Filed: May 30, 2013 

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1566

(11-0624)

MARINE REPAIR SERVICES, INCORPORATED; SIGNAL MUTUAL 

INDEMNITY ASSOCIATION, LIMITED,

Petitioners,

v.

CHRISTOPHER E. FIFER; DIRECTOR, OFFICE OF WORKERS' 

COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

O R D E R

Upon Petitioners’ motion for publication of the Court’s 

opinion,

IT IS ORDERED that the motion to publish is granted.

The Court amends its opinion filed May 2, 2013, as follows:

On the cover sheet, section 1 -- the status is changed from 

“UNPUBLISHED” to “PUBLISHED.”

On the cover sheet, section 6 -- the status line is changed 

to read “Vacated and remanded by published opinion.”
2

On the cover sheet -– the reference to the use of 

unpublished opinions as precedent is deleted.

For the Court – By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1566

MARINE REPAIR SERVICES, INCORPORATED; SIGNAL MUTUAL 

INDEMNITY ASSOCIATION, LIMITED,

Petitioners,

v.

CHRISTOPHER E. FIFER; DIRECTOR, OFFICE OF WORKERS' 

COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

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

(11-0624)

Argued: March 20, 2013 Decided: May 2, 2013

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Duncan wrote 

the opinion, in which Judge Wilkinson and Judge Shedd joined.

Lawrence Philip Postol, SEYFARTH SHAW, LLP, Washington, D.C., 

for Petitioners. Michael J. Perticone, HARDWICK & HARRIS, 

Baltimore, Maryland, for Respondents.
2

DUNCAN, Circuit Judge:

Marine Repair Services, Inc. (“Marine”) petitions for 

review of the Decision and Order of the Benefits Review Board 

(“BRB” or the “Board”) awarding permanent partial disability

benefits to Marine’s former employee, Christopher Fifer, under 

the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). 

Applying the burden-shifting scheme that governs LHWCA 

disability claims, the administrative law judge (“ALJ”) 

reviewing Fifer’s claim concluded that Marine failed to meet its 

burden of presenting suitable alternative employment for Fifer. 

The BRB affirmed. Because the ALJ made findings unsupported by

the record and demanded more of Marine than our precedent 

requires, we grant Marine’s petition for review, vacate the 

Decision and Order of the BRB, and remand for further 

proceedings consistent with this opinion.

I.

A.

Prior to the events underlying this petition, Fifer earned 

$1,219 weekly working for Marine as a repairman of large 

shipping containers, a physically demanding job requiring 

climbing, bending, and heavy lifting of over fifty pounds. On 

October 26, 2007, Fifer suffered shoulder, arm, and back 

injuries in an on-the-job car accident. After the accident, 
3

Marine began paying Fifer temporary total disability benefits 

while Fifer sought treatment.

Dr. Michael Franchetti became Fifer’s primary orthopedist, 

to whom Fifer complained of back pain which radiated down his 

legs, as well as back spasms. During his two-year course of 

treatment, Dr. Franchetti encouraged Fifer to perform physical 

therapy, prescribed muscle relaxers and painkillers, and 

reviewed scans of Fifer’s spine. He also referred Fifer to 

another physician for epidural steroid injections. Dr. 

Franchetti ultimately diagnosed Fifer with chronic lumbosacral 

strain, sciatica, and disc protrusion and herniation.

Fifer underwent his first functional capacity evaluation 

(“FCE”) in June 2008. In addition to finding that Fifer did 

“not meet the physical demands of his pre-injury occupation,”

the evaluator concluded that Fifer should limit himself to jobs 

within “medium” work parameters, and that he should limit 

lifting to twenty-five pounds on an occasional basis. J.A. 241. 

In an attempt to prepare himself to return to Marine, Fifer

completed a round of work-hardening from July to September 2008.1

 

The work-hardening evaluator released Fifer on September 12, 

 1 Work-hardening is a rehabilitation process through which 

injured employees perform tasks that simulate the physical 

demands of their jobs in an effort to condition them for return 

to employment.
4

2008, ascribing him “full time tolerance[] with the lower 

parameters of heavy work, with limitations in bending and 

material handling.” Id. at 263 (the “2008 work-hardening 

release”). The evaluator instructed Fifer to see Dr. Franchetti 

on September 15, 2008 for “a full release back to work.” Id.

