Darby v. Ingalls Shipbuilding, Inc.

• Decision Date: 13 November 1996
• Docket Number: No. 96-60029,96-60029
• Citation: 99 F.3d 685
• Parties: Rene M. DARBY and Office of Worker's Compensation Programs, United States Department of Labor, Petitioners, v. INGALLS SHIPBUILDING, INC., a Self-Insured Employer, Respondent. Fifth Circuit
• Court: U.S. Court of Appeals — Fifth Circuit

Page 685

99 F.3d 685

1997 A.M.C. 1816

Rene M. DARBY and Office of Worker's Compensation Programs United States Department of Labor, Petitioners, v. INGALLS SHIPBUILDING, INC., a Self-Insured Employer, Respondent.

No. 96-60029

Summary Calendar United States Court of Appeals,

Fifth Circuit.

Nov. 13, 1996.

Blewett William Thomas, Gulfport, MS, for Darby.

Mark Ambrose Reinhalter, Office of the Solicitor of Labor, Washington, DC, Thomas O. Shepherd, Jr., Clerk, Benefits Review Board, Washington, DC, Carol DeDeo, Assoc. Solicitor, United States Department of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Department of Labor, petitioner.

Paul B. Howell, Richard P. Salloum, Franke, Rainey & Salloum, Gulfport, MS, for respondent.

Petition for Review of an Order of the Benefits Review Board.

Before SMITH, DUHE and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Rene Darby petitions for review of a decision of the Benefits Review Board ("BRB") affirming an order by an administrative law judge ("ALJ") consisting of a Decision and Order Awarding Additional Benefits, all pursuant to the Longshore and Harbor Workers' Compensation Act (the "Act"), as amended, 33 U.S.C. § 901 et seq. We grant the petition in part and vacate and remand in part.

I.

Darby was employed by Ingalls Shipbuilding, Inc. ("Ingalls"), as a joiner and, during the course of this employment, was injured when he slipped and fell down a flight of stairs. He underwent medical treatment for the sustained injuries, during which time Ingalls paid temporary total disability benefits. Darby returned to work nine months later in the same position and transferred to a different department for a short period of time before returning to the joiner department and later being laid off because of a lack of work.

In October 1990, nearly three years after his accident, Darby returned to Ingalls as a joiner. Because of his physical limitations, however, he was assigned to a modified joiner position with restrictions on his responsibilities to lift and push heavy objects. Darby was instructed by his supervisor that he was to work within the scope of his restrictions but that he could exercise his own judgment where appropriate. Darby worked without incident in this new capacity for approximately one year.

Following his return, Darby sought permanent total disability compensation under the Act, alleging that his post-injury position at Ingalls did not constitute suitable alternative employment (§ 908(a)) and that he was entitled to additional medical benefits (§ 914(e)). After administrative procedures failed to resolve the parties' differences, an ALJ held a formal hearing on October 2, 1991, and awarded Darby various additional medical and compensation benefits. Of particular consequence to this appeal, however, is the ALJ's finding that Darby's modified joiner position was suitable alternative employment.

II.

We review BRB decisions for errors of law and adhere to the substantial evidence standard that governs the BRB's review of the ALJ's factual determinations. See Odom Constr. Co. v. United States Dep't of Labor, 622 F.2d 110, 115 (5th Cir.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). Thus, we must affirm BRB decisions that conclude correctly that the ALJ's findings are supported by substantial evidence and are in accordance with the law. See O'Keefe v. Smith, Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 362-63, 85 S.Ct. 1012, 1014-15, 13 L.Ed.2d 895 (1965).

A.

Darby first argues that the BRB erred in relying upon the modified joiner position to establish the availability of suitable alternate employment. According to Darby, an employer should be required to prove that a job offered as suitable alternative employment is realistically and regularly available to the claimant on the open job market. In so suggesting, Darby reads our decision in P & M Crane Co. v. Hayes, 930 F.2d 424, 430 (5th Cir.1991), (i) to permit a single job offer to discharge the employer's burden only where the claimant is highly skilled and seeking specialized employment in an area where the number of suitable applicants is small and (ii) to require a demonstration of availability in the open job market where the claimant, as in the instant case, is less skilled. ¹

We need not decide whether P & M Crane should be so construed, as it is inapposite to the instant case. P & M Crane dealt with claimants who alleged permanent and total disabilities and whose employers proffered allegedly suitable jobs external to their current place of work, whereas Darby suffers from a partial disability only and was offered a new job within his current place of work. See id. at 427. The BRB has opined, with respect to partial disability cases, that an employer's offer of a suitable job within the partially disabled claimant's current place of work is sufficient to discharge its burden of establishing suitable employment; the employer need not show that the claimant can earn wages in the open market. See Darden v. Newport News Shipbuilding & Dry Dock Co., 18 BRBS 224, 226 (1986).

P & M Crane did not disturb, and, in fact, cited approvingly the Darden holding. See P & M Crane, 930 F.2d at 430. Hence, we find no error in the BRB's conclusion that Ingalls's employment of Darby in the modified joiner position was sufficient to discharge its burden of showing availability of suitable employment.

Properly characterized, Darby's challenge to the modified joiner position thus becomes one of the suitability of the position with respect to his physical constraints. In support of its finding of suitability, the BRB noted that Darby had been granted wide latitude by Ingalls to determine his physical capabilities and to perform his duties in connection with such determinations and that Darby had been instructed to report any conflicts between an assigned job task and his work restrictions to his supervisor. See Rene M. Darby v. Ingalls Shipbuilding, Inc., No. 91-LHCA-0049 (Dep't Labor 1992), at 3. The BRB also found sufficient evidence that, to the extent Darby was in fact performing work in excess of his physical limits as suggested by his physicians, he was doing so on his own accord. Id. Finally, the BRB was influenced by Darby's satisfactory performance of his modified job responsibilities for approximately one year prior to the hearing and the juxtaposition of his complaints in close proximity...