BRB No. 99-0966


PASCAL CAPPS                            )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
GENERAL DYNAMICS                        )    DATE ISSUED:   06/06/2000 
CORPORATION                             )    
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order-Awarding Benefits of David W. DiNardi,
     Administrative Law Judge, United States Department of Labor.

     Edward J. Murphy, Jr. (Murphy and Beane), Boston, Massachusetts, for
     self-insured employer.

     Before: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order-Awarding Benefits (98-LHC-1995/1996)
of Administrative Law Judge David W. DiNardi 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. (the Act).  We must affirm the findings of fact
and conclusions of law of the administrative law judge if they are supported by
substantial evidence, are rational and are in accordance with law. O'Keeffe v.
Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).

     Claimant, a shipfitter, was injured during the course of his employment on
September 16, 1992.  Claimant returned to work with employer on November 30, 1992,
with physical restrictions on his lifting and bending.  On January 6, 1995,
claimant was involved in a general economic layoff.  Claimant subsequently obtained
part-time work on his own initiative, and the parties stipulated that his residual
wage-earning capacity is $200 per week.
     Claimant sought disability benefits under the Act for the period following his
layoff.  In his decision, the administrative law judge found, inter alia,
that claimant was incapable of resuming his usual work as a shipfitter following
his September 16, 1992 injury, that claimant returned to work with employer on
November 30, 1992, and that the economic loss suffered by claimant following his
layoff on January 6, 1995, is the result of his work injury; thus, the
administrative law judge concluded that claimant was entitled to temporary total disability
compensation for the period of September 18, 1992 through November 29, 1992, and
temporary partial disability compensation from January 7, 1995, and continuing. 
See 33 U.S.C. §908(b), (e).  

     On appeal, employer challenges the administrative law judge's award of
benefits subsequent to November 29, 1992, contending that claimant failed to
establish a prima facie case of disability.  Claimant has not responded to
this appeal.

     It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v.
Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1985).  In order to establish
a prima facie case of total disability, claimant bears the burden of
establishing that he is unable to return to his usual work. See Blake v.
Bethlehem Steel Corp., 21 BRBS 49 (1988).  Once claimant demonstrates an
inability to return to his usual work, employer may prove that claimant is at most
partially disabled by establishing the availability of other jobs the claimant can
realistically secure and perform given his age, education, physical restrictions
and vocational history. New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  Employer may meet its burden by offering
an injured employee a light duty job at its facility which is tailored to the
employee's physical limitations, Darby v.  Ingalls Shipbuilding, Inc., 99
F.3d 685, 30 BRBS 93 (CRT) (5th Cir.  1996); Larsen v.  Goltten Marine Co.,
19 BRBS 54 (1986), so long as the job is necessary and claimant is capable of
performing it. Diosdado v. Newpark Shipbuilding & Repair Inc., 31 BRBS 70
(1997).

     For the reasons that follow, we affirm the administrative law judge's finding on
this issue.  After setting forth the testimony of both claimant and his medical providers following his September 16, 1992,
work injury, the administrative law judge concluded that, based upon the totality of the record, claimant
established that he could not return to work as a shipfitter. See Decision and Order at 20.  The record reflects that
following the September 16, 1992, work incident, claimant reported to employer's clinic and was placed on light duty with
the following restrictions: no repeated bending, twisting, overhead work, and no lifting greater than 20 pounds for five days.
See CXS 5A, 5B.  On September 18, 1992, claimant was treated at St. Joseph Hospital where he was advised to
avoid climbing, bending, stooping or lifting. See CXS 5C, 5D.  Dr. Fortuna, claimant's treating physician, thereafter
opined on November 20, 1992, that claimant could return to work on November 30, 1992, but would require help with
heavy lifting. See CX 5J.  On November 24, 1992, Dr. Greenberg examined claimant and opined that claimant
could return to work on November 30, 1992, with restrictions on no repeated bending and no lifting above 25 to 30 pounds
for a period of 3 to 4 weeks. See EX 13.   Consistent with this diagnosis, employer's clinic reported on November
30, 1992, that claimant could return to work with the restriction of no heavy lifting above 25 pounds for 3 weeks.
See CX 5I.

     In addressing his return to work on November 30, 1992, claimant testified that his employment duties pre-injury
as a shipfitter included the building of decks and bulkheads; claimant described this work as involving the fitting, grinding,
lifting and laying out of parts weighing in excess of 50 pounds. See Tr. at 45, 61-68.  Following his return to work
on November 30, 1992, however, claimant testified that the nature of his job changed significantly; specifically, claimant
stated that he was assigned primarily painting, sweeping, folk-lift driving, stock checking and small job fitting work in
acknowledgment of his back condition, asserting his supervisor was aware of this condition via employer's clinic's return
to work slip.[1]   See id. at 69-73.  In arriving at his
decision, the administrative law judge is entitled to weigh the credibility of all
witnesses and draw his own inferences from the evidence. Wheeler v. Interocean
Stevedoring, 21 BRBS 33 (1988).  In the instant case, the evidence of record,
including claimant's testimony,  regarding claimant's return to work on November
30, 1992, with restrictions is uncontroverted; accordingly, we affirm the
administrative law judge's finding that claimant was unable to return to his usual
employment duties with employer as that determination is rational and supported by
substantial evidence of record. See generally Manigault v. Stevens Shipping
Co., 22 BRBS 332 (1989).    

     Lastly, employer asserts that it is "noteworthy" that the administrative law
judge awarded claimant no benefits between November 30, 1992, the day on which claimant returned to work, and
January 6, 1996, the day of claimant's lay-off.  Where, as in the instant case, an employer  provides claimant with
a light duty job at its facility but then lays claimant off for economic reasons,
it cannot rely on that job to meet its burden of establishing suitable alternate
employment because it has made the alternate work unavailable. See Norfolk
Shipbuilding & Dry Dock Corp. v. Hord, 193 F.3d 797, 33 BRBS 170 (CRT)(4th Cir.
1999);  Edwards v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81 (CRT)(9th Cir.
1993), cert. denied, 114 S.Ct.  1539 (1994); Vasquez v. Continental
Maritime of San Francisco, Inc., 23 BRBS 428 (1990).  Thus, in the case at bar,
as employer provided claimant with a light duty position which resulted in no loss
of wage-earning capacity, claimant was not entitled to additional benefits under
the Act.  Upon his lay-off from the light duty job, however, claimant sustained a
work-related loss in wage-earning capacity.  Accordingly, the administrative law
judge's award of temporary partial disability compensation to claimant subsequent to claimant's layoff is in accordance
with law. 

     Accordingly, the administrative law judge's Decision and Order - Awarding Benefits
is affirmed.

     SO ORDERED.




                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

To Top of Document

Footnotes.
 1)Claimant conceded that on occasion he performed painting,
sweeping and folk-lift driving duties pre-injury; claimant testified, however, that
these duties became prevalent following his return to work in November 1992.
 Back to Text

To Top of Document