Fifer’s September 15 visit to Dr. Franchetti resulted in 

updated work restrictions (the “September 2008 restrictions”). 

Dr. Franchetti indicated that Fifer could return “to restricted 

work status,” so long as he performed “[n]o repetitive bending 

or twisting with [his] back, no lifting more than 55 lbs., no 

carrying more than 40 lbs., no overhead lifting more than 30 

lbs., no lifting more than 30 lbs. frequently, and no sitting 

more than 45 minutes without changing positions.” J.A. 211. 

Marine would not employ Fifer while he was subject to the 

September 2008 restrictions. As a result, Fifer began working 

at his family’s seafood restaurant, where he earned $400 weekly 

performing odd jobs, errands, and assisting with food 

preparation. Prior to his work as a longshoreman, Fifer had 

managed his family’s restaurant for two years.

Both parties agree that Fifer reached maximum medical 

improvement in February 2009. On August 20, 2009, Fifer 

underwent a second FCE. That evaluation showed reduced lifting

ability, as compared to the 2008 FCE, but also indicated that 

Fifer could sit and stand “frequent[ly]” and walk “const[antly]” 
5

at a slow pace, improvements from the 2008 FCE. J.A. 371. The 

evaluator concluded that work in the family restaurant was

“consistent with [Fifer’s] demonstrated activity tolerances,” 

that Fifer could not return to Marine as a container repairman, 

and that he should “[m]aintain work activity within the light 

work parameters.” Id. at 373. According to the FCE, “light

work” includes jobs that involve occasionally lifting up to 

twenty pounds and require “walking or standing to a significant 

degree.” Id. at 371.

During an October 2009 deposition in connection with this 

case, Dr. Franchetti clarified that based on the results of the 

August 2009 FCE, he would revise his September 2008 

restrictions. Specifically, based on the August 2009 FCE, Dr. 

Franchetti would reduce Fifer’s “lifting and carrying weight to 

25 pounds,” reduce overhead lifting to twenty pounds, and “would 

recommend no lifting more than about 10 to 15 pounds 

frequently.” J.A. 390 (“the October 2009 restrictions”). 

Fifer’s sitting restriction remained the same: no sitting 

without changing position for forty-five or more minutes. Dr. 

Franchetti confirmed that he did not see any problem with 

Fifer’s work in the family restaurant.
6

B.

1.

After Marine discontinued temporary payments in January 

2009, Fifer filed this claim for permanent disability benefits

under the LHWCA, 33 U.S.C. § 901 et seq. The ALJ conducted a 

hearing on October 29, 2009.

At the hearing, Fifer and Dr. Franchetti testified that 

physical limitations prevented Fifer from returning to work as a 

repairman at Marine.2

 Dr. Franchetti testified that Fifer “has 

sustained a permanent impairment to his person as a whole, as a 

result of his lumbar spinal injury,” resulting in a “31 percent 

whole person impairment.” J.A. 389.

Marine presented evidence of alternative employment for 

Fifer in the relevant geographic area. Marine’s vocational 

rehabilitation specialist, Brian Sappington, testified to three 

labor market studies he had prepared to demonstrate alternative 

employment. The first two were conducted in December 2008 and 

relied on Fifer’s 2008 work-hardening release, which allowed 

“[h]eavy duty [work] with limitations.” J.A. 276. The first 

study listed positions as a welder, forklift driver, courier, 

and security guard; the second included five restaurant 

management positions with “light duty” physical requirements. 

 2 Dr. Franchetti testified by deposition.
7

Sappington’s third and final study took Dr. Franchetti’s 

September 2008 restrictions into account. J.A. 359 (noting that 

Fifer’s restrictions were “[u]nlimited standing with restricted 

lifting per Dr. Franchetti”). That study provided a description 

of the restaurant manager and assistant manager role from the 

Dictionary of Occupational Titles (“DOT”) and listed six 

restaurant management positions for which Sappington testified 

Fifer would be vocationally qualified.

