Newport News Shipbld v. Cole ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
v.
No. 96-2535
CHERYL L. COLE; DIRECTOR, OFFICE
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(No. 95-1222)
Argued: June 5, 1997
Decided: August 12, 1997
Before HALL and MURNAGHAN, Circuit Judges, and
GARBIS, United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Murnaghan wrote the opin-
ion, in which Judge Hall and Judge Garbis joined.
_________________________________________________________________
COUNSEL
ARGUED: Lawrence Philip Postol, SEYFARTH, SHAW, FAIR-
WEATHER & GERALDSON, Washington, D.C., for Petitioner.
Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P., Norfolk,
Virginia, for Respondents. ON BRIEF: Matthew H. Kraft, RUTTER
& MONTAGNA, L.L.P., Norfolk, Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Newport News Shipbuilding & Dry Dock Co. appeals the Benefits
Review Board's reversal of the Administrative Law Judge's decision
who ruled in Newport News' favor concluding that its employee
Cheryl Cole's application for disability benefits was time-barred.
Newport News also appeals the ALJ's decision, on remand, to award
Cole benefits contending that the ALJ did not require Cole to demon-
strate that her inability to work was related to her disability.
I.
FACTS AND PROCEDURAL HISTORY
In August 1984, Cheryl Cole began working for Newport News in
the machinery installation department. On August 5, 1985, while
working at Newport News, Cole sustained a back injury when she
slipped and fell while working on board the THEODORE ROOSE-
VELT, a naval aircraft carrier. As a result of her fall, Cole reported
to her supervisor, and thereafter, Newport News' medical clinic pro-
vided her with treatment.
On August 16, 1985, Dr. William F. Peach, Jr. examined Cole. At
that time, Cole was diagnosed with having sustained a lumbosacral
contusion and a contusion to the right lower leg. X-rays conducted
revealed the presence of spondylolisthesis, a preexisting congenital
2
condition.1 As a result of his examination, Dr. Peach admitted Cole
to Riverside Hospital for further tests. Subsequently, on August 21,
1985, Dr. Peach discharged Cole with instructions to restrict her
activities and that she could return to work in September.2
Cole returned to work on September 16, 1985.3 When Cole
returned to work, she met with Dr. John Bobbitt, a physician with
Newport News. Dr. Bobbitt advised Cole that due to her congenital
back problem she should be transferred to a department other than
where she was originally assigned. As a result, she was placed in a
light-duty position which required her to sit on a flushing rig watch-
ing gauges.
Despite the light-duty position, Cole continued to have back prob-
lems so the Newport News' clinic arranged for her to see an orthope-
dist, Dr. Kerry Nevins, for an evaluation. During Dr. Nevins'
examination, conducted in October, 1985, he confirmed that Cole suf-
fered from spondylolisthesis, a condition that made her more prone
to suffer back problems. Nevertheless, Dr. Nevins opined that he
"would anticipate that she with the passage of time would recover
from her back strain problem." Dr. Nevins also advised Cole that her
back strain could be alleviated through doing sit-ups and reducing her
weight by 20 pounds. Dr. Nevins recommended that Cole be placed
in a light work activity which involved limited bending, climbing,
crawling and no strenuous lifting.
_________________________________________________________________
1 Spondylolisthesis is a condition in which the vertebra is composed of
cartilage instead of bone as is normal. The condition also involves slip-
page in the alignment of the vertebra.
2 In a letter, dated August 16, 1985, addressed to Dr. John Bobbitt, of
the Newport News' medical clinic, Dr. Peach noted as follows:
Although her neurological examination is normal, her x-rays
show a subluxation at S-1 with a pars defect, so she has a con-
genital anomaly at L5-S12. I cannot determine, unless I can com-
pare previous films, as to whether there is slippage at the time
of this accident.
3 Cole received temporary and total disability compensation from
August 7, 1985 through September 15, 1985.
3
Subsequent to Dr. Nevins' examination, Cole returned to work in
a light-duty capacity. On November 15, 1986, however, Newport
News laid Cole off from her position.4 At the time of the layoff, New-
port News did not offer Cole another light-duty assignment. After her
layoff, Cole did not file a claim for compensation benefits. In July,
1987, however, when her back and leg pain persisted, Cole sought
treatment from Dr. Lawrence Morales, an orthopaedic surgeon. Dr.
Morales confirmed the existence of spondylolysis 5 and expressed his
opinion that Cole's condition stemmed from her back injury suffered
in August 1985.
