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                                  BRB No. 99-334

THOMAS BUNTING                          )
          Claimant-Respondent           )
       v.                               )
RAYTHEON ENGINEERS AND                  )
CONSTRUCTORS, INCORPORATED              )    DATE ISSUED:   12/15/1999
       and                              )
LIBERTY MUTUAL                          )
INSURANCE COMPANY                       )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.

     G. Chadd Mason (Mason Law Firm, P.L.C.), Fayetteville, Arkansas, for

     Kurt A. Gronau, Brian G. S. Choy, Glenn N. Taga (Gronau, Choy & Taga),
     Honolulu, Hawaii, for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH,  
     Administrative Appeals Judge, and NELSON, Acting Administrative Appeals


     Employer appeals the Decision and Order (97-LHC-2353) of Administrative Law
Judge Lee J. Romero, 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., as extended by the Defense Base Act, 42 U.S.C. §1651
et seq. (the Act).  We must affirm the administrative law judge's findings
of fact and conclusions of law if they are supported by substantial evidence, are
rational, and are in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe
v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
     Claimant worked for employer on the Johnston Atoll in the Pacific Ocean.  He
performed various jobs, including those in the chemical support facility, the
laundry and at the loading dock.  On January 28, 1994, claimant injured his back
during the course of his work.  After evaluations and treatment both in Hawaii and
on the mainland near his hometown in Arkansas, claimant returned to the Johnston
Atoll in June and July 1994 to attempt light duty work.  He was unable to perform
this work and returned to his home in Arkansas.  He has been unable to locate
alternate employment, with the exception of one job which lasted three months.

     The administrative law judge determined that claimant has two work-related
conditions.  He found that claimant's physical injury to his back resulted in a
permanent condition which reached maximum medical improvement on January 22, 1996. 
He also found that claimant's psychological condition, a depressive disorder, is
a temporary sequella of the work injury.  Further, the administrative law judge
concluded that claimant is unable to return to his former work due to his physical
condition and that employer failed to establish the availability of suitable
alternate employment; therefore, claimant is permanently totally disabled. 
Decision and Order at 33, 36, 38-39.  Thus, he awarded claimant temporary total
disability benefits from the date of injury until June 8, 1994, and from July 20,
1994, through January 22, 1996.  Thereafter, with the exception of the period from
October 16, 1997, through January 8, 1998, when claimant worked in temporary
employment and was entitled to permanent partial disability benefits, the
administrative law judge awarded claimant permanent total disability benefits.
Id. at 39, 42.  Additionally, he held employer liable for Section 10(f), 33
U.S.C. §910(f), adjustments, medical expenses, interest, and an attorney's
fee.  He also rejected employer's contention that claimant violated Section 31 of
the Act, 33 U.S.C. §931, and committed fraud by misrepresenting the nature and
extent of his disability. Id. at 41-42.  Employer appeals the administrative
law judge's decision.  Claimant responds, urging affirmance.

     Employer first contends the administrative law judge erred in awarding
permanent total disability benefits, as it argues there is evidence of suitable
alternate employment.[1]   Specifically, employer
argues that the record contains evidence of a light duty position at its facility
which claimant can perform, claimant's self-employment, and vocational evidence of
security guard and private investigatory work claimant can perform, as well as
evidence of a position claimant held as a construction supervisor.  We reject
employer's contention that this evidence establishes suitable alternate employment
for the following reasons.  First, the light duty position at employer's facility
was offered to and attempted by claimant in June and July of 1994.  Not only was
that light duty position available to him prior to the date his condition
reached maximum medical improvement, but the administrative law judge found that
claimant was unable to perform the job.  Consequently, as the administrative law
judge concluded, this position does not constitute suitable alternate employment.
Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir.

