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                                 BRB No. 91-1300 

BARBARA L. HARRELL                      )
          Claimant-Petitioner           )
     v.                                 )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   02/23/1995
AND DRY DOCK COMPANY                    )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative
     Law Judge, United States Department of Labor.

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

     Shannon T. Mason and Benjamin M. Mason (Mason & Mason), Newport News,
     Virginia, for self-insured employer.

     Before:  HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.


     Claimant appeals the Decision and Order denying benefits (90-LHC-951) of
Administrative Law Judge Daniel A. Sarno, 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.

     Claimant began working as a grinder for employer on July 11, 1977.  After
performing this work for six years, claimant developed carpal tunnel syndrome.  Dr.
Knauft performed surgery on both of claimant's hands and opined that she reached
maximum medical improvement on March 31, 1989, and was unable to perform her
previous work.  Dr. Knauft imposed restrictions regarding lifting, climbing,
crawling and repetitive grasping and assigned her a permanent impairment rating of
five percent to each arm. When claimant began experiencing problems with her hands,
she was transferred to employer's Material Reclamation Assembly (MRA) shop, a
facility for people who were injured and on work restrictions.  Claimant continued to work in the MRA shop until September
9, 1989, when employer informed her that there was no more work available for her. 
Tr. at 17.  In September 1989, employer referred claimant to a vocational
rehabilitation counselor, Carl Hanbury, to help her find work. Employer voluntarily
paid claimant for various periods of temporary total and temporary partial
disability from September 29, 1983, until April 8, 1990, and for permanent partial
disability from May 1, 1990, until October 22, 1990.  Cl. Ex. 1; Tr. at 19. 
Claimant, who has not worked since leaving employer's employ, sought permanent
total disability compensation under the Act.

     The administrative law judge denied the claim for permanent total disability
compensation, finding that although claimant could not return to her former
employment as a grinder, employer had identified suitable alternate employment
which claimant was capable of performing.  In addition, the administrative law
judge determined that claimant failed to establish due diligence in seeking
alternate employment.  Claimant appeals the denial of benefits.  Employer responds,
urging affirmance.

     On appeal, claimant initially contends that in denying her total disability
compensation, the administrative law judge erroneously found that the jobs
identified by employer's vocational counselor, which were located between fifteen
and forty miles from her home, were sufficient to meet employer's suitable
alternate employment burden. Claimant avers that inasmuch as she lives in a rural
area without public transportation and lacks other means of transportation,[1]  these job opportunities are not realistically
available to her and employer has failed to establish the availability of work in
the relevant geographic area in which she resides.   

     We reject claimant's argument. Once a claimant establishes that [s]he is
physically unable to return to [her] pre-injury employment, the burden shifts to
employer to demonstrate the availability of suitable alternate employment that
claimant is capable of performing. See New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also Lentz v.
Cottman Co., 852 F.2d 129, 21 BRBS 109 (CRT) (4th Cir. 1988).  The United
States Court of Appeals for the Fourth Circuit, in whose jurisdiction the instant
case arises, has held that employer must establish jobs available to claimant "in
the community in which [s]he lives." See v. Washington Metropolitan Area Transit
Authority, 36 F.3d 375, 381, 28 BRBS 96, 102 (CRT) (4th Cir. 1994).

     In concluding that employer met its burden of establishing the availability
of suitable alternate employment in this case, the administrative law judge
credited the testimony of Carl Hanbury, employer's vocational consultant.  After
evaluating claimant, Mr. Hanbury identified a number of positions located from two
to forty miles from claimant's home, which he felt claimant was capable of
performing with her background of two years of secretarial science classes in
college and her work restrictions.  The jobs identified included telemarketing
representative, sales clerk, dispatcher, cashier, glass blower, file clerk and
library assistant positions.  Tr. at 64, 66, 74.  In determining that employer
demonstrated the availability of suitable alternate work within the relevant
geographic area, the administrative law judge noted that several of these positions
were located close to claimant's home.  The administrative law judge specifically
identified employment opportunities available with The Limited, Leggett's, and
Things to Remember (Things Remembered) in Chesapeake Square Mall, cashier positions
at Wilco Food Mart, dispatcher and library assistant positions for the city of
Chesapeake and a file clerk position with Amanda Hoffler, as being located in
Chesapeake or within a close radius of claimant's residence.  Decision and Order
at 13-14.

