Darby v. Ingalls Shipbuilding, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 96-60029

Summary Calendar.

Rene M. DARBY and Office of Worker's Compensation Programs,
United States Department of Labor, Petitioners,

v.

INGALLS SHIPBUILDING, INC., a Self-Insured Employer, Respondent.

Nov. 13, 1996.

Petition for Review of an Order of the Benefits Review Board.

Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Rene Darby petitions for review of a decision of the Benefits

Review Board ("BRB") affirming an order by an administrative law

judge ("ALJ") consisting of a Decision and Order Awarding

Additional Benefits, all pursuant to the Longshore and Harbor

Workers' Compensation Act (the "Act"), as amended, 33 U.S.C. § 901

et seq. We grant the petition in part and vacate and remand in

part.

I.

Darby was employed by Ingalls Shipbuilding, Inc. ("Ingalls"),

as a joiner and, during the course of this employment, was injured

when he slipped and fell down a flight of stairs. He underwent

medical treatment for the sustained injuries, during which time

Ingalls paid temporary total disability benefits. Darby returned

to work nine months later in the same position and transferred to

a different department for a short period of time before returning

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to the joiner department and later being laid off because of a lack

of work.

In October 1990, nearly three years after his accident, Darby

returned to Ingalls as a joiner. Because of his physical

limitations, however, he was assigned to a modified joiner position

with restrictions on his responsibilities to lift and push heavy

objects. Darby was instructed by his supervisor that he was to

work within the scope of his restrictions but that he could

exercise his own judgment where appropriate. Darby worked without

incident in this new capacity for approximately one year.

Following his return, Darby sought permanent total disability

compensation under the Act, alleging that his post-injury position

at Ingalls did not constitute suitable alternative employment (§

908(a)) and that he was entitled to additional medical benefits (§

914(e)). After administrative procedures failed to resolve the

parties' differences, an ALJ held a formal hearing on October 2,

1991, and awarded Darby various additional medical and compensation

benefits. Of particular consequence to this appeal, however, is

the ALJ's finding that Darby's modified joiner position was

suitable alternative employment.

II.

We review BRB decisions for errors of law and adhere to the

substantial evidence standard that governs the BRB's review of the

ALJ's factual determinations. See Odom Constr. Co. v. United

States Dep't of Labor, 622 F.2d 110, 115 (5th Cir.1980), cert.

denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). Thus,

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we must affirm BRB decisions that conclude correctly that the ALJ's

findings are supported by substantial evidence and are in

accordance with the law. See O'Keefe v. Smith, Hinchman & Grylls

Assoc., Inc., 380 U.S. 359, 362-63, 85 S.Ct. 1012, 1014-15, 13

L.Ed.2d 895 (1965).

A.

Darby first argues that the BRB erred in relying upon the

modified joiner position to establish the availability of suitable

alternate employment. According to Darby, an employer should be

required to prove that a job offered as suitable alternative

employment is realistically and regularly available to the claimant

on the open job market. In so suggesting, Darby reads our decision

in P & M Crane Co. v. Hayes, 930 F.2d 424, 430 (5th Cir.1991), (i)

to permit a single job offer to discharge the employer's burden

only where the claimant is highly skilled and seeking specialized

employment in an area where the number of suitable applicants is

small and (ii) to require a demonstration of availability in the

open job market where the claimant, as in the instant case, is less

skilled.1

We need not decide whether P & M Crane should be so construed,

as it is inapposite to the instant case. P & M Crane dealt with

1
Darby notes correctly that Diosdado v. John Bludworth Marine,
No. 93-05422, 37 F.3d 629 (5th Cir. Sept. 19, 1994) (unpublished),
hinted at such an interpretation of P & M Crane, but Diosdado is
factually distinct from the instant case. In Diosdado, the
claimant was offered a single job external to his current employer,
and the employer had failed to demonstrate that the claimant had
any reasonable likelihood of obtaining that job. Absent such a
showing by the employer, we were not convinced that the employer
has discharged his burden adequately.

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claimants who alleged permanent and total disabilities and whose

employers proffered allegedly suitable jobs external to their

current place of work, whereas Darby suffers from a partial

disability only and was offered a new job within his current place

of work. See id. at 427. The BRB has opined, with respect to

partial disability cases, that an employer's offer of a suitable

job within the partially disabled claimant's current place of work

is sufficient to discharge its burden of establishing suitable

employment; the employer need not show that the claimant can earn

wages in the open market. See Darden v. Newport News Shipbuilding

& Dry Dock Co., 18 BRBS 224, 226 (1986).

