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                                  BRB No. 98-970


WILLIAM D. SMITH                        )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   03/18/1999   

                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative
     Law Judge, United States Department of Labor.

     Robert E. Walsh (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

     Jonathan H. Walker (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

     Before:  SMITH, BROWN and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order (97-LHC-300) of Administrative Law
Judge Daniel A. Sarno, Jr., 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, a former structural welder, suffers from right thoracic outlet
syndrome, carpal tunnel syndrome, and degenerative arthritis due to a work injury
which occurred on April 13, 1987.  Employer voluntarily paid claimant compensation
for various periods of time subsequent to the work accident.  Claimant sought
temporary total disability benefits for several days in September 1996, after being
"passed out" of his post-injury light duty job in employer's ring module shop.  On
those dates, no light duty work in employer's facility was available to claimant
because of a lack of material.[1]    The
administrative law judge denied claimant additional compensation as claimant failed
to establish his prima facie case of total disability.  Assuming,
arguendo, that claimant established his prima facie case of total
disability, the administrative law judge found that claimant nevertheless would not
be entitled to additional compensation for the "pass out" periods as employer
established the availability of suitable alternate employment.  

     Claimant's sole contention on appeal is that he is entitled to temporary total
disability compensation while he was "passed out" of his light duty position in
employer's facility on September 13, 16, 20, 23 and 24, 1996, as the administrative
law judge erred in determining that employer established the availability of
suitable alternate employment on these days.  Employer responds in support of the
administrative law judge's denial of additional benefits to claimant.

     In order to establish a prima facie case of total disability, claimant
must establish that he cannot perform his usual employment; claimant's usual
employment is that which he was performing at the time of the injury. Manigault
v.  Stevens Shipping Co., 22 BRBS 332, 333 (1989).  Where claimant has
established that he is unable to perform his usual employment duties due to a work-related injury, the burden shifts to employer to demonstrate the availability of
suitable alternate employment. See Universal Maritime Corp. v. Moore, 126
F.3d 256, 31 BRBS 119 (CRT)(4th Cir. 1997); Lentz v.  The Cottman Co., 852
F.2d 129, 21 BRBS 109 (CRT)(4th Cir.  1988); see also Newport News Shipbuilding
& Dry Dock Co.  v.  Tann, 841 F.2d 540, 21 BRBS 10 (CRT) (4th Cir. 1988);
Trans-State Dredging v.  Benefits Review Board, 731 F.2d 199, 16 BRBS 74
(CRT)(4th Cir.  1984).  Employer may meet this burden by offering claimant a light-duty position in its facility so long as the position is tailored to claimant's
physical restrictions, and the job is necessary and profitable to employer's
business. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93
(CRT)(5th Cir.  1996);   Peele v.  Newport News Shipbuilding & Dry Dock Co.,
20 BRBS 133 (1987); Darden v.  Newport News Shipbuilding & Dry Dock Co., 18
BRBS 224 (1986).  Where claimant is laid off from a suitable post-injury light duty
job within employer's control, for reasons unrelated to any actions on his part,
and demonstrates that he remains physically unable to perform his pre-injury job,
the burden remains with employer to show the availability of new suitable alternate
employment, if employer wishes to avoid liability for total disability. See
Vasquez v. Continental Maritime of San Francisco, Inc., 23 BRBS 428 (1990);
Wilson v.  Dravo Corp., 22 BRBS 463 (1989); Mendez v. National Steel &
Shipbuilding Co., 21 BRBS 22 (1988).

     In determining that claimant did not establish his prima facie case of
total disability, the administrative law judge noted the parties' agreement that
claimant cannot return to his former employment as a structural welder.  Decision
and Order at 4.  The administrative law judge found, however, that claimant did not
establish that it is because of his injury that he could not perform his pre-injury
employment during the periods at issue.  The administrative law judge reasoned that
even if claimant had been working at his pre-injury job, he still would have been
passed out for the periods at issue because all employees in claimant's former
department, the X-18 department, were "passed out" during these two periods.  

     We reverse the administrative law judge's finding that claimant did not
establish his prima facie case of total disability based on the parties'
stipulation, which the administrative law judge accepted, that on the dates at
issue, claimant was unable to perform his full pre-injury duties.  Decision and
Order at 2-4.  Because the parties agreed that claimant cannot return to his former
employment, it is irrelevant that had he not been injured, he still would have been
subjected to these two "pass outs."  Consequently, we address the administrative
law judge's finding that assuming, arguendo, that claimant established his
prima facie case of total disability, employer established the availability
of suitable alternate employment.   
     In determining that employer established suitable alternate employment and
thus that claimant is not entitled to additional compensation, the administrative
law judge relied on the Board's decision in Edwards v. Todd Shipyards Corp.,
25 BRBS 49 (1991), that "[t]he fact that claimant was laid off due to this work
force reduction did not impose upon the employer the responsibility of identifying
new suitable alternative employments, as an employer is not a long-term guarantor
of a claimant's employment."[2]   Decision and
Order at 4.  However, the Board's decision in Edwards was subsequently
reversed by the United States Court of Appeals for the Ninth Circuit in Edwards
v. Director, OWCP, 999 F.2d 1374, 27 BRBS 81 (CRT)(9th Cir. 1993), cert.
denied, 114 S.Ct. 1539 (1994), and moreover, that case involved available
alternate employment on the open market rather than light duty work at employer's
facility.[3]  