Sappington supplemented the second and third study with his 

testimony at the hearing before the ALJ. Specifically, upon 

receiving Dr. Franchetti’s October 2009 work restrictions, 

Sappington had contacted employers from the second and third 

studies and performed site visits to determine whether the 

restaurant management positions would comport with Fifer’s

revised lifting restrictions. Sappington testified that he 

identified two restaurants where a person with a twenty-five 

pound lifting restriction “would be a candidate” or where “the 

restaurant would provide reasonable accommodation to someone 

with Mr. Fifer’s background and restrictions,” J.A. 156, and two 

more restaurant positions where employees told Sappington they 

rarely lifted anything over twenty-five pounds and felt 

accommodations were possible, id. at 157-58, even though the job 

descriptions for those restaurant posts required an ability to 

lift more than twenty-five pounds. Sappington identified three 
8

additional restaurant positions which did not include a minimum 

lifting requirement, although he was unable to verify actual 

lifting requirements at those restaurants. Therefore, 

Sappington concluded that of the seven restaurants he visited, 

four of them would “definite[ly]” accommodate Fifer’s physical 

limitations. Id. at 164. The annual salary for these positions 

ranged from $28,000 to $40,000. Sappington also testified that 

the security guard positions listed in the first labor market 

study, which required “frequent standing and walking,” fit 

within Dr. Franchetti’s October 2009 restrictions. J.A. 282.

2.

In an opinion issued on March 28, 2010, the ALJ concluded 

that Fifer met his burden of establishing a prima facie case of 

total disability since he could not return to his former 

position at Marine. The ALJ then assessed whether Marine had 

rebutted Fifer’s showing of disability by demonstrating the 

availability of suitable alternative employment by comparing 

Sappington’s labor market studies with Fifer’s vocational and 

physical abilities. She found that none of Sappington’s studies 

provided adequate levels of detail regarding the positions’ 

requirements. As such, the ALJ determined that Fifer’s job in 

the family restaurant, where he earns $20,800 annually, 

represented his wage earning capacity. She awarded permanent 

partial disability benefits accordingly.
9

The ALJ credited Fifer’s testimony regarding his physical 

limitations. Fifer testified that he chose to work at his

family’s restaurant because there, “if I need to take a break 

and sit down I can sit down and . . . I’m not going to get 

fired.” J.A. 96. While Fifer testified that he can “do 

everything [at the restaurant] that needs to be done,” he has, 

on at least one occasion, taken a thirty minute break to lay 

down when he felt a muscle spasm developing in his back. J.A. 

96-97. The ALJ also credited the testimony of Fifer’s brother, 

Tracy, who manages the restaurant; Tracy Fifer testified that 

his brother “has up days and down days” and sometimes “needs to 

sit down right away” when he arrives to work. J.A. 129. The 

ALJ also credited the deposition testimony of Dr. Franchetti, 

who confirmed that Fifer’s restaurant work comported with the 

October 2009 restrictions, which limited Fifer to lifting a 

maximum of twenty-five pounds.

In rejecting the labor market studies, the ALJ found 

Marine’s first study inconsistent with Fifer’s restrictions, as 

some of the jobs--forklift operator and welder--“require[d] the 

ability to perform medium or heavy work.” Id. at 32. The ALJ 

rejected the security officer positions listed in the first 

study after finding that Fifer’s pain medication regimen would 

cause him to fail any required drug screenings, precluding 

employment as a security guard. The ALJ rejected the five light 
10

duty restaurant management positions in Marine’s second study 

because “Mr. Sappington did not provide a description of the 

positions, other than by their title,” nor did he indicate that 

he “actually spoke to anyone about the job duties and 

availability of these positions.” Id. Finally, although the 

ALJ recognized that the third study, along with Sappington’s 

testimony, identified four positions where “lifting over 25 

pounds was not regularly required of the manager,” she faulted 

that study for failing to “describe[] the specific duties of 

these positions, in particular, whether they require standing

for long periods of time, and provide for rest breaks.” Id. at 

33. The ALJ concluded that “Mr. Fifer’s credible complaints of 

pain, his inability to stand for long periods of time, his need 

for frequent rest breaks, and his regimen of medication” made 

the restaurant jobs inapplicable “although [the jobs] may 

accommodate the lifting restrictions.” Id.

The Board affirmed the ALJ’s decision. It concluded that 

Sappington “did not provide all of the job duties or assess the 

jobs’ suitability in terms of all of claimant’s restrictions,”

and “did not refer to any standard job descriptions.” Id. at 

59. Because Sappington’s reports “lack[ed] . . . specific 

information regarding all the physical duties required of the 

positions,” the ALJ could not determine whether Fifer’s need for 
11

“frequent breaks” and “limit[ations] in the amount of sitting 

and standing he can do” would be accommodated. Id.

The Board issued its final opinion on April 5, 2012. This 

appeal followed.

