BRB No. 99-0146
DURWARD ANDERSON )
)
Claimant-Petitioner )
)
v. )
)
NEWPORT NEWS SHIPBUILDING ) DATE ISSUED: 10/07/1999
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Respondent )
) DECISION and ORDER
Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
Administrative Law Judge, United States Department of Labor.
Robert J. Macbeth, Jr. (Rutter, Walsh, Mills & Rutter, L.L.P.), Norfolk,
Virginia, for claimant.
Benjamin M. Mason (Mason & Mason), Newport News, Virginia, for self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order (97-LHC 2747) of
Administrative
Law Judge
Fletcher E.
Campbell, 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 general foreman, injured both knees when he slipped and fell on
oil residue on a ship floor. The parties stipulated that claimant is unable to
return to his pre-injury employment as a result of the work-related accident on
September 10, 1993. Employer voluntarily made various payments to claimant of
temporary partial and temporary total disability benefits. Claimant reached
maximum medical improvement with regard to his left knee on August 12, 1994, and
on May 22, 1996, with regard to his right knee, after surgeries performed by Dr.
Nevins on January 17, 1994, and February 14, 1996, respectively. Dr. Nevins
assigned claimant a permanent partial disability rating of 45 percent of each knee,
for which employer also voluntarily paid compensation. Thereafter, employer
assigned claimant to a desk job in its facility which claimant contended did not
constitute suitable alternate employment, alleging that he was working outside his
restrictions and only through employer's beneficence. Thus, claimant filed
a claim for permanent total disability benefits.
The administrative law judge found that claimant's light duty job in
employer's facility constituted suitable alternate employment, and he therefore
denied further benefits. On appeal, claimant challenges the administrative law
judge's finding that employer established suitable alternate employment, and
therefore erred in denying his claim for permanent total disability benefits.
Employer responds, urging affirmance.
Where, as here, it is undisputed that claimant is physically unable to return
to his pre-injury employment, the burden shifts to employer to demonstrate the
availability of suitable alternate employment that claimant is capable of
performing. In order to meet its burden, employer must demonstrate the
availability of realistic job opportunities within the geographic area where the
claimant resides, which the claimant, by virtue of his age, education, work
experience, and physical capacity and restrictions is capable of performing.
See v. Washington Metropolitan Area Transit Authority, 36 F.3d 375, 381, 28
BRBS 96, 102 (CRT)(4th Cir. 1994); Trans-State Dredging v. Benefits Review
Board, 731 F.2d 199, 16 BRBS 74 (CRT)(4th Cir. 1984). Employer may meet its
burden of showing suitable alternate employment by offering claimant a necessary
job which he can perform within its own facility. See Darby v. Ingalls
Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996); Darden v.
Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986).
Claimant's contention that administrative law judge erred in finding suitable
the desk job provided in the Double Eagle project is without merit. Dr. Nevins
imposed work restrictions which included prohibitions on standing or walking in
excess of 15 minutes, climbing one or more flights of stairs going to and/or from
the job site, and lifting more than 20 pounds and carrying such a weight 10 feet.
The administrative law judge rationally found that although claimant suffered some
pain at work, there is no evidence of record that claimant had to work outside
these restrictions. The administrative law judge specifically noted claimant's testimony
that he has no difficulty performing his job, Tr. at 42, and his supervisors'
testimony that the job is within his restrictions. The administrative law judge further
noted that to accommodate his restrictions, employer provided claimant with a
parking space near his building which claimant chose not to utilize. The
administrative law judge found further, contrary to claimant's testimony that he
cannot drive to work because it hurts his knees forcing him to take a bus, that Dr.
Nevins testified that claimant can and should drive to work.[1] Inasmuch as the administrative law judge's finding that the light
duty job is suitable for claimant is supported by substantial evidence, we affirm
this determination. See generally McCullough v. Marathon Letourneau Co., 22
BRBS 359 (1989); Darden, 18 BRBS at 224.
Next, we reject claimant's contention that his job is sheltered and is
provided only through the beneficence of employer, and that therefore he is
entitled to total disability benefits. The administrative law judge found that
although claimant, as a 37-year employee, believes his job involving structural
planning is demeaning, there is no evidence that employer created this job as a
charitable exercise. The administrative law judge rationally credited the
testimony of claimant's supervisor that the job is absolutely necessary, and
claimant's supervisors testified about his importance to the Double Eagle project
because of his experience with employer in structural planning. Mr. Butler
specifically testified that if claimant left employer he would need to be replaced
immediately, and even claimant acknowledged that someone would have to perform his
job if he left. Thus, the administrative law judge conclusion that claimant is not
entitled to total disability benefits because he is not working at the beneficence
of employer is affirmed as it is supported by substantial evidence and in
accordance with law. See Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999);
Peele v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 133 (1987).
Finally, we reject claimant's contention that his present job duties force
him to work in excruciating pain such that he is entitled to permanent total
disability benefits. While the administrative law judge acknowledged that claimant
worked in some pain, the administrative law judge rationally found that neither
claimant's hearing testimony nor the deposition testimony of his doctor
demonstrated that claimant continued to work only due to claimant's extraordinary
efforts and through excruciating pain.[2] We
affirm this finding as supported by substantial evidence and in accordance with
law. See Haughton Elevator Co. v. Lewis, 572 F.2d 477, 7 BRBS 838 (CRT)
(4th Cir. 1978 ); Ezell, 33 BRBS at 26-27; Jordan v. Bethlehem Steel
Corp., 19 BRBS 82 (1986). Therefore, we affirm the administrative law judge's
finding that employer established the availability of suitable alternate
employment, and the consequent denial of permanent total disability benefits.
Accordingly, the administrative law judge's Decision and Order denying
permanent total disability benefits 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) 1The administrative law judge noted that on one occasion
claimant had to descend 40 steps to exit his building when the elevator was locked.
The administrative law judge noted further that this isolated incident did not
violate Dr. Nevins's restrictions because the prohibition was against climbing
stairs, not descending them.
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2) 2The administrative noted that claimant never used the
term "excruciating pain," nor did he provide evidence of the intensity of his
pain, although he testified that "he hurt all the time."
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NOTE: This is an UNPUBLISHED LHCA Document.
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