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                                 BRB No. 98-0339
                                         

MORRISON BASS                      )
                              )
          Claimant-Respondent )    DATE ISSUED:   10/22/1998
                              )
     v.                       )
                              )
NEWPORT NEWS SHIPBUILDING     )
AND DRY DOCK COMPANY          )    
                              )
          Self-Insured             )
          Employer-Petitioner )    DECISION and ORDER

     Appeal of  the Decision and Order Upon Remand-Granting Temporary
     Total and Temporary Partial Disability of Richard K. Malamphy,
     Administrative Law Judge, United States Department of Labor.

     Robert E. Walsh (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

     Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia,
     for self-insured employer.  

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

     Employer appeals the Decision and Order Upon Remand- Granting Temporary
Total and Temporary Partial Disability (92-LHC-2829) 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 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).

     This case is before the Board for the second time.  Claimant a shipfitter,
sustained an axial compression injury on May 30,1992, while working for employer.
Subsequent to his return to work, claimant was reassigned to tank testing.  He was
absent from work from October 26, 1993 to November 15, 1993, and during this
period, on November 10, 1993, he was examined by Dr. Morales, who returned him to
work with restrictions.   Employer, however, refused to accept Dr. Morales's
restrictions, and returned claimant to his prior tank testing job.  Employer
subsequently gave claimant a 5-day, in-house suspension as a result of this
absence, as it was undocumented.  On May 16, 1994, after missing additional periods
of work, claimant was discharged by employer for undocumented absences and
excessive absenteeism.  Thereafter, claimant obtained several light duty jobs
paying $4.50 per hour from June 22, 1994, until  August  21, 1994,  and $5.75 per
hour from August 18, 1994, until October 14, 1994.  Since January  10, 1996,
claimant has been employed as a sales clerk working 20-30 hours per week and
earning $5.75 per hour.  Claimant sought temporary total disability and temporary
partial disability compensation under the Act.

     In his initial Decision and Order, the administrative law judge found that
claimant was not entitled to any benefits subsequent to May 17, 1994, because he
had been discharged due to violations of employer's yard rules and not due to his
work injury.  Moreover, he found that employer established the availability of
suitable alternate employment as of  the time of claimant's discharge which would
otherwise have remained available to him but for his discharge. Claimant appealed,
challenging the administrative law judge's findings that his termination by
employer was unrelated to his work injury, and that employer established the
availability of suitable alternate employment.  Employer responded, urging
affirmance.

     On appeal, finding  Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS 100
(CRT)(4th Cir. 1993) dispositive, the Board affirmed the administrative law
judge's determination  that claimant was not entitled to compensation  for
any loss in his wage-earning capacity which occurred due to his discharge. 
Inasmuch, however, as the administrative law judge had not made a specific
finding as to whether the tank testing job claimant was performing at
employer's facility or any other jobs which were available prior to his
discharge constituted suitable alternate employment, the Board vacated his
finding that employer established the availability of  suitable alternate
employment, and remanded the case for reconsideration of this issue. In so
doing, the Board instructed the  administrative law judge that if the tank
tester job was deemed unsuitable, employer could meet its suitable alternate
employment burden by establishing the existence  of other positions at its
facility which were within claimant's restrictions and  available to him
prior to his discharge.  Moreover, the Board instructed the administrative
law judge that  employer could not rely on positions other than the tank
tester job if it had refused to make the other positions available to
claimant. Bass v.  Newport News Shipbuilding & Dry Dock Co., BRB No.
96-1158 (May 27, 1997)(unpub.).

     In his Decision and Order on Remand, crediting the restrictions imposed by Dr.
Morales, claimant's treating physician, which included limited pushing and pulling,
no  lifting more than 30 pounds four hours per day, and no climbing vertical
ladders,  working above shoulder level, or working in extreme temperatures, the
administrative law judge initially determined that the tank testing job
which claimant performed immediately prior to his May 1994 discharge was not
suitable.  The administrative law judge also found that employer failed to
demonstrate suitable alternate employment based on Mr. Hoyer's testimony
regarding other suitable positions allegedly available at its facility, as
employer had never offered any of these jobs to claimant.  Noting that
employer had refused to acknowledge Dr. Morales's restrictions, and that the
only job offered to claimant was the unsuitable tank testing job, the
administrative law judge held, consistent with the Board's instructions on
remand, that employer could not rely on the other positions allegedly
available at its facility to establish suitable alternate employment because
it had refused to make those jobs available to claimant.  Accordingly,  he
awarded claimant the temporary total and temporary partial disability
compensation claimed.

      Employer appeals, arguing that  the administrative law judge erred in finding
that employer did not meet its burden of establishing suitable alternate employment
based either on the tank testing job which claimant performed prior to his
discharge or on Mr. Hoyer's testimony.  Moreover, employer contends that the
administrative law judge's determination that employer was required to offer
claimant the alternate jobs available at its facility in order to meet its
burden of establishing the availability of suitable alternate employment
does not comport with applicable law.  Employer  avers that, as is the case
where employer attempts to demonstrate the existence of suitable alternate
employment available on the open market, where, as here, employer is relying
on jobs within its facility to meet this burden, it need only establish that
realistically available positions existed within its facility which claimant
could have performed.[1]  Claimant responds,
urging affirmance.

