Petition for Review of an Order of the United States Department of Labor.
Bauer, Chief Judge, Cudahy and Posner, Circuit Judges.
This is a petition for review of a final order of the Benefits Review Board (the "Board"), United States Department of Labor. The Board affirmed the decision of the Administrative Law Judge (the "ALJ") denying the petitioner's claim for benefits under the Longshore and Habor Workers' Compensation Act, 33 U.S.C. §§ 901-950. A question remains whether the petitioner's absence from work during the period January to July 1981 was due to his work-related injury. Accordingly we vacate the decision and remand to the Board with instructions to remand this case to the ALJ for further findings of fact.
Aaron K. Moore was working for Jeffboat, Inc. as a welder on a barge when a heavy bar struck his foot on June 19, 1980. Moore lost a few days of work due to the injury. When he returned to work on June 25, 1980, he was placed on disciplinary lay-off for smoking marijuana. Moore's foot injury continued to cause him considerable pain and eventually the source of his pain was diagnosed as a neuroma, requiring surgery. The scheduled surgery was not performed because Jeffboat refused to accept liability for the cost and Moore apparently could not afford to pay for the surgery himself. Jeffboat reinstated Moore in January 1981 but Moore did not actually work again until July 27, 1981. Moore's employment status from January to July 1981 has never been resolved. Moore claims that, in January, his supervisors gave him a "leave" because of his foot injury. Jeffboat claims that, after Moore was reinstated, he was "later" laid off "due to work cutback."
The ALJ found that the neuroma on Moore's foot was a work-related injury in that it was at least aggravated by the bar hitting his foot. Thus, Moore was entitled to have Jeffboat pay for the surgery and any disability benefits arising during recuperation. The ALJ accepted one physician's testimony that Moore's functional disability varied from seventy-five percent in February 1981 to forty-five percent in September 1981. The ALJ noted that, at the time of the hearing, Moore was effectively on "light duty" at Jeffboat because of his foot injury. The ALJ ultimately concluded, however, that Moore "presented no evidence regarding any loss of earning capacity as a result of his foot during the period of disciplinary lay-off." Thus, the ALJ denied compensation benefits for the period from June 25, 1980, through the date of the hearing.
The ALJ denied Moore's request to reconsider his decision, finding Moore ineligible for compensation benefits because he "was working when he was put on disciplinary lay-off, and when he was permitted to return to work, he did so and has continued to do so albeit with difficulty, but with no loss of earnings."
The Board affirmed the ALJ's decisions. Although the Board determined that the ALJ mistakenly found Moore to have returned to work in January 1981, it concluded that this error was harmless because Moore had failed to establish an inability to work at any time after June 25, 1980.
On appeal, Moore argues that the Board's affirmance was improper once it found that the ALJ mistakenly assumed Moore returned to work when Jeffboat reinstated him in January 1981. According to Moore, the Board's decision entailed a de novo factual finding that Moore had failed to prove any inability to work as a result of his foot injury and, moreover, this finding is not supported foot injury and, moreover, this finding is not supported by substantial evidence. Jeffboat responds that the Board merely affirmed the ALJ's conclusion that, based on the evidence, Moore was not entitled to any compensation from Jeffboat after he returned to work on June 25, 1980.
On review, this court "is limited to an evaluation of whether the ALJ's and the Board's decisions are rational, supported by substantial evidence and consistent with the applicable law." Old Ben Coal Co. v. Luker, 826 F.2d 688, 691 (7th Cir. 1987); see also Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir. 1985). Likewise, in reviewing the ALJ's rulings, the Board must accept findings of fact "supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3); see also Prewitt, 755 F.2d at 590; 20 C.F.R. § 802.301. The Board, however, "does not have the power of de novo review of factfindings." Prewitt, 755 F.2d at 590; see also 20 C.F.R. § 802.301.
This circuit has defined substantial evidence as "enough to justify, if the trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn from it is one of fact for the jury." Garvey Grain Co. v. Director, Office of Workers' Compensation Programs, 639 F.2d 366, 370 (7th Cir. 1981). Other courts reviewing ALJ findings describe substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003, 1006 (5th Cir. 1978), or as "more than a scintilla of evidence, but less than a preponderance," Sprague v. Director, Office of Workers' Compensation Programs, 688 F.2d 862, 866 (1st Cir. 1982).
In reviewing the record as a whole, we find that there was no substantial evidence to support the ALJ's conclusion that Moore returned to work when he was permitted to do so in January 1981. Both parties agree that Moore was reinstated following his disciplinary suspension in January 1981, but that he did not actually return to work until July 1981. The parties disagree over the reason for Moore's absence from work during that period and the effect of this absence from work during that period and the effect of this absence on his claim for disability compensation. Thus, we agree with the Board's conclusion that the ALJ "mistakenly found [Moore] to ...