Brown v. Newport News Shipbld ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VETUS C. BROWN,
Petitioner,
v.
NEWPORT NEWS SHIPBUILDING AND
No. 96-2622
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(94-610)
Argued: March 4, 1998
Decided: June 4, 1998
Before MURNAGHAN, ERVIN, and WILKINS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Benjamin McMullan Mason,
MASON & MASON, P.C., Newport News, Virginia, for Respon-
dents. ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Petitioner. Dean C. Berry, Assistant
General Counsel, NEWPORT NEWS SHIPBUILDING AND DRY
DOCK COMPANY, Newport News, Virginia, for Respondent New-
port News Shipbuilding.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Vetus Brown petitions for review of a final order of the Depart-
ment of Labor's Benefits Review Board ("BRB" or "Board"). Finding
that Newport News Shipbuilding and Dry Dock Co. ("NNS") had
offered Brown employment that conformed to his medical restric-
tions, the Administrative Law Judge ("ALJ") denied Brown's claim
for temporary partial disability benefits for loss of wage earning
capacity. Brown noted a timely appeal to the BRB. After a year with-
out action the BRB was deemed to have affirmed the ALJ's decision
pursuant to the provisions of the Omnibus Consolidated Rescissions
and Appropriations Act of 1996, Pub. L. No. 104-134,§ 101(d), 110
Stat. 1321, 1321-29.
On petition for review to this court, Brown argues that the position
offered by NNS was not compatible with his post-injury physical
capacity and medical restrictions. In the alternative, Brown contends
that a remand is required because the ALJ's Decision and Order failed
sufficiently to explicate the evidentiary basis for his conclusions.
Finding no error, we affirm.
I
NNS employed Brown in the shipyard's rigging department.
Brown's pre-injury duties included building stages used in construct-
ing ships, directing crane operators, and moving heavy equipment on
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submarines and carriers. On March 10, 1986, Brown fell from staging
to the ground, a distance of approximately four feet, when a wrench
he was using to tighten a nut slipped. As a result of the fall, Brown
suffered injuries including a blow to the head. Following the accident,
Brown complained of severe and persistent headaches that were
aggravated by noise and light.
Brown obtained treatment for his headaches from Dr. Gilbert
Snider, a neurologist. Dr. Snider prescribed several medications and,
in response to Brown's claim that loud noise intensified the severity
of his headaches, recommended that NNS place Brown in a low-noise
work environment.
Between March 10 and November 11, 1986, Brown endeavored to
return to work at the shipyard several times. Each time, however,
Brown complained that he could not abide the noise levels. Additions
and changes to his medication proved unavailing. On November 11,
1986, NNS laid off Brown in a general reduction in force.
In February 1987, Dr. Snider determined that Brown could return
to work under three restrictions. With respect to Brown's intolerance
for loud noise, Dr. Snider recommended that Brown work in an area
with a background noise level of no more than 90 decibels, and pref-
erably no more than 85 decibels. Dr. Snider noted that a steady noise
level of 90 decibels would be more readily tolerated than intermittent
sounds of 90 decibels. Dr. Snider also recommended that Brown be
permitted to use tinted lenses, and that he not work at heights of more
than 50 feet.
In April or May 1987, Brown obtained a supervisory position at the
Fort Eustis Exchange service station. Brown worked at the service
station until July 1987, when NNS recalled Brown to work at the
shipyard in the rigging department.
Brown reported to work at the shipyard on July 21, 1987. The rig-
ging supervisor, Michael Burke, was informed of Brown's medical
restrictions and assigned Brown to work under the hull of a ship under
construction. Although Brown did not complain to Burke of noise-
induced headaches on July 21 or July 22, he advised Dr. Snider by
telephone that the work environment was aggravating his headaches.
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In response to Brown's call, Dr. Snider requested that Brown be
returned to "his prior job at a low noise level," be permitted to wear
sunglasses, and not be required to wear a hardhat.*
Brown also visited the NNS clinic to complain of excessive noise.
Clinic personnel asked Brown to wait while the noise levels in his
work area were tested. Although testing revealed that the decibel
levels under the ship hull were within the range recommended by Dr.
Snider, Brown did not return to his assigned work at the shipyard
after July 22, 1987.
On July 24, Brown reported to the shipyard to advise NNS of Dr.
Snider's most recent restrictions. Brown was informed that the ship-
yard had work available within his restrictions and was warned about
unauthorized leave. Nevertheless, Brown left the shipyard and
returned to work at the Fort Eustis service station. On July 28, 1987,
Brown again visited the shipyard and was offered work under the hull
of a ship, which Brown refused. Based on his failure to report to work
after July 22, Brown was released from union rolls effective July 27,
1987, for being absent without leave for five or more consecutive
work days.
Pursuant to an agreement reached in February 1987, NNS paid
Brown temporary total disability benefits from March 25, 1986,
through May 3, 1987, excluding days Brown actually worked, and
temporary partial disability benefits from May 4, 1987, through July
20, 1987. Brown's compensation was terminated when he was
released from duty effective July 27, 1987.
Brown subsequently filed a claim for workers' compensation bene-
fits under the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. §§ 901-50 ("LHWCA"), seeking medical benefits and rein-
statement of temporary partial disability benefits for loss of wage
earning capacity from July 23, 1987, and continuing. On March 6,
1990, the ALJ issued a Decision and Order awarding Brown the
requested medical benefits, but denying Brown's claim for temporary
partial disability payments.
_________________________________________________________________
*Following a conversation with the NNS clinic physician, Dr. Len-
thall, Dr. Snider eliminated the hard hat restriction.