In so concluding, Dr. Morales testified in his deposition as follows:
Q: Doctor, do you have an opinion as to the relationship
between Miss Cole's injury that she sustained at work as
described to you, her spondylolysis, and her back symptoms
or the pain that she was experiencing when she was seen in
your office?
A: I see a number of this type problems, and she fits into
one of those categories. That is a patient who has had a con-
dition, that the condition was asymptomatic, it was congeni-
tal problem, she was able to perform all activities. A certain
injury occurs which loosens up the vertebra. This remains in
much the same way that causes the nerve to be irritated, and
in some cases can be improved, but in this case has
remained symptomatic and painful with evidence -- some
evidence of nerve irritation.
Q: Were her symptoms or her problems that she was hav-
_________________________________________________________________
4 From October 8, 1986 through November 24, 1986, Cole was unable
to work due to a personal medical condition unrelated to her employ-
ment. Cole was scheduled to return to work on November 24, 1986, but
found she had been laid off.
5 This condition is similar to spondylolisthesis, in that the vertebra is
composed of cartilage instead of bone. Spondylolysis differs from spon-
dylolisthesis in that no slippage of the alignment of the vertebra is
involved in the former.
4
ing at the time she was seen by you, then, a result of that
injury of August 1985?
A: In my opinion, yes sir.
Cole testified in her deposition that Dr. Morales' opinion conveying
to her the causal connection between her August 1985 accident and
her post-accident problems was the first time that she realized the
connection between the two. Cole also testified that she presumed her
back problems stemmed from the congenital nature of spondylolisthe-
sis.
On February 8, 1988, Cole was recalled by Newport News to
return to work.6 Cole returned to work without any work restrictions
upon the advice of Dr. John Bobbitt, a Newport News' physician,
who told Cole to "try ... regular duty." Cole's back problems persisted
and she left Newport News on February 29, 1988.
On July 31, 1987, Cole filed a claim under the Longshore and Har-
bor Workers' Compensation Act, 33 U.S.C. § 901, et seq. ("Act")
(1986 & Supp. 1997), seeking temporary total disability benefits from
November 24, 1986 to April 12, 1987, and temporary partial disabil-
ity benefits from April 13, 1987 through February 7, 1988. On April
3, 1989, after a hearing, the Administrative Law Judge (ALJ) issued
a decision concluding that Cole's claims for benefits were not timely
filed under § 13 of the Act. Cole appealed the ALJ's decision to the
Benefits Review Board (BRB).
On appeal, the BRB reversed the ALJ's determination on the time-
liness issue and concluded that Cole's claims for benefits were timely
filed. On remand, on November 2, 1994, the ALJ concluded that Cole
was entitled to the benefits she sought. Newport News appealed the
_________________________________________________________________
6 Subsequent to her layoff in 1986, Cole obtained a position as a night
manager/cashier at Carrollton Tobacco, where she was working when
Newport News recalled her back to work in July, 1987. Following her
pre-employment physical, Dr. James Harmon, medical director for New-
port News, notified Cole that she would not be recalled after all due to
her underlying spondylolisthesis. Therefore, Cole remained at Carrollton
Tobacco.
5
ALJ's decision to the BRB. No formal decision was issued by the
BRB on Newport News' appeal. Rather, the ALJ's decision was
affirmed as of September 12, 1996, by operation of Public Law 104-
134. Newport News now appeals.
II.
DISCUSSION
Newport News raises two issues on appeal. First, Newport News
contends that the ALJ's decision finding that Cole's claims for bene-
fits was not timely filed was supported by substantial evidence, and
the BRB erred in reversing the ALJ's determination. Second, New-
port News argues that on remand the ALJ erred in awarding Cole ben-
efits under the Act.
The court reviews the BRB's legal conclusions and whether the
BRB adhered to its statutory standard of review of the ALJ's factual
findings, de novo. Zapata-Haynie Corp. v. Barnard, 933 F.2d 256,
258 (4th Cir. 1981). The BRB's standard of review of the ALJ's fac-
tual findings requires the BRB to ascertain whether the ALJ's find-
ings are rational, in accordance with the law, and supported by
substantial evidence. Banks v. Chicago Grain Trimmers Ass'n, 390
U.S. 459, 467 (1968); 33 U.S.C. § 921(b)(3). Substantial evidence
requires "more than a scintilla but less than a preponderance" and is
"such relevant evidence as a reasonable mind might accept to support
a conclusion." Elliott v. Administrator, Animal & Plan Health Inspec-
tion Serv., 990 F.2d 140, 144 (4th Cir.) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197 (1938)), cert. denied, 126 L.Ed.2d 149(1993).