     In light of the Board's holding in Mendez, 21 BRBS at 22, and the
unpublished decision of the United States Court of Appeals for the Fourth Circuit
in Newport News Shipbuilding & Dry Dock Co. v. Cole, 120 F.3d 262 (Table),
No. 96-2535 (4th Cir. Aug. 12, 1997), the administrative law judge's finding that
employer established suitable alternate employment during the "pass out" periods
cannot stand.[4]   We agree with claimant that he
is entitled to temporary total disability compensation during the five day period
in which he was "passed out" of his light duty position with employer, as a "pass
out" is in effect a temporary layoff.  When, as here, claimant is unable to return
to his usual work, and employer withdraws light duty employment at its facility for
reasons unrelated to any misconduct on claimant's part, the burden to establish
suitable alternate employment remains with employer if its seeks to avoid liability
for total disability benefits. Mendez, 21 BRBS at 25.  In Mendez,
employer withdrew the opportunity for claimant to do light duty work in its
facility by laying off claimant with the result that suitable alternate employment
in employer's facility was no longer available.  The Board affirmed the
administrative law judge's finding that Mendez was totally disabled since the
claimant's light duty job with employer was no longer available and as employer did
not establish the availability of other suitable alternate employment.[5]   Mendez, 21 BRBS at 25.  

     In Cole, an administrative law judge, citing Mendez, awarded
claimant benefits during a period when her light-duty position with employer was
unavailable due to an economic layoff. See Cole v. Newport News Shipbuilding &
Dry Dock Co., 28 BRBS 621 (ALJ)(1994); Cl. Br. at 8; Emp. Br. at 13.  In
affirming the award of benefits to claimant, the Fourth Circuit specifically
discussed the Board's decision in Mendez and held, in accordance with that
decision, that in order for employer to carry its burden of establishing the
availability of suitable alternate employment, employer must demonstrate that a
suitable job exists.  Thus, in a situation where a light duty job which has been
given to claimant is no longer available due to an economic layoff, employer has
made that job unavailable and thus may not rely on that position to demonstrate
that a suitable alternate job exists. See Cole, slip op.  at 7.

     In the instant case, as in Mendez and Cole, light duty suitable
alternate employment at employer's facility became unavailable to claimant due to
a layoff, albeit temporarily, and employer did not attempt to demonstrate the
availability of additional suitable alternate employment opportunities to claimant
during the period of time that claimant's position was unavailable.  We therefore
hold that, as it is uncontroverted that employer failed to establish the
availability of suitable alternate employment during the periods of claimant's
"pass outs," claimant is entitled to temporary total disability compensation during
the periods of these "pass outs."[6]   See
Cole, slip op at 13-15;  Mendez, 21 BRBS at 22.  The administrative law
judge's denial of the claim for compensation during the periods of claimant's "pass
out" is therefore reversed, and his Decision and Order is modified to reflect
claimant's entitlement to temporary total disability compensation for the five days
in question. 

     Accordingly, the administrative law judge's denial of compensation during the
periods claimant was "passed out" of his light duty job at employer's facility is
reversed, and his Decision and Order is modified to reflect that claimant is
entitled to temporary total disability benefits during this period.  

     SO ORDERED.




                                                                   
                         ROY P.  SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F.  BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C.  McGRANERY
                         Administrative Appeals Judge





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Footnotes.


1)The "pass out" was made in accordance with the union contract, article 15, section 5, which allows employer to "pass out" employees for up to three shifts without pay where there is a lack of material or ship movement. Back to Text
2) Actually, the administrative law judge mistakenly cited Olsen v. Triple A Machine Shops, as the case appearing at 25 BRBS 49 (1991), but it is clear that the cite is attributable to the Board's Edwards case. Back to Text
3) In Edwards, the United States Court of Appeals for the Ninth Circuit held that claimant's 11 week job as a mechanical inspector for another employer from which he was laid off because of a reduction in force did not satisfy employer's burden of establishing the availability of suitable alternate employment. Edwards, 999 F.2d at 1375, 27 BRBS at 83 (CRT). The court, deferring to the Director's interpretation, reasoned that employer failed to carry its burden of establishing suitable alternate employment because the short-lived employment at the other employer was not "realistically and regularly available" to Edwards on the open market. Id. Back to Text
4) Pursuant to Local Rule 36(c) of the United States Court of Appeals for the Fourth Circuit, the citation of an unpublished decision "is disfavored. . . ." Nevertheless Local Rule 36(c) provides that an unpublished decision with precedential value may be cited in relation to a material issue in a case if there is no published opinion that would serve as well if all other parties are served with a copy of the decision. Both parties have cited to the administrative law judge's published Cole case, Cole v. Newport News Shipbuilding & Dry Dock Co., 28 BRBS 621 (ALJ)(1994), in their briefs, which was affirmed by the Fourth Circuit. It is likely that the parties have received a copy of the Fourth's Circuit's decision in Cole, as claimant's counsel in the instant case represented claimant Cole before the Fourth Circuit and as the employer in Cole is the same employer as here. Hence, as the Fourth Circuit's Cole case is factually indistinguishable from this case and there is no published Fourth Circuit decision specifically addressing the issue in question, it is consistent with the court's rule to cite it in this case. Back to Text
5) The holdings in the cases of Walker v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 133 (1980), Harrod v. Newport News Shipbuilding & Dry Dock Co., 12 BRBS 10 (1980), and Conover v. Sun Shipbuilding & Dry Dock Co., 11 BRBS 676 (1979), cited in employer's brief, are distinguishable from the holdings in Mendez and Cole as, in the former cases, claimants were discharged from their light duty jobs in employer's facility due to actions on their part. See Emp. Br. at 14, 15. Back to Text
6) Contrary to employer's contention that the "pass out" was a legitimate personnel action which is not compensable under the holding in Marino v. Navy Exchange, 20 BRBS 166 (1988), Marino is distinguishable from the instant case in that Marino involved the issue of whether the work injury was compensable. In the instant case, there is no dispute as to the compensability of claimant's work injury. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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