     We affirm the administrative law judge's Decision and Order Upon Remand-Granting Temporary Total and Temporary Partial Disability as his findings of fact
and conclusions of  law are rational, supported by substantial evidence, and in
accordance with applicable law.  See O'Keeffe, 380 U.S. at 359. Where, as
in the instant case it is undisputed that claimant is unable to perform his usual
employment duties with employer, the burden shifts to employer to demonstrate the
availability of suitable alternate employment. Lentz v. The Cottman Co., 852
F.2d 129, 21 BRBS 109 (CRT)(4th Cir. 1988); see also Newport News Shipbuilding
& Dry Dock v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT) (4th Cir. 1988).  One way
that employer can meet this burden is by providing claimant with a suitable light
duty job performing necessary work within its facility. See Peele v. Newport
News Shipbuilding & Dry Dock Co., 20 BRBS 133, 136 (1987); Darden v. Newport
News Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986). It is well-established
that where employer provides claimant with a suitable job and claimant is
terminated for reasons unrelated to his work-related disability, employer does not
bear the renewed burden of showing other suitable alternate employment. See
Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT) (5th Cir.
1996); Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS 100 (CRT) (4th Cir.
1993).  In such a case, claimant is at most partially disabled, as his earnings in
the suitable job may form the basis for the administrative law judge to determine
claimant's wage-earning capacity. See Mangaliman v. Lockheed Shipbuilding
Co., 30 BRBS 39 (1996).

     Initially, we reject employer's argument that claimant had no compensable
disability as of  his May 1994 discharge because the tank testing job claimant was
performing at that time constituted  suitable alternate employment.  Based on the
testimony of claimant and his supervisor, Mr. Singleton, regarding a tank
tester's job duties,  Tr.  at 48-49, 54-64, 107, the administrative law
judge rationally found that this job was not suitable for claimant in that
it entailed climbing vertical ladders, overhead work, and working in cold
conditions, in violation of Dr. Morales's restrictions.  Moreover, he
credited claimant's testimony that this work aggravated his neck. Tr. at 50-55.  Inasmuch as claimant's testimony and that of Mr. Singleton provides
substantial evidence to support the administrative law judge's finding that the
tank testing job did not constitute suitable alternate employment, and employer has
not established reversible error in the administrative law judge's decision to
credit this testimony, we affirm his finding. See Mijangos v. Avondale
Shipyards, Inc., 948 F.2d 941, 25 BRBS 78 (CRT) (5th Cir. 1991).

     Alternatively, employer asserts that the administrative law judge erred in
concluding that employer had not met its burden of establishing suitable alternate
employment based on Mr. Hoyer's testimony that additional suitable jobs were
available to claimant at its facility, prior to his discharge, but were never
offered to him.[2]   The administrative law judge
rationally rejected this argument. Unlike the situation where employer is
attempting  to demonstrate the availability of suitable alternate employment on the
open market, where  employer is relying on jobs within its facility to meet this
burden, it may not claim that jobs within its exclusive control are available to
claimant unless it actually makes the jobs available to him. See Berkstresser
v. Washington Metropolitan Area Transit Authority, 16 BRBS 231 (1984), rev'd
on other grounds, Director, OWCP v. Berkstresser, 921 F.2d 306, 24 BRBS
69 (CRT)(D.C. Cir. 1990); see also Newport News Shipbuilding & Dry Dock Co.  v. 
Cole,  No.  96-2535, 120 F.3d 262 (4th Cir.  Aug 12, 1997)(table).[3]   In the present case, as  employer does not 
dispute that the only job it provided at its facility for claimant prior to his
discharge was the tank testing job[4]  which the
administrative law judge rationally found was not suitable, we reject employer's
arguments and affirm the administrative law judge's determination that employer
also failed to establish  the availability of suitable alternate employment based
on Mr. Hoyer's testimony.  As employer raises no additional allegations of error, 
the administrative law judge's award of temporary total disability and temporary
partial disability compensation is affirmed.

     Accordingly, the administrative law judge's Decision and Order Upon Remand-
Granting Temporary Total and Temporary Partial Disability is affirmed.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P.  SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)In the alternative, employer argues that claimant's disability benefits should not fluctuate between temporary total disability and temporary partial disability after his discharge, but instead should be limited to temporary partial disability compensation of $102.86 per week based on 66 2/3 percent of the difference between his stipulated average weekly wage of $462.32 and his post-injury earning capacity as a salesclerk at 7-11 of $154.45 per week. We need not address this argument, however, as it is being raised by employer for the first time on appeal. See Boyd v. Ceres Terminals, 30 BRBS 218 (1997). Back to Text
2)Employer asserts that other suitable alternate jobs existed at its facility prior to claimant's discharge, but states that such work was not offered to claimant because he was successfully working as a tank tester without complaint. In fact, as the administrative law judge found, employer offered no other job to claimant because it refused to accept the restrictions placed on his activities by Dr. Morales. Back to Text
3)This case arises within the jurisdiction of the United States Court of Appeals for the Fourth Circuit. Pursuant to that court's Local Rule 36(c), the citation of an unpublished decision "is disfavored. . . ." Nevertheless, Local Rule 36(c) provides that an unpublished decision with precedential value may be cited in relation to a material issue in a case if there is no published opinion that would serve as well (if all other parties are served with a copy of the decision). The Fourth Circuit's unpublished decision in Cole, which is readily available to both parties and which involved the same employer as in this case, states that where employer never offered any evidence demonstrating that Cole was offered a job within its facility or that suitable alternate employment existed in the open market, it failed to satisfy its burden. As there is no other published Fourth Circuit precedent on this issue, it is consistent with the court's rule to cite it in this case. Back to Text
4)As no other jobs were made available by employer, the fact that claimant was willing to stipulate that jobs existed at employer's facility consistent with Dr. Morales's restriction as of the date of the 1996 hearing, Tr. at 202, is irrelevant. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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