Brooklyn Injury Attorney For The Workplace

Permanent Total Disability Compensation Work Injury Case

claim from laborer, totally disabled due to his knee injury and from a work-related back injury

BRB No. 98-0155

NUNZIO MADDIONA Claimant-Petitioner

DATE ISSUED: 09/28/1998

v.

AMERICAN STEVEDORING, INCORPORATED and NATIONAL UNION FIRE INSURANCE COMPANY

Employer/Carrier- Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF ) LABOR Party-in-Interest

Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
York, for claimant.

Betty J. O'Shea, New York, New York, for employer/carrier.

DECISION and ORDER

Claimant, a laborer, injured his right knee in a work-related accident on September 19, 1994. Employer paid temporary total disability benefits from October 1, 1994 through July 31, 1995, and various periods of permanent partial disability benefits. The parties stipulated that claimant is permanently disabled due to his knee injury and cannot return to his usual pre-injury employment. Claimant contended that he is totally disabled due to his knee injury and from a work-related back injury.

Therefore, employer has failed to establish suitable alternate employment under either Fourth or Fifth Circuit precedent. Consequently, we reverse the administrative law judge's finding that employer established the availability of suitable alternate employment and his award to claimant of permanent partial disability compensation. The administrative law judge's decision is modified to reflect claimant's entitlement to ongoing payments of permanent total disability compensation.

Accordingly, the administrative law judge's finding that claimant did not sustain a work-related back injury is affirmed. With regard to the work-related knee injury, the administrative law judge's finding that employer established the availability of suitable alternate employment is reversed, and the decision is modified to reflect claimant's entitlement to continuing permanent total disability compensation.

SO ORDERED.

BETTY JEAN HALL Chief Administrative Appeals Judge

ROY P. SMITH Administrative Appeals Judge

Read Case in full at :

http://www.dol.gov/brb/cases/lngshore /unpublished/Sept98/98-0155.HTM