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                                  BRB Nos. 92-2092
                      
MARCUS JOB                              )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
GENERAL DYNAMICS                        )
CORPORATION                             )    DATE ISSUED:   03/21/1995
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER
                            
     Appeal of the Decision and Order Awarding Benefits and Decision and
     Order On Petition For Reconsideration of Martin J. Dolan, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Mark W. Oberlatz (O'Brien, Shafner, Stuart, Kelly & Morris, P.C.),
     Groton, Connecticut, for claimant.

     Edward J. Murphy, Jr. (Murphy & Beane), Boston, Massachusetts, for the
     self-insured employer.
     
     Before: SMITH, BROWN, and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Benefits and Decision and
Order On Petition For Reconsideration (91-LHC-711, 91-LHC-712) of Administrative
Law Judge Martin J. Dolan, 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. §921(b)(3).

     On July 22, 1987, claimant, who had suffered prior back and leg injuries, re-injured his lower back while working for employer as a carpenter. The injury
occurred as claimant was attempting to lift a piece of plywood. Thereafter,
employer provided claimant with a light duty cabinetmaker job within its facility
which claimant continued to perform until July 1, 1988, when his union went on
strike.  Several days after the strike began, claimant obtained light duty work
with White Oak Construction Company. Claimant continued to perform this work until October 28, 1988, when he sought a job with employer upon
learning that employer was rehiring the striking workers.  Claimant was not rehired
by employer, and returned to work with White Oak on February 14, 1989. He continued
to work there until July 14, 1989, when he was laid off due to a lack of available
light duty work.  Claimant thereafter worked for Gilles Dube, constructing cabinets
on a bench until August 18, 1989, when he was again laid off.  Claimant, who has
not been gainfully employed since that time, sought permanent partial and permanent
total disability compensation under the Act. 

     The administrative law judge found that although claimant was unable
to perform his usual work as a carpenter, employer had satisfied its burden of
establishing the availability of suitable alternate employment through a labor
market survey performed by Ms. Hilary Bradshaw, its vocational expert, on January
19, 1989, identifying bench assembler and machine operator positions.  The
administrative law judge noted the requirements of these jobs were consistent with
the light duty restrictions recognized by employer's expert, Dr. Joseph P.
Zeppieri, who found that claimant could perform light bench work if he could
periodically get up and walk around, if it did not require lifting more than 40
pounds,  lifting from floor level, bending, crawling, climbing up and down ladders,
or working around uncontained machinery.  The administrative law judge further
noted that Dr. Hong, claimant's internist, had imposed essentially the same
restrictions as those outlined by Dr. Zeppieri, except that Dr. Hong felt that
claimant could lift up to 50 pounds.[1]   Crediting
Dr. Zeppieri's opinion that maximum medical improvement was reached in September
1988, the administrative law judge awarded claimant permanent total disability
benefits from October 29, 1988, the date he was laid off by White Oak Construction,
until January 19, 1989, the date of Ms. Bradshaw's labor market survey.  In
addition, the administrative law judge awarded claimant permanent partial
disability benefits from January 20, 1989 until February 8, 1989, when he returned
to work for White Oak Construction, and from August 18, 1989 and continuing.

     Claimant requested reconsideration of the administrative law judge's award of
permanent partial disability benefits subsequent to August 18, 1989. Citing
Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT) (2d Cir. 1991),
claimant asserted that he is entitled to permanent total disability compensation
as of August 18, 1989, because he  diligently tried without success to obtain
suitable alternate employment.

     The administrative law judge summarily denied claimant's motion.  Claimant
appeals the administrative law judge's denial of permanent total disability
compensation subsequent to August 18, 1989, reiterating the due diligence argument
he made below. Employer responds that the administrative law judge properly denied
claimant permanent total disability compensation because suitable alternate
employment was identified and claimant's efforts at searching for alternate work
have been limited to inquiring at employer's facility and the unemployment office
in Norwich, Connecticut about light duty carpentry and truck driving jobs which he
is physically incapable of performing. 

