UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-2376

NORTHROP GRUMMAN SHIPBUILDING INCORPORATED, f/k/a Newport 

News Shipbuilding and Dry Dock Company, 

 Petitioner, 

 v. 

JAMES KEA; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION 

PROGRAMS, 

 Respondents. 

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

(BRB-0504) 

Submitted: November 19, 2009 Decided: January 14, 2010 

Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit 

Judges. 

Affirmed by unpublished per curiam opinion. 

Jonathan H. Walker, MASON, MASON, WALKER & HEDRICK, PC, Newport 

News, Virginia, for Petitioner. Gregory E. Camden, MONTAGNA 

KLEIN CAMDEN, LLP, Norfolk, Virginia, for Respondent James Kea. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Northrop Grumman Shipbuilding, Inc., formerly known as 

Newport News Shipbuilding and Dry Dock Company (the “Employer”), 

petitions for review of the Decision and Order of the Benefits 

Review Board (the “Board”), affirming an Administrative Law 

Judge’s (ALJ) award of permanent partial disability benefits to 

employee James Kea under § 908(c) of the Longshore and Harbor 

Workers’ Compensation Act (the “Act”), 33 U.S.C.A. § 908(c) 

(West 2001). For the following reasons, we affirm. 

I. 

 On April 6, 1995, James Kea injured his right leg while 

working as a shipbuilder for the Employer. The injury consisted 

of a serious laceration that resulted in neurological sensory 

and motor compromise, measurable atrophy of the leg, and limited 

range of motion. Kea received an award of temporary total 

disability benefits from April 7, 1995, to August 27, 1995, and 

temporary partial disability benefits from August 28, 1995, to 

December 31, 1998. Kea subsequently sought modification of his 

compensation award, alleging that he had also sustained a 

permanent loss of wage earning capacity as a result of the 

injury, entitling him to additional compensation in the form of 

permanent partial disability benefits under § 908(c) of the Act. 

2 
 Dr. Alvin Bryant was Kea’s treating physician, and the 

record contains a number of his treatment records. In April 

2003, after an extended delay in obtaining his response to a 

request for an opinion on permanent disability resulting from 

the injury, Dr. Bryant assigned a permanent partial disability 

rating of 35% to Kea’s right leg. In conjunction therewith, Dr. 

Bryant described the nature of the injury, including the 

accompanying injuries to the “veins, small arteries, fascia of 

muscles, and nerves in [Kea’s] right lower leg,” and the 

resulting permanent abnormalities, including neurological 

injuries, nodular fascitis, swelling, and abnormalities of gait. 

J.A. 46. Dr. Bryant also noted that Kea suffered from “severe 

motor sensory neuropathy” and had “clinical evidence of 

peripheral venus and arterial disease of his right lower leg 

which ha[d] exacerbated his injuries.” J.A. 46.* Although Dr. 

Bryant described the injuries and the permanent disabilities 

resulting therefrom, he did not identify the specific source 

relied upon for determining the percentage of disability. 

 On May 14, 2003, Dr. Mark Ross performed an independent 

medical examination at the request of the Employer and assigned 

 *

 The record also contains a report of Dr. Mark M. Levy, 

opining that as of June 14, 1999, Kea suffered from “chronic 

pain syndrome in his right leg” and “recommend[ing] that he see 

rehabilitation doctors for what [would likely] be a chronic 

problem.” J.A. 53. 

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an impairment rating of 14% to Kea’s right leg pursuant to the 

American Medical Association’s Guides to the Evaluation of 

Permanent Impairment. Dr. Ross noted that Kea’s “situation 

[was] complicated by the fact that he has a severe sensorimotor 

peripheral neuropathy that represents the basis for the majority 

of his deficits.” J.A. 9. Accordingly, Dr. Ross opined that 

“Mr. Kea’s total impairments [were] higher than [14%],” but that 

these impairments were “primarily due to his diabetic neuropathy 

and not [to] the work related injury.” J.A. 9. 

 In August 2003, the parties executed a Stipulation of Facts 

setting forth the temporary total disability and temporary 

partial disability benefits paid to date, as well as a 

stipulation that Kea had sustained permanent partial disability 

equivalent to 14% loss of use of the right lower extremity. 