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Brown filed a timely appeal with the BRB. In a decision dated
April 28, 1993, the BRB vacated the denial of disability benefits and
remanded the case to the ALJ for further consideration because the
ALJ had failed adequately to analyze and discuss the medical evi-
dence relating to Brown's work restrictions and his ability to perform
his job. The Board instructed the ALJ on remand to determine, in
light of the medical evidence, whether Brown could perform his usual
work or the work NNS offered him.
On remand, the ALJ concluded that the work offered to Brown in
July 1987 was within the medical restrictions imposed by Dr. Snider
and again denied Brown's claim for temporary partial disability pay-
ments. The ALJ's decision was deemed affirmed on September 12,
1996. Brown timely filed a petition for review on November 8, 1996.
Jurisdiction is present under 33 U.S.C. § 921(c). Ordinarily, we
review decisions of the Board for errors of law and to determine
whether the Board heeded the mandate of 33 U.S.C.§ 921(b)(3),
which provides that the ALJ's findings of fact "shall be conclusive if
supported by substantial evidence in the record considered as a
whole." See See v. Washington Metro. Area Transit Auth., 36 F.3d
375, 380 (4th Cir. 1994); Newport News Shipbuilding and Dry Dock
Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). Absent a decision by
the Board, we inquire whether the ALJ's decision was based on legal
error or on factual findings not supported by substantial evidence.
Substantial evidence, described as "more than a scintilla but less than
a preponderance," is "`such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Elliott v. Adminis-
trator, Animal & Plant Health Inspection Serv., 990 F.2d 140, 144
(4th Cir. 1993) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). We defer to the ALJ's credibility determinations
and inferences from the evidence, "despite our perception of other,
more reasonable conclusions from the evidence." See, 36 F.3d at 380.
II
The principal question before us is whether the ALJ correctly con-
cluded that the work NNS offered to Brown in July 1987 conformed
to the restrictions dictated by Dr. Snider. A claimant for disability
benefits under the LHWCA bears the burden of demonstrating that he
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is unable to perform his usual work. See, 36 F.3d at 380. The burden
then shifts to the employer to show the availability of suitable alter-
nate employment. Id. The employer's burden may be satisfied "[b]y
proving that the injured employee retains the capacity to earn wages
in regular, continuous employment." Lentz v. Cottman Co., 852 F.2d
129, 131 (4th Cir. 1988).
The record contains substantial evidence to show that work was
available within Brown's medical restrictions in the rigging depart-
ment at NNS. Burke, the rigging supervisor to whom Brown reported,
assigned Brown to "scrapping up," or removing materials from under-
neath the hull of a ship under construction. The job did not require
Brown to work above ground level. Brown was permitted to wear
sunglasses while he worked, but only when he was not under the ship.
Burke explained that the work area was shadowed by the hull and
light bulbs were required to provide adequate illumination.
An industrial hygienist for NNS assessed noise levels under the
hull on July 23, 1987. A dosimeter was used to measure the average
noise level, while a sound level meter took readings at two minute
intervals. The records were reviewed by Larry Bonner, an industrial
hygienist employed by NNS. Bonner testified that the average noise
level under the hull was 80 decibels. The nine sound meter readings
revealed decibel levels ranging from a low of 77 decibels to a high
of 84. The average noise level and highest intermittent noise level
were both within the preferable 85 decibel limit prescribed by Dr.
Snider.
The proper use of earmuffs and earplugs would have further
reduced Brown's exposure to noise. Chris Zambas, an audiologist,
testified that properly sized and fitted earplugs reduce noise exposure
by approximately 26 decibels. Dr. Lenthall stated that Brown was fit-
ted with earplugs to be worn under earmuffs on May 29, 1986. The
earmuffs used at NNS, and worn by Brown when working under the
hull in July 1987, have a noise reduction rating of 22 to 25 decibels.
When earplugs and earmuffs are used in combination, noise levels are
reduced by approximately seven decibels more than by either ear-
muffs or earplugs alone.
With earmuffs alone, therefore, the average noise level to which
Brown was exposed under the hull would have been 55 to 58 deci-
6
bels. The highest intermittent noise level would have been 59 to 62
decibels. Had Brown elected to wear both earmuffs and earplugs, a
practice condoned by NNS, his exposure would have been further
reduced to an average noise level of no more than 48 to 51 decibels,
and an intermittent noise level of no more than 52 to 55 decibels.
The ALJ's conclusion that the work was within Brown's medical
restrictions is not undermined by Bonner's testimony that noise levels
at various locations in the shipyard infrequently and momentarily
exceeded 115 decibels. With the proper use of earmuffs and earplugs,
Brown's exposure to such noises would have been reduced to 86 deci-
bels or less.
Brown argues, however, that Dr. Snider's specific restrictions were
succeeded by a general recommendation that Brown not return to
work at the shipyard. According to Brown, Dr. Snider's advice dem-
onstrates Brown's inability to perform any work at NNS. We do not
agree. Dr. Snider testified that his opinion was based solely on
Brown's assertion that his headaches were aggravated whenever he
worked at the shipyard, but were less severe when Brown worked at
Fort Eustis. No objective medical evidence exists to corroborate
Brown's claim. The ALJ expressly found that Brown was not credi-
ble, and we must defer to that determination. Tann, 841 F.2d at 543.
We conclude that there is substantial evidence to support the ALJ's
finding that NNS provided employment to Brown within the specific
restrictions prescribed by Dr. Snider. Furthermore, we find that the
ALJ's Decision and Order contains an adequate explanation of the
basis for the ALJ's conclusions. Therefore, the ALJ's denial of tem-
porary partial disability benefits to Brown is
AFFIRMED.
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