the newspaper job was suitable. Although
it agreed with Newport that the ALJ's finding of "undue help" was
unsupported by the record, the Board found that the ALJ's ultimate
conclusion that the job did not establish a continuing ability to earn
wages nonetheless was rational and supported by substantial evi-
dence. The Board noted, for example, the existence of evidence dem-
onstrating that re-rolling the papers aggravated Wiggins' hands, that
she experienced "a lot" of knee pain at times, and that it took "extra
effort" for her to discharge her job responsibilities. The Board also
noted that Wiggins essentially was otherwise unemployable. The
Board denied Newport's motion for reconsideration on October 25,
2000, and it is from this final order that Newport now appeals.

II.

This Court reviews the Board's decision for errors of law and to
determine whether the Board adhered to its statutorily-mandated stan-
dard for reviewing the ALJ's factual findings. Newport News Ship-

building & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988).
Under the Act, a compensation order must be supported by "substan-
tial evidence in the record considered as a whole." 33 U.S.C.A.
S 921(b)(3); see also O'Keeffe v. Smith, Hinchman & Grylls Asso-
ciates, 380 U.S. 359, 362 (1965) (findings of ALJ must be accepted
unless they are irrational or unsupported by substantial evidence in
record considered as a whole). Substantial evidence has been
described as "more than a scintilla but less than a preponderance" and
is "such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." See v. Washington Metro. Area Tran-
sit Auth., 36 F.3d 375, 380 (4th Cir. 1994) (citations omitted).

III.

Where, as here, an individual seeking total disability benefits under
the Act establishes a prima facie case by demonstrating an inability
to perform her former employment because of a work-related injury,3
the burden shifts to the employer to establish the availability of "suit-
able alternate employment" that the claimant is capable of performing
given her age, education, physical restrictions, and vocational back-
ground. Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir. 1988). A
disability determination turns on the claimant's capacity for work
rather than her actual employment status. Tann, 841 F.2d at 543. Con-
sequently, a claimant may still be entitled to permanent and total dis-
ability benefits following a period of employment. See, e.g.,
Haughton Elevator Co. v. Lewis, 572 F.2d 447 (4th Cir. 1978) (claim-
ant worked in spite of excruciating pain); Paul v. General Dynamics
Corp., 13 BRBS 1073 (1981) (claimant's employment only possible
due to extraordinary effort); Walker v. Pacific Architects & Engineers
Inc., 1 BRBS 145 (1974) (claimant's employment due merely to
employer's benevolence). Although such an award is the exception
rather than the rule, Everett v. Newport News Shipbuilding & Dry
Dock Co., 23 BRBS 316, 319 (1989), the burden to establish the exis-
tence of suitable alternate employment remains with the employer.
See Ramirez v. Sea-Land Services, Inc., 33 BRBS 41, 45 (1999).
__________________________________________________________________________________

3 It is undisputed that Wiggins met her initial burden to establish a
prima facie case.

The question is whether the Board erred in holding that substantial
evidence existed to support the ALJ's conclusion that Wiggins' news-
paper carrier job did not establish a continuing ability to earn wages,
and thus did not constitute "suitable alternate employment" for pur-
poses of determining her entitlement to an award of permanent total
benefits. We agree with the Board that the ALJ's decision was ratio-
nal and supported by substantial evidence.

As noted above, Wiggins testified that she often endured pain and
was forced to stop working while re-rolling and delivering newspa-
pers, particularly in cold weather. She specifically testified that she
oftentimes was forced to rest after walking several blocks to avoid
swelling and a burning sensation in her knee, and to keep her knee
from giving way. She additionally noted that her hand would some-
times "lock" when re-rolling the newspapers, causing pain to shoot up
to her shoulder.

This evidence clearly demonstrates that Wiggins worked in spite of
considerable pain and discomfort, and strongly supports the conclu-
sion that her ability to discharge her duties was due not to the suitabil-
ity of the job, but rather to her extraordinary effort and perseverence.
Employment performed under these circumstances does not fairly
establish a continuing ability to earn wages, and thus does not consti-
tute suitable alternate employment. See Cooper v. Offshore Pipelines
Int'l, Inc., 33 BRBS 46 (1999) (no wage-earning capacity shown
where claimant worked in odd jobs beyond his physical limitations
and medical restrictions, and in spite of pain and discomfort); Mijan-
gos v. Avondale Shipyards, Inc., 948 F.2d 941 (5th Cir. 1992)
(employment unsuitable where claimant endures pain consistently);
Paul v. General Dynamics Corp., 13 BRBS 1073 (1981) (employ-
ment unsuitable where claimant experienced difficulty, and thus
exhibited extraordinary effort, in getting to and from work and around
his work station).

The opinions of Dr. Stiles and DeMark clearly corroborate the
view that Wiggins' carrier job required unusual effort and failed to
serve as a fair indication of her true ability to earn wages on a contin-
uing basis. As described above, Dr. Stiles noted that the job caused
"a lot" of knee pain, causing him to prescribe pain medication and a
knee brace. DeMark more directly opined that the job exceeded both

Wiggins' medical restrictions and physical limitations. He further tes-
tified that Wiggins was forced to expend "extra effort" while enduring
pain and difficulty in order to perform her job, that she only did so
because her compensation had been terminated and she needed the
money, and that her job established no continuing wage-earning capac-
ity.4

We additionally note that it was reasonable for the Board to find,
as it apparently did, that the carrier job violated at least some of the
conditions and restrictions Dr. Stiles placed on Wiggins' employment.
As stated above, Dr. Stiles conditioned his approval of the carrier job
on the absence of "excessive walking." We have no trouble conclud-
ing that substantial evidence existed to support the conclusion that
Wiggins' delivery of 200 newspapers per day, largely on foot,
involved walking that was "excessive" for a person of her physical
abilities.

The same is true of the permanent restrictions pertaining to the use
of Wiggins' hands. The evidence fairly supports, for example, the
conclusion that Wiggins' job, which involved transporting 200 news-
papers from the News-Herald office to her residence; re-rolling the
papers for delivery; re-loading them into her car; and delivering them
to individual homes, transgressed a restriction on "firm grasping"
which theoretically could have been violated on any day in which
Wiggins engaged in more than one hour of such activity.

In sum, the evidence indicates that Wiggins worked in considerable
pain and discomfort; her treating physician indicated that she suffered
from undue pain; her rehabilitation counselor expressed a clear opin-
ion that the job exceeded her physical limitations; and it appears that
the job caused Wiggins to violate at least some of the medical restric-
tions placed upon her. Upon a review of the record as a whole, then,
it is clear that more than a scintilla of evidence supported the ALJ's
conclusion that Newport failed to meet its burden to show that Wig-
gins' part-time employment established a continuing ability to earn
wages. Even if the evidence could fairly support a contrary finding,
__________________________________________________________________________________

4 In addition, the fact that neither Dr. Stiles nor DeMark approved the
position with full knowledge of its demands severely weakens Newport's
argument that the approval itself demonstrates that the job was suitable.

we would nonetheless defer to the ALJ's findings, which are rational
and supported by substantial evidence. O'Keeffe, 380 U.S. at 362;
See, 36 F.3d at 380.

IV.

For the foregoing reasons, the ALJ's order and the Board's affir-
mance are hereby affirmed.

AFFIRMED