A. Timeliness of Cole's Claim under § 9137 of the Act
Section 913 of the Act prescribes the time limitations for filing
claims under the Act. That section provides:
_________________________________________________________________
7 Although the parties and the decisions by the ALJ and BRB refer to
§ 13 of the Act, § 913 is the new section number, and the language of
§ 13 and § 913 is the same. Hence, we refer to § 913 for purposes of clar-
ity in this opinion.
6
Except as otherwise provided in this section, the right to
compensation for disability or death under this chapter shall
be barred unless a claim therefore is filed within one year
after the injury or death. If payment of compensation has
been made without an award on account of such injury or
death, a claim may be filed within one year after the date of
the last payment. Such a claim shall be filed with the deputy
commissioner in the compensation district in which such
injury or death occurred. The time for filing a claim shall
not begin to run until the employee or beneficiary is aware,
or by exercise of reasonable diligence should have been
aware, of the relationship between the injury or death and
the employment.
33 U.S.C. § 913 (1986). Thus, § 913 provides two timing events to
trigger the running of the statute of limitations: (1) the date of the
injury or death, or (2) the date of the last payment made to the
employee or beneficiary without an award based on the injury or
death.
In the instant case, the ALJ concluded that Cole's claim for bene-
fits was barred under § 913. First, the ALJ found that Newport News
had voluntarily paid to Cole temporary total disability compensation
for the work days of September 24, 1985, November 20, 1985, and
February 26, 1986, which Cole missed due to medical treatment for
her back. Cole received her last payment from Newport News for
these missed days of work on March 5, 1986.8 Thus, pursuant to § 913
Cole was required to file her claim for benefits no later than March
5, 1987. The ALJ found that Cole's claim was filed with the Office
of Worker's Compensation Programs (OWCP) on June 17, 1987,
when her attorney contacted the Deputy Commissioner by letter.9
Therefore, the ALJ found that Cole's claim was not timely filed.
_________________________________________________________________
8 Cole also received payments for the period from August 7, 1985 to
September 15, 1985.
9 The BRB noted that the letter was actually dated June 16, 1987, not
June 17. For the purposes of the analysis, however, the significance of
one day is not dispositive, as Cole's claim, on the theory assumed, was
over 3 months late.
7
Turning to the second manner in which Cole could satisfy the tim-
ing restriction of § 913, the ALJ concentrated on the question of
"when [Cole] knew or should have known her back problems were
work-related."10 First, the ALJ discredited Cole's testimony finding
that her testimony with respect to when she became aware that her
back problems were work-related "provides no certain basis on which
to base a finding of when she became aware that her condition was
work-related."11 Second, he found that Cole knew or should have
known that her August 5, 1985 injury would negatively impact her
future earning capacity, as of September 16, 1985, when she saw Dr.
Bobbitt, or at the very latest, by October 10, 1985, when she saw Dr.
Nevins.
The ALJ found that Dr. Bobbitt's notes indicated that he had a long
conversation with Cole when she returned to work, and that he
advised the manager of labor relations that a transfer would be in the
best interest of everyone given Cole's unstable lower congenital back.
Although Dr. Bobbitt's notes did not indicate that he discussed with
Cole the connection between her existing back problems and the
August 5, 1985 accident, the ALJ stated "[i]t seems an obvious con-
clusion that Dr. Bobbitt discussed the effect that the strenuous duties
required by the position she held before her fall would aggravate her
congenital back problem."
_________________________________________________________________
10 Under the Act, injury is a term of art. Under the Act, an injury occurs
when the person knows or should have known that his or her future earn-
ing power is impaired. See also Todd Shipyards Corp. v. Allan, 666 F.2d
399, 401-02 (9th Cir. 1992) ("[O]nce the man has been put on alert (i.e.,
once he knows or has reason to know) as to likely impairment of earning
power, there is an ``injury'; before that time, while there may have been
an accident, there is as yet no ``injury' for claim or filing purposes under
this statute."); Stancil v. Massey, 436 F.2d 274, 277 (D.C. Cir. 1970).
11 Essentially, Cole testified that she did not become aware until Dr.
Morales examined her on July 31, 1987. As noted above, in his deposi-
tion, Dr. Morales testified that Cole's back problems were related to her
August 5, 1985 accident. Furthermore, Dr. Morales recommended that
Cole wear a back brace for 2-3 months. Dr. Morales also noted that he
found it interesting that "the patient was completely asymptomatic prior
to the August 4, 1985 injury and now has been symptomatic for approxi-
mately 2 years."
