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                                    BRB No. 00-1115
                                         
EARNEST SANTIFUL                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME                      )    DATE ISSUED:   07/27/2001 
SERVICES, INCORPORATED                  )
                                        )
          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 of John C. Holmes, Administrative Law Judge, United States Department
     of Labor.

     Myles R. Eisenstein, Baltimore, Maryland, for claimant.

     Lawrence P. Postal (Seyfarth Shaw), Washington, D.C., for self-insured employer.  

     Before: DOLDER and McGRANERY, Administrative Appeals Judges, and NELSON, Acting
     Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order (99-LHC-2847) of Administrative Law Judge John C. Holmes 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).
     Claimant injured his right knee on July 1, 1998,  during the course of his employment as an equipment operator. 
Employer voluntarily paid compensation under the Act for temporary total disability, 33 U.S.C. §908(b), from July
2 to September 30, 1998, for temporary partial disability, 33 U.S.C. §908(e), from October 1, 1998, to March 18,
1999, and for a 10 percent permanent partial disability of the right knee, 33 U.S.C. §908(c)(2).  Claimant, age 63 at
the date of injury, retired from longshore employment on June 1, 1999.  He sought additional compensation under the Act
for temporary total disability from October 1, 1998, to March 30, 1999, and for continuing permanent total disability, 33
U.S.C. §908(a), thereafter. 

     In his decision, the administrative law judge initially found that, due to claimant's right knee injury, claimant is
unable to return to longshore employment.  The administrative law judge next found that employer established the
availability of suitable alternate employment.  The administrative law judge determined that claimant did not diligently seek
alternate employment and that claimant is therefore limited to an award under the schedule for his work-related right knee
impairment.  The administrative law judge found that both Dr. Becker and Dr. Bennett opined that claimant has a 10 percent
impairment of the right knee, and that claimant did not establish a basis for a higher award.  Finally, the administrative law
judge denied employer's request for Section 8(f) relief, 33 U.S.C. §908(f), as claimant was found entitled to fewer
than 104 weeks of compensation for his permanent partial disability of the right knee.  Employer's motion for
reconsideration was summarily denied. 

     On appeal, claimant challenges the administrative law judge's finding that employer established the availability of
suitable alternate employment.  Claimant also challenges the administrative law judge's finding that claimant did not rebut
employer's showing of suitable alternate employment.  Finally, claimant challenges the administrative law judge's denial
of compensation based on a loss of wage-earning capacity.  Employer responds, urging affirmance.[1]   

     Claimant initially challenges the administrative law judge's finding that employer established the availability of
suitable alternate employment. In his decision, the administrative law judge found that employer was prejudiced by
claimant's lack of cooperation with Ms. Kielty, employer's vocational consultant.  The administrative law judge found that
claimant's failure to meet with Ms. Kielty  prevented her from accurately assessing claimant's physical and mental skills
and abilities. The administrative law judge found that Ms. Kielty nonetheless produced a competent labor market
survey, which the administrative law judge credited as evidence of suitable alternate employment because of
claimant's refusal to cooperate with Ms. Kielty's vocational assessment.   Alternatively, the administrative law judge found
Ms. Kielty's labor market survey credible, based on claimant's medical records, information that claimant is without a high
school education, and Ms. Kielty's qualifications.   Specifically, the administrative law judge found that claimant is capable
of performing the parking lot attendant jobs at APCOA and Penn Parking, which are identified in employer's labor market
survey.  

     We need not address claimant's contention that the administrative law judge erred by relying upon claimant's refusal
to cooperate with employer's vocational consultant to find that employer established the availability of suitable alternate
employment as the administrative law judge found, notwithstanding claimant's lack of cooperation, that the parking lot
attendant positions identified in the labor market survey establish the availability of suitable alternate employment. 
Claimant asserts that the administrative law judge's crediting of employer's survey serves to demonstrate only that the
administrative law judge was biased in favor of employer.  It is well-established, however, that allegations of bias are not
established by adverse rulings alone. See generally Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988). 
Moreover, claimant does not challenge the administrative law judge's finding that he is capable of performing the parking
attendant jobs, based on the opinions of Drs. Bennett and Becker.[2]    Accordingly,
we affirm the administrative law judge's finding that the parking attendant positions identified in employer's labor market
survey establish the availability of suitable alternate employment as it is rational and supported by substantial evidence.
See generally Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir. 1997); Newport
News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988).

