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                                 BRB No. 97-0620

LEON HAMILTON                           )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   01/27/1998

AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

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

     John H. Klein (Rutter & Montagna), Norfolk, Virginia, for claimant.

     James M. Mesnard (Seyfarth, Shaw, Fairweather & Geraldson), Washington,
     D.C., for self-insured employer.

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

     SMITH, Administrative Appeals Judge :

     Claimant appeals the Decision and Order (87-LHC-1115) of Administrative Law
Judge Edward J. Murty, 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).

     This is the third time this case has been before the Board.  On July 18, 1984,
claimant suffered the last of three job-related injuries to his back.  Following
treatment, surgery, and physical therapy, claimant returned to light duty work on
August 18, 1985, but was "passed out" in February 1986 because there was no work
available within his physical restrictions.  Employer paid claimant temporary total
disability benefits for various periods until March 4, 1987, when it began paying
permanent partial disability benefits on the basis that claimant retained some
residual wage-earning capacity.  Claimant filed a claim seeking permanent total
disability compensation.
     In the first Decision and Order, Administrative Law Judge Aaron Silverman
found  that claimant is unable to perform his usual employment, and that claimant
reached maximum medical improvement on July 24, 1986.  Next, the administrative law
judge found that the jobs identified by employer, including that of security guard,
were approved by Dr. Peach as within claimant's physical capacity and that
claimant's continued unemployment is due to a lack of diligence on his part. 
Finally, the administrative law judge found that claimant has a post-injury wage-earning capacity based upon the wages for the security  guard position.  Thus,
Judge Silverman awarded claimant permanent partial disability compensation of
$201.19 per week, stating that this amount represented the difference between
claimant's pre-injury wages and those that claimant could have earned as a security
guard.  Employer was awarded relief from continuing compensation liability pursuant
to Section 8(f) of the Act, 33 U.S.C. §908(f).

     Claimant appealed the denial of his claim for permanent total disability
benefits to the Board. Hamilton v. Newport News Shipbuilding & Dry Dock Co.,
BRB No. 88-2375 (June 29, 1990) (unpublished).  The Board vacated Judge Silverman's
finding that employer established the availability of suitable alternate employment
and remanded the case for further findings on the availability of suitable
alternate employment.  In rendering its decision, the Board determined that Judge
Silverman failed to  consider whether the security guard job proffered by employer
as suitable alternate employment met its burden in light of claimant's pre-existing
criminal conviction; moreover, the Board stated that Judge Silverman on remand
should specifically address the other identified positions by making findings
regarding the job duties and claimant's physical restrictions and, if necessary,
address claimant's due diligence in pursuing such positions. 

     In his Decision and Order on Remand, Judge Silverman did not discuss
claimant's ability to obtain any of the security guard jobs; rather, he summarily
stated that employer established the availability of suitable alternate employment
by identifying five jobs that are within claimant's physical restrictions as set
by Dr. Peach and that are appropriate given claimant's vocational and educational
background.  Judge Silverman specifically mentioned the job as a Public Information
Clerk for the City of Virginia Beach as being available to claimant, and he used
the wages of this position to determine claimant's post-injury wage-earning
capacity.  Claimant again appealed to the Board, contending that the administrative
law judge failed to follow the Board's remand instructions and did not address all
of the evidence relating to the issue of the availability of suitable alternate
employment. 

     In its second decision, the Board determined that Judge Silverman erred in not
discussing the impact of claimant's criminal record on the guard position as
instructed and in failing to address the contrary testimony of claimant's
vocational consultant regarding whether the other identified positions are
realistically available to claimant. Hamilton v. Newport News Shipbuilding & Dry
Dock Co., BRB No. 91-1992 (Feb. 24, 1995) (unpublished) (Hamilton II). 
The case was therefore remanded for Judge Silverman  to consider the availability
of suitable alternate employment consistent with Lentz v. The Cottman Co.,
852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988), by determining if employer had met
its burden by identifying a range of jobs within claimant's restrictions which
claimant could realistically secure.  Additionally, the Board stated that if the
security guard positions were to be relied upon, Judge Silverman was to discuss the
availability of these jobs in light of claimant's criminal conviction, and, if
necessary, consider claimant's diligence in seeking appropriate employment.

     On remand, Administrative Law Judge Murty (the administrative law judge)
presided over the claim and issued a decision based upon his review of the written
record and subsequently filed briefs.  In his Decision and Order, the
administrative law judge determined that employer had established the availability
of suitable alternate employment and awarded claimant permanent partial disability
compensation with a residual wage-earning capacity based on the wages paid in the
security guard position.