8
The ALJ then stated that even if Dr. Bobbitt's notes were "incon-
clusive" with respect to when Cole was put on notice that her future
earnings capacity would be affected, the ALJ found that Cole was put
on that notice by Dr. Nevins' October 10, 1985 medical report. While
the ALJ acknowledged that Dr. Nevins stated in his report that Cole
would recover from her back strain problem, the ALJ found more per-
suasive Dr. Nevins' statement that "[f]rom the standpoint of her work
activity, I think on a long term basis if she is required to do strenuous
work, she will develop progressively severe back problems. On the
basis of her spondylolisthesis she is not suited, in my estimation, for
heavy work activity and I would make the recommendation that she
be reassigned into light work activity where she would have limited
bending and limited climbing and crawling and not be required to do
strenuous lifting." The ALJ found that based on the above, Cole
should have been aware of "an impairment of earning power." There-
fore, the ALJ found that Cole's claim for benefits filed on June 17,
1987, was not timely filed and denied Cole's claim for benefits.
On appeal, the BRB reversed. The BRB concluded that the ALJ
erred in finding that Cole knew or should have known that she had
a statutory injury on September 16, 1985, or at the latest October 10,
1985, thus triggering the one year statute of limitations period. The
BRB stated that the ALJ's conclusions cannot "be upheld on the facts
of this case."
In reversing the ALJ's findings, the BRB noted that Dr. Bobbitt did
not indicate "that he informed [Cole] that the strenuous duties
required by her position at the time of her injury would aggravate her
congenital back problem." The BRB also concluded that the ALJ's
finding with respect to the October 10, 1985 date could not be sus-
tained. The BRB noted that Dr. Nevins told Cole that with the passage
of time her back problems would improve. The BRB also noted that
Dr. Nevins' notes of a later visit with Cole indicated that he told Cole
that her being overweight was contributing to her back problems. The
BRB stated that "[s]pecifically, the reports of Drs. Bobbitt and Nevins
do not establish that [Cole's] injury was likely to permanently impair
her earning capacity." Thus, the BRB concluded that substantial evi-
dence did not support either of the ALJ's findings with respect to a
trigger date for statute of limitations purposes.
9
The BRB then concluded that Cole did not become aware of her
statutory injury until July 31, 1987, when she visited Dr. Morales.
The BRB took recognition of Dr. Morales' notice that prior to the
August 5, 1985 accident, Cole was asymptomatic, and since the acci-
dent Cole has been symptomatic experiencing back problems. More-
over, the BRB stated that Dr. Morales recommended that Cole wear
a brace for 2-3 months, and commented that Cole might need a spinal
fusion performed. Thus, the BRB concluded that "[i]n view of the fact
that the possibility of a back brace and surgery was not discussed until
July 31, 1987, we hold that [Cole] could not have been aware that her
injury would likely impair her earning capacity until July 31, 1987,
and that, therefore, her June 16, 1987 claim is timely."
In a nutshell, Newport News argues that the BRB exceeded its stat-
utory standard of review. Specifically, Newport News contends the
BRB disregarded the ALJ's findings which were supported by sub-
stantial evidence in violation of its statutory standard of review. New-
port News' challenge should be rejected.
We note that a substantial difference exists between (a) adopting
different facts from those found by the ALJ and (b) accepting his
findings but finding them legally insufficient. Here it is the latter
which the Benefits Review Board did.
In Newport News Shipbuilding & Dry Dock Co. v. Parker, 935
F.2d 20 (4th Cir. 1991), the court addressed the question of when the
statute of limitations under § 13 [now§ 913] begins to run. In Parker,
the plaintiff injured his right knee in a work-related accident in 1962.
Parker continued to work and was treated intermittently for pain for
his knee. Id. at 21. Finally, on July 6, 1987, the plaintiff received sur-
gery on his knee. Id. at 22. The doctor who performed the surgery rec-
ommended a permanent work restriction of no climbing and limited
walking and bending. Id. at 22. Prior to his surgery, the plaintiff did
not miss any work as a result of his knee problems after recovering
from the initial accident. Id. at 22. Following his surgery, in 1988, the
plaintiff filed a claim for compensation seeking temporary total dis-
ability compensation for a seven-week period commencing from the
date of the surgery through the plaintiff's return on August 24, 1987
to light work. Id.
