Washington v. Maersk Container ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CALVIN WASHINGTON,
Petitioner,
v.
No. 96-2585
MAERSK CONTAINER SERVICE; SIGNAL
MUTUAL INDEMNITY ASSOCIATION,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(BRB-95-508)
Submitted: January 6, 1998
Decided: February 17, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Ralph R. Lorberbaum, ZIPPERER & LORBERBAUM, P.C., Savan-
nah, Georgia, for Petitioner. Stephen E. Darling, SINKLER &
BOYD, P.A., Charleston, South Carolina, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Calvin Washington petitions for review of an order of the Depart-
ment of Labor's Benefits Review Board ["the Board"]. The Board
summarily affirmed* the decision of an administrative law judge
["ALJ"] denying Washington's claim for compensation benefits under
the Longshore and Harbor Workers' Compensation Act["LHWCA"],
33 U.S.C. §§ 901-950 (1994), and denying Maersk Container Service
["Maersk"] relief under § 908(f) for preexisting disability. Washing-
ton claims that the ALJ erred in determining that Maersk established
suitable alternate employment and in failing to find that his injury
aggravated a pre-existing condition. For the reasons set forth below,
we affirm.
Washington sustained an injury to his left leg in May 1989, and
Maersk paid Washington temporary total disability benefits for the
leg injury. Washington then filed a claim for permanent and total dis-
ability under the provisions of the LHWCA, alleging that his leg
injury was permanent and aggravated his pre-existing back condition.
In a proceeding before the ALJ, Maersk claimed that Washington's
leg injury did not aggravate a pre-existing condition and was not per-
manent. Further, Maersk contended that suitable alternative employ-
ment existed and alternatively, that it was entitled to relief pursuant
to § 908(f) for pre-existing disability. The ALJ concluded that Wash-
ington was not entitled to permanent disability benefits because his
_________________________________________________________________
*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. 1321-281 (1996). Because Washing-
ton's appeal met these criteria, the Board informed the parties that the
ALJ's decision had been effectively affirmed by the Board on September
12, 1996, for purposes of their rights to obtain review in this court. We
reject Washington's suggestion that this case is not ripe for our review.
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injury was limited to his leg and suitable alternative employment
existed. The Board summarily affirmed the ALJ's decision, and
Washington timely appeals.
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. See Tann, 841 F.2d
at 542-43. An employer must present evidence that a range of jobs
exists that is reasonably available and that the employee is realisti-
cally 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 contacting a prospective employer to see if that employer
would hire someone 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 alternate employment, the claimant's disability is found to be
partial and not total. See Southern v. Farmers 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).
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 Washington was not entitled to per-
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manent compensation under the LHWCA. The record establishes that
Washington's injury was limited to his leg and that the leg injury did
not aggravate or exacerbate a pre-existing back condition. Numerous
doctors examined Washington and the substantial weight of the evi-
dence found to be credible by the ALJ indicates that for a period of
at least two years following the accident, Washington sought treat-
ment for pain in his left leg only. Additionally, the record reveals that
suitable alternative employment existed. The record indicates, and
Washington concedes, that a range of jobs existed which was reason-
ably available and which Washington was realistically able to secure
and perform. Thus, the ALJ correctly concluded that because suitable
alternate employment existed, Washington's disability is partial and
not total. See Southern, 1985 WL 55355, at *2.
Accordingly, because we find that the ALJ's findings were sup-
ported by substantial evidence in the record as a whole and that the
ALJ did not err, we affirm the Board's summary order affirming the
ALJ's decision by default. See Hess, 681 F.2d at 941.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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