     Similarly, neither the vocational evidence nor the self-employment evidence
supports employer's assertion.  Although the record demonstrates that claimant took
and passed a private investigator's exam, the vocation rehabilitation counselor,
Mr. Wright, testified that claimant has not been successful in locating work in
that field.  Moreover, although Mr. Wright stated that claimant would be well-suited to supervising security guards because of his previous experience in law
enforcement, and that typically he could earn over $16,000 per year as a security
guard or security guard supervisor, Mr. Wright spoke of no particular job opening
and he noted that there has been nothing available in this field within claimant's
locale in recent months.  Tr. at 155-156, 158-159.  The administrative law judge
considered this evidence insufficient to establish suitable alternate employment,
as it is not specific and does not contain the precise nature and terms of
employment.  Decision and Order at 38.  The administrative law judge also appears
to have rejected the evidence of self-employment at claimant's emu farm, as
claimant testified that he and his brother have owned this farm for years and they
have yet to realize income from this venture, and claimant testified that his
brother performs most of the work.  Decision and Order at 6, 38; Tr. at 80-82. 
Thus, the administrative law judge properly found that this evidence also fails to
establish the availability of suitable alternate employment. Pietrunti v.
Director, OWCP, 119 F.3d 1035, 31 BRBS 89(CRT) (2d Cir. 1997) (list of physical
tasks a claimant can perform is not sufficient to demonstrate suitable alternate
employment); Bumble Bee Seafoods, 629 F.2d at 1327, 12 BRBS at 660 (specific
jobs must be identified to constitute suitable alternate employment); Sledge v.
Sealand Terminal, 14 BRBS 334 (1981), following remand, 16 BRBS 178
(1984) (self-employment may constitute suitable alternate employment if earnings
yielded are realistically representative of a wage-earning capacity).

     Employer also argues that claimant's work as a construction supervisor
constitutes evidence of the availability of suitable alternate employment. 
Claimant testified that he held this job for approximately three months.  His
friend hired him but told him that the position was temporary.  Nevertheless,
claimant accepted the work.  He was able to perform it, and he only stopped when
the work discontinued.  Tr. at 86-88.  We affirm the administrative law judge's
conclusion that this employment does not qualify as suitable alternate employment,
as employer failed to show that this work was "realistically and regularly
available" on the open market.[2]   Edwards v.
Director, OWCP, 999 F.2d 1374, 27 BRBS 81(CRT) (9th Cir. 1993), cert.
denied, 511 U.S. 1031 (1994).

     Finally, we reject employer's assertion that claimant committed fraud. 
Section 31 of the Act  provides that it is a felony to knowingly or willfully make
a false statement or representation in order to obtain benefits.  Employer argues
that claimant's assertions as to the nature and extent of his physical and
psychological conditions, as they relate to his work injury, have been
misrepresented.  It cites the statement of Dr. Runnels who opines that claimant may
be malingering.  Cl. Ex. 9.  However, questions of witness credibility are for the
administrative law judge as the trier-of-fact, Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963);
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961), and it is
solely within his discretion to accept or reject all or any part of any testimony
according to his judgment. Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I.
1969).  Moreover, the Board may not reweigh the evidence but may only inquire into
the existence of evidence to support the findings. Miffleton v. Briggs Ice Cream
Co., 12 BRBS 445 (1980), aff'd, No. 90-1870 (D.C. Cir. 1981).  In this
case, the administrative law judge discredited Dr. Runnels' opinion because it was
inconsistent with other evidence of record.  Decision and Order at 29-30, 35;
see Cl. Exs. 2, 11, 13.  The evidence credited by the administrative law
judge fully supports his conclusion that claimant has a physical condition and a
psychological condition, both of which are related to his work  injury.  The mere
existence of evidence in the record which may lead to a contrary conclusion does
not establish the commission of a fraud.  Therefore, we affirm the administrative
law judge's determination that employer's assertion of fraud is baseless.  33
U.S.C. §931(a); see generally Newport News Shipbuilding & Dry Dock Co. v.
Hall, 674 F.2d 248, 14 BRBS 641 (4th Cir. 1982).

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


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         MALCOLM  D. NELSON, Acting
                         Administrative Appeals Judge

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1)Employer does not dispute the finding that claimant cannot return to his usual employment. Back to Text
2)The administrative law judge properly awarded permanent partial disability benefits for this period. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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