Ceres Marine Term v. Knight ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CERES MARINE TERMINALS,
INCORPORATED,
Petitioner,
v.
No. 97-2767
HAYWOOD L. KNIGHT; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(97-475)
Submitted: August 4, 1998
Decided: August 19, 1998
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert A. Rapaport, CLARKE, DOLPH, RAPAPORT, HARDY, &
HULL, P.L.C., Norfolk, Virginia, for Petitioner. John H. Klein, RUT-
TER & MONTAGNA, L.L.P., Norfolk, Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ceres Marine Terminals Inc. ("Employer") petitions for review of
a Benefits Review Board ("BRB") order affirming an Administrative
Law Judge's ("ALJ") decision to award Haywood L. Knight workers'
compensation benefits under the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C.A. §§ 901-950 (West 1986 & Supp.
1998) ("LHWCA"). On appeal, Employer maintains that the ALJ
erred in finding that Employer failed to establish suitable alternate
employment. Finding no error, we affirm.
Knight, fifty-four years old at the time the hearing was held on his
claim, is a high school graduate with one year of college. In training
to be a longshoreman, Knight attended welder, burner, and refrigera-
tion school. He worked for Employer for approximately sixteen years
as a container repairman. It is undisputed that Knight developed car-
pel tunnel syndrome during this time. Knight also has a non work-
related diabetic neuropathy which causes the numbing of his finger-
tips, impairing his fine motor skills. From April 16, 1992, to May 13,
1992 and from January 11, 1994, to February 20, 1995, Employer
voluntarily paid Knight temporary total disability benefits. Employer
further compensated Knight for a seven percent permanent partial dis-
ability of both hands based on the impairment reading of his treating
physician, Dr. Gwathmey.
Knight filed a claim for permanent total disability benefits in 1992.
After a hearing held on June 3, 1996, the Administrative Law Judge
awarded Knight permanent total disability benefits beginning Febru-
ary 21, 1995, finding that Employer failed to establish the availability
of suitable alternate employment. The BRB affirmed the ALJ's find-
ing and his subsequent award of permanent total disability benefits.
Employer timely petitioned this court for review.
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This court's review of the Board's decisions under the LHWCA is
limited to a search for errors of law and deviations from the statutory
conclusiveness afforded to those factual findings by the ALJ that are
supported by substantial evidence. See 33 U.S.C. § 921(b)(3) (1994);
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540,
543 (4th Cir. 1988). Substantial evidence is described as "more than
a scintilla but less than a preponderance," and is "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Elliott v. Administrator, Animal & Plant Health Inspec-
tion Serv., 990 F.2d 140, 144 (4th Cir. 1993) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Further, this court
must defer to the ALJ's credibility determinations and inferences
from the evidence, despite the fact that more reasonable conclusions
might be drawn from the evidence. See Tann, 841 F.2d at 543; see
also Kellough v. Heckler, 785 F.2d 1147, 1150 n.3 (4th Cir. 1986)
(appellate deference accorded to ALJ's findings of fact).
To qualify for disability benefits under the LHWCA, Knight must
establish his inability to return to his regular and usual employment.
See Tann, 841 F.2d at 542. It is undisputed that Knight is unable to
return to his employment as a container repairman; thus Knight meets
his burden of showing disability. Employer can rebut this presump-
tion, however, by proving suitable alternative employment. Id. In
order to meet this burden, an employer must establish realistically
available job opportunities, within the geographical area where the
employee resides, which he is capable of performing, considering his
education, age, work experience, and which he could secure if he dili-
gently tried. See See v. Washington Metro. Area Transit Auth., 36
F.3d 375, 380 (4th Cir. 1994); Trans-State Dredging v. Benefits
Review Bd., 731 F.2d 199, 201 (4th Cir. 1984).
In this case, the ALJ discredited the job opportunities proffered by
Employer because they did not accurately reflect Knight's physical
limitations as suggested in his treating physician's initial physical
capacities evaluation and in the results of a manual dexterity test. In
his initial physical capacities evaluation of Knight, Dr. Gwathmey,
restricted Knight to occasional lifting over five pounds, no lifting over
ten pounds, no use of vibrating tools, no climbing, no temperature
extremes, and no repetitive reaching, handling or repetitive usage of
a keyboard and cash register. The manual dexterity tests placed claim-
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ant in the first percentile of each test. Based on these evaluations, the
ALJ discredited the labor market survey offered by Employer. The
ALJ further discredited the five jobs approved by Dr. Gwathmey,
because they did not fall within the physical restriction set out in his
initial evaluation. Moreover, the ALJ found numerous inconsistencies
in the labor market survey concerning Knight's limitations. Based on
these findings and his credibility determinations, the ALJ concluded
that Employer did not establish the availability of suitable alternate
employment.
We find the ALJ's decision supported by substantial evidence and
therefore affirm the BRB's order affirming the ALJ's award of bene-
fits. We dispense with 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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