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                                 BRB No. 00-1076
       
GEANETT A. TYLER                        )
                                             )
          Claimant-Petitioner                )
                                        )
     v.                                      ) 
                                             )
WASHINGTON METROPOLITAN            )    DATE ISSUED:   02/07/2001 
                                        
AREA TRANSIT AUTHORITY             )
                                             ) 
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER
          

     Appeal of the Decision and Order on Remand Granting Modification of
     Pamela Lakes Wood, Administrative Law Judge, United States Department of
     Labor.

     Geanett A. Tyler, Fort Washington, Maryland, pro se.

     Alan D. Sundburg (Friedlander, Misler, Sloan, Kletzkin & Ochsman, PLLC),
     Washington, D.C., for self-insured employer.   

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Decision and Order
on Remand Granting Modification (1985-DCW-0284) of Administrative Law Judge Pamela
Lakes Wood rendered on a claim filed pursuant to the provisions of the Longshore
and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(1982),  as extended by the District of Columbia Workmen's Compensation Act,
36 D.C. Code §501 et seq. (the Act).  In an appeal filed by a claimant
without representation, we will review the administrative law judge's decision to
determine if the findings of fact and conclusions of law are supported by
substantial evidence, are rational, and are in accordance with law. O'Keeffe v.
Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3); 20 C.F.R. §802.211(e).  If they are, they must be affirmed.

     This case in on appeal to the Board for the fourth time.  Claimant, a bus
driver, injured her abdomen and coccyx as a result of two work accidents in 1975
and 1976.  Employer voluntarily paid claimant temporary total disability benefits
from March 17, 1976, through November 3, 1976.  Claimant has never returned to
work.  In 1986, Administrative Law Judge Feldman denied claimant's claim for
permanent total disability benefits, finding that claimant did not establish a
causal relationship between her injuries and her work accidents.  

     In Tyler v. Washington Metropolitan Area Transit Authority, BRB No. 87-288 (Dec. 30, 1988)(unpub.), upon claimant's pro se appeal, the Board
affirmed Judge Feldman's denial, and subsequently denied claimant's motion for
reconsideration by order dated March 16, 1989.  Claimant appealed to the United
States Court of Appeals for the District of Columbia Circuit, and the court vacated
the denial of benefits and remanded the case for further consideration of whether
claimant's disability was work-related. Tyler v. Washington Metropolitan Area
Transit Authority, No. 89-1309 (D.C. Cir. Oct. 16, 1990)(per curiam).  In
February 1993, Judge Feldman found claimant's disabling condition to be work-related, and awarded claimant permanent partial disability benefits in the amount
of 30 percent of her average weekly wage.  

     In Tyler v. Washington Metropolitan Area Transit Authority, BRB No. 93-1646 (Nov. 26, 1993)(unpub.), upon claimant's pro se second appeal, the
Board modified the permanent partial disability award to one for permanent total
disability, and remanded the case for consideration of claimant's entitlement to
medical benefits pursuant to Section 7 of the Act, 33 U.S.C. §907.  In August
1994, Administrative Law Judge Rippey, to whom the case was reassigned, awarded
claimant medical benefits.  He did not, however, address employer's motion for
modification pursuant to Section 22 of the Act, 33 U.S.C. §922, filed in
February 1994 as it was not initiated before the district director.  Subsequently,
in 1996, employer re-filed its motion for modification, and Judge Rippey denied
employer's motion, finding the new evidence submitted insufficient to establish
either a change in claimant's condition or a mistake in fact.

     In Tyler v. Washington Metropolitan Area Transit Authority, BRB No. 96-1464 (Jun. 30, 1997)(unpub.), upon employer's appeal, the Board vacated Judge
Rippey's denial of employer's motion for modification, and remanded the case for
consideration of employer's newly submitted medical and vocational evidence. 
Specifically, the Board stated that the administrative law judge should reconsider Dr.
Collins's opinion regarding claimant's physical condition, and employer's evidence
of suitable alternate employment.[1]  
Subsequently, the Board summarily denied claimant's pro se motion for
reconsideration in an Order dated September 8, 1997.  Upon claimant's appeal, the
United States Court of Appeals for the District of Columbia Circuit granted
employer's motion to dismiss as the Board's 1997 remand order did not constitute
a final appealable order, and denied claimant's petitions for rehearing. Tyler
v. Director, OWCP, No. 98-1038 (D.C. Cir. May 1, 1998)(per curiam), pets.
for reh'g denied, July 10, 1998, and October 2, 1998.

     On remand, Administrative Law Judge Wood, to whom the case was reassigned, 
granted employer's motion for modification and modified claimant's award from
permanent total to permanent partial disability benefits effective May 19, 1994. 
The administrative law judge found that employer established a change in claimant's
economic condition.  Specifically, the administrative law judge found that although
claimant established her prima facie case of total disability, employer
established the availability of suitable alternate employment, and claimant did not
establish she was unable to obtain alternate employment despite a diligent search.

     In the instant appeal, claimant challenges the administrative law judge's
decision on remand modifying the award from total to partial disability benefits. 
Employer responds in support of the administrative law judge's decision granting
its motion for modification.  