However, the Employer subsequently sought to withdraw the 

stipulation and advised that it would not pay the stipulated 

amount because it believed Kea’s request for additional benefits 

was time-barred. The ALJ agreed and denied additional benefits, 

and the Board affirmed. On appeal, we reversed the Board’s 

denial of additional benefits as being time-barred and remanded 

for a determination of the merits of Kea’s request for permanent 

partial disability benefits under the Act. See Kea v. Newport 

News Shipbuilding & Dry Dock Co., 488 F.3d 606, 613 (4th Cir. 

2007). 

4 
 On remand, the ALJ considered the disability ratings 

assigned by Dr. Bryant and Dr. Ross, and awarded permanent 

partial disability benefits based upon an impairment of 24.5% to 

the right leg, which also represented an average of the 

disability ratings assigned by the two physicians who had 

evaluated him. 

 With regard to Dr. Bryant, the ALJ observed that “Dr. 

Bryant found Claimant suffered from neurologic injuries, nodular 

fascitis, swelling and abnormalities of gait, all of which were 

related to the work related injury to his right leg,” and 

assigned a 35% permanent disability rating to the right lower 

leg, but that Dr. Bryant had “not indicate[d] what source he 

relied upon to determine the percentage of disability.” J.A. 

104. However, the ALJ felt that “Dr. Bryant’s opinion [was 

entitled to] additional weight because of [his] continued 

treatment” of Kea. Id. With regard to the evaluation performed 

by Dr. Ross, the ALJ observed that “Dr. Ross, in contrast [to 

Dr. Bryant], only saw Claimant on one occasion at the request of 

the Employer.” Id. However, the ALJ felt that the thoroughness 

of Dr. Ross’s opinion entitled it to “additional weight” as 

well. Id. Also, “[i]n contrast to Dr. Bryant, Dr. Ross was 

very clear as to the factors he considered in assessing the 

percentage of disability under AMA guidelines.” Id.

5 
 Having considered and identified the relative strengths and 

weaknesses of the respective ratings assigned by the two 

physicians, the ALJ ultimately noted and accepted Kea’s 

“suggest[ion] that the Court average the two ratings and assign 

[Kea] a disability rating of 24.5% based upon the two 

physicians’ opinions.” Id. “Based on the facts of th[e] case, 

and considering Dr. Bryant’s status as a treating physician and 

the thoroughness of Dr. Ross’s disability assessment,” the ALJ 

explicitly found “this approach [to be a] reasonable one.” Id. 

The Board affirmed, holding that the Employer had “not 

demonstrated error in the [ALJ’s] decision to accord weight both 

to the opinion of Dr. Bryant based on his long-time treatment of 

the claimant, and to that of Dr. Ross on the basis that his 

examination was thorough and his explanation clear.” J.A. 109 

(citations omitted). 

II. 

 On appeal, we review the Board's decisions for errors of 

law and to ascertain whether the Board adhered to its 

statutorily mandated standard for reviewing the ALJ's factual 

findings. See Gilchrist v. Newport News Shipbuilding & Dry Dock 

Co., 135 F.3d 915, 918 (4th Cir. 1998); Zapata Haynie Corp. v. 

Barnard, 933 F.2d 256, 258 (4th Cir. 1991). Our review of legal 

questions “is de novo and no deference is accorded the [Board's] 

6 
legal interpretations.” Gilchrist, 135 F.3d at 918. The 

factual findings of the ALJ must be affirmed if supported by 

substantial evidence. See 33 U.S.C.A. § 921(b)(3) (West 2001). 

Substantial evidence is “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971). “On review, 

the ALJ’s findings “may not be disregarded on the basis that 

other inferences might have been more reasonable. Deference 

must be given the fact-finder’s inferences and credibility 

assessments, and we have emphasized the scope of review of ALJ 

findings is limited.” Newport News Shipbuilding & Dry Dock Co. 

v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). 