     On appeal, claimant contends that the administrative law judge erred by
failing to follow the Board's remand instructions, in placing too high a burden on
claimant regarding the availability of the security guard positions, in overlooking
the conflict of interests of employer's vocational consultant, and in demonstrating
obvious bias by finding, without sufficient explanation, that claimant did not
display due diligence in seeking suitable alternate employment.[1]   Employer responds, urging affirmance.

     Where, as in the instant case, a claimant is unable to perform his usual job,
claimant has established a prima facie case of total disability and the
burden then shifts to employer to demonstrate the availability of suitable
alternate employment that claimant is capable of performing. 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).  A showing by employer of a single job
opening is insufficient to satisfy employer's burden of suitable alternate
employment; employer must present evidence that a range of jobs exists which is
reasonably available and which the disabled employee is realistically able to
secure and perform. Lentz, 852 F.2d at 129, 21 BRBS at 109 (CRT); Bryant
v. Carolina Shipping Co., Inc., 25 BRBS 294 (1992).  If employer establishes
the availability of suitable alternate employment, claimant nevertheless can
prevail in his quest to establish total disability if he demonstrates that he
diligently tried and was unable to secure such employment. See Tann, 841
F.2d at 540, 21 BRBS at 10 (CRT); Hooe v. Todd Shipyards Corp., 21 BRBS 258
(1988).  Claimant's diligence in seeking employment is relevant only after employer
meets its burden of demonstrating suitable alternate employment. Id.
     We agree with claimant that the administrative law judge erred in failing to
comply with the Board's remand order. Section 802.405(a) of the regulations, 20
C.F.R. §802.405(a), governing the operation of the Benefits Review Board,
provides that "[w]here a case is remanded, such additional proceedings shall be
initiated and such other action shall be taken as is directed by the Board."  In
remanding the case for the second time, the Board specifically instructed the
administrative law judge to consider whether employer has met its burden under the
standard set forth in Lentz, to discuss all relevant evidence, and to set
forth with specificity the evidence he relies on.  Moreover, the Board stated that
if the administrative law judge on remand relies on the security guard positions
identified by employer as demonstrating the availability of suitable alternate
employment, he must discuss the availability of these jobs in light of claimant's
prior criminal conviction. See Hamilton II, slip op. at 4.  On remand,
however, the administrative law judge cursorily reviewed the evidence in this case,
determined that employer had established the availability of suitable alternate
employment without specifically addressing the positions at issue, awarded
permanent partial disability compensation based upon the wages paid in the security
guard position without fully addressing the evidence regarding whether claimant
could obtain a license for such a job, and relied on claimant's lack of diligence
in seeking employment in addressing suitable alternate employment. Thus, the
administrative law judge on remand erred by failing to follow the Board's directive
and the applicable case law. See Obert v. John T. Clark and Son of Maryland,
23 BRBS 157, 159 (1990).

     Initially, we note that the administrative law judge's decision does not
satisfy the requirements of the Administrative Procedure Act (APA) which requires
that every adjudicatory decision be accompanied by a statement of "findings and
conclusions, and the reasons or basis therefore, on all the material issues of
fact, law or discretion presented on the record." 5 U.S.C. §557(c)(3)(A).  An
administrative law judge must adequately detail the rationale behind his decision
and specify the evidence upon which he relied.  Ballesteros v. Willamette
Western Corp., 20 BRBS 184 (1988).  Furthermore, the administrative law judge
must independently analyze and discuss the evidence; failure to do so will violate
the APA's requirement for a reasoned analysis. See Williams v. Newport News
Shipbuilding & Dry Dock Co., 17 BRBS 61 (1985).  An administrative law judge's
failure to explicitly accept or reject the evidence of record makes it impossible
for the Board to apply its standard of review. 

     In the instant case, the administrative law judge on remand briefly summarized
the vocational evidence of record, noting that positions identified by Mr. Cooper,
employer's vocational consultant, were approved as within claimant's physical
restrictions by Dr. Peach, claimant's treating physician; that Mr. Vaughn,
claimant's vocational consultant, disputed the realistic availability of two of
these positions, i.e., information clerk and toll collector; that claimant
could have "easily" remedied any problems that prevented his obtaining the guard
position; and concluded, therefore, that employer had established the availability
of suitable alternate employment.  Although the administrative law judge concludes
that "there are jobs available...which [claimant] is able to perform and which are
within his physical capabilities," see Judge Murty's Decision at 3,  he did
not specifically discuss these jobs or state which of the proffered jobs actually
constitutes suitable alternate employment which is realistically available to
claimant.  Therefore, it is impossible for this Board to review his conclusion to
determine if it comports with the requirements of the Act.

