Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs , 315 F.3d 286 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND 
DRY DOCK COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’  No. 01-2401
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
RONALD BRICKHOUSE,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(01-765)
Argued: September 25, 2002
Decided: December 27, 2002
Before WILKINS, MICHAEL, and KING, Circuit Judges.
Petition for review denied by published opinion. Judge King wrote
the opinion, in which Judge Wilkins and Judge Michael joined.
COUNSEL
ARGUED: Jonathan Henry Walker, MASON, COWARDIN &
MASON, P.C., Newport News, Virginia, for Petitioner. John Harlow
Klein, MONTAGNA, BREIT, KLEIN, CAMDEN, L.L.P., Norfolk,
Virginia, for Respondent Brickhouse. Sarah Catherine Crawford,
2 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director. ON BRIEF: Eugene Scalia, Solicitor of
Labor, John F. Depenbrock, Associate Solicitor for Employee Bene-
fits, Samuel J. Oshinsky, Senior Appellate Attorney, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director.
OPINION
KING, Circuit Judge:
In September of 1993, Ronald Brickhouse suffered a back injury
while working at Newport News Shipbuilding & Dry Dock Company
("Newport News"). On September 22, 1993, he commenced receiving
disability benefits from Newport News, pursuant to §§ 4 and 8 of the
Longshore and Harbor Workers’ Compensation Act (the "Act"). More
than three years later, in January 1997, Newport News offered Brick-
house a different job. Brickhouse declined the offer because he was
participating in a vocational rehabilitation program administered by
the Office of Workers’ Compensation Programs (the "OWCP").
Viewing his refusal of its employment offer as unreasonable, Newport
News ceased paying his disability benefits. Brickhouse then filed this
claim with the Director of the OWCP (the "Director"), asserting that
Newport News had improperly terminated his benefits. An Adminis-
trative Law Judge (the "ALJ") agreed with Brickhouse and ordered
Newport News to pay benefits. The Benefits Review Board (the
"BRB") affirmed the ALJ, and Newport News has petitioned for our
review. As explained below, we deny its petition.
I.
A.
In 1993, Brickhouse worked at Newport News as a senior quality
inspector, with an annual salary of over $30,000 ($588.21 per week).
On September 21, 1993, Brickhouse injured his back. He was unable
to return to work and began receiving temporary total disability bene-
fits from Newport News.1 Following his injury, Brickhouse under-
1
Under the Act, if an employee has a temporary total disability, his
employer must pay two-thirds of his pre-injury weekly wages. 33 U.S.C.
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 3
went two back surgeries, first on March 3, 1994, and again on August
9, 1994. While he was recovering, Newport News terminated his
position as part of a reduction-in-force. On April 17, 1995, Brick-
house’s treating neurosurgeon placed him under permanent work
restrictions. Although Brickhouse was no longer working for Newport
News, the work restrictions would have prevented him from returning
to his work as a senior quality inspector. In fact, Newport News did
not, in April of 1995, have any jobs available that were suitable for
Brickhouse, given the restrictions imposed by his neurosurgeon.
In an attempt to return Brickhouse to gainful employment, the
Director referred him to a vocational rehabilitation counselor. The
counselor proposed that Brickhouse return to school to obtain an
Associates of Arts Degree in Graphics Communications, and she esti-
mated that Brickhouse could thereafter earn approximately $22,500
annually. Based on this proposal, the OWCP developed a vocational
rehabilitation program for Brickhouse (the "Program"). In so doing,
it agreed to pay for Brickhouse to attend Thomas Nelson Community
College ("TNCC") in Hampton, Virginia, so long as Brickhouse
remained a full-time student each semester, attended classes regularly,
and maintained a 2.0 grade point average. The OWCP agreed to pay
his education costs for a maximum of two years.
In May of 1995, Brickhouse began his course work at TNCC. In
December of 1996, when Brickhouse needed two additional courses
to obtain his degree, Newport News sought to hire him as a senior
engineering analyst.2 Brickhouse interviewed with Newport News in
January of 1997, and he was offered the new position at an annual sal-
ary of $31,068. The job offer came with the condition that Brickhouse
could be "terminated with or without notice, at any time, at the option
of the Company or yourself." Brickhouse did not believe he could
§ 908(b). Thus, Newport News paid Brickhouse two-thirds of his pre-
injury wages, $392.14 per week, beginning on September 22, 1993. The
parties have stipulated that Newport News properly paid benefits to
Brickhouse from September 22, 1993, until January 6, 1997.
