                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2008

Pontoriero v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1147




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                                                                   NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 08-1147


                             PASQUALE PONTORIERO,

                                                      Petitioner

                                           v.

       DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS;
                 UNIVERSAL MARITIME SERVICE CORP.;
              SIGNAL MUTUAL INDEMNITY ASSOCIATION,

                                                      Respondents




           On Petition for Review of a Decision of the Benefits Review Board
                 affirming a Decision of an Administrative Law Judge
                (United States Department of Labor BRB No. 07-0441)


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 3, 2008


                  Before: AMBRO and GREENBERG, Circuit Judges,
                           and RODRIGUEZ,* District Judge

                          (Opinion filed: December 19, 2008)


                                       OPINION



      *
        The Honorable Joseph H. Rodriguez, Senior United States District Judge for the
District of New Jersey, sitting by designation
                                              1
RODRIGUEZ, Senior District Judge

       This petition arises out of the Department of Labor Benefits Review Board’s

(“BRB”) decision to affirm an Administrative Law Judge’s (“ALJ”) denial of permanent

disability benefits under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. §§ 901-950. Because we conclude that the Board’s decision to

affirm the ALJ’s findings was supported by substantial evidence and was in accordance

with the law, the petition will be denied.

                                              I.

       We exercise jurisdiction over final orders of the BRB pursuant to 33 U.S.C.

§ 921(c). “Our examination is limited to a determination of whether the Board acted in

conformance with applicable law and within its proper scope of review. Because the

Board does not administer the [LHWCA], our review of its interpretation of the Act is

essentially plenary but we will respect [the Board’s] interpretation if it is reasonable.”

Maher Terminals, Inc. v. Dir., Office of Workers' Comp. Programs, 330 F.3d 162, 166

(3d Cir. 2003) (internal quotation marks and citations omitted). We will find that the

BRB acted within its scope of review if its findings of fact are “supported by substantial

evidence in the record considered as a whole.” See 33 U.S.C. § 921(b)(3). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); accord Del.

River Stevedores, Inc. v. Director, Office of Workers' Comp. Programs, 279 F.3d 233,



                                              2
241 (3d Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477

(1951)). It “is less than a preponderance of the evidence but more than a mere scintilla.”

Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (internal quotation marks and

citation omitted).

                                             II.

       As we write solely for the benefit of the parties, who are familiar with the facts and

procedural history of this case, our discussion will be confined to the legal issues

presented and include only those facts necessary to our disposition. In 1993, while

employed by Respondent Universal Maritime Service Corporation, Petitioner sustained

work-related injuries to his back and left leg. Petitioner received temporary total

disability benefits through August of 1994, when he was adjudged to have reached

maximum medical improvement, able to return to his pre-injury employment. (SA-297-

99.)

       In May of 1996, eight days after returning to work, Petitioner was again injured on

the job, this time after falling on an oil spill. (SA-300-01.) Petitioner claimed he had

injured his right shoulder, lower back, and left leg. On March 26, 1999, he was awarded

compensation for temporary total disability from the date of the 1996 accident until

March of 1997, when Respondent’s doctor examined Petitioner and found that he had

reached the point of maximum medical improvement and could return to his pre-injury

job without restriction. (SA-286-91.) In his March 26, 1999 Decision and Order, the



                                              3
ALJ made post-hearing credibility determinations and found Respondent’s doctor’s

opinion to be well-reasoned and supported by objective findings on examination, rather

than relying on Petitioner’s subjective complaints of pain, which the ALJ found not

credible. (SA-305.) Also on March 26, 1999, the ALJ credited Respondent’s doctor’s

finding that Petitioner sustained a ten percent disability to the leg as a result of his knee

injury, and scheduled permanent partial residual disability compensation accordingly,

commencing on the date of Respondent’s doctor’s deposition testimony. (SA-306-07.)

In April of 2000, the BRB affirmed the ALJ’s 1999 award of compensation for temporary

total disability and scheduled permanent partial disability. (Appx., p. 41.)

       On January 17, 2001, pursuant to 33 U.S.C. § 922, Petitioner requested

modification of his award, alleging a worsening of his condition and requesting

permanent total disability benefits. After a hearing, by a Decision and Order dated

January 16, 2007, an ALJ denied Petitioner’s claim for additional disability benefits,

finding that Petitioner had not established a change in his ability to work, nor had he

established a mistake in fact as to the duties of Petitioner’s pre-injury job. Although the

ALJ acknowledged Petitioner’s attempt to establish an objective worsening of his back

condition based on MRI results since the original decision was entered, he found that

Petitioner did not establish he is disabled from his pre-injury employment. The ALJ

discredited Petitioner’s subjective complaints and the opinion of his treating physician

based on those complaints, instead lending credence to the opinion of Respondent’s



                                               4
doctor that Petitioner could return to work in his pre-injury position without restrictions.

The ALJ factored into his analysis a November 2005 surveillance video showing

Petitioner engaged in activities inconsistent with his assertion of disability.

