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                                 BRB No. 98-0784


ALFORD SANBORN                          )
                                        )         
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
HOLT CARGO SYSTEMS                      )    DATE ISSUED:   03/03/1999

                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER


     Appeal of the Decision and Order-Denying Benefits and Decision and Order
     Granting Reconsideration of Paul H. Teitler, Administrative Law Judge,
     United States Department of Labor.

     David M. Linker (Freedman and Lorry, P.C.), Philadelphia, Pennsylvania,
     for claimant.

     John K. McDonald (Cozen and O'Connor), Philadelphia, Pennsylvania, for
     self-insured employer.    
     
     Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.
     
     PER CURIAM:

     Claimant  appeals the Decision and Order-Denying Benefits and Decision and
Order Granting Reconsideration (97-LHC-0973) of Administrative Law Judge Paul H.
Teitler 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 which are rational, supported by substantial evidence and
in accordance with law. O'Keeffe v. Smith, Hinchman, & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3). 

     Claimant sustained a work-related, left ankle injury on April 9, 1996, when
he stepped into a hole.  He alleged that he aggravated a prior right hip injury in
this incident.  Although the administrative law judge found that claimant's ankle
injury healed completely, he found that claimant established his inability to
perform his usual employment, based solely on the work-related aggravation of the 
pre-existing hip injury. The administrative law judge found that employer
established suitable alternate  employment at its facility, and that claimant did
not sustain a loss in wage-earning capacity as the alternative positions paid wages
higher than claimant's average weekly wage.  Thus, the administrative law judge
denied claimant  partial disability benefits under Section 8(c)(21) and (e) of the
Act, 33 U.S.C. §908(c)(21), (e).  On reconsideration, the administrative law
judge awarded claimant medical benefits and an attorney's fee, but rejected his
contention that he is entitled to a de minimis award.  

     On appeal, claimant contends that the administrative law judge erred in
finding that  employer established the availability of suitable alternate
employment, and argues alternatively that the administrative law judge erred in
failing to order a de minimis award.  Employer responds in support of the
administrative law judge's decision.

     When, as here, a claimant establishes that he is unable to perform his usual
work, the burden shifts to employer to demonstrate the availability of realistic
job opportunities within the geographic area  where claimant resides which
claimant, by virtue of his age, education, work experience and physical
restrictions, is capable of performing. New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  Employer can meet its
burden by offering claimant a suitable job in its facility. Darby v. Ingalls
Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT) (5th Cir. 1996). 

     We reject claimant's contention that the administrative law judge erred in
assuming, without an evidentiary basis, that the four, light duty jobs employer
offered claimant by letter in October 1996 were available to claimant 40 hours per
week, and thus that claimant has not suffered a loss in wage-earning capacity.[1]   The administrative law judge found that employer
offered claimant the jobs of deckman-container operator, deckman-general cargo,
forklift or chisel operator, and wharfman, and he noted that specifications of  the
hours for these jobs were contained in the job analysis completed by the vocational
rehabilitation specialist.  EX 2, 3.  The administrative law judge found that the
deckman positions required that two employees work as a pair, that each relieved
the other after two hours, that the  work day was eight hours, and that overtime
was required.   Similarly, the administrative law judge found that the wharfman job
also specified that the job required eight hours a day with overtime.  The
administrative law judge then found that the job of forklift or chisel operator 
had the two hours on and two hours off structure, but did not require overtime. 
From this information, the administrative law judge rationally inferred that
claimant would be working at least 40 hours per week in these positions.  This 
determination is within the administrative law judge's discretion as the trier-of-fact. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 372 U.S. 954 (1963); John W. McGrath v. Hughes, 289
F.2d 403 (2nd Cir. 1961).  The administrative law judge next determined that the
positions identified by employer paid $20 per hour, and thus that claimant had a
post-injury wage-earning capacity of $800 per week, which exceeds claimant's
stipulated average weekly wage of $713.63. See generally Burkhardt v.  Bethlehem
Steel Corp., 23 BRBS 273 (1990).  Inasmuch as the administrative law
judge's findings are rational and supported by substantial evidence, we affirm the
administrative law judge's finding that employer established suitable alternate
employment, and that claimant did not sustain a loss in wage-earning capacity.
Darby, 99 F.3d at 685, 30 BRBS at 93 (CRT); Ward v.  Cascade General,
Inc., 31 BRBS 65 (1996).

     Claimant's alternative argument that he is entitled to a de minimis
award also is  without merit. De minimis awards are appropriate where
claimant has not established a present loss in wage-earning capacity under Section
8(c)(21) of the Act, 33 U.S.C. §908(c)(21), but has established that there is
a significant possibility of future economic harm as a result of the injury.
Metropolitan Stevedore Co. v. Rambo, 117 S.Ct. 1953, 31 BRBS 54 (CRT)(1997). 
In his decision on reconsideration, the administrative law judge found that the
record is devoid of evidence that claimant's hip injury will worsen or that
claimant will have difficulty locating employment with his condition.  Claimant's
brief  contains no discussion of the relevant evidence or allegation of specific
error  made by the administrative law judge.  Consequently, we reject claimant's
argument, as it is inadequately briefed. See 20 C.F.R. §802.211(b);
Shoemaker v. Schiavone & Sons, Inc., 20 BRBS 214 (1988). 

     Accordingly, the administrative law judge's denial of benefits is
affirmed.

     SO ORDERED.



                                                               
                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. MCGRANERY
                         Administrative Appeals Judge



                         

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Footnotes.


1)We affirm as unchallenged on appeal the administrative law judge's findings that claimant did not suffer a compensable injury to his ankle under the schedule as set forth in the Act, and that the four, light duty positions employer offered claimant were within his medical restrictions. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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