     Claimant next contends that the administrative law judge erred in finding that he did not diligently seek suitable
employment.  Claimant generally asserts that the administrative law judge erred by relying on claimant's failure to seek jobs
not identified in employer's labor market survey and claimant's not attempting to obtain jobs in the survey because of travel
time considerations.  If employer establishes the availability of suitable alternate employment, claimant can rebut that
showing, and retain entitlement to total disability benefits, by demonstrating that, despite a diligent effort, he was unable
to secure suitable employment. Tann, 841 F.2d 540, 21 BRBS 10(CRT).   In the instant case, the administrative
law judge found that claimant failed to look for potential jobs outside of employer's labor market survey and that claimant
summarily rejected jobs located 35 to 40 minutes from his residence.  The administrative law judge specifically relied on
claimant's testimony that he applied for jobs in employer's survey solely at the behest of his attorney, as it was required
by "the system," see Tr. at 178-183, 198-199, in finding that claimant did not intend to return to the labor market. 


     Contrary to claimant's contention, the inquiry into claimant's diligence in seeking post-injury employment is not
limited to the jobs identified by employer, but encompasses employment opportunities of the type shown by employer to
be suitable and attainable. See Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir. 1991);
Livingston v. Jacksonville Shipyards, Inc., 32 BRBS 123 (1998).  Moreover, claimant has not alleged any specific
error in the administrative law judge's finding that he could drive 30-40 minutes for a job.   See generally See v.
Washington Metropolitan Area Transit Authority, 36 F.3d 375, 28 BRBS 96(CRT) (4th Cir. 1994).  Finally, the
administrative law judge rationally interpreted claimant's testimony as indicating that claimant's post-injury job search was
motivated solely by his desire to obtain compensation benefits, and that claimant was not sincerely seeking suitable
employment. See generally John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2nd Cir. 1961); Berezin v.
Cascade General, Inc., 34 BRBS 163 (2000).  Accordingly, we affirm the administrative law judge's finding that
claimant failed to rebut employer's evidence of suitable alternate employment by diligently seeking work. 

     Claimant lastly asserts that the administrative law judge erred by ruling that Potomac Electric Power Co. v.
Director, OWCP [PEPCO], 449 U.S. 268, 14 BRBS 363 (1980), applies in the instant case to limit claimant's
recovery to a scheduled compensation award for his knee injury.  We disagree.  The Supreme Court held in PEPCO
that a claimant who is permanent partially disabled due to an injury to a member listed under the schedule at Section 8(c)(1)-(20) of the Act, 33 U.S.C. §908(c)(1)-(20), is limited to the recovery provided therein, and may not receive an award
under Section 8(c)(21), 33 U.S.C. §908(c)(21), for a loss of wage-earning capacity. PEPCO, 449 U.S. 268,
14 BRBS 363; see also Rowe v. Newport News Shipbuilding & Dry Dock Co., 193 F.3d 836, 33 BRBS 160(CRT)
(4th Cir. 1999); Turney v. Bethlehem Steel Corp., 17 BRBS 232, 234 (1985).  Accordingly, as claimant's knee injury
is an injury to a body part enumerated in the schedule and we have affirmed the administrative law judge's finding that
employer established the availability of suitable alternate employment, which claimant failed to rebut, we hold that the
administrative law judge properly applied PEPCO to limit claimant's recovery to that provided by the schedule. See also Gilchrist v. Newport News Shipbuilding & Dry Dock Co., 135 F.3d 915, 32
BRBS 15(CRT) (4th Cir. 1998).

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

     SO ORDERED.
     


                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)By Order issued October 17, 2000, the Board granted employer's motion and dismissed its appeal. BRB No. 00-1115A. Back to Text
2) 2In arguing that claimant established an inability to return to his usual employment and that he is entitled to compensation for permanent total disability, claimant asserts the administrative law judge failed to address claimant's pre-existing left knee impairment. The administrative law judge credited the opinions of Drs. Becker and Bennett, that claimant is capable of performing the parking attendant jobs, and these physicians took into account claimant's pre-existing left knee impairment in rendering their opinions. EX 12, 15; CX 6. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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