2
A senior engineering analyst position at Newport News was essen-
tially a "desk job." The parties agree that Brickhouse could have worked
at such a position with his work restrictions.
4 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
handle the new job while completing the Program, so he advised
Newport News that he would not accept its offer unless he could tem-
porarily work part-time, or with flexible hours. Brickhouse alterna-
tively suggested that he could begin work in May of 1997, after
obtaining his degree. Newport News declined to accept his proposals
and decided that Brickhouse had unreasonably refused its offer of
employment. Thus, it concluded that Brickhouse was not entitled to
continue receiving disability benefits, and it terminated them, effec-
tive January 6, 1997.
B.
In February of 1997, Brickhouse filed this claim, alleging that
Newport News had improperly terminated his disability benefits, and
the Director referred his claim to the ALJ. In May of 1997, Brick-
house obtained his degree, and he began working at the Newport
News Gazette as a graphics designer on December 29, 1997. Thus,
when proceedings commenced before the ALJ in January 1998,
Brickhouse sought retroactive disability benefits for the period from
January 6, 1997, to December 29, 1997.
In the ALJ proceedings, Brickhouse asserted that, under the author-
ity of Abbott v. Louisiana Insurance Guaranty Association, 27
B.R.B.S. 192 (1993), aff’d, 40 F.3d 122 (5th Cir. 1994), he was enti-
tled to benefits despite the Newport News offer of re-employment.
Pursuant to Abbott,3 a claimant is entitled to benefits if he can demon-
strate that suitable alternative employment is reasonably unavailable
due to his participation in a rehabilitation program. Id. Based on the
Abbott precedent and the evidence submitted, the ALJ agreed with
Brickhouse and made, inter alia, the following findings:
• The OWCP had approved the Program;
• Newport News knew that Brickhouse was entering the
Program and did not object;
3
Unless otherwise specified, when we refer to Abbott, we are referring
to the BRB’s decision in that matter.
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 5
• Brickhouse had diligently pursued his studies in the Pro-
gram; and
• The Newport News job offer to Brickhouse lacked
employment security.
Brickhouse v. Newport News Shipbldg. & Dry Dock Co., 1997-LHC-
1183, Decision and Order, at 10 (Apr. 13, 1998) (the "ALJ Deci-
sion"). On the job security issue, the ALJ emphasized that Newport
News could have terminated Brickhouse at any time, and that Brick-
house would likely be subject to another reduction-in-force as early
as the year 2000. Id. The ALJ also found that Brickhouse could not
have worked during the day for Newport News and still pursued his
degree at night, because the required courses were not offered in the
evening. Accordingly, the ALJ concluded that Brickhouse could not
have performed the job offered by Newport News while also complet-
ing the Program. Brickhouse was thus deemed by the ALJ as entitled
to permanent total disability benefits from January 6, 1997, to Decem-
ber 29, 1997. Id. at 10-11.
C.
Newport News appealed the ALJ Decision to the BRB, but Brick-
house lost his job while the appeal was pending because the Newport
News Gazette went out of business. Thus, he requested modification
of the ALJ Decision, seeking permanent partial disability benefits.4
As a result, the BRB dismissed the appeal so that the ALJ could con-
sider his motion. Newport News then also requested modification,
asserting new grounds to reverse the ALJ Decision.
In its motion for modification, Newport News asserted that, con-
trary to the ALJ’s findings, one of the two classes Brickhouse needed
in order to complete the Program was offered at night during the
Spring of 1997, and the other class was offered at night during the
Summer of 1997. Newport News asserted that Brickhouse could have
completed the Program while also working. Thus, Newport News
4
A party may seek modification "on the ground of a change in condi-
tions or because of a mistake in a determination of fact." 33 U.S.C.
§ 922.
