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                                  BRB No. 92-1985

DONNELL MAZYCK                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
CAROLINA SHIPPING COMPANY               )    DATE ISSUED:   02/24/1995
                                        )
     and                                )
                                        )
NATIONAL UNION FIRE                     )
INSURANCE COMPANY                       )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order - Award of Benefits of Robert J. Shea, Administrative Law Judge, United States
     Department of Labor.

     Donnell Mazyck, Mt. Pleasant, South Carolina, pro se.

     Stephen E. Darling (Sinkler & Boyd, P.A.), Charleston, South Carolina, for employer/carrier.

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

     PER CURIAM:
     
     Claimant, representing himself, appeals the Decision and Order - Award of Benefits (89-LHC-3493) of Administrative
Law Judge Robert J. Shea 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).  In reviewing this pro se appeal, the Board will review
the administrative law judge's findings of fact and conclusions of law to determine whether 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); 20 C.F.R. §§802.211(e), 802.220.   

     Claimant sustained injuries to his back and neck, and pain in his legs, on April 18, 1988, when the container he was
hauling broke loose and struck the truck cab in which he was riding.  Claimant has only worked sporadically since the date
of his injury.  Employer voluntarily paid claimant temporary total disability compensation from April 19, 1988, until November
28, 1988.  33 U.S.C. §908(b).

     In his Decision and Order, the administrative law judge determined that claimant reached maximum medical improvement
on November 2, 1988, and that claimant could not return to his usual employment duties as a longshoreman with employer.  Next,
the administrative law judge determined that employer established the availability of suitable alternate employment paying
$250 per week, and thus awarded claimant temporary total disability compensation from April 19, 1988, through November 1,
1988, and permanent partial disability compensation thereafter based upon the difference between claimant's average weekly
wage at the time of his April 1988 injury and his post-injury wage-earning capacity of $250 per week.  Lastly, the
administrative law judge found that employer was entitled to relief from continuing compensation liability pursuant to
Section 8(f) of the Act, 33 U.S.C. §908(f).  

     On appeal, claimant, appearing without the assistance of counsel, challenges the administrative law judge's decision
on his claim.  Employer responds, urging affirmance of the administrative law judge's decision.

     Where, as in the instant case, it is uncontroverted that claimant cannot return to his usual employment, the burden
of proof shifts to employer to demonstrate the availability of suitable alternate employment. See Lentz v. The
Cottman Co., 852 F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988); Mills v. Marine Repair Serv., 21 BRBS 115 (1988),
modified on other grounds on recon., 22 BRBS 335 (1989).  In order to meet this burden, employer must show the
availability of a range of job opportunities within the geographic area where claimant resides which claimant, by virtue of
his age, education, work experience and physical restrictions, is capable of performing.  See Lentz, 852 F.2d at 129,
21 BRBS at 109 (CRT); Bryant v. Carolina Shipping Co., Inc., 25 BRBS 294 (1992).

     In the instant case, the administrative law judge implicitly credited the labor market survey and testimony of
Patricia Bell, employer's vocational rehabilitation specialist, in concluding that employer had established the availability
of suitable alternate employment.  Ms. Bell, who reviewed claimant's medical reports and interviewed claimant, identified
eight potential employment opportunities which she believed were within claimant's physical capabilities and restrictions.[1]   See Tr. at 64.  Although Ms. Bell testified that she took into consideration
claimant's restrictions, our review of the record reveals that Ms. Bell's labor market survey fails to describe the jobs set
forth as suitable for claimant; rather, that report lists only the position name along with the rate of pay associated with
the position. See EX 12. Moreover, the administrative law judge, in determining that claimant was capable of performing
the position of a concrete delivery driver, made no findings regarding claimant's physical restrictions and, thus, did not
compare claimant's restrictions with the requirements of the jobs identified by Ms. Bell.[2] 

