CAN, OR CANNOT: THAT IS NOT THE QUESTION
Jordan v. SSA Terminals, LLC., 2020 U.S. App. LEXIS 27486 (7th Cir. 2020)
By: Daniel Olivier
The issue before the United States Court of Appeals, Ninth Circuit, is whether the claimant’s complaint of pain sufficiently describes a covered disability under the LHWCA (Longshore and Harbor Worker’s Compensation Act). The Ninth Circuit held that credible complaints of severe, persistent, and prolonged pain can establish a prima facia case of disability, even if the claimant can literally perform his or her past work.
The Accident
This action arises out of a workplace accident which occurred while the Plaintiff, Anthony Jordan, operated a heavy truck (tractor) to move cargo containers. As he occupied the tractor, a crane lifted and dropped the tractor causing Mr. Jordan to suffer extreme damage to his lower back, including herniated discs and nerve impingement. He filed a claim for benefits under the LHWCA with his employer and its insurer. To verify Mr. Jordan’s disabled status, the insurer conducted surveillance on the Plaintiff which resulted in videos showing him lifting various objects, engaging in physical activities, and remaining in a seated or standing position for long periods without difficulty. Because of the videos, the Defendants asserted that Mr. Jordan was able to perform his usual work for a period of time between the accident and the eventual surgery he underwent three years after the accident.
Administrative Hearing
When heard by the Administrative Law Judge (ALJ), Mr. Jordan testified that, “there’s nothing I can’t do. But it all either is painful, elevates the pain, or I can’t do it for the amount of time that would be considered a job.” The Plaintiff’s treating physician also offered testimony corroborating Mr. Jordan’s statement including that Mr. Jordan was unable to work an eight-hour day in regular fashion without taking breaks to alleviate the pain in his back. However, the ALJ also received testimony from three non-treating physicians retained to perform independent medical examinations (IME). After viewing the surveillance videos of Mr. Jordan, the physicians collectively opined that, at some time between the injury and before his spinal surgery, Mr. Jordan could return to his work as a longshoreman without restrictions.
Ultimately, the ALJ found that Mr. Jordan had not carried his burden of proving that he was totally disabled between the time of his accident and his surgery. The ALJ seemed to give great weight to the Defendant’s argument that “the court cannot rationally conclude Mr. Jordan ‘cannot’ exert himself physically when in fact he does,” and further described the most difficult issue in this case to be “the difference between ‘can’ and ‘cannot.’” The final reasoning stated that “if Mr. Jordan ‘can’ work, the Act presumes that he will, and denies him benefits.”
The Plaintiff appealed to the Benefits Review Board (BRB), which affirmed and held that the ALJ rationally determined the Plaintiff’s statements were not credible in light of the surveillance videos, and correctly gave greater weight to the IME physicians who viewed the videos.
Pain and Disability
On appeal, the Ninth Circuit analyzes LHWCA’s definition of disability.[1] The Court recognized and agreed with the BRB’s identical definition of disability[2], and also agreed with the Defendants’ contention that pain can be disabling, but the complaints of pain must be credible. The Ninth Circuit made clear its position on disability under the LHWCA by holding that “credible complaints of severe, persistent, and prolonged pain can establish a prima facie case of disability, even if the claimant can literally perform his or her past work.”
Going even further, the Ninth Circuit explained what amount of pain is per se disabling. The court recognized that some aches and pains are not disabling and therefore not compensable; but a claimant need not experience excruciating pain to be considered disabled. Reviewing other circuits’ rulings, this Court established a range where at one end lies “any” pain and at the other “excruciating” pain. The Ninth Circuit acknowledged that a vast middle ground lies between occasional discomfort and torture, and under the LHWCA a longshoreman is not required to be bed-ridden to be considered totally disabled.
After establishing the pain threshold, the Court deferred back to the ALJ to determine whether a claimant's complaints of pain are (1) credible and (2) if so, whether the level of pain described is so severe, persistent, and prolonged that it significantly interferes with the claimant's ability to do his or her past work.
Application
The Ninth Circuit asserted that the ALJ’s decision to frame his analysis as an inquiry into the difference between “difficulty” and “impossibility,” or between “can” and “cannot,” resulted in the erroneous application of an improperly high standard to Mr. Jordan’s claim. The Court acknowledged that the ALJ was incorrect in not only labelling the Plaintiff’s pain description as ambiguous, but also in believing that Mr. Jordan had to establish that it was impossible for him to perform his past work.
In conclusion, the Ninth Circuit remanded the matter back to the ALJ to first determine the credibility of the Plaintiff’s complaints of pain, and if credible, then the ALJ must decide whether the level of pain described is so severe, persistent, and prolonged that it significantly interfered with the claimant's ability to do his past work.
[1] 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 other employment." 33 U.S.C. § 902(10).
[2] "An employee may be found to be totally disabled despite continued employment if he works only through extraordinary effort and in spite of excruciating pain, or is provided a position only through employer's beneficence." Ramirez v. Sea-Land Servs., Inc., 33 BRBS 41, 1999 DOLBRB LEXIS 14, 1999 WL 284793, at *5 (BRB Apr. 20, 1999)