     Claimant argues on appeal that the jobs identified at Chesapeake Square Mall,
located two miles from her house, are not sufficient to establish the availability
of suitable alternate employment because the mall was still under construction at
the time the jobs were identified.  We disagree.  Inasmuch as the record reflects
that the stores listed by the administrative law judge were scheduled to open in
Spring 1990, after the date of maximum medical improvement and prior to the January
28, 1991 hearing, it was not unreasonable for the administrative law judge to view
these positions as sufficient to meet employer's burden. See Trans-State
Dredging v. Tarner, 695 F.2d 508, 15 BRBS 60 (CRT)(4th Cir. 1982).  
     Claimant also argues that employer failed to establish the availability of
suitable alternate employment within the relevant geographic area because the
dispatcher job which employer identified was located 17 miles from her home and the
file clerk position was 30 miles away. While recognizing that these jobs were
located in Chesapeake, claimant points out that the City of Chesapeake is 353
square miles in size.  Claimant's geographic locality argument is without merit. 
The administrative law judge reasonably concluded, based on the testimony of Mr.
Hanbury, that suitable alternate work opportunities existed for claimant within a
reasonable proximity to her home.  Claimant argued below, as she does on appeal,
that her inability to travel to and from work constitutes a continuing disability
which precludes her from performing the alternate work identified.  The
administrative law judge, however, reasonably concluded that the alleged disability
was self-imposed and was not compensable.  Claimant is not unable to travel due to
the medical restrictions imposed by her injury.[2] 
 As the administrative law judge stated, while it is laudable that claimant has
provided transportation for her child, it is not employer's responsibility to
provide claimant with a substitute car to take her to work.  Inasmuch as the
testimony of Mr. Hanbury provides substantial evidence to support the
administrative law judge's finding that employer established the availability of
suitable alternate work within the relevant geographic area where claimant resides
and the transportation difficulties alleged by the claimant do not mandate a
contrary finding, we affirm this determination. See Newport News Shipbuilding
& Dry Dock Co. v. Tann, 841 F.2d 540, 543, 21 BRBS 10, 16 (CRT)(4th Cir.
1988)(employment located 20-25 miles from claimant's home is geographically
available where physical disability did not prevent him from driving that

     Claimant's assertion that the administrative law judge erred in finding that
she was not diligent in seeking suitable alternate employment is also without
merit. Once employer shows that suitable alternate employment exists, claimant can
still prevail if she demonstrates that she diligently tried and was unable to
secure such employment. See Tann, 841 F.2d at 542, 21 BRBS at 13 (CRT). 
Claimant argued below, as she does on appeal, that because she contacted 93
employers, she was reasonably diligent in attempting to secure alternate
employment.  While recognizing that claimant did report contacting 93 employers
during the approximately 68-week period subsequent to September 20, 1989, when she
registered with the Virginia Employment Commission for unemployment benefits, the
administrative law judge found that the weight of the relevant evidence supported
the notion that claimant was merely doing the minimum required for receiving
unemployment insurance. In concluding that claimant had not made a diligent effort
to obtain suitable alternate employment, the administrative law judge noted
initially that claimant had not been overly responsive to Mr. Hanbury's
suggestions.  Although Mr. Hanbury requested that claimant call him weekly to keep
him abreast of what she was doing, see Emp. Exs. 7(c),7(d), the
administrative law judge noted that claimant had not done so.  In addition, the
administrative law judge credited Mr. Hanbury's testimony that claimant canceled
numerous appointments and characterized the job application process as an
"aggravation."  Tr. at  67, 70, 85; Emp. Ex. 7(d).  

