Skip to page content
Benefits Review Board
Bookmark and Share


 

                                    BRB No. 91-1992

LEON HAMILTON                           )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )         DATE ISSUED:   02/24/1995
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )         DECISION and ORDER

     Appeal of the Decision and Order on Remand-Award of Benefits of Aaron
     Silverman, 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. 

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand-Award of Benefits (87-LHC-1115) of Administrative Law Judge Aaron Silverman 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 second time that this case has been before the Board.  Claimant
suffered the last of three work-related back injuries on July 18, 1984, while at
work as a machinist for employer, and he underwent a hemilaminectomy on August 15,
1984.  He returned to light-duty work with employer on August 19, 1985, but in
February 1986, claimant was "passed out" of employer's facility because no work was
available within his restrictions.  Thereafter, on March 21, 1986, claimant
underwent surgery for removal of residual fragments in the lumbar area, and he has
not worked since that time.  Employer paid claimant temporary total disability
benefits for various periods until March 4, 1987, and permanent partial disability
benefits from March 5, 1987 and continuing.  At the time of his injury, claimant's
average weekly wage was $445.79.  Claimant filed a claim for permanent total
disability benefits. 

     In his initial Decision and Order, the administrative law judge 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 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, the
administrative law judge awarded claimant permanent partial disability compensation
of $201.19 per week, stating that this 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 remanded the
case to the administrative law judge for further findings on the availability of
suitable alternate employment and declined to address claimant's objections to the
administrative law judge's due diligence findings until employer has established
the availability of suitable alternate employment.  

     Specifically, the Board held that the administrative law judge failed to
adequately discuss whether the security guard job at Lipscomb Security Agency
constitutes suitable alternate employment.  The Board noted that regardless of
whether the job was offered to claimant, employer has not met its burden of proving
suitable alternate employment unless it shows that claimant's criminal conviction
would not impede his ability to obtain this position.  The Board further noted that
the administrative law judge failed to specifically address whether claimant is
able to obtain any of the other security guard positions identified by employer
given his criminal conviction, or whether any of the other jobs identified by
employer, such as public information clerk, toll collector, traffic technician,
cashier, and facility attendant, constitute suitable alternate employment given
claimant's restrictions.  Finally, inasmuch as there was conflicting evidence as
to the hourly rate for the Lipscomb security guard position, and the administrative
law judge failed to explain his determination regarding claimant's post-injury
wage-earning capacity, on remand, the Board instructed the administrative law judge
to reconsider claimant's post-injury wage-earning capacity and fully explain his
findings.

     In his Decision and Order on Remand, the administrative law judge found,
without discussing any of the security guard positions, that employer established
the availability of suitable alternate employment based on the existence of five
jobs and specifically the position of Public Information Clerk for the City of
Virginia Beach.  The administrative law judge thus awarded claimant permanent
partial disability benefits based on the wages of the information clerk position,
which resulted in a lesser award of permanent partial disability.

     On appeal, claimant contends that the administrative law judge failed to
follow the Board's remand instructions, and did not address all of the evidence
relating to suitable alternate employment.  Employer responds, arguing that the
administrative law judge's Decision is supported by substantial evidence and should
be affirmed.

     Where, as in the instant case, claimant is unable to perform his usual
employment, claimant has established a prima facie case of total disability,
thus shifting the burden to employer to demonstrate the availability of suitable
alternate employment that claimant is capable of performing. Trans-State
Dredging v. Benefits Review Board, 731 F.2d 199, 16 BRBS 74 (CRT) (4th Cir.
1984); New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1032, 14
BRBS 156 (5th Cir. 1981).  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 v. The Cottman Co., 852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir.
1988). 

     Claimant's contentions have merit.  On remand, the administrative law judge
did not discuss claimant's ability to obtain any of the security guard jobs.[1]   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.  The
administrative law judge 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 set claimant's post-injury wage-earning capacity.

     As the administrative law judge properly found, some of the jobs identified
are within claimant's physical restrictions, inasmuch as Dr. Peach found them
appropriate for claimant.[2]   See generally Sketoe v. Dolphin
Titan International,   BRBS    , BRB Nos. 93-817/A (Sept. 15, 1994) (Smith, J.,
dissenting on other grounds).  Nonetheless, the administrative law judge did not
discuss the deposition testimony of the opposing vocational rehabilitation
counselors regarding whether these jobs are realistically available to claimant. 
Kenneth Vaughn, testifying on behalf of claimant, stated that he did not believe
that the information clerk or toll collector positions were realistically available
to claimant.  Dep. at Ex. 2.  Marc Cooper, employer's vocational counselor,
testified as to when the jobs in question were actually available and that claimant
could have realistically competed for these positions.  Emp. Ex. 22.  In
Lentz, 852 F.2d at  131, 21 BRBS at 112 (CRT), the Fourth Circuit stated
that it is employer's burden to identify a range of jobs that is reasonably
available and which the claimant can realistically secure.  As the administrative
law judge did not address this issue, we, therefore, must vacate the administrative
law judge's finding that employer established the availability of suitable
alternate employment.  On remand, the administrative law judge must consider
whether employer has met its burden under the standard set forth in Lentz,
discussing all relevant evidence and setting forth with specificity the evidence
he relies upon.[3]  See generally
Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988).  If the administrative
law judge relies on the security guard positions, he must discuss the availability
of the jobs in light of claimant's criminal conviction, as stated in the Board's
first decision. See Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21 BRBS
122 (CRT) (9th Cir. 1988).  If suitable alternate employment is established, then
the administrative law judge must consider if claimant is nonetheless entitled to
total disability benefits because he "diligently sought appropriate employment" but
was unable to secure it. Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540, 542, 21 BRBS 10, 13 (CRT)(4th Cir. 1988).                

     Accordingly, the administrative law judge's Decision and Order on Remand is
vacated, and the case is remanded to the administrative law judge for proceedings
consistent with this opinion.

     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)The administrative law judge stated only that claimant's criminal conviction may have caused a problem in obtaining these jobs, and he noted that claimant made no attempt to resolve his inability to obtain employment requiring registration with the state. Back to Text
2)These positions include a cashier for Papco, a facility attendant at a recreation center, public information clerk for Virginia Beach, toll collector, traffic technician, and security guard. Emp. Exs. 21, 25. Back to Text
3)The administrative law judge also must reconsider his finding regarding claimant's post-injury wage-earning capacity consistent with his findings on suitable alternate employment. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document