UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-60446
(Summary Calendar)
_________________
ALFORD WALTERS; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF
LABOR,
Petitioners,
versus
INGALLS SHIPBUILDING, INC.,
Respondent.
Petition for Review of a Decision of the
Benefits Review Board
(93-1950)
May 19, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Claimant Alford Walters petitions for review of a decision of
the Benefits Review Board (“BRB”) with respect to a claim he filed
pursuant to the Longshore and Harbor Worker’s Compensation Act
*
Pursuant to Local Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
(“the Act”), as amended, 33 U.S.C. § 901 et seq. In its decision,
the BRB affirmed the finding of an administrative law judge (“ALJ”)
that respondent, Ingalls Shipbuilding, Inc. (“Ingalls”), met its
burden of proving the availability of suitable alternative
employment by offering Walters a modified burner position within
its facility.
While working as a welder-burner for Ingalls in June of 1989,
a scaffold board fell from a crane and struck Walters on his left
side, injuring his back and neck. Walters sought medical treatment
and returned to light-duty burner work in February 1990. Walters’s
treating physician, Dr. Eugene T. Saiter, prescribed work
restrictions discouraging heavy lifting and allowing only
intermittent walking, standing, kneeling, stooping, or climbing.
Even with the restrictions, however, Walters found the modified
burner position to be too demanding physically, and Dr. Saiter
removed Walters from work and placed him in physical therapy.
Walters returned to the modified burner position after completion
of therapy, but again left work to undergo a heart catheterization
unrelated to his previous work-related injury. After recuperating
from the procedure, Walters again returned to work with additional
climbing restrictions authorized by Dr. Saiter.
Walters worked successfully in the modified burner position
and as a material runner and jig cutter until August 1990 when he
experienced a second work-related injury. While cutting jigs for
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scrap metal, an I-beam fell on him, injuring his ankle and
aggravating his prior back injury. Walters again received medical
treatment and was released to return to work with restrictions on
December 19, 1990. Ingalls, however, refused to provide Walters
with a modified burner position at that time. Walters has not
worked at Ingalls since the date of his second injury.
Ingalls voluntarily paid benefits for temporary total
disability under 33 U.S.C. § 908(b) during the periods Walters was
unable to work until December 20, 1990. Walters requested a formal
hearing to resolve the extent of his work-related disability and
entitlement to benefits after that date. On May 13, 1992, after
the hearing but before the record was closed, Ingalls offered
Walters a light-duty burner position at the same wage. Walters
refused this offer.
The ALJ determined that Walters established a prima facie case
of entitlement to permanent total disability benefits by showing
that he was unable to return to his duties as they existed prior to
his first injury. The burden then shifted to Ingalls to
demonstrate the availability of suitable alternative employment in
the relevant community. Louisiana Ins. Guar. Ass'n v. Abbott, 40
F.3d 122, 127 (5th Cir. 1994). The ALJ awarded Walters permanent
total disability for the period beginning December 20, 1990 and
ending April 1, 1991, the date on which Ingalls established the
availability of security guard positions that would be suitable for
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Walters. The ALJ then awarded permanent partial disability from
April 1 to May 13, 1992, the day on which Ingalls offered Walters
the modified burner position at the same wage. As of May 13, 1992,
the ALJ terminated all disability compensation.
On appeal, the BRB found that the ALJ erred in determining
that the security guard positions cited by Ingalls fell within Dr.
Saiter’s work restrictions and modified the ALJ’s order to award
permanent total disability benefits to Walters up until May 13,
1992. The BRB, however, affirmed the ALJ’s denial of disability
benefits after May 13, 1992, based on Ingalls’s offer of a modified
burner position within its own facility. Walters petitions for
review of the latter portion of the BRB’s decision.
We have jurisdiction to review final decisions of the BRB
under 33 U.S.C. § 921(c). We review decisions of the BRB for
errors of law and apply the same substantial evidence standard that
governs the BRB’s review of the ALJ’s factual findings. Mendoza v.
Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th Cir. 1995). We
must affirm the BRB’s decision “if it correctly concluded that the
ALJ’s findings are supported by substantial evidence and are in
accordance with the law.” Id. (citation omitted).1
1
Citing Wheatley v. Adler, 407 F.2d 307 (D.C.Cir. 1968),
Walters asserts that under the “true doubt” rule, all factual
doubts must be resolved in his favor. The Supreme Court, however,
has explicitly rejected the “true doubt” rule as inconsistent with
§ 7(c) of the Administrative Procedure Act. Director, OWCP v.
Greenwich Collieries, ___ U.S. ___, ___, 114 S. Ct. 2251, 2259, 129
L. Ed. 2d 221 (1994); see also Mendoza, 46 F.3d at 501 n.1.
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Walters first argues that Ingalls should not be allowed to
escape liability for payment of benefits under the Act because it
offered him the modified burner position for the sole purpose of
discharging liability. Walters cites the fact that Ingalls waited
until after the hearing to offer him the position as evidence of
bad faith.
An employer may meet its burden of demonstrating the
availability of suitable employment by offering the claimant a
light-duty position within its own facility. Darby v. Ingalls
Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996). We can
discern no basis for concluding that Ingalls’s offer was made in
bad faith other than the inference that might be drawn from the
timing of the offer. The ALJ, however, concluded that the job
offer was a bona fide offer of employment. The ALJ’s selection
among permissible inferences is conclusive, and we will not disturb
that choice on review. Mendoza, 46 F.3d at 500-01; Fulks v.
Avondale Shipyards, Inc., 637 F.2d 1008, 1011 (5th Cir.), cert.
denied, 454 U.S. 1080, 102 S. Ct. 633, 70 L. Ed. 2d 613 (1981).
Walters next disputes the suitability of the modified burner
position in light of his medical restrictions. Walters argues that
he “already on three occasions returned to the modified burner
positions only to not be able to perform the work or be reinjured.”
Walters therefore bears the burden of persuasion with respect to
his entitlement to permanent total disability benefits.
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The evidence supports Walters’s claim that he was initially unable
to perform the work and left Ingalls in order to undergo physical
therapy. However, the evidence shows that Walters left the
modified burner position the second time because of his heart
condition, not his work-related injuries. Moreover, Walters’s
reinjury occurred when he was struck by a falling object, an event
completely unrelated to his preexisting physical condition.
Therefore, Walters’s heart-related absence and second injury do not
support his contention that he is unable to perform the duties of
the modified burner position due to his initial back injury.
The ALJ credited medical evidence that the second accident
merely resulted in a disabling injury to Walters’s ankle and only
briefly exacerbated his previous back injury when he fell to the
ground. Therefore, the ALJ found that the initial work
restrictions imposed by Dr. Saiter after the first injury,
including the additional climbing restrictions, applied for any
subsequent employment. The ALJ credited the testimony of Joe
Walker, Ingalls’s vocational expert, that the modified burner
position was light-duty and did not require climbing, heavy
lifting, or squatting in tight places. Moreover, the ALJ took into
account Walters’s own testimony that he satisfactorily performed
the responsibilities of the modified burner position after physical
therapy but prior to his second injury.
As the factfinder, the ALJ determines the weight to be given
the evidence and makes credibility determinations with respect to
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expert testimony. Mendoza, 46 F.3d at 500-01. The ALJ’s
determination that Walters is able to perform the duties of the
modified burner position is supported by substantial evidence in
the record. We therefore DENY Walters’s petition for review.
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