 Here, the Employer asserts that Dr. Bryant’s impairment 

rating of 35% was “wholly conclusory” and offered “without 

explanation,” rendering it insufficient for consideration by the 

ALJ as matter of law. See Dir., OWCP v. Newport News 

Shipbuilding & Dry Dock Co. (Carmines), 138 F.3d 134, 140 (4th 

Cir. 1998) (“[T]o be sufficient the evidence must be such 

relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion. The ALJ may not merely credulously 

accept the assertions of the parties or their representatives, 

but must examine the logic of their conclusions and evaluate the 

evidence upon which their conclusions are based.” (internal 

quotation marks, citations and footnote omitted)). The Employer 

7 
also contends that the ALJ erred as a matter of law in affording 

any weight to Dr. Bryant’s 35% impairment rating solely because 

he was Kea’s treating physician. Finally, the Employer asserts 

that the ALJ erred as a matter of law by accepting Kea’s 

suggestion that the two impairment ratings be averaged together 

and that, by doing so, the Board’s decision was rendered without 

logical, rational or legal basis. 

 We disagree. First, we do not find Dr. Bryant’s rating to 

be wholly conclusory or without explanation. On the contrary, 

Dr. Bryant explained that Kea’s work-related injury involved 

injuries to Kea’s “veins, small arteries, fascia of muscles and 

nerves” and that, as a result, Kea suffered from “neurologic 

injuries, nodular fascitis, swelling, . . . abnormalities of 

gait,” “severe motor sensory neuropathy in th[e] right lower 

leg,” and “peripheral venus and arterial disease of his right 

lower leg which ha[d] exacerbated his injuries.” J.A. 46. 

Accordingly, while Dr. Bryant’s opinion is not as detailed as 

Dr. Ross’s report, or even as detailed as we might prefer, it 

falls far short of being a conclusory assignment of an 

impairment rating wholly devoid of basis. Second, the ALJ’s 

decision did not afford weight to Dr. Bryant’s impairment rating 

solely because he was the claimant’s treating physician, nor did 

the ALJ credit his opinion to the exclusion of all other 

pertinent evidence. The ALJ gave Dr. Bryant’s opinion 

8 
“additional,” but not controlling, weight based upon Dr. 

Bryant’s continued treatment. See Grigg v. Dir., OWCP, 28 F.3d 

416, 420 (4th Cir. 1994) (noting that physician’s “status as 

treating physician entitles his opinion to great, though not 

necessarily dispositive, weight”); Milburn Colliery Co. v. 

Hicks, 138 F.3d 524, 533 (4th Cir. 1998) (“[A]n ALJ should not 

mechanistically credit, to the exclusion of all other testimony, 

the testimony of an examining or treating physician solely 

because the doctor personally examined the claimant.”) (internal 

quotation marks and alteration omitted). In sum, Dr. Bryant’s 

final opinion was not a conclusory one. And, while the ALJ may 

have legitimately criticized Dr. Bryant’s failure to identify a 

specific source (such as the AMA Guides) for his disability 

assignment, the ALJ did not err in taking note of the medical 

basis that was articulated in Dr. Bryant’s report or in giving 

Dr. Bryant’s opinion additional weight based upon his long-term 

treatment of Kea. 

 Finally, we disagree with the contention that the ALJ’s 

averaging of impairment ratings by evaluating and treating 

physicians indicates a baseless decision. On the contrary, the 

ALJ discussed the findings of both physicians, discussed the 

pros and cons of each, and explained when and why he specially 

credited one or the other. Ultimately, the ALJ made a finding 

of 24.5% disability based upon the facts of the case, which 

9 
included the specific findings of both Dr. Bryant and Dr. Ross, 

and concluded that averaging their assignments of disability was 

a reasonable approach to the evidence. It is well within the 

province of an ALJ to assign a disability award that is higher 

or lower than any disability rating suggested by any party. Dr. 

Bryant’s opinion noted that Kea’s injuries had been exacerbated 

by his “severe motor sensory neuropathy,” as well as his 

“peripheral venus and arterial disease.” J.A. 46. Likewise, 

Dr. Ross acknowledged that “Kea’s total impairments [were] 

higher than [14%],” although this was, in his opinion, 

“primarily due to [Kea’s] diabetic neuropathy and not the work 

related injury.” J.A. 9. Under the circumstances, we cannot 

say that the ALJ’s decision to award disability based upon a 

24.5% permanent partial disability rating was arbitrary, 

unsupported by substantial evidence on the record, or otherwise 

erroneous as a matter of law simply because it also represented 

an average of the ratings assigned by the physicians who had 

evaluated Kea. 

III. 

 For the foregoing reasons, we affirm the decision of the 

Board. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

10 
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before the court and argument would not aid the decisional 

process. 

AFFIRMED