Trinity Marine v. Savoie

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-60715 Summary Calendar _______________

TRINITY MARINE GROUP AND RELIANCE NATIONAL INDEMNITY COMPANY,

Petitioners,

VERSUS

DALE SAVOIE AND DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

_________________________

Petition for Review of an Order of the Benefits Review Board (00-1030) _________________________ August 28, 2002

Before HIGGINBOTHAM, SMITH, PER CURIAM:* and CLEMENT, Circuit Judges. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...)

Trinity Marine Group (“Trinity”) and Re- 30, 2000. liance National Indemnity Company (“Reli- ance”) petition for review of an order of the II. Benefits Review Board (the “BRB”), uphold- We review the findings of fact only to de- ing a decision of the administrative law judge termine whether the record as a whole pro- (ALJ), that Dale Savoie remained totally dis- vides substantial evidence. New Orleans abled until January 30, 1999. Concluding that (Gulfwide) Stevedores v. Turner, 661 F.2d substantial evidence supports the findings, we 1031, 1037 (Former 5th Cir. Nov. 1981) (col- deny the petition for review. lecting cases). Our “only function is to correct errors of law and to determine if the board . . . I. deferred to the AlJ’s fact finding.” Id. at 1037 In June 1995, Savoie sustained an injury n.9. We must defer t o the ALJ’s credibility while working as an outfitter for Trinity Ship- determinations and evaluations of lay and ex- yards in New Orleans. Trinity and Reliance pert testimony. Mijangos v. Avondale Ship- hired Nancy Favaloro, whom the ALJ later yards, Inc., 948 F.2d 941, 944-45 (5th Cir. recognized as an expert in the field of voca- 1992). tional rehabilitation counseling. In October 1998, Favaloro issued a report identifying at Trinity and Reliance argue that to deter- least five jobs that she believed Savoie could mine the extent of Savoie’s disability, the ALJ perform: (1) dispatcher; (2) car door unlocker; had an obligation to consider more than just (3) repair technician; (4) security guard; and Savoie’s physical or medical condition. Rely- (5) flow meter repair mechanic. Favaloro pro- ing on cases such as New Orleans (Gulfwide) vided Savoie with those alternative employ- Stevedores, 661 F.2d at 1037-38, they empha- ment opportunities, but he felt physically un- size that disability has a mixed economic and able to perform the jobs. medical foundation. According to Trinity and Reliance, the ALJ could not have credited At a formal hearing on January 31, 2000, Phillip’s testimony over Favarolo’s because the ALJ found that Favaloro had relied on in- Phillips did not consider factors such as Sa- complete medical information. The ALJ point- voie’s age, education, industrial history, and ed to the medical opinion of Stuart Phillips, the availability of work in the area. Savoie’s treating physician, to illustrate that his medical condition was more severe than The sensible statement that determining dis- Favaloro supposed. At that hearing, Savoie ability requires considering medical and eco- testified that he felt he could now work as a nomic evidence falls far short of undermining car door unlocker, repair technician, or flow the ALJ’s finding. Trinity and Reliance’s meter repair mechanic. The ALJ decided that argument inverts the burden of proof. After Savoie could not have performed these jobs in the employee has shown that a job-related fall of 1998 but could on January 31, 2000. injury prevents him from returning to his This led the ALJ to conclude that Savoie had former position, the burden of proof shifts to suffered from a total disability until January the employer to show the extent of disability. SGS Control Servs. v. Dir., OWCP, 86 F.3d 438, 444 (5th Cir. 1996); Rogers Terminal & * (...continued) Shipping Corp. v. Dir., OWCP, 784 F.2d 687, circumstances set forth in 5TH CIR. R. 47.5.4.

690 (5th Cir. 1986). Trinity and Reliance measure the extent of his disability. The ALJ concede that Savoie proved a job-related pointed to specific record evidence, however, injury that prevented him from returning to his that Favalorao had substantially underestimat- former job, so they bore the burden of proving ed the severity of Savoie’s injury. As we have the extent of his disability. The ALJ found noted, the employer bears the burden of prov- they had failed to satisfy that burden.1 ing the extent of disability. The ALJ, rather than this court, should make credibility deter- Favaloro admitted the shortcomings of the minations and evaluate the evidence. The ALJ medical basis for her testimony. She testified examined the evidence and determined that that she relied on medical reports from several Trinity and Reliance had not satisfied their examining physicians compiled in 1995. The burden of proving that Savoie suffered from ALJ found that those physicians had underesti- only a partial disability in October 1998. mated the severity of Savoie’s condition. Substantial evidence supports that finding. They diagnosed him with soft tissue damage and did not perform an MRI. Phillips ordered The petition for review is DENIED. an MRI in the late fall of 1995 and refused to make a diagnosis or opine on work restrictions without the results. In January 1996, Phillips reviewed the results of an MRI, found a herni- ated disc, and recommended far more aggres- sive treatment than any of the previous (unsuc- cessful) physicians had proposed.

Favarolo admitted she did not consider much information from Phillips. She pointed to Phillips’s May 21, 1998, office notes that classified Savoie as temporarily totally dis- abled; she did not include Phillips’s partial, 1995 physical findings. She also failed to con- sider the effect of medications taken by Sa- voie. Phillips testified that Savoie remained totally disabled throughout 1998 and 1999, and Savoie testified he could not have per- formed the suggested jobs in October 1998.

Of course, Savoie’s medical condition is not the only basis on which the ALJ should

1 Trinity and Reliance also argue that Savoie did not diligently seek work, but we need not reach that question if we find that substantial evidence supports the finding that he was totally disabled. Roger’s Terminal, 784 F.2d at 691.