6 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
contended that he was not entitled to any disability benefits. In deny-
ing the Newport News modification request, the ALJ acknowledged
that he had incorrectly found that the classes were only offered during
the day, but he concluded that it was unclear whether Brickhouse
could have enrolled in the night classes. Brickhouse v. Newport News
Shipbldg. & Dry Dock Co., 1997-LHC-1183, Decision and Order on
Motions for Modification, at 5 (Dec. 7, 1999) (the "Modification
Decision"). The ALJ premised this conclusion on Brickhouse’s asser-
tion that the course catalog from TNCC did not show that the classes
were offered at night. The ALJ also deemed it unclear whether one
of the courses required lab work, and he concluded that, if lab work
were essential, the class "could have prevented [Brickhouse] from
taking the offered shipyard job." Id. Thus, the ALJ declined to modify
his earlier ruling that Brickhouse was entitled to permanent total dis-
ability benefits from January 6, 1997, to December 29, 1997. Id.In his Modification Decision, the ALJ also considered Brick-
house’s motion for modification, in which he asserted entitlement to
permanent partial disability benefits. Under the Act, if an employee
has a permanent partial disability, his employer must pay two-thirds
of the difference between the employee’s pre-injury wages and his
current wage-earning capacity. 33 U.S.C. § 908(c)(21). Before losing
his newspaper job, Brickhouse was earning $314.28 per week, and the
ALJ ruled that this sum constituted his wage-earning capacity. Thus,
because his earning capacity of $314.28 was less than his pre-injury
wage of $588.21, the ALJ awarded him $182.62 per week, from
December 30, 1997, and continuing. Id. at 6-7.
D.
In January 2000, Newport News appealed the ALJ Decision and
the Modification Decision to the BRB, asserting that Brickhouse was
not entitled to benefits because he would have earned more as a senior
engineering analyst ($31,068) than in the graphics communication
field ($22,500). The BRB rejected this contention, concluding that the
Abbott principle applies when rehabilitation would not necessarily
result in an increased wage-earning capacity. Brickhouse v. Newport
News Shipbldg. & Dry Dock Co., 98-1164, Decision and Order, at 8
(Feb. 6, 2001) (the "BRB Decision"). The BRB also considered the
ALJ’s factual findings, focusing on the Program’s requirements, i.e.,
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 7
that Brickhouse enroll as a full-time student and complete the Pro-
gram within two years. It concluded that the evidence sufficiently
supported the ALJ’s "determination that claimant could not have
accepted [Newport News’s] job offer." Id. at 7. Also, because only
one of the required courses was offered at night during the Spring of
1997, Brickhouse would have been unable to complete his degree by
May of 1997 — the end of the two-year period allowed under the Pro-
gram. Thus, the BRB agreed with the ALJ that Brickhouse was enti-
tled to retroactive benefits from January 6, 1997, to December 29,
1997. Id. at 8. It reversed and remanded the Modification Decision,
however, with respect to his claim to permanent partial disability ben-
efits. Id. at 9-10.
On remand, Newport News contended that the ALJ had improperly
found Brickhouse’s wage-earning capacity to be $314.28 per week,
in that he had obtained employment paying $360 per week. The ALJ
agreed and found that Brickhouse’s wage-earning capacity was $360
per week. Thus, he reduced Brickhouse’s benefits from $182.62 per
week to $152.10, effective March 10, 1999. Brickhouse v. Newport
News Shipbldg. & Dry Dock Co., 1997-LHC-1183, Decision and
Order on Remand, at 3 (May 23, 2001).
Newport News then appealed to the BRB which, on October 26,
2001, affirmed.5 Newport News has petitioned this Court for review,
and we possess jurisdiction pursuant to 33 U.S.C. § 921(c).
II.
A.
Before assessing the issues raised in Newport News’s petition for
review, it is important to identify certain legal principles governing
5
When Newport News appealed to the BRB after the remand decision
of May 23, 2001, it did not challenge the ALJ’s findings. Instead, it
requested an expedited appeal so that it could seek a prompt review in
this Court. The BRB expedited the appeal and affirmed, ruling that its
earlier decision (the "BRB Decision") constituted the law of the case.
Consequently, in reviewing the Newport News petition, we are assessing
the BRB Decision.