     Moreover, in reaching these determinations, the administrative law judge
failed to make the findings required by the Board in its second decision on remand. 
In this regard, the administrative law judge failed to address the other specific
positions located by Mr. Cooper as instructed by the Board.  Although he cursorily
mentions the positions of public information clerk and toll collector, the
administrative law judge did not discuss the other positions of traffic technician,
cashier, and facility attendant which, if credited, could establish the
availability of  suitable alternate employment under the  standard set forth by the
United States Court of Appeals for the Fourth Circuit in Lentz.  The
administrative law judge failed to discuss the physical requirements of these jobs
or whether they were realistically available to claimant.  The administrative law
judge's failure to explicitly set forth and discuss and accept or reject these
positions makes it impossible for the Board to determine if the administrative law
judge properly found employer established the availability of suitable alternate
employment.[2]   See McCurley v. Kiewest
Co., 22 BRBS 115 (1989).

     The administrative law judge also summarily addressed the opinion of
claimant's vocational expert who found at least two of the positions, i.e,
public information clerk and toll collector, to be beyond claimant's physical
capabilities, apparently discrediting it without explanation.  The administrative
law judge stated that Mr. Vaugh was a qualified vocational expert and that he
opined that the commute involved in two job would be too much for claimant.  He
then found that Mr. Vaughn "reaches quite a bit" in eliminating the toll collector
position, see Judge Murty's Decision at 3, but failed to elucidate his
rationale for  disagreeing with this opinion.  Moreover, the administrative law
judge then stated Mr. Vaughn did not seem to dispute that  the "other jobs" are
within claimant's restrictions, but he did not thereafter address those other jobs. 
Although credibility determinations are within the purview of the administrative
law judge, the administrative law judge's discussion of Mr. Vaughn's opinion is
incomplete;  it does not explicitly reject the opinion, and it lacks a reasoned
explanation for an implicit rejection to be affirmed.  Thus, the case must again
be remanded for the administrative law judge to address this opinion.

     The administrative law judge also erred in his consideration of the effect of
claimant's criminal conviction on his employability, again failing to follow the
Board's directive that he reconsider the availability of security guard positions
in light of claimant's record.  The standard adopted by the United States Court of
Appeals for the Fourth Circuit, in which this case arises, requires that some
aspects of a claimant's background be considered in determining the availability
of suitable alternate employment. See generally Trans-State Dredging, 731
F.2d at 199, 16 BRBS at 74 (CRT).  A criminal conviction, like a limitation of
education or literacy, incurred before a claimant's injury which disqualifies a
claimant from obtaining a position, may render a position unavailable to claimant.
See Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122 (CRT)(9th
Cir. 1982).  In the instant case, the administrative law judge failed to follow the
Board's instruction to discuss whether employer specifically established that a
security guard position is realistically available to claimant.  Instead, after
noting that claimant was granted a temporary security guard license which  was
revoked on March 17, 1987, due to claimant's failure to disclose a criminal
conviction on his license application, the administrative law judge merely
recounted claimant's testimony that his lawyer told him the conviction should not
have been on his record and stated claimant creates the impression that the problem
could have been remedied had he made the effort, which he did not do.  The
administrative law judge concluded from this discussion that as a result of
claimant's inaction he deleted from consideration a large number of job
opportunities.

     This discussion is insufficient as it is not based on evidence as to whether
claimant could now obtain a security guard license, rendering such jobs available
to him.[3]   Moreover, the administrative law judge
placed the burden of proof on claimant to demonstrate his diligence in removing any
pre-existing impediments to his obtaining this position, when employer bears the
burden of proving the availability of alternate employment.  Finally, the
administrative law judge did not address the applicability of Hairston, as
directed by the Board.  If the administrative law judge had not relied on the
security guard job to establish suitable alternate employment, such a failure would
not be an error as the Board only instructed the administrative law judge to
discuss the applicability of Hairston if he relied upon the guard position
to meet employer's burden of establishing suitable alternate employment. See
Hamilton II, slip op. at 4. For a claimant's residual wage-earning capacity to
be based upon the wages of a proffered position, it must be found to constitute
suitable alternate employment.  See Mangaliman v. Lockheed Shipbuilding Co.,
30 BRBS 39 (1996).  In the instant case, as the administrative law judge did not
make the required findings to support a conclusion that the security guard jobs
constituted suitable alternate employment consistent with the Act and the Board's
instructions, the administrative law judge erred in subsequently using the wages
of this position to establish claimant's residual wage-earning capacity. 
Accordingly, we vacate his findings on claimant's residual wage-earning capacity.

