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                                 BRB No. 99-1057

JONATHAN TATE                           )
          Claimant                      )    
     v.                                                )
WALASHEK INDUSTRIAL                     )    DATE ISSUED:   07/11/2000
AND MARINE                              )
     and                                )
ASSOCIATION, LIMITED                    )
          Employer/Carrier-             )
          Respondents                   )
     and                                )
CONTINENTAL  INSURANCE                  )
COMPANY                                 )
          Carrier-Petitioner            )
DIRECTOR, OFFICE OF                     )
WORKERS' COMPENSATION                   )
PROGRAMS, UNITED STATES                 )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Richard K. Malamphy,
     Administrative Law Judge, United States Department of Labor.

     Richard P. Salloum (Franke, Rainey & Salloum), Gulfport, Mississippi,
     for employer and Signal Mutual Indemnity Association, Limited.

     David A. Hamby, Jr., and Jene W. Owens, Jr. (Brooks & Hamby, P.C.),
     Mobile, Alabama, for employer and Continental Insurance Company.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.


     Employer and Continental Insurance Company (CNA) appeal the Decision and Order
on Remand (95-LHC-2835, 96-LHC-460) of Administrative Law Judge Richard K. Malamphy
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 administrative law judge's findings of fact and
conclusions of law if they are supported by substantial evidence, are rational, and
are in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).  This is the second
time this case is before the Board.

     Claimant, while working as a boilermaker mechanic for employer, injured his
back and neck in 1992, at which time CNA was the insurance carrier on the risk. 
Claimant did not return to work until May 2, 1995, at which time Signal Mutual
Indemnity Association, Limited (Signal) was on the risk.  On that date, claimant
attempted to return to work as a light-duty boilermaker mechanic for employer. 
Upon his return to work, claimant experienced pain and physical problems which
resulted in his request for further medical treatment and a reduction in his work
day from eight to six hours.  After working two hours on May 11, 1995, claimant
suffered intense pain after moving some doors.  Claimant thereafter attempted to
return to work on May 15, 1995, as his treating physician released him with the
same physical restrictions in existence prior to May 11, 1995; however, employer
refused to allow claimant to work due to the risk he presented. Claimant
subsequently obtained employment as a restaurant cook. 

     In his first decision, the administrative law judge, having determined that
claimant suffered a work-related aggravation of his pre-existing back and shoulder
condition on May 11, 1995, found, inter alia,  that Signal was the
responsible carrier and ordered it to pay claimant temporary total disability
benefits from May 12 through May 15, 1995, permanent total disability benefits from
May 16 through June 16, 1995, permanent partial disability benefits from June 17,
1995 through June 18, 1997, based on his residual wage earning capacity of $6 per
hour as a cook, temporary total disability benefits from January 19 through January
24, 1997, while claimant underwent and recovered from surgery, and permanent
partial disability benefits from January 25, 1997, and continuing based on
claimant's residual wage earning capacity of $7 per hour. See Decision and
Order at 14-15, 21-23.  Signal appealed this decision to the Board.

     On appeal, the Board held that the administrative law judge's analysis was
incomplete because he failed to ascertain whether claimant's 1992 injury, his 1995
injury or both injuries caused claimant's disability; thus, the Board determined
that the case must be remanded for further findings.  In this regard, after
discussing the law regarding aggravation and natural progression as it affects
determining the responsible carrier, see Foundation Constructors, Inc. v.
Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT)(9th Cir. 1991), the Board stated
that resolution of this issue turned on the cause of claimant's disability.  The
case was remanded for the administrative law judge to determine if the work to
which claimant returned in May 1995 constituted alternate employment which was both
suitable and of sufficient duration to establish a post-injury wage-earning
capacity.  If this employment was not suitable, then claimant was totally disabled
as of the date of the May 11, 1995, incident notwithstanding his attempt to return
to work, and CNA would be the party liable for the entire amount of permanent
disability benefits due claimant as that incident did not increase claimant's
disability. Conversely, if the position in employer's facility constituted suitable
alternate employment, Signal would be the party responsible for any totally
disabling exacerbation sustained by claimant on May 11, 1995, and for any increase
in claimant's partial disability resulting from this injury based on claimant's
residual wage-earning capacity at the time of the second injury.[1]   See Tate v. Walashek Industrial &
Marine, BRB No. 98-0238 (Oct. 27, 1998)(unpublished).

     On remand, the administrative law judge determined that the position to which
claimant returned on May 2, 1995, did not constitute suitable alternate employment
and, therefore, claimant remained totally disabled from the 1992 work-related
accident despite his attempted return to work.  Thus, concluding the events in 1995
resulted from the natural progression of claimant's work injury, the administrative law
judge found that CNA was the carrier responsible for the payment of benefits due
claimant under the Act.  The administrative law judge then determined that
claimant's benefits were to be based on claimant's 1992 average weekly wage.

     On appeal, CNA asserts that the administrative law judge erred in finding it 
to be the carrier responsible for the payment of claimant's benefits; specifically,
CNA challenges the administrative law judge's findings that claimant's May 1995
position as a boilermaker mechanic within its facility did not constitute suitable
alternate employment and that claimant's May 11, 1995, work-incident did not result
in a new injury.  Signal responds, urging affirmance of the administrative law
judge's decision in its entirety. 