8 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
a disabled claimant’s entitlement to total disability benefits. To be
entitled to such benefits, a claimant must first establish a prima facie
case by demonstrating an inability to return to prior employment due
to a work-related injury. Norfolk Shipbldg. & Dry Dock Co. v. Hord,
193 F.3d 797, 800 (4th Cir. 1999). If the claimant makes this show-
ing, "the burden shifts to the employer to demonstrate the availability
of suitable alternative employment which the claimant is capable of
performing." Id.6 (internal quotations and citations omitted).
An employer is entitled to satisfy its burden in two ways. First, the
employer may demonstrate that it offered the employee suitable alter-
native employment. Id. Second, "the employer may demonstrate that
suitable alternative employment is available to the injured worker in
the relevant labor market." Id. Under our precedent, if the employer
meets its burden, its obligation to pay disability benefits is either
reduced or eliminated, unless the disabled employee shows "that he
diligently but unsuccessfully sought appropriate employment." Id.B.
This brings us to the primary issue raised in this case, i.e., whether
ongoing participation in an approved rehabilitation program can enti-
tle an employee to refuse an offer of suitable alternative employment.
The BRB has ruled that a claimant is entitled to benefits if he demon-
strates that suitable alternative employment is reasonably unavailable
due to his participation in a rehabilitation program. See Abbott, 27
B.R.B.S. 192 (1993), aff’d, 40 F.3d 122 (5th Cir. 1994). In Abbott, the
claimant had injured his back and was taking classes pursuant to an
approved rehabilitation program, and he sought disability benefits for
the time period he was enrolled in the program. The Louisiana Insur-
ance Guaranty Association ("LIGA") demonstrated that minimum-
wage jobs were available to Abbott and asserted that, as a result, he
was not entitled to benefits. Abbott maintained, on the other hand,
6
Other circuits also follow this burden-shifting scheme. See Crum v.
General Adjustment Bureau, 738 F.2d 474, 479 (D.C. Cir. 1984); New
Orleans (Gulfwide) Stevedore v. Turner, 661 F.2d 1031, 1038 (5th Cir.
Unit A 1981); Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327,
1328-29 (9th Cir. 1980); American Stevedores, Inc. v. Salzano, 538 F.2d
933, 935-36 (2d Cir. 1976).
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 9
that since he could not accept such employment and complete his
rehabilitation program, he was entitled to benefits. The ALJ agreed
with Abbott, and the BRB affirmed.
The Fifth Circuit, in an opinion authored by Justice White,
affirmed the BRB. Abbott v. Louisiana Ins. Guar. Ass’n, 40 F.3d 122,
126 (5th Cir. 1994). In so doing, the court focused on the "Act’s goal
of promoting rehabilitation of injured employees to enable them to
resume their places, to the greatest extent possible, as productive
members of the work force." Id. at 127. Justice White concluded that
it "would be unduly harsh . . . to find that suitable alternative employ-
ment was reasonably available if the claimant demonstrates that,
through his own diligent efforts at rehabilitation, he was ineligible for
such a job." Id. at 128. (internal quotations and citations omitted).
Since the Fifth Circuit’s Abbott decision, the BRB has consistently
permitted claimants to receive total disability benefits if suitable alter-
nate employment is unavailable due to participation in an approved
rehabilitation program. See, e.g., Gregory v. Norfolk Shipbldg. & Dry
Dock Co., 32 B.R.B.S. 264 (1998). In Gregory, the BRB articulated
certain factors that should be relevant in deciding such issues. In par-
ticular, an ALJ should consider:
• Whether enrollment in a rehabilitation program pre-
cluded any employment;
• Whether an employer agreed to a rehabilitation program
and continued payment of benefits;
• Whether completion of such a program would benefit a
claimant by increasing his wage-earning capacity; and
• Whether a claimant demonstrated diligence in complet-
ing such a program.
Id. In its post-Gregory administrative proceedings, the BRB has con-
sistently applied these and other factors in assessing entitlement
issues under Abbott.7
7
See, e.g., Brown v. National Steel & Shipbldg. Co., 34 B.R.B.S. 195
(2001); Kee v. Newport News Shipbldg. & Dry Dock Co., 33 B.R.B.S.
221 (2000).
10 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
With this background in mind, we turn to the merits of the Newport
News petition for review.
III.