     Based upon the foregoing, we find it necessary to once again remand this case
to the administrative law judge, as none of the opinions below contain reasoned and
thorough findings of fact and conclusions of law regarding the issue of whether
employer met its burden of establishing the availability of suitable alternate
employment.  In addressing this issue, we will state once again that, in order for
the administrative law judge to rely on the security guard positions identified by
employer, he must address the evidence regarding the realistic availability of
these jobs in light of claimant's pre-existing criminal record, as stated in the
Board's two prior decisions.  The administrative law judge should also address
employer's argument that Hairston is distinguishable as it is
misrepresentation on claimant's application, rather than the criminal conviction
itself, which caused claimant's licensing problem. See n.2, supra. 
Moreover, pursuant to Lentz, the administrative law judge must determine
whether employer met its burden of identifying a range of jobs that are reasonably
available and which claimant can realistically secure.  In this regard, the
administrative law judge must discuss all of the relevant evidence, specifically
addressing the jobs identified by the specialists and determining whether these
jobs are within claimant's medical restrictions and are suitable given his age,
education and similar considerations.  Once the suitable jobs are determined, the
administrative law judge must consider whether they are reasonably available,
stating his rationale and the evidence upon which he relies.  As employer bears the
burden of proof, claimant's diligence is not relevant until suitable alternate
employment is fully addressed.  If the administrative law judge finds employer met
its burden of proving available suitable alternate employment, then at that point
claimant's diligence in seeking employment should be addressed.

     Accordingly, the administrative law judge's determinations regarding the
availability of suitable alternate employment and claimant's residual wage-earning
capacity are vacated, and the case is remanded for further consideration of these
issues consistent with this opinion.

     SO ORDERED.

                                                                           

                              ROY P. SMITH
                              Administrative Appeals Judge


     I concur:                                                             
           
                              REGINA C. McGRANERY
                              Administrative Appeals Judge


     DOLDER, Administrative Appeals Judge, dissenting:

     I respectfully disagree with the decision of my colleagues that this case must
again be remanded for the administrative law judge to again review the evidence and
reconsider whether or not employer has established the availability of suitable
alternate employment.  Contrary to the majority's opinion that the administrative
law judge has failed to specifically consider and weigh the evidence consistent
with the Board's prior remand order, I would simply affirm the administrative law
judge's decision.  The administrative law judge specifically addressed the Board's
instructions regarding the suitability of the security guard's position, considered
the testimony of claimant and made findings of fact consistent with the Board's
remand order.  

     The Board's standard of review requires that the administrative law judge's
decision must be affirmed if there is a reasonable basis in the evidence for the
conclusions and it is consistent with applicable law. O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).  Moreover, the Board
in exercising its review authority is not free to disregard the findings of an
administrative law judge simply because other inferences with respect to the
evidence could be drawn. Director, OWCP v. Newport News Shipbuilding & Dry Dock
Co., 676 F.2d 110, 14 BRBS 716 (4th Cir. 1982). Thus, while the administrative
law judge's opinion is brief and not a model of clarity, I believe that the
decision adequately complied with the Board's remand order and as his ultimate
decision that suitable alternate employment had been established is supported by
substantial evidence  of record, I would affirm the decision.



                                                                           
      
                              NANCY S. DOLDER
                              Administrative Appeals Judge

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Footnotes.


1)Given our disposition of this case, it is not necessary for us to address claimant's arguments regarding claimant's due diligence in seeking employment or the administrative law judge's alleged bias. Back to Text
2)Contrary to our dissenting colleague's suggestion, we cannot affirm the administrative law judge's decision based on these jobs, as the Board is not empowered to render findings of fact and the administrative law judge did not discuss these jobs or rely upon them in setting claimant's wage-earning capacity. Back to Text
3)In arguing in support of the administrative law judge's decision, employer contends that Brooks v. Newport News Shipbuilding & Dry Dock Co., 2 F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993), in which the claimant lost a suitable alternate employment position because he falsified company records, is applicable to this case, not Hairston. Employer contends that the instant claimant could not obtain a security job because he lied on his state license application and that it is the lie, not the criminal conviction, that precludes such employment. Although employer's argument may have merit, we cannot address it due to the lack of relevant findings by the administrative law judge. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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