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                                 BRB No. 97-1324

WILLIAM D. LARK)                         
                                        )
          Claimant-Respondent           )    DATE ISSUED:   06/24/1998    
 
                                        )
     v.                                 )
                                        )
DEYTEN SHIPYARDS,                       )
INCORPORATED                            )
                                        )    
          Self-Insured                  )
          Employer-Petitioner           )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
 OF LABOR                               )         
                                        )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of  the Decision and Order Awarding Benefits and Order Denying
     Employer's Motion for Reconsideration of Thomas M. Burke, 
     Administrative Law Judge, United States Department of Labor.

     Thomas M. White (Steinberg Law Firm), Goose Creek, South Carolina, for
     claimant.

     Elizabeth B. Luzuriaga (Young, Clement, Rivers & Tisdale, L.L.P),
     Charleston, South Carolina, for self-insured employer.
     
     Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer  appeals the Decision and Order Awarding Benefits and Order Denying
Employer's Motion for Reconsideration of Administrative Law Judge Thomas M. Burke
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).

     On April 5, 1993, claimant, a shipfitter welder, injured his back while
working for employer.  After undergoing L3-L4 fusion surgery with insertion of 
pedicle screws bilaterally on October 6, 1993, and  a second surgical procedure to
remove the screws on October 13, 1993,  claimant  returned to work for employer in
a light duty capacity on February 13, 1994. Thereafter, the shipyard reassigned
claimant to a permanent light duty position as a modified tool room attendant. 
Employer voluntarily paid claimant temporary total and temporary partial disability
compensation for various periods.  Claimant  sought additional temporary total and
permanent total disability compensation, alleging that the tool room attendant job
which employer provided at its facility exceeded his restrictions, and that he
continued to perform this job in pain and only through extraordinary effort because
he needed to work to support his family.[1] 

     After noting that it was undisputed that claimant  could not perform his 
usual work, the administrative law judge found that the modified tool room
attendant position did not constitute suitable alternate employment.[2]   The administrative law judge determined,
however, that as claimant had actually been earning his full wages, although
working outside his restrictions and at the cost of excessive pain, employer 
should not be required to pay claimant total disability compensation  in addition
to those wages.  Accordingly, he held that claimant's  award of permanent total
disability compensation was to commence as of the time that he  ceased working as
a tool room attendant. Employer's motion for reconsideration  was denied by Order
dated May 6, 1997.

     On appeal, employer argues that the administrative law judge erred in awarding
claimant permanent total disability compensation  because it  provided claimant
with a  suitable light duty job as a modified tool room attendant at its facility,
where claimant consistently earned higher wages than he had pre-injury and
performed substantial overtime. In addition, employer argues that in entering a
prospective award which was to commence as of the time claimant stopped working as
a tool room attendant, the administrative law judge violated its procedural due
process right to a fair hearing regarding other suitable alternate employment
available on the open market or at its facility should claimant actually cease
working.  In this regard, employer  avers that because the administrative law judge
could not know claimant's  medical condition or the employment opportunities
available to him in a future market, the prospective award is speculative and
should be reversed.  Finally, employer contends that the administrative law judge
erred in finding that claimant's average weekly wage was $499.59 inasmuch as the 
parties stipulated  prior to the hearing that the applicable compensation rate was
$312.11 premised on an average weekly wage of $468.17, see ALJX-1; it asks
that the Board modify the administrative law judge's Decisions to properly reflect
the stipulated  $468.17 figure.  Claimant responds, urging affirmance. 

      Where, as here, a claimant is unable to perform his usual work duties, the
burden shifts to employer to establish the availability of suitable alternate
employment which the claimant is capable of performing. See Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10(CRT)(4th Cir.
1988).  Employer can meet this burden by providing claimant with a suitable job
performing necessary work at its facility.  See Darby v. Ingalls Shipbuilding,
Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996).

