Forgich v. Norfolk Shipbuilding ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE FORGICH,
Petitioner,
v.
NORFOLK SHIPBUILDING & DRYDOCK
No. 96-2574
CORPORATION; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(95-1939)
Argued: April 8, 1998
Decided: August 4, 1998
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
CHAMBERS, United States District Judge for the Southern District
of West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Richard John Barrett, VANDE-
VENTER, BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Vir-
ginia, for Respondents. ON BRIEF: Matthew H. Kraft, RUTTER &
MONTAGNA, L.L.P., Norfolk, Virginia, for Petitioner. Kelly O.
Stokes, VANDEVENTER, BLACK, MEREDITH & MARTIN,
L.L.P., Norfolk, Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
George Forgich appeals the decision of the Benefits Review Board
denying him workers' compensation benefits under the Longshore
and Harbor Workers' Compensation Act, 33 U.S.C.§ 901 et seq.
Concluding that substantial evidence supports the Board's decision,
we affirm.
I
In March 1985, Forgich began his employment with Norfolk Ship-
ping & Drydock Corporation ("Norshipco") as a machinist's appren-
tice. A few months later, Forgich injured his right knee during the
course of his employment. Dr. Robert Neff, who treated Forgich,
determined that Forgich had sustained a 15% permanent partial dis-
ability of his right lower leg. Forgich returned to regular duty at the
machine shop in December 1988, although he continued to receive
treatment for his injury until June 1990.
Upon completion of his apprenticeship, Forgich was promoted to
machinist second-class and thereafter to machinist first-class.
In May 1990, again while working in the course of his employ-
ment, Forgich sustained an injury to his right foot, and again Dr. Neff
treated the injury. Dr. Neff assigned an additional 5% permanent par-
tial impairment of the right leg as a result of this injury and returned
2
Forgich to work in April 1991 with physical restrictions, including
limitations on climbing stairs and ladders. When Forgich returned to
work, Norshipco provided him with light-duty work in the machine
shop.
Several months later, in July 1991, Forgich resigned from his posi-
tion at Norshipco to begin work for another company, CACI. In Octo-
ber 1992, he returned to work for Norshipco, again working as a
machinist first-class. He continued as an employee of Norshipco until
February 23, 1994, when he began working as a tool and dye maker
for another company, Sorbilite, where he continues to work today.
During the period from April 1991 until the present, Forgich has
worked continuously except for two relatively short periods when
Norshipco laid off Forgich, along with a number of other employees
at his seniority level, because of economic conditions. The first lay-
off, which involved approximately 25% of Norshipco's machine
shop, lasted about three weeks from June 21, 1993, until July 12,
1993, and the second layoff, which involved over 50% of the shop,
lasted about eight weeks from December 27, 1993, until February 22,
1994.
Forgich filed a claim for workers' compensation benefits under the
Longshore Act for the eleven weeks that he was laid off in the sum-
mer of 1993 and the winter of 1993-94. The administrative law judge
denied benefits, noting that the layoffs were caused entirely by eco-
nomic reasons and were in no way related to any employment injury.
He concluded, "As there is no evidence that the layoffs or Claimant's
participation therein were related to his employment injuries, he is not
entitled to compensation for those periods of time that he was out of
work." The Benefits Review Board summarily affirmed, and this
appeal followed.
II
To qualify for benefits under the Longshore Act, the claimant bears
an initial burden of demonstrating that due to his work-related injury,
he was incapable of returning to his prior employment. See, e.g.,
Universal Maritime Corp. v. Moore, 126 F.3d 256, 264 (4th Cir.
1997); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841
3
F.2d 540, 542 (4th Cir. 1988). Once the claimant has satisfied this
burden, he is eligible for benefits unless the employer is able to dem-
onstrate that the claimant is capable of performing suitable alternative
employment. See, e.g., Brooks v. Director, OWCP, 2 F.3d 64, 65 (4th
Cir. 1993) (per curiam); Newport News Shipbuilding & Dry Dock Co.
v. Director, OWCP, 592 F.2d 762, 765 (4th Cir. 1979). In order to
demonstrate suitable alternative employment, "the employer must
demonstrate that ``there [are] jobs available in the local economy
which the claimant, considering his age, past experience and disabil-
ity, [is] capable of performing.'" Newport News, 592 F.2d at 765(quoting Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968) (alterations
in original)). One of the ways in which the employer can satisfy this
burden is by "showing a suitable job that the claimant actually per-
formed after his injury." Brooks, 2 F.3d at 65. The employer can also
present or point to evidence in the record of other jobs that are avail-
able in the relevant geographic market for which the claimant is phys-
ically and educationally qualified. See Tann, 841 F.2d at 542-43. The
employer need not, however, actually contact potential employers; to
meet its burden it need only "demonstrat[e] the availability of specific
jobs in a local market." Universal Maritime , 126 F.3d at 265.
In this case, even if Forgich had met his burden of proof and shown
that, because of his physical limitations, he was unable to return to his
previous employment as a machinist first class, there was substantial
evidence in the record to support the conclusion that there were other
jobs in the relevant economy which Forgich could perform. In addi-
tion to continuing as a machinist at Norshipco after his injuries, the
record shows that Forgich also worked at CACI and Sorbilite. Forgich
contends, however, that Norshipco did not meet its burden of showing
that these other jobs existed during the periods of the economic lay-
offs because Forgich's employment at CACI and Sorbilite occurred
during different periods. We do not agree, however, that evidence of
Forgich's employment at CACI and Sorbilite was irrelevant to
whether suitable employment existed at the time of the layoffs. The
fact that Forgich has been able to work continuously since April 1991
and to obtain multiple jobs during that period, interrupted only by the
brief layoffs at Norshipco, is sufficient to satisfy Norshipco's burden.
Moreover, there is no evidence in the record to indicate that the brief
layoffs were anything other than economic in nature. Neither Forgich
4
nor any other workers with disabilities were laid off because of their
disabled status.
In short, from 1991 onward, Forgich has held a series of four jobs
for three employers, which demonstrates that he was capable of work-
ing and of finding and changing jobs freely. Based on this evidence
in the record, we cannot say that there was a lack of substantial evi-
dence from which the ALJ could have concluded that Forgich was
able to engage in substantial gainful employment after his injury. See
Tann, 841 F.2d at 543; 33 U.S.C. § 921(b)(3) ("findings of fact in the
decision under review . . . shall be conclusive if supported by substan-
tial evidence in the record considered as a whole").
For the foregoing reasons, the decision of the Benefits Review
Board is
AFFIRMED.
5