Walter B. Crews, Jr., a longshoreman, suffered a severe back injury in 1995 that required the surgical implantation of a morphine pump in his spine. Following this incident, Crews has been unable to work. An Administrative Law Judge (ALJ) and subsequently the Benefits Review Board (BRB) determined that Crews was entitled to permanent total disability benefits effective from October 4, 2007. GIS Holdings, the employer, and its insurance carrier petitioned the Fifth Circuit for review of the BRB's order, challenging the findings on maximum medical improvement, the total nature of the disability, and Crews's willingness to undergo job retraining.
The Fifth Circuit reviewed the BRB's decision to ensure the ALJ's findings were supported by substantial evidence and consistent with the law. First, regarding maximum medical improvement (MMI), the court defined MMI as the point where an injury has received the maximum benefit of treatment and the condition will not improve. The record contained testimony from both the worker's and the employer's doctors stating that Crews's condition was stable two weeks after the morphine pump implantation and that no further treatment was recommended. The ALJ gave great weight to this testimony, and the court found substantial evidence supported the conclusion that Crews's injury was permanent. Second, the court addressed the distinction between partial and total disability, noting that the availability of suitable alternative employment is the key factor. While the worker must show an inability to perform former longshore tasks, the burden then shifts to the employer to prove that other realistically available jobs exist. GIS waived any argument that Crews failed to make a prima facie case and failed to identify any evidence showing suitable alternative employment existed. Consequently, the employer did not carry its burden of proof. Third, the court addressed the claim that Crews refused job retraining. The court held that GIS forfeited this argument because it did not raise the issue in its petition for review before the BRB, citing the requirement that issues must be preserved at the agency level.
The Benefits Review Board's order granting permanent total disability benefits to Walter Crews, Jr. remains in effect. The decision reinforces the high bar for employers to rebut a worker's claim of total disability by proving the existence of suitable alternative employment. It also serves as a reminder that arguments not raised before the agency are forfeited in subsequent judicial review.
Podcast (federal-narrative-summaries): Play in new window | Download