     Employer initially argues on appeal that the administrative law judge erred
in awarding claimant permanent total disability compensation because it met its
burden of establishing the availability of suitable alternate employment by
providing him with a suitable job as a tool room attendant performing necessary
work at its facility which he had successfully performed for a year and a half as
of the time of the hearing while earning approximately $200 more per week than he
had earned pre-injury.[3]   We reject this
contention.  In concluding that the modified tool attendant job was not suitable,
the administrative law judge  specifically considered and rejected employer's
contention that any work that claimant  performed outside of his physical
restrictions was done voluntarily, as employer  had instructed claimant to only
perform work within his physical restrictions and to report any problems to his
supervisors, and it had taken various appropriate corrective actions when
violations of claimant's lifting restrictions were brought to its attention in the
May 1996 South Carolina worker's compensation proceeding.

     In finding that despite employer's efforts to accommodate claimant's
restrictions the tool attendant job it provided was not suitable for claimant, the
administrative law judge specifically considered the testimony of Mr. Cain,
employer's safety manager. Upon  considering this testimony, however, he determined
that although employer could likely accommodate claimant's lifting restrictions
through the various procedures outlined by Mr. Cain whereby supervisors or other
workers would perform certain functions,  other demands of the job still precluded
employer from relying on it to meet its burden of establishing suitable alternate
employment.  Specifically, after noting that claimant's testimony that he is able
to stand for only about 15 to 20 minutes without experiencing severe back pain was
corroborated by the opinions of Drs. Brilliant, Schimenti, and Aymond, CXS 1, 2,
4, the administrative law judge credited this testimony.  Based on claimant's
testimony and Mr. Cain's concession that the tool room attendant cannot sit while
waiting on workers, the administrative law judge found that  the tool room
attendant position was  not suitable as it did not allow for claimant to alternate
sitting and standing at will.  The administrative law judge further determined that
although claimant might not have to lift over 15 pounds, he nonetheless provided
credible testimony reflecting that he must continually twist, stoop and squat to
retrieve tools, and must drop to his knees to retrieve an object from the floor. 
Claimant's credible testimony that at times he must stand for two hours while
checking out tools to people standing in line and  perform other activities in
violation of his restrictions in order to carry out his job responsibilities, in
conjunction with Mr. Cain's concession that the tool room attendant cannot sit
while working, provide substantial evidence to support the administrative law
judge's finding that the tool room attendant position provided by employer was not
suitable.  Inasmuch as employer has failed to establish any reversible error made
by the administrative law judge in evaluating the record evidence relevant to this
issue and making credibility determinations, we affirm this determination. See
Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962).[4]   As claimant established a prima facie
case of total disability and employer failed to demonstrate the availability of
suitable alternate employment, the administrative law judge's award of permanent
total disability compensation is affirmed.[5]  
See generally Uglesich v. Stevedoring Services of America, 24 BRBS 180
(1991).

     Employer's argument that the administrative law judge's prospective award
effectively deprives it of an opportunity for a fair hearing regarding other
suitable alternate employment available on the open market or at its facility
should claimant actually become disabled is also rejected.  While the prospective
award entered by the administrative law judge in this case is unusual, claimant has
not appealed the administrative law judge's finding that he is not entitled to
benefits while working and employer is not adversely affected by any delay in its
liability commencing.[6]   So long as claimant
works, employer is not liable for benefits.  Only after claimant stops working will
the award of permanent total disability compensation commence, and at that time,
by virtue of the change in claimant's economic condition, employer may introduce
evidence of suitable alternate employment  via a modification proceeding under 33
U.S.C. §922. See generally Metropolitan Stevedore Co. v. Rambo, 525
U.S. 291, 30 BRBS 1 (CRT)(1995).

     Finally, we address employer's arguments regarding the applicable average
weekly wage.  Employer correctly argues that stipulations which are accepted by the
administrative law judge are binding on the parties that make them. See
generally Phillips v. Marine Concrete Structures, Inc., 21 BRBS 233 (1988),
aff'd, 877 F.2d 1231, 22 BRBS 83(CRT)(5th Cir. 1989),vacated in part on
other grounds, 895 F.2d 1033, 23 BRBS 36 (CRT)(5th Cir. 1990)(en banc). 
Nonetheless, while employer urges that we  modify the administrative law judge's
Decision and Order consistent with the parties' stipulations in the present case 
to reflect an average weekly wage of $468.17, we decline to do so because  the
parties' stipulations are internally inconsistent.  In this regard, Number 13 of
the parties' stipulations lists the average weekly wage as $499.59, the figure
which the administrative law judge utilized in making his award of benefits and 
which claimant argues in his response brief was properly applied because it
coincides with the average weekly wage determination made in the South Carolina
proceeding, EX-10.  The record further reflects, however, that at the hearing, Tr.
at 12-14, and in Number 11 of the parties' stipulations, the parties also agreed
that the applicable compensation rate was $312.11, a figure which coincides with
the $468.17 average weekly wage figure which employer argues should be applied on
appeal.[7]   In light of the ambiguity inherent in
the parties' stipulations, we vacate the administrative law judge's average weekly
wage determination and remand for him to reconsider this issue, resolving the
conflict in the parties' stipulations.

