Hord v. Norfolk Shipbuilding

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION,
Petitioner,

v.
No. 98-2339
CARL HORD; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-1437)

Argued: September 22, 1999

Decided: October 19, 1999

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Petition for review denied by published opinion. Judge Wilkins wrote
the opinion, in which Judge Williams and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Alan Rapaport, CLARKE, DOLPH, RAPAPORT,
HARDY & HULL, P.L.C., Norfolk, Virginia, for Petitioner. John
Harlow Klein, MONTAGNA, KLEIN & CAMDEN, L.L.P., Norfolk,
Virginia, for Respondent Hord. Laura Jessica Stomski, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director. ON BRIEF: Dana Adler Rosen, CLARKE,
DOLPH, RAPAPORT, HARDY & HULL, P.L.C., Norfolk, Virginia,
for Petitioner. Judith E. Kramer, Deputy Solicitor of Labor, Carol A.
De Deo, Associate Solicitor for Employee Benefits, Janet R. Dunlop,
Counsel for Longshore, Sandra Falzone, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Norfolk Shipbuilding and Drydock Corporation (Norshipco) peti-
tions for review of an order of the United States Department of Labor
Benefits Review Board (the Board) reversing an administrative law
judge's (ALJ) denial of longshore and harbor workers' compensation
to Carl Hord.1 Because we conclude that the Board correctly deter-
mined that Norshipco did not satisfy its burden of establishing that
suitable alternative employment was available to Hord, we deny the
petition.

I.

Hord's left arm and hand were injured in the course of his employ-
ment at Norshipco on October 25, 1992. After undergoing surgery
and physical therapy, Hord returned to a light-duty position at Nor-
shipco in late 1993. On March 27, 1995, when Hord had reached
maximum medical improvement, his physician determined that the
injury had resulted in a 20 percent permanent impairment of Hord's
arm and hand. Norshipco voluntarily paid various periods of tempo-
rary disability compensation and permanent compensation for the 20
percent impairment of Hord's arm and hand.
_________________________________________________________________
1 The Director of the Office of Workers' Compensation Programs is
also a Respondent in this case. For ease of reference, we refer to Respon-
dents collectively as "Hord."

2
Hord was laid off from the light-duty position on March 18, 1996;
he was recalled to the same position on May 6, 1996. Hord subse-
quently applied for total disability compensation under the Longshore
and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.A.
§§ 901-950 (West 1986 & Supp. 1999), for the seven weeks he was
laid off. The ALJ denied Hord's claim on the reasoning that (1) Nor-
shipco had not chosen to lay off Hord because of his physical restric-
tions and (2) the fact that Hord actually worked in the light-duty
position prior to the layoff proved that employment"was realistically
and regularly (if not absolutely always) available" to Hord. J.A. 106.
Hord appealed to the Board, which reversed the ALJ's denial of his
claim.

II.

The LHWCA authorizes compensation to workers injured in the
course of their employment. The Act provides compensation not for
the injury itself, but for the economic harm suffered as a result of the
decreased ability to earn wages. See Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 126 (1997). To gain an award of benefits for
total disability under the Act, a claimant must first establish a prima
facie case by demonstrating that he cannot perform his prior employ-
ment due to the effects of a work-related injury. See Universal Mari-
time Corp. v. Moore, 126 F.3d 256, 264 (4th Cir. 1997). Once a prima
facie case has been established, the burden shifts to the employer to
demonstrate "the availability of suitable alternative employment
which the claimant is capable of performing." Brooks v. Director,
Office of Workers' Compensation Programs, 2 F.3d 64, 65 (4th Cir.
1993) (per curiam). An employer may satisfy its burden in two ways.
First, the employer may itself make available to the injured employee
suitable alternative employment. See Darby v. Ingalls Shipbuilding,
Inc., 99 F.3d 685, 688 (5th Cir. 1996); cf. Brooks, 2 F.3d at 65 (noting
that employer's burden "can be met by showing a suitable job that the
claimant actually performed after his injury"). Second, the employer
may demonstrate that suitable alternative employment is available to
the injured worker in the relevant labor market. See See v. Washing-
ton Metropolitan Area Transit Auth., 36 F.3d 375, 380-84 (4th Cir.
1994). To make the latter showing, "an employer must present evi-
dence that a range of jobs exists which is reasonably available and
which the disabled employee is realistically able to secure and per-

3
form." Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir. 1988). How-
ever, the employer does not need to point to specific job openings to
demonstrate the reasonable availability of suitable alternative employ-
ment in the open labor market. See Avondale Shipyards, Inc. v.
Guidry, 967 F.2d 1039, 1043-45 (5th Cir. 1992). If the employer sat-
isfies its burden in the second-described manner, by referencing the
external labor market, the claimant may counter by demonstrating that
he diligently but unsuccessfully sought appropriate employment. See
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540,
542 (4th Cir. 1988).

We review an order of the Benefits Review Board for errors of law
and for adherence to the statutory standard set forth in 33 U.S.C.A.
§ 921(b)(3).2 See Gilchrist v. Newport News Shipbuilding & Dry Dock
Co., 135 F.3d 915, 918 (4th Cir. 1998). Our review is de novo, and
we accord no deference to the Board's legal interpretations of the
LHWCA. See id.