10
At the hearing on the plaintiff's claim, the ALJ thought that the
plaintiff's continual suffering of pain with respect to his knee should
have alerted him that his injury was likely to affect his wage-earning
capacity, despite the fact that the doctors who treated the plaintiff
gave him favorable prognosis. Thus, the ALJ found that "on Novem-
ber 8, 1979, after at least six examinations and treatments . . . [the
plaintiff] exercising reasonable diligence, should have known of the
seriousness of his injury and the likelihood of loss of wage-earning
capacity." Id. Therefore, the ALJ held that plaintiff's claim, filed in
1988, was time-barred. Id.
On appeal, the Benefits Review Board affirmed the ALJ's legal
conclusion that the statute of limitations under§ 13 [now § 913] of
the Longshore and Harbor Workers' Compensation Act, does not
begin to run "until the claimant knows or has reason to know of the
likely impairment of his earning capacity." Id. The Benefits Review
Board, however, reversed the ALJ's finding that the plaintiff should
have known of his injury on November 8, 1979. Rather, the Benefits
Review Board found that the statute of limitations did not begin to run
until June, 1987, when the plaintiff's surgery was scheduled. Id. Thus,
the Benefits Review Board reversed the ALJ's denial of benefits, and
awarded temporary total disability benefits for the period requested
by the plaintiff. Id.
On appeal to the Fourth Circuit, Parker affirmed the Benefits
Review Board's decision. The court concluded that the Benefits
Review Board did not err in its determination that"[the plaintiff's]
time for filing his claim under § 13(a) did not commence until he
knew or had reason to know that his 1962 injury was likely to impair
his earning capacity." Id. at 27. As for the Benefits Review Board's
finding that the plaintiff did not obtain such knowledge until June,
1987, the court stated that "the experiencing of pain after an accident
is insufficient as a matter of law to establish an awareness of a likely
impairment of earning power." Id. The court concluded that substan-
tial evidence did not support the ALJ's finding, and held that
"[c]onsequently, the Board did not exceed the scope of its review in
reversing the ALJ's determination on the grounds that it was not sup-
ported by substantial evidence and concluding instead that [the plain-
tiff] did not have reason to know of the likely impairment of his
11
earning capacity until Dr. Nevins arranged surgery for him in 1987."
Id.
Based on Parker, we conclude that the BRB's decision here should
be affirmed. First, the BRB did not exceed its statutory scope of
review in reversing the ALJ's initial determination. No evidence
exists in the record to support the ALJ's determination that Cole
should have known that her future earning capacity would be affected
as of October 1985 at the latest. As the BRB noted, neither Dr. Bob-
bitt nor Dr. Nevins explained to Cole the relationship between her
injury sustained in August 1985 and her residual physical condition.
Nor did either doctor explain to her that her condition was likely to
impact her future earning capacity. Thus, the ALJ's determination
was not based on substantial evidence, and the BRB did not err in
finding that Cole did not know or have reason to know that her injury
would affect her future earning capacity until her examination by Dr.
Morales, in July, 1987.12
Thus, we affirm the BRB's decision.
B. ALJ's Award of Disability Benefits
Essentially, Newport News contends that the ALJ erred in award-
ing benefits to Cole because "he failed to even consider if there was
a causal link between the disability (the layoff) and the work injury."
Newport News maintains that Cole was laid off due to economic rea-
sons, not due to her disability, and thus, is not entitled to benefits
under the Act.
_________________________________________________________________
12 Newport News' attempt to distinguish the Parker decision is unper-
suasive. Newport News claims that unlike the plaintiff in Parker, in the
instant case, Cole was placed on work restrictions, was advised to change
jobs, and had received compensation for her injury. The Parker case
clearly holds that the statute of limitations does not begin to run until the
claimant knows or has reason to know that the injury will likely affect
future earning capacity. In the instant case, while all of Newport News'
purported distinctions are in fact true, those distinctions still do not dem-
onstrate that Cole knew or should have known of her injury. In fact, Cole
continually was advised that her back problems stemmed from a congen-
ital problem, not the 1985 accident.
12
The Act, much like Title VII, employs shifting burdens of proof.
