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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