9th Circuit Rules Pain May Qualify Longshoreman for Total Disability Benefits

A longshoreman who suffers severe pain may qualify for benefits under the Longshore and Harbor Workers’ Compensation Act even if he is physically able to perform his job duties, a federal appellate court ruled.

A panel of the 9th Circuit Court of Appeals in San Francisco reversed an administrative law judge’s finding that Anthony Jordan was not totally disabled because surveillance video had shown that he was able to work.

“We hold, as a matter of first impression, 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,” the panel said in an opinion written by Judge Frederic Block, a district court judge who was filling in on the appellate court.

Jordan worked as a longshoreman for SSA Terminals in Oakland, California. His primary job was to drive a tractor that pulled shipping containers around the port.

On Sept. 17, 2014, a crane lifted a container that had not been properly disconnected from Jordan’s tractor, pulling the tractor up with it with Jordan inside. When the container came loose, the tractor fell. Jordan suffered a compression fracture of his spine.

Jordan’s employer paid temporary total disability benefits from the date of the accident until April 13, 2016. Jordan petitioned for temporary total disability benefits from April 14, 2016 through March 27, 2018 — the day that Jordan underwent back surgery.

Jordan operated a landscaping business while he was recovering from his injuries. His employer hired private investigators who shot surveillance video showing Jordan lifting and carrying objects, doing pushups, tossing a baseball and bending.

Three physicians who were hired to perform independent medical examinations initially said that Jordan was temporarily totally disabled, but changed their opinion after viewing the surveillance videos. Jordan’s treating physician, however, said Jordan was totally disabled from his work as a longshoreman even though he was able to do landscaping work if he took breaks to rest his back.

Jordan testified that it is not impossible for him to work, but that working as a longshoreman caused him great pain that he could not endure for long periods of time. He said that he could do some tasks, such as mowing grass, but that mostly he supervised workers for his landscaping business and let them do the heavy labor.

An administrative law judge denied Jordan’s petition for temporary total disability benefits. The judge wrote that it was a difficult case that required the court to separate what is impossible from what is difficult. But the judge said the difference between the limitations that Jordan described and the activities that were shown in the surveillance videos was “striking, even to the untrained eye.”

Even so, the administrative law judge said Jordan’s complaints of pain were “not wildly improbable” and acknowledged that “a lazier person” than Jordan might have stayed home rather than working.

The Benefits Review Board affirmed that decision and Jordan appealed.

The 9th Circuit panel said that in previous decisions it and other circuits have ruled that pain can cause disability. In order to qualify for benefits, however, those complaints of pain must be credible.

The panel said the administrative law judge did not clearly say whether Jordan’s testimony was credible. The judge appeared to believe that a petitioner must establish that it is literally impossible for him to do his past work in order to qualify for benefits. That was an improperly high standard, the panel said.

“On remand, the ALJ must first determine whether Jordan’s complaints of pain were credible,” the panel concluded. “If so, then the ALJ must decide whether the pain described significantly affected Jordan’s ability to do his past work in the manner we have described in this opinion.”