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                                   BRB No. 92-1547

RENE M. DARBY                           )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )    DATE ISSUED:   02/24/1995
                                )
          Self-Insured                  )    
          Employer-Respondent           )    DECISION AND ORDER

     Appeal of the Decision and Order Awarding Additional Benefits of Kenneth
     A. Jennings, Administrative Law Judge, United States Department of
     Labor.

     Blewett W. Thomas, Gulfport, Mississippi, for claimant.

     Paul B. Howell (Franke, Rainey & Salloum), Gulfport, Mississippi, for
     self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Additional Benefits (91-LHC-49) of Administrative Law Judge Kenneth A. Jennings 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).  

     On September 24, 1987, claimant sustained injuries to his dominant left arm
and cervical spine when he fell down a flight of stairs while working for employer
as a joiner.  Subsequent to this injury, claimant underwent medical treatment,
including two myelograms and the transposition of his ulnar nerve in his left arm. 
Claimant's Exhibit 7; Employer's Exhibit 15.  Employer voluntarily paid claimant
temporary total disability benefits from September 26, 1987 until June 1, 1988, at
which time he returned to his previous position. Two weeks later, claimant was
informed that a layoff was planned for his department and that he could transfer
to the paint department.  Claimant accepted the transfer but subsequently determined that he could not do the work required; accordingly, he
transferred back to the joiner department where he was laid off due to a lack of
work.  Thereafter, he performed odd jobs until he was excused from work again on
April 7, 1989.

     During the summer of 1990, claimant underwent an independent medical
examination by Dr. William R. Bridges, a neurosurgeon, who opined that claimant had
reached maximum medical improvement and was capable of returning to full-time work
with certain restrictions.  In October 1990, the Department of Labor retained Joe
Walker, a certified vocational rehabilitation counselor, to monitor claimant's
progress in employer's return-to-work program. Employer voluntarily paid claimant
additional temporary total disability benefits through October 28, 1990, when
claimant returned to work for employer in a modified version of his prior position
as a joiner.  Claimant sought permanent total disability compensation under the
Act, contending that his post-injury position as a joiner did not constitute
suitable alternate employment.  33 U.S.C. §908(a).  Claimant also maintained
that he was entitled to additional medical benefits, an assessment under Section
14(e), 33 U.S.C. § 914(e), and an attorney's fee. See 33 U.S.C.
§928.

     In his Decision and Order Awarding Additional Benefits, the administrative law
judge noted that although employer did not contest the job-relatedness of
claimant's left arm and cervical spine injuries, claimant's alleged thoracic back
condition was not job-related.  The administrative law judge awarded claimant
permanent partial disability compensation for a 15 percent permanent impairment of
his left arm under Section 8(c)(1) of the schedule, 33 U.S.C. §908(c)(1), but
denied him compensation for his cervical neck injury under Section 8(c)(21) of the
Act, 33 U.S.C. §908(c)(21), finding that claimant's post-injury work for
employer was suitable and that claimant had not sustained any loss in his wage-earning capacity.  Additionally, the administrative law judge found that claimant's
average weekly wage was $411.20, that employer incorrectly recouped an alleged
overpayment when it reduced payments to claimant, and that employer was liable for
Section 14(e) penalties and interest.  Finally, the administrative law judge denied
claimant medical expenses for the services provided by Dr. Danielson, finding that
the treatment in question was unauthorized.

     Claimant appeals the denial of permanent total disability compensation,
arguing that the administrative law judge erred in finding that claimant's post-injury job with employer as a joiner constituted suitable alternate employment and
that claimant did not sustain any loss in his wage-earning capacity.  Employer
responds, urging that the administrative law judge's decision denying claimant
permanent total disability compensation be affirmed.

