Newport News Shipbld v. Justice ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,
v.
No. 96-2647
STANLEY K. JUSTICE; 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. 96-1868)
Argued: October 3, 1997
Decided: October 20, 1997
Before WIDENER and MOTZ, Circuit Judges, and MICHAEL,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Benjamin McMullan Mason, MASON & MASON, P.C.,
Newport News, Virginia, for Petitioner. Kevin William Grierson,
JONES, BLECHMAN, WOLTZ & KELLY, P.C., Newport News,
Virginia, for Respondents. ON BRIEF: Richard B. Donaldson, Jr.,
JONES, BLECHMAN, WOLTZ & KELLY, P.C., Newport News,
Virginia, for Respondent Justice.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Newport News Shipbuilding and Dry Dock Company (the
Employer) appeals an order awarding Stanley Justice, a former
employee, benefits under the Longshore and Harbor Workers' Com-
pensation Act, 33 U.S.C.A. § 901 (West 1986 & Supp. 1997) (the
Act). We affirm.
Justice was injured while working as a mechanic for the Employer
in 1988. He sustained permanent physical injuries that prevent him
from climbing ladders and lifting from a bent position amounts in
excess of thirty pounds. Because the Employer did not have work for
Justice with his physical limitations, Justice was terminated after his
accident.
Under the Act, any employee unable to return to his former posi-
tion is considered totally disabled unless and until his employer can
demonstrate the existence of suitable alternative employment. 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
age, education, 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). Wages earned from
such suitable alternative employment demonstrate wage-earning
capacity. However, the Act specifically provides:
2
The term wages [under the Act] does not include fringe ben-
efits, including (but not limited to) . . . training. . . .
33 U.S.C.A. § 902(13).
Justice participated in a federally funded tuition program at
Thomas Nelson Community College, which involved on-the-job
training at the National Aeronautics and Space Administration
(NASA). During the day, students followed and assisted NASA
employees or spent their time at NASA doing homework for college
classes; at night they attended classes. The students received biweekly
stipends from NASA out of which they were expected to purchase
their books; the stipends did not vary depending on the number of
hours spent at NASA. The program continued for a year and was
designed to prepare participants for NASA jobs, if vacancies existed.
However, there was no promise of NASA employment at the end of
the program, and when Justice completed the program, NASA was
experiencing a hiring freeze and did not employ any of the program's
participants.
The Employer contends that Justice's participation in the NASA
program demonstrates the availability of suitable alternative employ-
ment, and that the stipends paid to Justice by NASA constitute wages,
demonstrating wage-earning capacity. The administrative law judge,
in an opinion affirmed by the Benefits Review Board pursuant to 33
U.S.C.A. § 921(b), specifically found that Justice's "participation in
the NASA co-op program is training" within the meaning of the Act.
For this reason, the administrative law judge concluded that the sti-
pend that NASA paid to Justice did not constitute wages or evidence
of wage-earning capacity.
An administrative law judge's findings of fact must be affirmed if
supported by substantial evidence in the record as a whole. 33
U.S.C.A. § 921(b)(3); Banks v. Chicago Grain Trimmers Ass'n., 390
U.S. 459, 467 (1968); Zapata Haynie Corp. v. Barnard, 933 F.2d 256,
258 (4th Cir. 1991); Zbosnik v. Badger Coal Co. , 759 F.2d 1187,
1189 (4th Cir. 1985). After careful review of the record, the parties'
briefs, and with the benefit of oral argument, we can only conclude
that sufficient evidence supported the finding that the NASA program
constituted training.
3
The Employer also asserts that the administrative law judge erred
in finding sua sponte that Justice was permanently disabled, without
giving the Employer adequate time to develop evidence to dispute
that finding. An administrative law judge properly acts within his dis-
cretion in raising and deciding an issue sua sponte. See 20 C.F.R.
§ 702.336. Here, the administrative law judge provided the Employer
almost two weeks to proffer evidence "tending to negate perma-
nency;" the regulations require only ten days' notice. 20 C.F.R.
§ 702.336(b). The record contains no indication that the Employer
ever notified the administrative law judge that the two-week period
was inadequate. Accordingly, we must reject the Employer's claim
that the administrative law judge abused his discretion in sua sponte
finding Justice permanently disabled.
AFFIRMED
4