Skip to page content
Benefits Review Board
Bookmark and Share




                                   BRB No.  90-1261
  
EUGENE E. SHANER                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
SEALAND SERVICES                        )    DATE ISSUED:   02/21/1995
                                        )
     and                                )
                                        )
CRAWFORD & COMPANY                      )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Denying Benefits and Order Denying
     Petition for Reconsideration of Alexander Karst, Administrative Law
     Judge, United States Department of Labor.

     Mark C. Wagner, Tacoma, Washington, for claimant.

     Russell A. Metz (Witherspoon, Kelley, Davenport & Toole, P.S.), Seattle,
     Washington, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Benefits and Order Denying
Petition for Reconsideration  (88-LHC-3020) of Administrative Law Judge Alexander
Karst 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. 
We must affirm the findings of fact and conclusions of law of the administrative
law judge if they 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 October 2, 1985, claimant injured his right knee, shoulder and fifth finger
during the course of his employment as a loader/checker for employer.  Employer
voluntarily paid claimant temporary total disability compensation and medical
benefits under the Act. See 33 U.S.C. §§907, 908(b).  On January
12, 1987, claimant's treating physician approved his 
return to work with restrictions; specifically, claimant was advised to avoid
lifting more than 10 pounds above chest level.  EX 2 at 18.  Employer subsequently
contracted with Carolyn Prosser, a vocational consultant, to identify occupations
suitable for claimant and to conduct a labor market survey.  After an interview and
testing of claimant and a review of his medical file, Ms. Prosser identified a
number of specific job openings in March 1987, which she believed claimant was
capable of performing.  EX 7 at 35-42.  On June 30, 1987, claimant's treating
physician reviewed Ms. Prosser's labor market survey and approved, as within
claimant's work restrictions, twenty-two of the twenty-three specific job openings. 
EX 7 at 78-79.  Subsequently, on July 6, 1987, employer controverted claimant's
entitlement to additional benefits under the Act.  EX 1 at 4.  

     In his Decision and Order, the administrative law judge implicitly determined
that claimant is incapable of performing his usual employment duties with employer,
that claimant reached maximum medical improvement, and that employer has
established the availability of suitable alternate employment.  Accordingly, the
administrative law judge denied claimant's claim for permanent total disability
compensation.  Claimant's subsequent motion for reconsideration was summarily
denied by the administrative law judge.  

     On appeal, claimant contends that the administrative law judge erred in
failing to find that he is totally disabled as a result of his work-related
conditions.  Employer responds, urging affirmance.

     Initially, claimant contends that the administrative law judge erred in
failing to resolve all doubtful questions of fact in his favor.  We disagree. 
Subsequent to the filing of claimant's appeal, the United States Supreme Court has
held that the "true doubt rule" does not apply to cases under the Longshore Act
because it violates Section 7(c) of the Administrative Procedure Act, 5 U.S.C.
§556(d), which requires that the party seeking the award bear the burden of
persuasion.  Director, OWCP v. Greenwich Collieries, ___ U.S. ___, 114 S.Ct.
2251, 28 BRBS 43 (CRT) (1994).  Thus, we hold that the administrative law judge
committed no error in failing to resolve all doubtful questions of fact in
claimant's favor. 

     Claimant next contends that the administrative law judge erred in failing to
find that he is totally disabled as a result of his work-related conditions.  It
is well-settled that claimant bears the burden of establishing the nature and
extent of any disability sustained as a result of a work-related injury. See
Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  When claimant is unable
to return to his usual employment, as in the instant case, the burden shifts to
employer to demonstrate the availability of suitable alternate employment. See
Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir.
1980); see also Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS 122
(CRT)(9th Cir. 1988).  In order to meet this burden, employer must show that there
are jobs reasonably available in the geographic area where claimant resides, which
claimant is capable of performing. See generally  Southern v. Farmers Export
Co., 17 BRBS 64 (1985).  Employer must establish actual, not theoretical, job
opportunities; however, the employer need not actually obtain a job for claimant.
See Preziosi v. Controlled Industries, Inc., 22 BRBS 468 (1989).  The credible testimony of a vocational rehabilitation specialist
is sufficient to meet employer's burden of showing suitable alternate employment.
See Anderson v. Lockheed Shipbuilding and Construction Co.,    BRBS    , BRB
No. 91-1967 (Oct. 27, 1994).

     In the instant case, employer presented the testimony of Ms. Prosser, a
vocational counselor, who set forth twenty-three specific employment opportunities
which she found appropriate for claimant based upon claimant's age, education,
background, work experience and physical restrictions.  The administrative law
judge credited Ms. Prosser's testimony over the testimony of Mr. Owens, claimant's
vocational witness, who opined that claimant was unemployable, in concluding that
employer established the availability of jobs within claimant's physical
restrictions which claimant could secure if he diligently tried to obtain
employment.[1]   See Decision and Order at
4.  It is well-established that in arriving at his decision, the administrative law
judge is entitled to evaluate the credibility of all witnesses and to draw his own
inferences from the evidence.  See John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961).  Based upon the record before us, we cannot say that the
administrative law judge's credibility determinations are inherently incredible or
patently unreasonable. See generally Cordero v. Triple A Machine Shop, 580
F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). 
Accordingly, we affirm the administrative law judge's finding that employer has
established the availability of suitable alternate employment, as that
determination is supported by substantial evidence and is consistent with law.
See generally Bumble Bee Seafoods, 629 F.2d at 1327, 12 BRBS at 660;
Southern, 17 BRBS at 64.

     Accordingly, the administrative law judge's Decision and Order Denying
Benefits and Order Denying Petition for Reconsideration are affirmed.

     SO ORDERED.
               

                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge

               
                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge   

To Top of Document

Footnotes.


1)We note that Dr. Silver, claimant's treating physician, approved twenty-two of the twenty-three positions identified by Ms. Prosser as being within claimant's physical restrictions. See EX 7 at 79. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document