     The administrative law judge also determined that claimant failed to display
any flexibility in working with the vocational expert's leads.  He based this
conclusion on claimant's refusal to even consider many of the job leads because of
the distance, the type of work, or the pay involved.  Mr. Hanbury testified that
claimant refused to go to interviews because she did not feel it would be
worthwhile as her transportation problems would continue to plague her even if she
got the job.  Tr. at 71.  The administrative law judge also recognized that on a
few occasions Mr. Hanbury had set up interviews with claimant which she failed to
attend and that claimant failed to mail in applications which Mr. Hanbury sent to
her. See, e.g., Tr. at 76.  Claimant indicated that she would not
consider working as a cashier in a food market because she considered such work
unsafe, Tr. at 33, 88, or working with children because her nerves were not up to
it.  Tr. at 33, 51.  Finally, the administrative law judge concluded that claimant
had not adequately utilized the community services which Mr. Hanbury had informed
were available to her,  citing claimant's failure to register with the Southeastern
Virginia Job Training Administration[3]  and her
failure to go to the Virginia Employment Commission frequently enough to allow her
to check on the daily job listing changes made there in support of this finding.[4]   

     Under these circumstances, it cannot be said that the administrative law
judge's finding that claimant failed to demonstrate diligence in seeking employment
is unreasonable.  The administrative law judge essentially characterized claimant's
attempts at securing alternate employment as ineffective and haphazard, noting that
prior to going out to look for a job, claimant did not check the newspaper to see
who might be hiring, and did not consider whether a position would be within her
work restrictions.  Tr. at 26, 40.  The administrative law judge's finding that
claimant failed to exercise due diligence is rational and supported by substantial evidence, particularly the testimony of Mr. Hanbury. 
As claimant has failed to establish any reversible error made by the administrative
law judge in weighing the conflicting evidence and making credibility
determinations, we affirm this determination. See Uglesich v. Stevedoring
Services of America, 24 BRBS 180, 183 (1991).

     Accordingly, the Decision and Order of the administrative law judge is



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                         ROY P. SMITH
                         Administrative Appeals Judge


                         NANCY S. DOLDER
                         Administrative Appeals Judge

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1)Claimant and her husband owned two cars; her husband used one to commute to work in Norfolk, and her son used the other to attend school and work in Hampton. When claimant worked for employer, someone would drop her off and pick her up at a bus stop located two to three miles from her house, where she was picked up with other employees by a privately owned bus and transported to employer's place of business. Back to Text
2)Claimant cites Sampson v. F.M.C. Corp., 10 BRBS 929 (1979), and Kilsby v. Diamond M Drilling Co., 6 BRBS 114 (1977), aff'd sub nom. Diamond M Drilling Co. v. Marshall, 577 F.2d 1033, 8 BRBS 658 (5th Cir. 1978), in support of her argument that her inability to travel to and from work constitutes a disability. In Sampson, the Board, noting that although claimant's work opportunities were limited to hypothetical situations, expressed the opinion that based on physicians' testimony, due to claimant's continuing chest wall pain and angina attacks, claimant would be unable to drive the 130-mile per day round trip to Portland. In Kilsby, claimant also had a heart condition, and was advised not to drive to available jobs 65 and 200 miles away because of stress. In these cases, however, unlike the present case, it was the claimants' physical impairments which impeded their ability to travel to work rather than absence of a car. Back to Text
3)Mr. Hanbury had recommended that claimant register with this agency to receive a Job Training Partnership Act certification. The day that claimant went to register, however, the facility was temporarily closed. Mr. Hanbury testified that he apologized to claimant and attempted to reschedule a second appointment, but claimant was not receptive. Tr. at 76-77. Back to Text
4)Mr. Hanbury testified that although he had recommended that claimant go to the Virginia Employment Commission weekly to see what new job listings had been posted, when he followed up on this recommendation on several occasions, he was informed by claimant that it had been at least two weeks since she had last been there. Tr. at 61. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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