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Even a minor physical impairment can establish total disability if it prevents the employee from performing her usual employment, Elliot, 16 BRBS at 92 n.4, or from performing the only kind of employment for which she is qualified. Equitable Equip. Co. v. Hardy, 558 F.2d 1192, 6 BRBS 666 (5th Cir. 1977), vacating on other grounds 3 BRBS 426 (1976); Nardella v. Campbell Mach., 525 F.2d 46, 49, 3 BRBS 78, 80 (9th Cir. 1975); American Mut. Ins. Co. v. Jones, 426 F.2d 1263 (D.C. Cir. 1970); Tezeno v. Consolidated Aluminum Corp., 13 BRBS 778 (1981); Pilkington v. Sun Shipbuilding & Dry Dock Co., 9 BRBS 473, 476 (1978); Ridgely v. Great Lakes Storage & Contracting Co., 7 BRBS 297 (1977), aff’d sub nom. Ridgley v. Ceres, Inc., 594 F.2d 1175, 9 BRBS 948 (8th Cir. 1979). It is irrelevant that a physician terms such an impairment “partial.” Employers Liability Assurance Corp. v. Hughes, 188 F. Supp. 623 (S.D.N.Y. 1959). The claimant’s credible complaints of pain alone may be enough to meet his burden. Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Richardson v. Safeway Stores, 14 BRBS 855 (1982); Miranda v. Excavation Constr., 13 BRBS 882, 884 (1981); Golden v. Eller & Co., 8 BRBS 846 (1978), aff’d, 620 F.2d 71, 12 BRBS 348 (5th Cir. 1980). On the other hand, a judge may find an employee able to do his usual work despite his complaints of pain, numbness, and weakness, when a physician finds no functional impairment. Peterson v. Washington Metro. Area Transit Auth., 13 BRBS 891 (1981).
A psychiatrist’s opinion that the claimant’s medication would limit him to part-time work with limited responsibilities establishes that he cannot perform his usual employment. Brown v. Potomac Elec. Power Co., 15 BRBS 337, 339 (1983).
Similarly, a physician’s opinion that the employee’s return to his usual or similar work would aggravate his condition is sufficient to support a finding of total disability. Care v. Washington Metro. Area Transit Auth., 21 BRBS 248 (1988); Lobue v. Army & Air Force Exch. Serv., 15 BRBS 407 (1983); Sweitzer v. Lockheed Shipbuilding & Constr. Co., 8 BRBS 257, 261 (1978). Contra Van Dyke v. Newport News Shipbuilding & Dry Dock Co., 8 BRBS 388 (1978) (not total merely because continued employment would be hazardous to employee’s health).
If the physician recommends surgery and light-duty work and the claimant experiences pain while performing many activities, he has also met his burden. Carter v. General Elevator Co., 14 BRBS 90 (1981). See Offshore Food Serv. v. Murillo, 1 BRBS 9 (1974), aff’d sub nom. Offshore Food Serv. v. Benefits Review Bd., 524 F.2d 967, 3 BRBS 139 (5th Cir. 1975).
The ALJ may find that claimant cannot perform his usual employment, even if he did so for several months after his injury, if the claimant must either wear ear protection, impairing his ability to hear warnings, or suffer pain due to the effect of ambient noise on the injured ear. Nguyen v. Ebbtide Fabricators, Inc., 19 BRBS 142 (1986).
If the claimant’s physical injury leads to psychological injuries, including alcoholism, the ALJ may find him permanently totally disabled. Parent v. Duluth, Missabe & Iron Range Ry. Co., 7 BRBS 41 (1977); Mitchell v. Lake Charles Stevedores, 5 BRBS 777 (1977); Carpenter v. Potomac Iron Works, 1 BRBS 332 (1975), aff’d mem., 535 F.2d 1325 (D.C. Cir. 1976) (compensation neurosis secondary to compensable injury may establish permanent total disability).
If you have a question about Total Disability or any other question in your DBA or Longshore case, contact our qualified defense base act attorneys today at mail@gmpcomplaw.com, or go on our website at www.dbalawyers.com and fill out our form on the contact us page, or call us at 305 595 3350.