     To establish a prima facie case of total disability, claimant must show
that he cannot return to his regular or usual employment due to his work-related
injury.  Once claimant has established that he is physically unable to return to
his pre-injury employment, the burden shifts to his employer to demonstrate the
availability of suitable alternate employment that claimant is capable of
performing. See P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT)
(5th Cir. 1991).  In order to meet this burden, the employer must show that there
are jobs reasonably available in the geographic area where claimant resides which
claimant is capable of performing based upon his age, education, work experience,
and physical restrictions, and which he could realistically secure if he diligently
tried. See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14
BRBS 156 (5th Cir. 1981).  Employer can meet its burden of establishing suitable
alternate employment by supplying light duty work to claimant which is necessary
and which claimant is capable of performing.  See Darden v. Newport News
Shipbuilding & Dry Dock, 18 BRBS 224 (1986).  

     In the present case, as it is undisputed that claimant is no longer capable
of performing his usual employment, the burden shifted to employer to establish the
availability of suitable alternate employment. See Merrill v. Todd Pacific
Shipyards Corp., 25 BRBS 140 (1991); Dove v. Southwest Marine of San
Francisco, Inc., 18 BRBS 139 (1986).  Employer attempted to meet this burden
by providing claimant with a modified version of his former job as a joiner, a
position which claimant held at the time of the hearing.  After considering the
relevant evidence, the administrative law judge found that claimant's post-injury
job for employer as a joiner constituted suitable light duty work within the limits
imposed by claimant's physicians.

     After review of the Decision and Order Awarding Additional Benefits, we affirm
the administrative law judge's finding that employer met its suitable alternate
employment burden. In determining that the light duty joiner position at employer's
facility was suitable, the administrative law judge noted that Dr. Bridges, the
independent medical examiner who examined claimant on August 13, 1990, at the
request of the Department of Labor, assigned work restrictions of no lifting
greater than 35 pounds and no overhead work for longer than 20 minutes at a time.[1]   Claimant's Exhibit 12; Employer's Exhibit 23.
The administrative law judge further noted that on deposition, Dr. Danielson, a
neurologist who treated claimant primarily for his non-work-related thoracic back
pain, expressed agreement with these restrictions and stated that claimant could
work as a joiner provided that he was able to work within those limitations.  While
claimant asserted that he was continually forced to work beyond his limitations in
this job,[2]  an argument which he reiterates on
appeal, the administrative law judge reasonably found that any work performed
beyond his restrictions was of claimant's own choosing based on the testimony of
his supervisor, Carl Robinson, and that employer should not be penalized for
claimant's poor judgment.  Mr. Robinson testified that he understood claimant's
limitations, that work was available within those restrictions, and that claimant's
limitations did not pose a problem for him.  Mr. Robinson further stated that he
informed claimant that he was not to exceed those restrictions and that if a
problem arose he was to contact him, but he left it to claimant's discretion as to
the tasks he would perform.  Tr. at 113.[3]   

     In rejecting claimant's argument that this job was not suitable, the
administrative law judge noted that claimant admitted that Mr. Robinson informed
him of his expectation that claimant would work within his limitations and that Mr.
Walker, the vocational rehabilitation counselor retained by the Department of Labor
to monitor claimant's progress in employer's return-to-work program, corroborated
this conversation.[4]   Finally, the administrative
law judge noted that claimant's co-worker, Mr. Herring, also testified that
claimant told him that he should not perform some tasks but that he chose to do so
anyway, and inferred from the fact that claimant had been able to perform this job
successfully for approximately a year prior to the hearing that his injuries were
not as debilitating as he contends.  As the administrative law judge rationally
found based on the aforementioned evidence that, although claimant may have chosen
to perform duties outside of his restrictions employer had provided him with a
suitable light duty job which did not require that he do so, we affirm this
determination. 

     Claimant also maintains that this work does not meet employer's burden of
establishing suitable alternate employment because it is sheltered employment or,
alternatively, a job which employer specifically created for him.  We disagree. 
Inasmuch as the record reflects that the work which claimant was performing post-injury is necessary and that his job assignments are a part of the regular work
performed by his department, see  Transcript at 146-148; Claimant's Exhibit
15; Employer's Exhibit 25, this work cannot be said to constitute sheltered
employment. See Darden, 18 BRBS at 226; Kimmel v. Sun Shipbuilding & Dry
Dock Co., 14 BRBS 412 (1981).  While employer may have tailored the job duties
of the joiner position to accommodate claimant's physical restrictions, any time
light duty work is offered to an employee because he is physically or medically
incapable of performing his usual work, the light duty employment will necessarily
be tailored somewhat to the employee's physical limitations. Darden, 18 BRBS
at 226.[5]  
     We also reject claimant's assertion that employer cannot, in any event, meet
its suitable alternate employment burden by identifying a single job opening at it
facility where claimant would not be capable of obtaining comparable work in the
open market.  When an employer has met its burden of establishing suitable
alternate employment by offering claimant a job which claimant can perform within
its own enterprise, the employer is not also required to show that claimant can
earn wages in the open market. Darden, 18 BRBS at 227; Conover v. Sun
Shipbuilding & Dry Dock Co., 11 BRBS 675 (1979). 