The parties agree that Hord established a prima facie case of total
disability for the seven-week layoff period because Hord was unable
to perform his pre-injury employment duties due to the effects of the
injury. The contested issue is whether, in response to the prima facie
case, Norshipco satisfied its burden of demonstrating that suitable
alternative employment was available to Hord during the layoff. Nor-
shipco argues that it satisfied this burden by pointing to the light-duty
position that it made available to Hord after his injury. Hord contends
that Norshipco cannot satisfy its burden by pointing solely to the
light-duty position because Norshipco's burden necessarily includes
establishing the availability of suitable alternative employment, and
the light-duty position was not available during the layoff period.3
_________________________________________________________________
2 Norshipco does not assert that the Board failed to adhere to the statu-
tory standard found in 33 U.S.C.A. § 921(b)(3). Thus, we limit our
review to the alleged errors of law committed by the Board.
3 Norshipco also argues that Hord is not entitled to compensation for
the layoff period because the decision to lay Hord off was unrelated to
his injury. It notes that the layoff was necessitated by economic circum-
stances and that Hord was not targeted for the layoff because of his
injury-induced physical restrictions. Norshipco's proffer of the economic
and nondiscriminatory nature of its decision to lay Hord off is not

4
We note that neither party argued below or on appeal that the light-
duty position was unsuitable for Hord, or that the position did not
constitute an alternative to Hord's pre-injury employment. Thus the
narrow issue to be addressed is whether, when a partial disability
LHWCA claimant establishes a prima facie case of total disability
during a layoff period, an employer may satisfy its burden of demon-
strating the availability of suitable alternative employment by point-
ing to the post-injury internal employment subjected to the layoff.

We hold that the employer cannot satisfy its burden in this manner.
Although, as we have explained, an employer may satisfy its burden
by making available to the injured employee a suitable internal alter-
native to the pre-injury employment, see Darby , 99 F.3d at 688, Nor-
shipco plainly made the internal alternative position unavailable to
Hord when it laid him off. Therefore, Norshipco cannot satisfy its
burden by pointing to that position. We note that this is the result
advocated by the Director of the Office of Workers' Compensation
Programs, to whose reasonable interpretation of the LHWCA we
accord some deference. See Director, Office of Workers' Compensa-
tion Programs v. Newport News Shipbuilding & Dry Dock Co., 8 F.3d
175, 179 (4th Cir. 1993), aff'd, 514 U.S. 122 (1995).

We do not view the result in this case as implying that an employer
necessarily becomes liable for LHWCA total disability compensation
when it lays off a permanent partial disability claimant from a post-
injury position made available to the worker by the employer. Nor is
an employer's method of satisfying its burden limited to making
another light-duty job available to such a worker during the layoff.
However, in order to rebut a worker's prima facie case that the
worker was totally disabled during a layoff period, an employer must
do more than point only to the one internal light-duty job that the
_________________________________________________________________

responsive to its burden of demonstrating that Hord had the capacity to
earn wages in suitable alternative employment which was reasonably
available to Hord. Such a proffer does not demonstrate either that Nor-
shipco made a suitable alternative position available to Hord internally,
or that there was a range of jobs reasonably available in the relevant
labor market which Hord realistically could secure and perform. See
Darby, 99 F.3d at 688; Lentz, 852 F.2d at 131.

5
employee held prior to being laid off. In the context of a layoff from
internal post-injury employment, as with all claims of total disability
under the LHWCA, an employer can satisfy its burden by demonstrat-
ing that there exists a range of jobs which the worker is realistically
capable of securing and performing and which are reasonably avail-
able in the open market. See Lentz, 852 F.2d at 131.

III.

Because we conclude that Norshipco failed to satisfy its burden of
demonstrating the availability of suitable alternative employment dur-
ing the layoff period, we conclude that the Board correctly deter-
mined that Hord was entitled to total disability compensation for that
period.4 Accordingly, we deny Norshipco's petition for review.5

PETITION FOR REVIEW DENIED
_________________________________________________________________

4 Norshipco noted repeatedly during oral argument that Hord's injury
was a "scheduled injury." See 33 U.S.C.A. § 908(c)(1)-(20); Potomac
Elec. Power Co. v. Director, Office of Workers' Compensation
Programs, 449 U.S. 268, 269-71 (1980) [hereinafter PEPCO]. The fact
that Hord's injury was a scheduled one was relevant only for the purpose
of determining his permanent partial disability compensation. As this
case concerns Hord's claim for total disability compensation, the sched-
uled nature of his injury is not relevant here. See DM & IR Ry. v. Direc-
tor, Office of Workers' Compensation Programs, 151 F.3d 1120, 1122
(8th Cir. 1998); see also PEPCO, 449 U.S. at 273-74 & n.8 (noting the
distinct nature of the four types of disability for which the LHWCA pro-
vides recovery and describing the methods of computing compensation
for each disability type).

5 In light of this disposition, we need not address Hord's argument that
he diligently but unsuccessfully attempted to obtain suitable alternative
employment during the layoff period.

6