                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0399n.06

                                           No. 09-3317                                 FILED
                                                                                    Jul 02, 2010
                          UNITED STATES COURT OF APPEALS
                                                                              LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


MARATHON ASHLAND PETROLEUM,                              )
MARATHON ASHLAND PETROLEUM CO.,                          )
                                                         )
       Petitioners,                                      )       ON APPEAL FROM THE
                                                         )       BENEFITS REVIEW BOARD,
v.                                                       )       U.S. DEPARTMENT OF
                                                         )       LABOR
BILL B. WILLIAMS; DIRECTOR, OFFICE                       )
OF WORKERS COMPENSATION,                                 )                          OPINION
                                                         )
       Respondents,                                      )


BEFORE:        MERRITT, COLE, and COOK, Circuit Judges.

       COLE, Circuit Judge. This case arises out of a claim for workers’ compensation benefits

under the Longshore and Harbor Workers’ Compensation Act (“LHWCA” or “Longshore Act”), 33

U.S.C. § 901, et seq., which provides for compensation to injured maritime employees. Petitioners

Marathon Ashland Petroleum and Marathon Ashland Petroleum Co. (“Marathon”) appeal the

decision of the Benefits Review Board of the United States Department of Labor (“BRB”) affirming

an order of the Administrative Law Judge (“ALJ”) awarding benefits to Respondent Bill Williams.

Williams had worked at Marathon for a quarter-century, most recently as a barge welder, and injured

his right shoulder in February 2003. Marathon argues that the ALJ’s decision is not supported by

substantial evidence. Because the ALJ’s decision is inadequate to accommodate a thorough review,

we REMAND to the ALJ for further development.
No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

                                       I. BACKGROUND

       Bill Williams had worked at Marathon’s Ashland, Kentucky, facility for twenty-five years,

most recently as a senior barge welder. His job required considerable overhead heavy lifting, such

as repeatedly carrying 150-pound weights. Williams alleged that he sustained a long thoracic nerve

injury to his right shoulder while replacing parts of a barge at work on February 13, 2003. He had

been experiencing pains in his right shoulder and right arm six to eight months prior to the accident,

and his injury was likely the result of the cumulative effect of his heavy lifting. Since the injury,

Williams has not returned to work and has been seen by multiple physicians. These physicians, as

explained more fully below, do not agree on a common diagnosis for Williams.

       Three days after the accident, Williams began treatment with Dr. Michael Goodwin, an

orthopedist, who ultimately diagnosed him with a long thoracic nerve problem. Dr. Goodwin

continued to see Williams roughly once a month until Dr. Goodwin diagnosed him as permanently

unable to work in July 2003. Despite this diagnosis, on March 30, 2004, Dr. Goodwin provided

Williams with specific restrictions, including a prohibition on lifting more than five pounds with his

right arm and all overhead work. Dr. Goodwin wrote a letter to Marathon on June 22, 2005,

indicating that Williams could not return to work as a welder, since it required heavy lifting and

overhead work. Following an October 3, 2005, visit, Dr. Goodwin opined that Williams’ condition

would never improve.

       Dr. Goodwin also referred Williams to Dr. John Brems, an orthopedist and shoulder

specialist. On April 17, 2003, Dr. Brems recommended that Williams cease work until September

2003 and undergo an Electromyogram test (“EMG”) in August to determine if the nerve was healing.

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No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

Dr. Goodwin, however, did not perform the repeat EMG because, as he explained in his deposition

testimony, he was more interested in clinical recovery than nerve studies.

       On May 25, 2004, Marathon sent Williams to Dr. Michael Best, an orthopedic surgeon and

expert in long thoracic nerve injuries. The visit, and another on March 1, 2005, lasted approximately

five minutes each. Dr. Best agreed with Dr. Brems’ treatment recommendation and had Williams

undergo two EMGs and two functional capacity exams. Dr. Joseph Zerga performed the EMGs and

concluded after Williams’ EMG in July 2004 that Williams could not perform the work of a barge

welder or any other work that required heavy lifting above shoulder-level on his right-hand side but

could do activity that did not require heavy lifting. Dr. Zerga performed another EMG in November

2004 and concluded that Williams’ nerve injury had healed.

       Williams’ second exam with Dr. Best, which occurred on March 1, 2005, showed that

Williams’ long thoracic nerve injury had healed. Dr. Best had Williams undergo functional capacity

evaluations and concluded that Williams possessed a full range of motion with no strength deficit

and had no long-term or permanent impairment. He therefore considered Williams capable of

returning to his former welding position, which had since been modified to include the use of hoists

and an additional individual to assist with lifting and carrying duties. Despite this conclusion, Dr.

Best noted that Williams’ efforts throughout testing were inconsistent and that he was unaware of

the specifics of Williams’ prior job description. Even more, Dr. Best later revised his prior opinion

and concluded that Williams was not capable of meeting the demands of his former position and that

his safe-work capabilities were within the medium to heavy work category.