     Once claimant establishes that he is unable to perform his usual work, he has
established a prima facie case of total disability, and the burden shifts
to employer to establish the existence of realistically available job opportunities
within the geographic area where claimant resides, which he is capable of
performing considering his age, education, work experience, and physical
restrictions, and which he could secure if he diligently tried. See New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). 
In the present case, claimant does not challenge the administrative law judge's
finding that suitable alternate employment was established based on the bench
assembler and machine operator jobs identified in Ms. Bradshaw's labor market
survey. Rather, claimant argues that pursuant to Palombo, he is nonetheless
entitled to permanent total disability benefits because he has rebutted employer's
showing of suitable alternate employment by demonstrating that he diligently tried
but was unable to secure a job "within the compass of employment opportunities
shown by employer to be reasonably attainable and available." Palombo, 937
F.2d at 74, 25 BRBS at 8 (CRT).

     We are unable to affirm the administrative law judge's denial of permanent
total disability compensation, as he did not fully analyze the extent of claimant's
disability consistent with Palombo.   As claimant avers, in Palombo
the United States Court of Appeals for the Second Circuit, in whose jurisdiction
this case arises, explicitly held that claimant may rebut employer's showing of
suitable alternate employment and thus retain entitlement to permanent total
disability benefits by demonstrating that he diligently tried but was unable to
secure alternate employment. See also Rogers Terminal and Shipping Corp.
v. Director, OWCP,  781 F.2d 687, 18 BRBS 79 (CRT) (5th Cir. 1986), cert.
denied, 107 S.Ct. 101 (1986).  Moreover, the Palombo court indicated
that when claimant offers evidence that he diligently tried to find a suitable job,
the administrative law judge must consider this evidence and make specific findings
regarding the nature and sufficiency of claimant's efforts. Id., 937 F.2d
at 75-76, 25 BRBS 8-9 (CRT).

     In the present case, the administrative law judge stated that claimant had
conducted an unsuccessful search for a job which consisted of monthly visits to the
local unemployment office and to employer's facility in search of a light duty
position in setting forth his findings of fact. See Decision and Order at 3.[2]  
However, the administrative law judge did not make specific findings regarding the
nature and sufficiency of claimant's alleged efforts and whether they amounted to
due diligence as is mandated by Palombo. We therefore vacate his denial of
permanent total disability compensation subsequent to August 18, 1989, and remand
to allow him to make these findings. On remand, if the administrative law judge is
persuaded that claimant diligently tried without success to find a job within the
sphere of jobs shown to be available by employer and has rebutted employer's
showing of suitable alternate employment, claimant will be entitled to an award of
permanent total disability compensation. See Palombo, 937 F.2d 75, 25 BRBS
at 9 (CRT).  If, however, he does not find claimant exercised due diligence, his
prior award of permanent partial disability compensation should be reinstated. 

     Accordingly, the administrative law judge's denial of permanent total
disability compensation subsequent to August 18, 1989, is vacated, and the case is
remanded for further consideration of the extent of claimant's disability
consistent with this opinion.  In all other respects, the administrative law
judge's Decision and Order Awarding Benefits and Decision and Order On Petition for
Reconsideration are affirmed. 

     SO ORDERED.


                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge                           

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Footnotes.


1)The administrative law judge rejected the security guard positions identified in Ms. Bradshaw's labor market survey as inconsistent with claimant's physical limitations and rejected the quality control inspector position because no evidence had been presented that claimant had the chemistry background this job required. Back to Text
2)Claimant testified at the hearing that since being laid off by Gilles Dube on August 11, 1989, he has returned to employer's plant on a monthly basis, visited the unemployment office on a monthly basis, and has tried to secure other forms of light duty employment in addition to light duty carpentry, to no avail. Tr. at 31, 34, 42. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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