     Accordingly, the administrative law judge's average weekly wage finding is
vacated and the case is remanded for additional consideration of this issue
consistent with this opinion.  In all other respects, his  Decision and Order
Awarding Benefits and Order Denying Employer's Motion for Reconsideration are
affirmed.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge


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Footnotes.


1)The parties stipulated that claimant reached maximum medical improvement on December 28, 1995. Back to Text
2)Claimant's restrictions are not in dispute. Dr. Aymond, the doctor who performed claimant's surgery opined that claimant was restricted to limited duty work involving no lifting greater than 15 lbs, and no repeated, bending lifting or twisting, which allowed for alternate sitting and standing at will. Dr. Schimenti, a consultant in neurology medical disability assessment, imposed essentially the same restrictions but indicated that claimant should avoid more than occasional bending and twisting activities, and stressed that he be allowed to alternate sitting and standing. Dr. Brillant opined that claimant is limited to sedentary work within the permanent restrictions imposed by Dr. Aymond. Back to Text
3)Employer argues that as the work at its facility was necessary, the administrative law judge erred in finding it was sheltered employment. However, as the administrative law judge did not determine that the tool room attendant job was sheltered employment, we need not address employer's argument in this regard that the job involved necessary work. Back to Text
4)Inasmuch as we affirm the administrative law judge's finding that the tool room attendant job at employer's facility did not constitute suitable alternate employment, we need not address employer's argument that because claimed earned higher wages performing this job than he did pre-injury, claimant failed to establish a loss in his wage-earning capacity. Back to Text
5)We also reject employer's argument that the facts in the present case are indistinguishable from those in Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996). In Darby, the United States Court of Appeals for the Fifth Circuit affirmed the Board's decision that claimant's post-injury assignment to a modified joiner position within employer's facility satisfied employer's burden of showing the availability of suitable alternate employment. In Darby, claimant was granted wide latitude to determine his physical capacity and had been instructed to report any conflicts between an assigned job task and his work restrictions to his supervisors. In the present case, the testimony of employer's safety officer, Mr. Cain, establishes that in light of the standing required, the tool room attendant job cannot be performed without violating claimant's restrictions. Moreover, in the present case, unlike Darby, the administrative law judge credited claimant's testimony that despite employer's purported willingness to accommodate claimant's restrictions, he was continuously required to work outside of his restrictions in carrying out his job responsibilities. Back to Text
6)Where claimant is working post-injury, he may nonetheless be entitled to disability benefits regardless of his actual earnings. A finding that claimant is working in pain and outside his medical restrictions can provide a basis for a permanent partial disability award based on a loss in wage-earning capacity despite higher actual earnings, as such earnings are not determinative of wage-earning capacity. See Container Stevedore Co. v. Director, OWCP, 935 F.2d 1544, 24 BRBS 213 (CRT)(9th Cir. 1991). Moreover, if claimant is working only due to extraordinary effort or the beneficence of his employer, he may receive total disability benefits while working. See Argonaut Ins. Co. v. Patterson, 846 F.2d 714, 21 BRBS 51 (CRT)(11th Cir. 1988); Haughton Elevator Co. v. Lewis, 572 F.2d 447, 7 BRBS 838 (4th Cir. 1978). Back to Text
7)We note that employer has attached a letter from the Department of Labor to its Petition for Review, which employer argues supports its position regarding the applicable average weekly wage. The Board, however, may not consider this document as it has no de novo review authority, and may only consider evidence which has been admitted into the formal record by the administrative law judge. See Williams v. Hunt Shipyards, Geosource, Inc., 17 BRBS 32 (1985). On remand, however, the administrative law judge may wish to reopen the record for introduction of this document. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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