Initially, the claimant bears the burden of establishing a prima facie
case of total disability demonstrating that claimant is unable to return
to his or her prior employment "due to a work-related injury." Brooks
v. Director, OWCP, 2 F.3d 64, 65 (4th Cir. 1993). If claimant estab-
lishes a prima facie case, the burden then shifts to the employer to
demonstrate the availability of suitable, alternative employment. See,
e.g., Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d
540, 542 (4th Cir. 1988). An employer may satisfy its burden by
"showing a suitable job that the claimant actually performed after his
injury." Brooks, 2 F.3d at 65 (citing with approval Darden v. Newport
News Shipbuilding Dry Dock, Co., 18 BRBS 244, 246 (1986)).
In the instant case, as the ALJ recognized, the debate concerns
whether Newport News has satisfied its burden of proving suitable
alternate employment was available for Cole.13 Before the ALJ, New-
port News contended that suitable alternate employment was avail-
able and points to the light duty work performed by Cole from
September 16, 1985 through November 16, 1986. Now, however,
Newport News appears to challenge the ALJ's award of benefits to
Cole on the grounds that Cole has not suffered a loss due to an injury,
but rather due to her lack of seniority. Newport News argues that Cole
would have been laid off regardless of her injury, so she is not entitled
to benefits.
In any event, Newport News' argument misses the mark. Simply
put, Newport News has failed to satisfy its burden. As explained
above, the court is required to follow the shifting burdens of proof.
Once claimant has established a prima facie case, the burden shifts to
the employer. To date, Newport News has not offered any evidence
demonstrating that Cole was offered an alternate position within its
facility, or that suitable alternative employment existed in the open
market for Cole. Newport News' reliance upon its past provision of
light duty work to Cole, as satisfaction of its burden presently, must
fail.
_________________________________________________________________
13 The parties do not dispute that Cole has established a prima facie
case of temporary disability during the relevant periods. Cole has demon-
strated that she was not capable of returning to her pre-August 1985, reg-
ular employment due to her work-related injury.
13
Newport News' attempt to rely upon two decisions, Brooks and
Armfield v. Shell Offshore, Inc., 25 BRBS 303, 306-07 (1992), to sup-
port its argument that it has satisfied its burden of establishing suit-
able alternate employment by offering Cole the light duty work is
equally unavailing. Cole's loss of that job for economic reasons,
Newport News argues, does not negate its satisfaction of its burden.
As the ALJ recognized, both of the cases upon which Newport News
seeks to rely are inapposite. In each of those cases, work remained
economically available for the claimant. Nevertheless, the actions of
the claimant, not the employer, led to the loss of the employment.
Thus, as the ALJ stated "[i]n the case at hand, [Cole] was not laid off
as a result of her own actions; rather, [Newport News] eliminated her
position entirely for economic reasons." Moreover, the ALJ stated
"[Newport News] withdrew the opportunity for light duty work. That
result was that suitable employment was no longer available in [New-
port News'] facility."
The ALJ also relied upon Mendez v. National Steel and Shipbuild-
ing Co., 21 BRBS 22, 1988 WL 232730 (1988), for support. In that
case, the claimant lost his job due to an economic lay-off. Claimant's
loss of his job had nothing to do with his injury or medical restrictions
imposed as a result of those injuries. The claimant's employer
attempted to rely upon the job from which the claimant had been laid
off to satisfy its burden of demonstrating suitable alternate employ-
ment.
In affirming the ALJ, the Benefits Review Board acknowledged
that an employer may rely upon a job within its own facility to meet
its burden, but stated that "the job must be actually available to claim-
ant." Id. at 22. The Benefits Review Board reasoned that since "the
employer had withdrawn the opportunity for light day work with the
result that suitable alternate employment in the employer's facility
was no longer available" the employer could not meet its burden by
relying on the job claimant lost due to an economic layoff.
Relying on Mendez, the ALJ held that "[w]ithout evidence of suit-
able jobs actually available to [Cole], either in the open market or in
its own facility, [Newport News] cannot satisfy its burden. Thus, as
the Board held in Mendez, by relying solely on a light-duty job in its
own facility that was eliminated due to an economic layoff, [Newport
14
News] fails to prove that suitable alternate employment was actually
available to [Cole]." Therefore, the ALJ concluded that Newport
News had failed to carry its burden, and awarded Cole benefits.
Newport News has failed to offer any evidence, with the exception
of Cole's light duty job which is no longer available due to an eco-
nomic layoff at Newport News, to carry its burden that suitable alter-
nate employment exists for Cole. Newport News' argument with
respect to causation is putting the cart before the horse. Assuming that
such a determination need be made, Newport News must still demon-
strate a suitable alternate job exists, which in the instant case it has
failed to do.
The BRB's decision is, in all respects,
AFFIRMED.
15