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No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

       Based on Dr. Best’s March exam, Marathon sent Williams a return-to-work notice on May

12, 2005. Williams reported to work on May 31, 2005, but told Marathon officials that he could not

perform his duties. In the meantime, Williams continued to refrain from working. More than a year

later, Marathon had a vocational expert prepare a transferable skills analysis/Labor Market Survey

report to determine Williams’ capabilities for alternate employment. The report noted that Williams

could not return to his pre-injury employer as a welder/longshoreman, but listed nine alternate

positions that he could perform. The expert completed a second Labor Market Survey on October

30, 2006, which listed ten employers within thirty miles of Ashland, Kentucky, who indicated they

were hiring for positions Williams was capable of performing. Williams testified that he did not

contact any of the prospective alternate employers because he had a foot gout ailment.

       Following Williams’ claim for Longshore Act benefits, the ALJ entered an order on May 7,

2008, awarding Williams total disability compensation under the LHWCA. The ALJ determined

that Williams reached maximum medical improvement (“MMI”) on May 31, 2005. MMI “is

reached at that point where a physician believes that further treatment will not improve a claimant’s

condition.” Morehead Marine Servs., Inc. v. Washnock, 135 F.3d 366, 375 (6th Cir. 1998). As a

result, the ALJ awarded Williams temporary total disability benefits from February 15, 2003, through

May 31, 2005, and permanent total disability benefits thereafter. The ALJ found that Williams could

not return to his former barge-welding position at Marathon and that Marathon had not satisfied its

burden of establishing the availability of suitable alternate employment. The ALJ credited Dr.

Goodwin’s opinion of October 5, 2005, that Williams’ shoulder would never improve and



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No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

discredited Dr. Best’s opinion because he indicated he was unaware of the physical requirements of

Williams’ job. Furthermore, the ALJ credited Williams’ own testimony.

        Marathon appealed the ALJ’s decision to the BRB, which affirmed the decision on January

27, 2009. Marathon then petitioned this Court for review.

                                         II. ANALYSIS

A.      Standard of review

        “This court reviews ALJ and BRB decisions on a limited basis.” Pittsburgh & Conneaut

Dock Co. v. Dirs., Office of Workers’ Comp. Programs, 473 F.3d 253, 258 (6th Cir. 2007). “The

decision of an ALJ is reviewed to determine whether it is supported by substantial evidence and

consistent with applicable law.” Id. We review the BRB’s legal conclusions de novo and

independently review the record to see if the BRB properly ruled on whether the ALJ’s findings are

supported by substantial evidence. Id. “Substantial evidence is more than a scintilla of evidence but

less than a preponderance and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. at 259 (quotation marks omitted).

B.      Application

        To establish a claim for disability benefits under the LHWCA, an employee must establish

the presence of a “disability.” Washnock, 135 F.3d at 371. The LHWCA defines disability 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.” 33 U.S.C. § 902(10). Two steps determine the

existence of a disability:



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No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

        Once a claimant establishes a prima facie case of total disability by showing that he
        or she can no longer perform his or her usual work because of a work-related injury,
        the burden shifts to the employer to demonstrate the availability of suitable
        alternative employment that the claimant is capable of performing in the geographical
        area and that he or she could secure if he or she diligently tried.

Washnock, 135 F.3d at 372.

        In this case, we find the ALJ’s reasoning for its conclusion that Williams reached MMI on

May 31, 2005, and is therefore entitled to receive permanent disability benefits from that date, to be

“inadequate . . . to accommodate a thorough review.” Dir., OWCP v. Congleton, 743 F.2d 428, 429

(6th Cir. 1984). As required by the Administrative Procedure Act, an ALJ’s decision must include

a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues

of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A). See also Washnock,

135 F.3d at 375. According to Dr. Best, Williams reached MMI on March 1, 2005. The parties

stipulated that, according to Dr. Goodwin, Williams has yet to reach MMI. Yet, Dr. Goodwin’s

office notes from October 3, 2005, indicate that he did not anticipate that Williams’ shoulder would

ever improve. The ALJ found that Williams’ attempt to return to work on May 31, 2005, established

that this was his date of MMI. We question whether this was appropriate. While Williams’ inability

to perform his prior job duties may indicate that he was permanently disabled as of May 31, 2005,

it does not necessarily indicate that this was the date he reached MMI. Especially given that

Williams was examined by Dr. Goodwin on two occasions subsequent to May 31, 2005, we think

the ALJ’s explanation for establishing May 31, 2005, as the date of MMI needs to be more

thoroughly explained.



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No. 09-3317
Marathon Ashland Petro v. Bill Williams, et al.

       As such, we VACATE the decision of the BRB and REMAND to the ALJ for further

findings of fact and such other relief as is appropriate. Accordingly, we do not reach the question

of whether Williams is entitled to attorney’s fees from Marathon.




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