       The BRB affirmed the ALJ’s decision, and adopted the Decision as its final order

on November 21, 2007. (Appx., pp. 40-45.) Acknowledging that the Petitioner was

entitled to seek modification of factual findings concerning the pre-injury job duties

required of him, the BRB found nonetheless that the ALJ rationally found Petitioner had

not established his inability to return to work, and consequently did not establish an

entitlement to additional disability benefits. Finding that the ALJ gave rational reasons

for rejecting Petitioner’s testimony and his treating physician’s opinion in favor of

Respondent’s physician’s opinion, the BRB pointed out that a re-weighing of the

evidence would be beyond its scope of review. Instead, the BRB affirmed the denial of

modification as it was deemed supported by substantial evidence.

       Petitioner now takes issue with the BRB Decision, arguing “[e]ven if parts of

Petitioner’s claims were slightly exaggerated, Petitioner did suffer serious injuries while

working.” (Pet. Br., p. 24.) Petitioner further contends that the ALJ went beyond his

discretionary authority in rejecting his treating physician’s opinion, which he alleges was

based on objective evidence, and relied on the surveillance video which showed only

“snippets from his daily activities,” (Pet. Reply Br., p. 2), rather than on the testimony of

both Petitioner’s doctor and Respondents’ doctor who testified as to a change in his

condition for the worse.

                                               5
                                              III.

       An independent review of the record taken as a whole reveals that there is

substantial evidence for a denial of modification. Section 22 of the LHWCA permits

modification of compensation awards based on a mistake in fact in the initial decision or

on a change in conditions:

       Upon his own initiative, or upon the application of any party in interest . . . ,
       on the ground of a change in conditions or because of a mistake in a
       determination of fact by the deputy commissioner, the deputy commissioner
       may, at any time prior to one year after the date of the last payment of
       compensation, whether or not a compensation order has been issued, or at
       any time prior to one year after the rejection of a claim, review a
       compensation case ... [and] issue a new compensation order which may
       terminate, continue, reinstate, increase, or decrease such compensation, or
       award compensation.

33 U.S.C. § 922; accord Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 294-95,

(1995). This provision vests the decisionmaker “with broad discretion to correct

mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or

merely further reflection on the evidence initially submitted.” O'Keeffe v. Aerojet-

General Shipyards, Inc., 404 U.S. 254, 256 (1971). The decisionmaker may do so to

“render justice under the act.” Id. at 255.

       As there was substantial evidence in the record to deny modification of the award

in this case, Petitioner has not met his burden to show that the BRB erred in affirming the

ALJ’s finding of neither a mistake in the determination of facts regarding Petitioner’s

position nor a change in his conditions that would necessitate a new compensation order.



                                               6
       Indeed, the ALJ did acknowledge a change in Petitioner’s physical condition since

March of 1999, sufficient to bring the claim within the scope of section 22 of the

LHWCA. (SA-14.) The ALJ therefore turned to the law regarding total disability.

       To establish a prima facie case of permanent total disability, a claimant must prove

that he is unable to perform his previous job because of a work-related injury. The

burden then shifts to the employer to show that there are other suitable jobs available to

the claimant. See McCabe v. Sun Shipbuilding & Dry Dock Co., 602 F.2d 59, 62 & n.7

(3d Cir. 1979). The employer can carry this burden by showing suitable alternative

employment in the claimant’s geographical area that the claimant is capable of

performing, considering his age, work experience, and physical restrictions, and that the

claimant could secure if he diligently tried. Wilson v. Crowley Maritime, 30 Ben. Rev.

Bd. Serv. 199, 203 (1996). If the employer can show suitable alternative employment,

then the claimant is not totally disabled.

       In this case, the ALJ found a worsened medical condition of the lower back based

on MRI results, but found the change did not render Petitioner incapable of returning to

his regular or usual employment. The decision turned on Petitioner’s credibility.

Although Petitioner claimed that he used a cane 99% of the time and he walked with a

limp constantly, the surveillance video submitted to the ALJ contradicted his testimony,

and caused the ALJ to discount it. Similarly, Petitioner’s treating physician’s opinion,

based upon Petitioner’s subjective complaints, was discredited.



                                             7
       In contrast, the opinion of Respondent’s doctor was found to have been consistent

with medical findings and supported by Petitioner’s actions. Having examined Petitioner

in 1997, 2001, and 2005, he placed no restrictions of Petitioner’s ability to perform the

duties of his pre-injury position, and opined that Petitioner could either return to that

work or to alternative employment in a sedentary or light duty position. (SA-16, 51-197.)

       Accordingly, the ALJ found that Petitioner did not establish his inability to return

to work and the BRB deemed the finding rationally based. Having reviewed the record as

a whole, we conclude that the BRB’s decision to affirm the ALJ’s findings was supported

by substantial evidence and was in accordance with the law.

                                             IV.

       For these reasons, we deny the petition.




                                              8
