Newport News Shipbuilding and Dry Dock Co. v. Tann

• Decision Date: 09 March 1988
• Docket Number: No. 87-3082,87-3082
• Citation: 841 F.2d 540
• Parties: NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Curtis TANN; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 540

841 F.2d 540

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Petitioner, v. Curtis TANN; Director, Office of Workers' Compensation

Programs, United States Department of Labor, Respondents.

No. 87-3082.

United States Court of Appeals,

Fourth Circuit.

Argued Jan. 7, 1988.

Decided March 9, 1988.

Lawrence Philip Postol (Forest A. Nester, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., on brief), for petitioner.

Jonathan Andrew Smith-George (Patten, Wornom & Watkins, Newport News, Va., on brief), Michael Scott Hertzig, U.S. Dept. of Labor, Office of the Sol. (George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Washington, D.C., counsel for Longshore, on brief), for respondents.

Before WIDENER and WILKINSON, Circuit Judges, and BULLOCK, United States District Judge for the Middle District of North Carolina, sitting by designation.

WILKINSON, Circuit Judge:

Newport News Shipbuilding & Dry Dock Company (NNS) appeals a decision of the Benefits Review Board reversing the decision of the Administrative Law Judge and holding the claimant in this case permanently and totally disabled. The Board held that NNS had failed to meet its burden of establishing the availability of suitable alternate employment. Because the Board's decision is inconsistent with the statutory purposes of the Longshore and Harbor Workers' Compensation Act and with this court's prior holdings, we reverse and remand with directions to reinstate the decision of the Administrative Law Judge.

I.

Curtis Tann injured his knee on the job at NNS, and both parties agree that he is unable to return to his job as a painter there. Tann continues to have problems with his knee. His doctors, however, have stated that he is able to do light work that does not require extensive lifting, climbing, walking, or standing. Tann himself testified that he could do any job that met these restrictions. Tann has a high school diploma, and testified that he would be able to perform a desk job requiring reading, writing, and arithmetic.

The record shows that Tann was released for work by his doctors as of November 1981. Tann attempted to work as a farmhand in 1980 and 1981, but was unable to perform the heavy labor required in the job. Tann attempted to find work with one of his previous employers, Georgia Pacific Co., but no job openings were available. Tann also consulted the North Carolina Department of Social Services, and was told that most employers in the area would be unwilling to hire him because of the liability risk posed by his disability.

Tann filed a claim for permanent total disability in March, 1981. The case was assigned to an ALJ in July, 1982. At that time, NNS had a vocational expert interview Tann to determine his capacity for work and conduct a survey of the area to determine if there was available work that Tann could perform. The expert did not find any openings in Murfreesboro, where Tann resides, but found several openings in Suffolk, Virginia, about twenty-five miles away. The openings were all for self-service gas station cashiers, and were within Tann's work restrictions. Each of the proprietors expressed willingness to hire an employee with a disability, and one had previously hired an employee who had lost part of his foot. Each of the positions had been open after November 1981, during the time that Tann was medically available for work. None of the jobs, however, was actually open at the time the expert conducted the survey.

The ALJ found that the employer had satisfied its burden of showing that alternative available work existed for Tann, and awarded only partial permanent disability in the amount of thirty percent. The BRB reversed, holding that the employer, in order to meet its burden, must show that jobs existed at the time the employment survey was taken; a survey of past openings was not sufficient. NNS appeals.

II.

The rule of present availability established by the BRB is inconsistent with our prior holdings and with the statutory purposes of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq. (1983). The general standard governing disability claims is as follows: First, the employee bears the burden of showing that he is unable to return to his former employment. Tann's inability to return is undisputed here. Second, the employer bears the burden of showing the existence of suitable alternative employment that would be available to the claimant if he diligently sought it. Finally, if the employer has met this burden, the claimant may still establish disability by showing that he has diligently sought appropriate employment, but has been unable to secure it. See Trans-State Dredging v. BRB, 731 F.2d 199, 200 (4th Cir.1984); Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs, 592 F.2d 762, 765 (4th Cir.1979).

The BRB held that an employer, in order to show the existence of alternative available employment, must find jobs that are open at the time the employment survey is taken. In support of this rule, the BRB cited Trans-State, supra. Trans-State, however, precludes the standard that the BRB imposed here. In Trans-State, we reversed the BRB's finding that the expert's information in that case was untimely. The BRB had held that because the expert conducted his survey five months before the hearing, the information was stale, and not sufficient to meet the employer's burden. This court, however, disagreed, and stated that:

the employer is entitled to attempt to establish that at the critical times there were jobs reasonably available within Turner's capabilities and for which Turner was in a position to compete realistically had he diligently tried. We find that it would be unreasonably burdensome and restrictive to define 'critical times' as solely the period immediately prior to the administrative...