Trinity Marine, et al v. Savoie, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60715
Summary Calendar
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TRINITY MARINE GROUP
AND
RELIANCE NATIONAL INDEMNITY COMPANY,
Petitioners,
VERSUS
DALE SAVOIE
AND
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
_________________________
Petition for Review of an Order of
the Benefits Review Board
(00-1030)
_________________________
August 28, 2002
Before HIGGINBOTHAM, SMITH,
and CLEMENT, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
(continued...)

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Trinity Marine Group (“Trinity”) and Re-
liance National Indemnity Company (“Reli-
ance”) petition for review of an order of the
Benefits Review Board (the “BRB”), uphold-
ing a decision of the administrative law judge
(ALJ), that Dale Savoie remained totally dis-
abled until January 30, 1999. Concluding that
substantial evidence supports the findings, we
deny the petition for review.
I.
In June 1995, Savoie sustained an injury
while working as an outfitter for Trinity Ship-
yards in New Orleans. Trinity and Reliance
hired Nancy Favaloro, whom the ALJ later
recognized as an expert in the field of voca-
tional rehabilitation counseling. In October
1998, Favaloro issued a report identifying at
least five jobs that she believed Savoie could
perform: (1) dispatcher; (2) car door unlocker;
(3) repair technician; (4) security guard; and
(5) flow meter repair mechanic. Favaloro pro-
vided Savoie with those alternative employ-
ment opportunities, but he felt physically un-
able to perform the jobs.
At a formal hearing on January 31, 2000,
the ALJ found that Favaloro had relied on in-
complete medical information. The ALJ point-
ed to the medical opinion of Stuart Phillips,
Savoie’s treating physician, to illustrate that
his medical condition was more severe than
Favaloro supposed. At that hearing, Savoie
testified that he felt he could now work as a
car door unlocker, repair technician, or flow
meter repair mechanic. The ALJ decided that
Savoie could not have performed these jobs in
fall of 1998 but could on January 31, 2000.
This led the ALJ to conclude that Savoie had
suffered from a total disability until January
30, 2000.
II.
We review the findings of fact only to de-
termine whether the record as a whole pro-
vides substantial evidence. New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d
1031, 1037 (Former 5th Cir. Nov. 1981) (col-
lecting cases). Our “only function is to correct
errors of law and to determine if the board . . .
deferred to the AlJ’s fact finding.” Id. at 1037
n.9. We must defer t o the ALJ’s credibility
determinations and evaluations of lay and ex-
pert testimony. Mijangos v. Avondale Ship-
yards, Inc., 948 F.2d 941, 944-45 (5th Cir.
1992).
Trinity and Reliance argue that to deter-
mine the extent of Savoie’s disability, the ALJ
had an obligation to consider more than just
Savoie’s physical or medical condition. Rely-
ing on cases such as New Orleans (Gulfwide)
Stevedores, 661 F.2d at 1037-38, they empha-
size that disability has a mixed economic and
medical foundation. According to Trinity and
Reliance, the ALJ could not have credited
Phillip’s testimony over Favarolo’s because
Phillips did not consider factors such as Sa-
voie’s age, education, industrial history, and
the availability of work in the area.
The sensible statement that determining dis-
ability requires considering medical and eco-
nomic evidence falls far short of undermining
the ALJ’s finding. Trinity and Reliance’s
argument inverts the burden of proof. After
the employee has shown that a job-related
injury prevents him from returning to his
former position, the burden of proof shifts to
the employer to show the extent of disability.
SGS Control Servs. v. Dir., OWCP, 86 F.3d
438, 444 (5th Cir. 1996); Rogers Terminal &
Shipping Corp. v. Dir., OWCP, 784 F.2d 687, *(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.

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690 (5th Cir. 1986). Trinity and Reliance
concede that Savoie proved a job-related
injury that prevented him from returning to his
former job, so they bore the burden of proving
the extent of his disability. The ALJ found
they had failed to satisfy that burden.1
Favaloro admitted the shortcomings of the
medical basis for her testimony. She testified
that she relied on medical reports from several
examining physicians compiled in 1995. The
ALJ found that those physicians had underesti-
mated the severity of Savoie’s condition.
They diagnosed him with soft tissue damage
and did not perform an MRI. Phillips ordered
an MRI in the late fall of 1995 and refused to
make a diagnosis or opine on work restrictions
without the results. In January 1996, Phillips
reviewed the results of an MRI, found a herni-
ated disc, and recommended far more aggres-
sive treatment than any of the previous (unsuc-
cessful) physicians had proposed.
Favarolo admitted she did not consider
much information from Phillips. She pointed
to Phillips’s May 21, 1998, office notes that
classified Savoie as temporarily totally dis-
abled; she did not include Phillips’s partial,
1995 physical findings. She also failed to con-
sider the effect of medications taken by Sa-
voie. Phillips testified that Savoie remained
totally disabled throughout 1998 and 1999,
and Savoie testified he could not have per-
formed the suggested jobs in October 1998.
Of course, Savoie’s medical condition is
not the only basis on which the ALJ should
measure the extent of his disability. The ALJ
pointed to specific record evidence, however,
that Favalorao had substantially underestimat-
ed the severity of Savoie’s injury. As we have
noted, the employer bears the burden of prov-
ing the extent of disability. The ALJ, rather
than this court, should make credibility deter-
minations and evaluate the evidence. The ALJ
examined the evidence and determined that
Trinity and Reliance had not satisfied their
burden of proving that Savoie suffered from
only a partial disability in October 1998.
Substantial evidence supports that finding.
The petition for review is DENIED.
1 Trinity and Reliance also argue that Savoie
did not diligently seek work, but we need not reach
that question if we find that substantial evidence
supports the finding that he was totally disabled.
Roger’s Terminal, 784 F.2d at 691.

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