     CNA contends that the administrative law judge erred in finding that the job
claimant attempted from May 2 to May 11 was not suitable, asserting that as the
light-duty position as a boilermaker mechanic in employer's facility was necessary,
it was within claimant's physical restrictions, and it could be performed by
claimant without extraordinary effort, that position establishes that claimant had
a wage-earning capacity and thus, the initial injury is not the cause of claimant's
ongoing permanent disability.  A light-duty job in employer's facility can
establish suitable alternate employment, Darby v. Ingalls Shipbuilding,
Inc., 99 F.3d 685, 30 BRBS 93 (CRT)(5th Cir. 1996), and a job tailored to
claimant's specific restrictions may suffice to establish an earning capacity so
long as the work is necessary and beneficial to employer. See Peele v. Newport
News Shipbuilding & Dry Dock Co., 20 BRBS 133 (1987); Darden
v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986).  Sheltered
employment, on the other hand, is a job for which claimant is paid even if he
cannot do the work or which is unnecessary and is created merely to place claimant
on the payroll; such employment is insufficient to constitute suitable alternate
employment, and claimant is entitled to benefits under the Act for total disability
while working in a post-injury job under this circumstance.  CNA Ins. Co. v.
Legrow, 935 F.2d 430, 24 BRBS 202 (CRT)(1st Cir. 1991); Dupre v. Cape Romain
Contractors, Inc., 23 BRBS 86 (1989); Harrod v. Newport News Shipbuilding
& Dry Dock Co., 12 BRBS 10 (1980).   In ascertaining the suitability of a job
in employer's facility, the administrative law judge must consider whether the
requirements of the position are within claimant's physical capabilities, see
generally Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78
(CRT)(5th Cir. 1991), or whether claimant worked only through extraordinary effort
and despite excruciating pain.  See Haughton Elevator Co. v. Lewis, 572 F.2d
447, 7 BRBS 838 (4th Cir. 1978).

     In the instant case, the administrative law judge's implicit determination
that claimant's work in the position of a modified boilermaker mechanic for
employer in May 1995 was beyond his physical restrictions, and that employer
therefore failed to establish suitable alternate employment, is rational and
supported by substantial evidence.  Regarding his employment from May 2 though May
11, 1995, claimant testified that he was required to walk approximately one mile
from his car to his work station at employer's vessel and that by the time he
reached the ship's boiler room he was almost exhausted. See Tr. at 51-52,
115.  On his first two days of employment, i.e.,  May 2 and 3, 1995,
claimant testified that he  performed essentially menial jobs consisting of survey,
inspection, and report work. Id. at 135-136.  The following two days,
however, claimant was assigned work in a confined area repacking seals in a boiler.
Id.  at 52-53, 136.  As a result of this work in a confined space, claimant
experienced muscle spasms and numbness in his legs and back, id. at 53-54;
due to his work-related exhaustion, claimant testified that he subsequently began
to have problems driving home and sleeping.  As his physical symptoms increased,
claimant on May 8, 1995, requested and was prescribed additional muscle relaxers
by his treating physician; also on this day, claimant sought and received
employer's  permission to reduce his workday to six hours, citing his need to slow
down a little bit. Id. at 53, 138.    Claimant described his symptoms at
this time as consisting of uncomfortable pain resulting from a weakness and
numbness in his legs, stiffness in his neck, and some soreness in both shoulders.
Id. at 148.  Claimant testified that on May 11, 1995, he was unable to
secure the assistance of fellow employees that he felt was required in order the
move doors that were laying about his work area floor; subsequently, after
obtaining help from another boilermaker, claimant stated that he developed
increased pain after they moved a large door into an upright position. Id.
at 53-56.  After setting forth this testimony, the administrative law judge
concluded that  the boilermaker mechanic position did not constitute suitable
alternate employment as claimant was required to perform work beyond  his physical
restrictions and the position resulted in his having to request a reduction in the
number of hours worked per day after four days of employment. See Decision
and Order on Remand at 9.   

     In adjudicating a claim, it is well-established that the administrative law
judge is entitled to evaluate the credibility of all witnesses, and is not bound
to accept the opinion or theory of any particular witness; rather, the
administrative law judge may draw his own conclusions and inferences from the
evidence. See Wheeler v. Interocean Stevedoring, 21 BRBS 33 (1988).  In the
instant case, we hold that the administrative law judge's decision to rely upon
claimant's extensive uncontroverted testimony is rational, and his finding that
claimant's position in May 1995 as a boilermaker mechanic was beyond claimant's
capabilities is supported by substantial evidence.   Mijangos, 948 F.2d at
941, 25 BRBS at 78 (CRT).  Accordingly, we affirm his conclusion that this job was
not suitable alternate employment for claimant and that claimant remained totally
disabled as a result of his initial injury.  Given this finding, as well as the
fact that claimant's restrictions remained the same on May 15 as prior to his
attempt to work, the administrative law judge properly found that the events in
1995 were the result of the natural progression of the initial injury.  His finding
that CNA is thus liable for claimant's temporary total and permanent partial
disability compensation is also affirmed.[2]     
     Accordingly, the administrative law judge's decision on remand is affirmed.



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)The Board further found that the administrative law judge's initial award based on claimant's average weekly wage in 1992 was inconsistent with the imposition of liability against Signal based on well-established law that where an aggravation occurs, average weekly wage is determined as of the date of the aggravation. The case was remanded for resolution of this issue consistent with the responsible carrier. Back to Text
2)Contrary to CNA's assertion on appeal, the fact that claimant's boilermaker mechanic position may have been necessary, and that claimant may have been able to perform the position's duties without extraordinary effort, is not dispositive of the issue. Rather, the administrative law judge properly considered whether the requirements of the position presented to claimant were within claimant's physical capabilities, taking into account claimant's uncontroverted testimony that he experienced pain and physical discomfort immediately upon his employment in May 1995, that he was assigned duties in confined spaces which affected his physical condition, and that within four days he was required to seek additional prescription medication and request that his work day be reduced to six hours. Lastly, we note that it is uncontroverted that when claimant attempted to return to this position on May 15, 1995, with the same restrictions that were in effect on May 2, 1995, employer would not re-employ him because of the possibility of re-injury. See Tr. at 60. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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