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based on a mistake of fact in the initial decision or on a change in
claimant's physical or economic condition.[2]  
See Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1
(CRT)(1995); see also Metropolitan Stevedore Co. v. Rambo [Rambo II], 521
U.S. 121, 31 BRBS 54 (CRT)(1997); Vasquez v. Continental Maritime of San
Francisco, Inc., 23 BRBS 428 (1990).  The Board has held that an employer may
attempt to modify a total disability award to one for partial disability by
offering evidence establishing the availability of suitable alternate employment.
See, e.g., Delay v. Jones Washington Stevedoring Co., 31 BRBS 197, 204
(1998); Moore v. Washington Metropolitan Area Transit Authority, 23 BRBS 49,
52 (1989); Blake v. Ceres, Inc., 19 BRBS 219 (1987).  Once, as here,
claimant establishes her inability to perform her usual work, the burden shifts to
employer to establish the availability of suitable alternate employment by
identifying jobs which claimant is  capable of performing given her age, education,
vocational background and physical restrictions. See McBride v. Eastman
Kodak Co., 844 F.2d 797, 21 BRBS 45 (CRT)(D.C. Cir. 1988); Crum v. General
Adjustment Bureau, 738 F.2d 474, 16 BRBS 115 (CRT)(D.C. Cir. 1984).  A claimant
may retain her entitlement to total disability benefits by demonstrating she
diligently, yet unsuccessfully, tried to obtain alternate work of the general  type
shown by employer to be suitable and available. Palombo v. Director, OWCP,
937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir. 1991).

     In the instant case, employer requested  modification based on a labor market
survey performed by Mr. Brown, its vocational expert, in response to new medical
evidence submitted by both employer and claimant.[3]   Mr. Brown identified jobs as hostess, cashier, dispatcher,
switchboard operator, and greeter as suitable for claimant given the most recent
physical restrictions imposed by Dr. Azer.  Emp. Ex. 6; 2 Cl. Ex. 3; 1994 Tr. at
53-55.  The administrative law judge discussed and weighed the testimony and labor
market surveys of Mr. Brown, along with the most recent physical restrictions
imposed by Dr. Azer, and rationally found that the positions identified in the May
19, 1994 labor market survey are suitable for claimant.[4]  See Rivera v. United Masonry, Inc., 24 BRBS 78 (1990),
aff'd, 948 F.2d 774, 25 BRBS 51 (CRT)(D.C. Cir. 1991); Lacey v. Raley's
Emergency Road Serv., 23 BRBS 432 (1990), aff'd mem., 946 F.2d 1565
(D.C. Cir. 1991); Decision and Order on Remand Granting Modification at 16; Emp.
Ex. 6; 2 Cl. Ex. 3; 1994 Tr. at 53-55.  Thus, as it is rational and supported by
substantial evidence,  we affirm the administrative law judge's finding that
employer established the availability of suitable alternate employment as of May
19, 1994.

     We also affirm the administrative law judge's finding that claimant failed to
establish diligence in pursuing alternate employment.  In order to defeat
employer's showing of the availability of suitable alternate employment, claimant
must establish that she diligently pursued alternate employment opportunities but
was unable to secure a position. See Palombo,  937 F.2d 70, 25 BRBS 1 (CRT);
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10
(CRT)(4th Cir. 1988).  In the instant case, the administrative law judge acted
within her discretion in finding that claimant did not diligently pursue alternate
employment as she found that claimant's actions have not reflected a diligent
search and as claimant appeared reluctant to accept any employment.[5]   See generally Wilson v. Dravo Corp., 22
BRBS 463 (1989)(Lawrence, J., dissenting); Dove v.  Southwest Marine of San
Francisco, Inc., 18 BRBS 139 (1986); Decision and Order on Remand Granting
Modification at 16-17; June 1986 Tr. at 49.  Thus, we affirm the administrative law
judge's finding that claimant did not establish that she diligently pursued
alternate employment as it is rational and supported by substantial evidence. 
Based on our affirmance of the administrative law judge's findings that employer
established the availability of suitable alternate employment on May 19, 1994, and
that claimant did not establish a diligent pursuit of alternate employment, we
affirm the administrative law judge's modification of claimant's benefits from
permanent total to permanent partial as of May 19, 1994.[6]   33 U.S.C. §922; Stevens v. Director, OWCP, 909 F.2d 1256,
23 BRBS 89 (CRT)(9th Cir. 1990), cert. denied, 498 U.S. 1073 (1991). 

     Accordingly, the administrative law judge's Decision and Order on Remand
Granting Modification is affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)The Board held that the administrative law judge erred in declining to address employer's evidence of suitable alternate employment solely because the evidence was devoid of the wages the jobs paid at the time of injury. The Board noted that under such circumstances it is appropriate to use the percentage change in the national average weekly wage to factor out inflation. See Richardson v. General Dynamics Corp., 23 BRBS 327 (1990). Back to Text
2)In a statement filed with the Board on August 11, 2000, claimant asserted that her award is final and, pursuant to the principle of res judicata, cannot be set aside. However, Section 22 displaces traditional concepts of finality such as res judicata. See, e.g., Hudson v. Southwestern Barge Fleet Services, Inc., 16 BRBS 367 (1984). Back to Text
3)Employer submitted the July 1993 and January 1994 opinion of Dr. Collins that claimant can return to her usual employment as a bus driver. Emp. Ex. 5. Claimant submitted the October 1993 opinion of Dr. Azer, her treating physician, who imposed permanent physical restrictions against bending, stooping, kneeling, squatting, pushing, pulling, lifting heavy objects, working at unprotected heights, prolonged sitting, and sitting on firm and hard surfaces. 2 Cl. Ex. 3. Back to Text
4)Mr. Brown performed a second labor market survey in 1995. Emp. Remand Ex. 4. Back to Text
5)Claimant testified that she has, "put in an application for like something mild. But basically just taking care of my three children is enough work in and of itself, with the coccyx that I have." June 1986 Tr. at 49. Moreover, the administrative law judge noted that claimant has refused to cooperate with employer's vocational expert since December 1993. Emp. Ex. 6; Emp. Remand Ex. 4. Back to Text
6)We need not address the administrative law judge's finding concerning claimant's post-injury wage-earning capacity, as this issue was decided in claimant's favor. 33 U.S.C. §908(h). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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