     Finally, claimant argues that the administrative law judge erred in concluding
that he sustained no loss of wage-earning capacity based on his higher post-injury
earnings because employer failed to introduce any evidence as to what his post-injury job paid at the time of claimant's injury.  Pursuant to Section 8(c)(21) of
the Act, an award for permanent partial disability is based on the difference
between claimant's pre-injury average weekly wage and his post-injury wage-earning
capacity. Bass v. Broadway Maintenance, 28 BRBS 11 (1994); Cook v.
Seattle Stevedoring Co., 21 BRBS 4 (1988).    Although claimant correctly
asserts that Section 8(h) of the Act, 33 U.S.C. §908(h), requires that the
wage rates in effect for the post-injury job at the time of the injury be compared
with his pre-injury earnings to account for the effects of inflation, see
generally Richardson v. General Dynamics Corp., 23 BRBS 327, 330 (1990);
Bethard v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 691, 695 (1985), on the
facts presented there was no need for employer to introduce evidence as to what
claimant's post-injury job paid at the time of claimant's injury.  Where, as in the
present case, the administrative law judge finds that claimant's actual post-injury
earnings are representative of his post-injury wage-earning capacity, and claimant
has returned to work in the same department in the same job classification that he
held pre-injury and is earning higher earnings on the same union pay scale,
see Tr. 124-125, it is apparent that his post-injury job would have paid the
same wage that claimant was earning at the time of his injury and that he has
therefore sustained no economic disability.  Accordingly, the administrative law
judge's finding that claimant sustained no loss in his wage-earning capacity is
affirmed.  

     Accordingly, the administrative law judge's Decision and Order Awarding
Additional Benefits is affirmed.

     SO ORDERED.




                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge  



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge



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Footnotes.


1)Dr. Bridges also believed that it would be advantageous that claimant be placed in a position that did not involve constant neck and head motion. Back to Text
2)Claimant testified that he had to lift curtain plate which exceeded his restrictions, and that he routinely worked overhead for extended periods of time with no breaks. Tr. at 17, 19-20, 72. These statements were confirmed by Wayne Herring, who worked with claimant for one and one-half months prior to the hearing. Tr. at 99. Back to Text
3)Mr. Robinson also noted that claimant has potential for advancement, Tr. at 126, and that he had no complaints about claimant's performance. Tr. at 118. Back to Text
4)Mr. Walker also testified that he saw no contraindications to claimant's sustaining the work activities he was performing as a joiner in a modified capacity for employer. He also noted that claimant expressed confidence in Mr. Robinson's concern about safety factors, that claimant stated that he was working within capabilities and limitations, that claimant has an excellent relationship with Mr. Robinson, and that he had a good attendance record. Claimant's Exhibit 15; Employer's Exhibit 25 Back to Text
5)Although claimant cites Mason v. Bender Welding & Machine Co., 16 BRBS 307 (1984) and Mendez v. National Steel & Shipbuilding Co, 21 BRBS 22 (1988), these cases do not support claimant's position. In Mason, employer failed to establish suitable alternate employment by providing claimant with a job that clearly exceeded his restrictions whereas in the present case, employer has modified claimant's job duties to accommodate his limitations. In Mendez, the Board held that while a job in employer's facility may constitute suitable alternate employment, to do so that job must be actually available to claimant. 21 BRBS at 24. In the present case, claimant was successfully performing the alternate work for employer at the time of the hearing. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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