In reviewing the BRB Decision, we must determine "whether the
[BRB] observed its statutorily-mandated standard for reviewing the
ALJ’s factual findings." Newport News Shipbldg. & Dry Dock Co. v.
Stallings, 250 F.3d 868, 871 (4th Cir. 2001) (internal quotations and
citations omitted). We are also guided by the principle that an ALJ’s
factual findings "shall be conclusive if supported by substantial evi-
dence in the record considered as a whole." 33 U.S.C. § 921(b)(3).
We consider "substantial evidence" to require "more than a scintilla
but less than a preponderance." Newport News Shipbldg. & Dry Dock
Co. v. Faulk, 228 F.3d 378, 380-81 (4th Cir. 2000). Furthermore, an
ALJ’s findings "may not be disregarded on the basis that other infer-
ences might have been more reasonable. Deference must be given the
fact-finder’s . . . credibility assessments, and . . . the scope of review
of ALJ findings is limited." Newport News Shipbldg. & Dry Dock Co.
v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). In reviewing legal issues,
the BRB’s "adjudicatory interpretation of the [Act] is entitled to no
special deference, and is subject to our independent review. However,
a reasonable interpretation of the [Act] by the Director should be
respected."8 Stallings, 250 F.3d at 871 (internal quotations and cita-
tions omitted).
8
Newport News asserts that the Director has never permitted a claim-
ant to demonstrate that suitable alternative employment is reasonably
unavailable when the earnings from such employment would be greater
than the claimant’s expected earnings after rehabilitation. Therefore, it
characterizes the Director’s interpretation as merely a litigation position
entitled to no deference. See Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 212-13 (1988) (refusing to give "[d]eference to what appears
to be nothing more than an agency’s convenient litigating position").
Unlike the situation in Bowen, the Director’s position here is not just
its litigation position. Since Abbott, the Director has consistently main-
tained that a claimant is entitled to demonstrate an inability to accept an
offer of employment because of participation in a rehabilitation program.
We "simply see no reason to suspect that the interpretation does not
reflect the agency’s fair and considered judgment on the matter in ques-
tion." Auer v. Robbins, 519 U.S. 452, 462 (1997).
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 11
IV.
In its petition for review, Newport News makes two primary con-
tentions. First, it maintains that the ALJ improperly concluded that the
Act permits a claimant to receive benefits when suitable alternative
employment would pay more than the claimant was expected to earn
after rehabilitation. In the alternative, Newport News contends that
the ALJ’s decision to award benefits to Brickhouse is not supported
by substantial evidence. The Director maintains, on the other hand,
that, where a job offer arises while a claimant is enrolled in a voca-
tional rehabilitation program, the ALJ must simply decide whether a
claimant has demonstrated that suitable alternative employment is
reasonably unavailable. While the Director acknowledges that an ALJ
should consider whether completion of the rehabilitation program will
increase the claimant’s wage-earning capacity, he asserts that this fac-
tor, standing alone, is not dispositive. Finally, the Director contends
that the ALJ’s decision is supported by substantial evidence. For the
reasons explained below, we agree with the Director on both issues.
A.
The Director’s interpretation of the Act is reasonable and must be
sustained. First, the Act seeks to ensure that longshore employees
who are disabled from work-related injuries have economic security
in the long-term. To accomplish this goal of long-term economic
security, an ALJ is obliged to weigh an array of factors in assessing
the extent of a claimant’s disability. Along these lines, the term "dis-
ability" is not defined by the Act as an actual physical injury, but as
a complex "measure of earning capacity lost as a result of a work-
related injury." Metro Stevedore Co. v. Rambo, 521 U.S. 121, 127
(1997) (citing 33 U.S.C. § 902(10)). As Justice White observed:
"[D]isability under the Act is determined not only on the basis of
physical condition, but also on factors such as age, education,
employment history, rehabilitative potential, and the availability of
work that the claimant can do." Abbott, 40 F.3d at 127 (internal quota-
tions and citations omitted). Furthermore, the wage-earning capacity
of a disabled claimant is to be determined on the basis of factors
"which may affect his capacity to earn wages in his disabled condi-
tion, including the effect of disability as it may naturally extend into
the future." 33 U.S.C. § 908(h) (emphasis added). As such, the Act
12 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
carries with it the "long-term remedial purpose [to] ‘compensate for
any injury-related reduction in wage earning capacity through the
claimant’s lifetime.’" Edwards v. Director, OWCP, 999 F.2d 1374,
1375-76 (9th Cir. 1993) (emphasis in original) (quoting Randall v.
