McCray v. I.T.O. Corporation

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN MCCRAY,
Petitioner,

v.

I.T.O. CORPORATION OF BALTIMORE;
No. 96-2400
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(95-1795)

Submitted: March 20, 1998

Decided: May 1, 1998

Before NIEMEYER and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Louis J. Glick, Baltimore, Maryland, for Petitioner. Stan M. Haynes,
SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Respon-
dents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John McCray petitions for review of an order of the Department of
Labor's Benefits Review Board ("the Board").* McCray claims that
the ALJ erred in determining that ITO established suitable alternative
employment. For the reasons set forth below, we affirm.

McCray sustained an injury to his left knee in March 1980. He
returned to work as a longshoreman in 1981 after an arthroscopy
revealed no need for surgery. In March 1982, McCray sustained a
separate injury to his right hand. McCray stopped working in July
1982 after he underwent surgery for a non-work-related condition. In
1988, McCray was found to have a ten percent permanent partial dis-
ability as a result of his knee injury in 1980 and no disability as a
result of his hand injury in 1982. In 1992, the Board partially reversed
the ALJ's decision and remanded for additional proceedings solely
for a determination as to whether McCray could be entitled to any
permanent total disability benefits between the time that he reached
maximum medical improvement and until the time that suitable alter-
native employment was shown to be available.
_________________________________________________________________
*The Board never addressed the merits of the appeal. On September
12, 1996, the Board sent the parties a notice stating that pursuant to the
provisions of Public Law Number 104-134, enacted on April 26, 1996,
all appeals to the Board relating to claims under the LHWCA that have
been pending before the Board for more than one year, shall, if not acted
upon before September 12, 1996, be considered affirmed by the Board.
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.
L. No. 104-134, § 101(d), 110 Stat. 1321, 1321-29 (1996). Because
McCray's appeal met these criteria, the Board informed the parties that
the ALJ's decision had been effectively affirmed by the Board on Sep-
tember 12, 1996, for purposes of their rights to obtain review in this
court.

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In a proceeding before the ALJ in May 1995, ITO presented the
testimony of a vocational rehabilitation expert who testified that there
were three types of jobs available in the Baltimore area since 1980
that were within McCray's restrictions--security monitor jobs, light
assembly jobs, and cashier jobs. Despite a five-month extension to
obtain a vocational expert, McCray offered no evidence to refute
ITO's expert witness.

Once a claimant shows that he is unable to return to his regular
employment, the burden shifts to the employer to prove that suitable
alternative employment is available. See Newport News Shipbuilding
& Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir. 1988). An
employer need only show that there are jobs available at a time when
the claimant is able to seek and find employment. Id. at 542-43. An
employer must present evidence that a range of jobs exists that is rea-
sonably available and that the employee is realistically able to secure
and perform, see Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir.
1988), and is not required to prove the availability of a job by contact-
ing a prospective employer to see if that employer would hire some-
one with the same background, age, and disabilities as the injured
employee, see Trans-State Dredging v. Benefits Review Bd., 731 F.2d
199, 201 (4th Cir. 1984). Once an employer establishes suitable alter-
nate employment, the claimant's disability is found to be partial and
not total. See Southern v. Farmer Export Co., No. 81-1745, 1985 WL
55355, at *2 (B.R.B. 1985).

We review the Board's decision for errors of law and to determine
whether the Board observed its statutorily-mandated standard for
reviewing the ALJ's factual findings. See Newport News Shipbuilding
& Dry Dock Co. v. Director, OWCP (Hess), 681 F.2d 938, 941 (4th
Cir. 1982). In turn, the Board's review of the ALJ's factual findings
is limited by the requirement that "[t]he findings of fact in the deci-
sion under review by the Board shall be conclusive if supported by
substantial evidence in the record considered as a whole." 33 U.S.C.
§ 921(b)(3) (1994). Because the ALJ's decision was affirmed by
default, there is no Board decision for the court to review; the ALJ's
findings of fact must therefore be upheld if supported by substantial
evidence. We defer to the ALJ's credibility determinations and infer-
ences made from the evidence. See See v. Washington Metro. Area
Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

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We conclude that substantial evidence in the record as a whole sup-
ports the ALJ's factual findings and that, based on the evidence, the
ALJ did not err in concluding that McCray was not entitled to perma-
nent compensation under the LHWCA. The record reveals that suit-
able alternative employment existed. Thus, the ALJ correctly
concluded that because suitable alternate employment existed,
McCray's disability is partial and not total. See Southern, 1985 WL
55355, at *2.

Accordingly, we affirm the Board's summary order affirming the
ALJ's decision by default. See Hess, 681 F.2d at 941. We deny
Appellant's motion for oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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