Skip to page content
Benefits Review Board
Bookmark and Share

                                  BRB No. 98-658

RICKY G. ADDISON                        )
          Claimant-Petitioner                )    DATE ISSUED:   01/27/1999

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

     Appeal of the Decision and Order - Denying Benefits of David W. Di
     Nardi, Administrative Law Judge, United States Department of Labor.

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

     Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, BROWN and McGRANERY,
     Administrative Appeals Judges.


     Claimant appeals the Decision and Order - Denying Benefits (96-LHC-2505) of
Administrative Law Judge David W. Di Nardi 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.

     Claimant injured both wrists on November 2, 1992, while working as a sheet
metal worker for employer, and subsequently underwent surgery for carpal tunnel
syndrome.   Employer voluntarily paid claimant various periods of temporary total
disability benefits as well as permanent partial disability benefits for a five
percent impairment to each  wrist.  On August 9, 1994, claimant's treating
physician, Dr. Gwathmey, imposed permanent restrictions on claimant of lifting no
more than 25 pounds, no use of pneumatic tools, and no heavy continuous use of his
hands.  As employer could not provide claimant with light duty work within these
restrictions, claimant was laid off from employer on September 23, 1994, and has
never returned to work.  After finding that claimant established his prima
facie case of total disability, the administrative law judge found that
employer established the availability of suitable alternate employment and that
claimant did not establish diligence in securing alternate employment.  The
administrative law judge thus found claimant limited to benefits under the schedule
for a five percent permanent partial impairment to each hand.  Consequently, the
administrative law judge denied claimant additional disability benefits.  
     On appeal, claimant challenges the administrative law judge's denial of
additional disability benefits.  Employer responds, urging affirmance of the
administrative law judge's decision.       

     We first address claimant's challenge to the administrative law judge's
finding that employer established suitable alternate employment.  Once, as here,
claimant establishes an inability to perform his longshore employment because of
a job-related injury, the burden shifts to employer to establish the availability
of other jobs that claimant could perform, i.e., 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).  The administrative law judge found that employer established
suitable alternate employment based on Mr. Klein's labor market survey which
identified ten positions that were available to claimant and that he could perform.
Decision and Order at 16-21; Emp. Ex. 7.  Arguably, seven of the ten positions do
not constitute suitable alternate employment.[1] 

     Any error in the administrative law judge's identification of the above seven
positions as suitable alternate employment, however, is harmless as Mr. Klein
identified three remaining positions which Dr. Gwathmey approved for claimant:  a
dispatcher at Jack's 24 Hour Wrecker Service, a food preparation person at
Community Alternatives, and a food service person at Chesapeake Service Systems. 
Emp. Ex. 7.  Although Ms. Edward's opinion regarding the suitability of each of
these jobs differed from that of Mr. Klein's opinion, Mr. Klein stated that
claimant would be considered for these jobs, which were within his work
restrictions and appropriate for one with his vocational and educational
background.  Cl. Exs. 13 at 10, 59, 72, 74-77, 14 at 21-24; 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).  As the administrative law judge acted within his
discretion in crediting Mr. Klein's opinion over the opinion of Ms. Edwards that
claimant is totally disabled and cannot return to any kind of work, and as Mr.
Klein and Dr. Gwathmey opined that these three jobs are suitable for claimant, we
affirm the administrative law judge's finding that employer established the
availability of suitable alternate employment as it is supported by substantial
evidence. Moore, 126 F.3d at 256, 31 BRBS at 119 (CRT); Sketoe v. Dolphin
Titan Int'l, 28 BRBS 212 (1994)(Smith, J., concurring and dissenting).  

     We also affirm the administrative law judge's finding that claimant failed to
establish diligence in pursuing alternate employment.  In order to defeat
employer's showing of suitable alternate employment, claimant must establish that
he diligently pursued alternate employment opportunities but was unable to secure
a position. Tann, 841 F.2d at 540, 21 BRBS at 10 (CRT); see also Palombo
v.  Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir.  1991).  The
administrative law judge rationally found that claimant did not diligently pursue
alternate employment as he did not credibly explain why he has been unable to
obtain even an interview with most of the firms he has contacted and as he
approached his job search negatively. See generally Wilson v. Dravo Corp.,
22 BRBS 463 (1989)(Lawrence, J., dissenting); Decision and Order at 6, 20; Cl. Ex.
9; Tr. at 37-43, 45-51.       
     Lastly, we affirm the administrative law judge's award of permanent partial
disability benefits for a five percent impairment to each hand and hence his denial
of additional permanent partial disability benefits to claimant.  Contrary to
claimant's contention, he is limited to a recovery based on his medical
impairment and any loss in wage-earning capacity is not factored into his
award under the schedule. Gilchrist v. Newport News Shipbuilding & Dry
Dock Co., 135 F.3d 915, 32 BRBS 15 (CRT)(4th Cir. 1998).

     Accordingly, the administrative law judge's Decision and Order - Denying
Benefits is affirmed     


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document


1) Although the administrative law judge found that all ten positions identified by Mr. Klein constituted suitable alternate employment, seven of the ten positions including interviewer, security guard, cashier, maintenance person, marine dispatcher, and food preparation person at Dam Neck Galley may not be suitable: the interviewer position was withdrawn post-hearing by employer; employer conceded that claimant would not be hired as a security guard due to his drunk driving conviction and the remaining jobs may exceed claimant's physical restrictions. See Piunti v. ITO Corp. of Baltimore, 23 BRBS 367 (1990); Cl. Exs. 7, 13; Emp. Exs. 7, 8; Emp. Br. at 15 n. 9, 36; Cl. Br. at 45. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document