     Although the administrative law judge specifically cited to the job of a concrete delivery driver, and he used the
wages of this position in setting claimant's post-injury wage-earning capacity, we hold that the administrative law judge's
failure to both determine claimant's physical restrictions and compare those restrictions to the positions identified by Ms.
Bell requires that we vacate his finding that employer established the availability of suitable alternate employment.  An
administrative law judge must determine claimant's physical restrictions based on the medical opinions of record and compare
those restrictions to the specific requirements of identified jobs. See Villasenor v. Marine Maintenance Industries,
Inc., 17 BRBS 99, aff'd on recon., 17 BRBS 160 (1985) (Ramsey, C.J., dissenting on other grounds).  Thus, in the
instant case, since the administrative law judge failed to determine the physical restrictions of claimant, we are unable
to apply our standard of review in order to determine whether the administrative law judge's decision to implicitly credit
Ms. Bell's testimony and report is supported by the medical evidence of record, since such fact-finding functions reside with
the administrative law judge. See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  Lastly, the Fourth Circuit,
in Lentz, 852 F.2d at 129, 21 BRBS at 109 (CRT), stated that it is employer's burden to identify a range of jobs that
are reasonably available and which the claimant can both realistically secure and perform.  We, therefore, vacate the
administrative law judge's finding that employer established the availability of suitable alternate employment, and we remand
the case for the administrative law judge to determine claimant's actual physical restrictions, to compare those restrictions
with the requirements of the positions identified by employer as constituting suitable alternate employment, and to determine
whether employer has met its burden under the standard set forth in Lentz. See generally Ballesteros v. Willamette
Western Corp., 20 BRBS 184 (1988).

     Should the administrative law judge find, on remand, that employer has established the availability of suitable
alternate employment, he must additionally reconsider the issue of claimant's post-injury wage-earning capacity.  In the
instant case, the administrative law judge, without explanation, used the position of concrete delivery driver, which in 1990
paid a wage of $250 per week, to determine claimant's post-injury wage-earning capacity.  In order to neutralize the effects
of inflation, however, the administrative law judge, when calculating claimant's post-injury wage-earning capacity, must
adjust the wages of the positions upon which he relied to find suitable alternate employment to the wage levels that those
jobs paid at the time of claimant's injury. See Cook v. Seattle Stevedore Co., 21 BRBS 4 (1988); Bethard v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 691 (1980).  Thus, we vacate the administrative law
judge's finding regarding claimant's post-injury wage-earning capacity; if, on remand, the administrative law judge
determines that employer has established the availability of suitable alternate employment, he must calculate claimant's
permanent partial disability award pursuant to the statutory scheme established in Section 8(c)(21) of the Act, 33 U.S.C.
§908(c)(21). See Cook, 21 BRBS at 4.

     Lastly, the administrative law judge in the instant case commenced claimant's permanent partial disability award on
November 2, 1988, the date claimant reached maximum medical improvement.  An award of permanent partial, rather than total,
disability, commences on the date employer establishes the availability of suitable alternate employment. See generally
Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS 69 (CRT)(D.C. Cir. 1990), rev'g Berkstresser v.
Washington Metropolitan Area Transit Authority, 22 BRBS 280 (1989) and 16 BRBS 231 (1984); Rinaldi v. General Dynamics
Corp., 25 BRBS 128 (1991), modifying on recon. BRB No. 88-1721 (January 29, 1991)(unpublished).  Thus, should the
administrative law judge on remand award claimant permanent partial disability benefits, the proper commencement date for
those benefits is the date employer established the availability of suitable alternate employment.

     Accordingly, the administrative law judge's award of permanent partial disability benefits is vacated, and the case
is remanded to the administrative law judge for reconsideration consistent with this opinion.  In all other respects, the
administrative law judge's Decision and Order is affirmed.

     SO ORDERED.




                                                                         
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge
                                   


                                                                         
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                         
                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.


1)Of the eight positions identified, six were for drivers, one was a cashier, and the last was a vertical blinds assembler. EX 12. Back to Text
2)We note that Dr. Arnold, claimant's treating physician, opined that claimant could return to work "as he was doing" on November 2, 1988, see EX 5; that claimant, on July 21, 1989, could perform light duty but "will need some lifting limitations," see CX 3; that claimant could perform light duty "as tolerated" on January 8, 1990, see CX 4; and, on March 12, 1991, that claimant could return to work but "[t]here are certain activities that he knows to avoid." EX 13. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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