P & M Crane did not disturb, and, in fact, cited approvingly

the Darden holding. See P & M Crane, 930 F.2d at 430. Hence, we

find no error in the BRB's conclusion that Ingalls's employment of

Darby in the modified joiner position was sufficient to discharge

its burden of showing availability of suitable employment.

Properly characterized, Darby's challenge to the modified

joiner position thus becomes one of the suitability of the position

with respect to his physical constraints. In support of its

finding of suitability, the BRB noted that Darby had been granted

wide latitude by Ingalls to determine his physical capabilities and

to perform his duties in connection with such determinations and

that Darby had been instructed to report any conflicts between an

assigned job task and his work restrictions to his supervisor. See

Rene M. Darby v. Ingalls Shipbuilding, Inc., No. 91-LHCA-0049

(Dep't Labor 1992), at 3. The BRB also found sufficient evidence

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that, to the extent Darby was in fact performing work in excess of

his physical limits as suggested by his physicians, he was doing so

on his own accord. Id. Finally, the BRB was influenced by Darby's

satisfactory performance of his modified job responsibilities for

approximately one year prior to the hearing and the juxtaposition

of his complaints in close proximity with the ALJ hearing. Id.

The record reveals that the BRB's review of the ALJ's factual

findings is supported by substantial evidence, and we decline to

disturb any credibility inferences. See Mendoza v. Marine

Personnel Co., 46 F.3d 498, 500 (5th Cir.1995) (noting that "[t]he

ALJ is the factfinder and "is entitled to consider all credibility

inferences.' The ALJ's selection among inferences is conclusive if

supported by the evidence and the law. The ALJ determines the

weight to be accorded to evidence and makes credibility

determinations.") (citations omitted).

B.

Darby next argues that the modified joiner position is

improper because it constitutes "sheltered employment." Darby

points us to the cross-examination testimony of Carl Robinson,

Darby's immediate supervisor, in which Robinson answered in the

negative Darby's question whether, if Darby were to leave, he would

"advertise the position as a light duty joiner to be filled."

Darby so interprets Robinson's answer to mean that, were Darby to

leave, the position would not be filled at all and urges us to

marshal this "compelling evidence" toward the conclusion that "the

Employer created this position for the sole and express purpose of

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escaping liability to the Claimant for his neck and back injuries."

Not only is Darby's interpretation of Robinson's answer

questionable, but the remaining eight pages of Robinson's testimony

on cross-examination undermines Darby's ultimate conclusion.

First, Darby's question of Robinson asked only whether, if Darby

were to leave, Robinson would advertise Darby's position as a

"light duty joiner," not whether Robinson would hire an employee to

complete the duties formerly executed by Darby. Robinson's manner

of advertising a vacant position does nothing to support Darby's

sheltered employment claim. Furthermore, Robinson's remaining

testimony makes apparent the frequency with which joiners work

under various restrictions.2 That the joiner work was tailored to

Darby's physical limitations is insufficient to support Darby's

contention that the position was sheltered. See Darden, 18 BRBS at

226. Rather, we find substantial evidence to support the BRB's

review of the ALJ's finding that Darby's position was part of the

regular work performed by his department.

C.

Finally, Darby asserts that the ALJ failed to make a finding

under 33 U.S.C. § 908(h) that Darby's actual post-injury earnings

"fairly and reasonably represent his wage-earning capacity." Under

33 U.S.C. § 908(c)(21), an award for permanent partial disability

is based upon the difference between claimant's pre-injury average

weekly wage and his post-injury wage earning capacity. The ALJ is

2
Robinson noted: "That happens all the time, though, you
know, like you have guys that come in, they have a restriction, you
know, I done seen that before."

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permitted to approximate a claimant's wage-earning capacity by

using his post-injury actual wages, but only if such actual

earnings fairly and reasonably represent his wage-earning capacity.

See Develier v. National Steel & Shipbuilding Co., 10 BRBS 649, 660

(1979). Although the BRB said that the ALJ found that Darby's

post-injury earnings were representative of his wage-earning

capacity, see Darby at 5, we find no such determination in the

ALJ's decision. Accordingly, we vacate and remand for a finding

consistent with § 908(h).

The petition for review is GRANTED, and the decision of the

BRB is AFFIRMED in part and VACATED and REMANDED in part.

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