Comfort Control, Inc., 725 F.2d 791, 799 (D.C. Cir. 1984)).
Second, the Act strongly emphasizes the importance of vocational
rehabilitation. In this regard, the Director possesses wide latitude in
his development of vocational rehabilitation programs so that disabled
employees are able to be productive members of the work force. Spe-
cifically, the Secretary of Labor is obliged, under the Act, to provide
for the "vocational rehabilitation of permanently disabled employees."
33 U.S.C. § 939(c)(2). And the Secretary has concluded, in his regula-
tions, that "[t]he objective of vocational rehabilitation is the return of
permanently disabled persons to gainful employment . . . through a
program of reevaluation or redirection of their abilities, or retraining
in another occupation, or . . . job placement assistance." 20 C.F.R.
§ 702.501 (emphasis added). Pursuant to this mandate, the Director is
accorded "significant flexibility in devising such training programs."
Abbott, 40 F.3d at 128 (citing 20 C.F.R. § 702.506(b)). Therefore, the
Act, and the legal principles under which it is implemented, mandate
that vocational rehabilitation be an important tool in returning dis-
abled employees to gainful employment, and in ensuring that such
employees possess a measure of long-term economic security.
Accordingly, a disabled claimant should be entitled to demonstrate
that, in appropriate circumstances, suitable alternative employment is
reasonably unavailable due to his participation in an approved reha-
bilitation program. And, in assessing whether a claimant has made
such a showing, an ALJ should not base his decision on any single
factor. Instead, the guiding legal principles require consideration of a
wide range of the relevant factors in reaching the proper result in each
case. Contrary to Newport News’s assertion, an immediate increase
in wage earning capacity, standing alone, may be important, but it is
not necessarily determinative. The BRB and the ALJ, therefore, were
correct to apply the Abbott principles in this case. Consequently, we
must turn to and assess Newport News’s other contention: whether
the ALJ’s findings are supported by substantial evidence.9
9
Newport News also asserts that Virginia’s at-will employment doc-
trine precluded the ALJ from considering the lack of job security in the
NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP 13
B.
On this record, the ALJ’s ruling that Brickhouse was unable to
accept Newport News’s employment offer because of his participa-
tion in the Program is amply supported by the evidence. First, the
OWCP had determined that Brickhouse was a proper candidate for
rehabilitation and had developed and approved the Program. Second,
the Program’s requirements entitled the ALJ to find that Brickhouse
could not have accepted the employment offer of Newport News and
still completed the Program. Under the Program, Brickhouse was
required to be a full-time student, to attend classes regularly, and to
maintain a 2.0 grade point average. Further, he was obliged to com-
plete the Program by May of 1997, but one of his required courses
was not offered as an evening course until after that date.10 These
requirements were incompatible with employment at Newport News.
Finally, because Brickhouse was only one semester from obtaining
his degree and completing the Program, the ALJ was entitled to con-
clude that it was unreasonable for Newport News to compel him to
choose between the Program and the new job. Thus, substantial evi-
dence supports the ALJ’s conclusion that Brickhouse was entitled to
benefits because suitable alternative employment was not reasonably
available due to his participation in the Program.
Newport News job offer. On the contrary, the at-will employment doc-
trine does not preclude consideration of the job security issue in this
instance. Congress has provided for rehabilitation programs so that dis-
abled employees can become productive members of the work force in
the long-term. Thus, the ALJ properly considered the issue of job secur-
ity, along with the other evidence presented.
10
Newport News maintains that Brickhouse could have personally paid
for the course offered in the Summer of 1997, and that Newport News
would have reimbursed him through an in-house program. The ALJ was
also entitled to discount this contention, because it would have required
Brickhouse to pay his own rehabilitation costs and rely on a possible
reimbursement by Newport News instead of having the OWCP advance
those costs directly.
14 NEWPORT NEWS SHIPBUILDING v. DIRECTOR, OWCP
V.
Pursuant to the foregoing, the petition for review must be denied.
PETITION FOR REVIEW DENIED