II.

On appeal, Marine contends that it met its burden of 

showing suitable alternative employment for Fifer, and that the 

ALJ’s conclusions are therefore unsupported by substantial 

evidence.3

In determining whether Marine met its burden of showing 

suitable alternative employment, we review Board decisions for 

errors of law and “to ascertain whether the Board adhered to its 

statutorily mandated standard for reviewing the ALJ’s factual 

findings.” Newport News Shipbldg. & Dry Dock Co. v. Riley, 262 

F.3d 227, 231 (4th Cir. 2001). An ALJ’s factual findings 

“‘shall be conclusive if supported by substantial evidence in 

the record considered as a whole.’” Newport News Shipbldg. & 

Dry Dock Co. v. Stallings, 250 F.3d 868, 871 (4th Cir. 2001) 

(quoting 33 U.S.C. § 921(b)(3)).

 3 Marine also raises several challenges related to Fifer’s 

attorney’s fee award. Attorney’s fees are available for 

successful prosecution of a LHWCA claim. 33 U.S.C. § 928. 

Because we vacate the Board’s Order and remand, we need not 

address the issue of attorney’s fees.
12

Our assessment of whether the Board complied with that

standard comprises “an independent review of the administrative 

record”; “[l]ike the Board, [we] will uphold the factual 

findings of the ALJ so long as they are supported by substantial 

evidence.” Norfolk Shipbldg. & Drydock Corp. v. Faulk, 228 F.3d 

378, 380 (4th Cir. 2000). We consider “substantial evidence” to 

require “more than a scintilla but less than a preponderance”; 

it is “such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Id. at 380-81 (internal 

quotation and citation omitted). We review the ALJ’s legal 

determinations de novo. Dir., Office of Workers’ Comp. Programs 

v. Newport News Shipbldg. & Dry Dock Co., 138 F.3d 134, 141 (4th 

Cir. 1998).

The Act provides compensation to longshore workers who have 

experienced on-the-job injuries “for the economic harm suffered 

as a result of the decreased ability to earn wages.” Norfolk 

Shipbldg. & Drydock Corp. v. Hord, 193 F.3d 797, 800 (4th Cir. 

1999). LHWCA claims are governed by a burden-shifting scheme; 

in order to make a successful compensation claim, “a claimant 

must first establish a prima facie case by demonstrating an 

inability to return to prior employment due to a work-related 

injury.” Newport News Shipbldg. & Dry Dock Co. v. Dir., Office 

of Workers’ Comp. Programs, 315 F.3d 286, 292 (4th Cir. 2002). 

“If the claimant makes this showing, ‘the burden shifts to the 
13

employer to demonstrate the availability of suitable alternative 

employment which the claimant is capable of performing.’” Id.

(citation omitted). If the employer does not itself provide 

suitable alternative employment, it “‘may demonstrate that 

[such] employment is available to the injured worker in the 

relevant labor market.’” Id. at 293 (citation omitted). If the 

employer meets this burden, “its obligation to pay disability 

benefits is either reduced or eliminated, unless the employee 

shows ‘that he diligently but unsuccessfully sought appropriate 

employment.’” Id. (citation omitted).

As Fifer established disability by showing that he is 

unable to return to his job at Marine, this case turns on 

whether Marine has met its burden of showing suitable 

alternative employment. In particular, Marine contends that it 

offered evidence of alternative employment more lucrative than 

Fifer’s position at his family’s restaurant. A finding of 

higher-paying alternative employment would increase Fifer’s 

wage-earning capacity and decrease or nullify the disability 

payments Marine owes Fifer.

We find the ALJ’s conclusion that Marine failed to present 

suitable alternative employment erroneous for two reasons: (1) 

the ALJ made findings of fact as to Fifer’s physical limitations 

which were unsupported by substantial evidence in the record, 

and (2), the ALJ faulted Marine for failing to address these 
14

limitations, imposing a heavier legal burden than our precedent 

requires.

1.

First, in rejecting Marine’s labor market studies, the ALJ 

emphasized Fifer’s “inability to stand for long periods of 

time,” “need for frequent rest breaks,” and “regimen of 

medication,” physical limitations unsupported by substantial 

evidence in the record. J.A. 33. Although we may not disregard 

the ALJ’s findings “‘on the basis that other inferences might 

have been more reasonable,’” Ceres Marine Terminals, Inc. v. 

Green, 656 F.3d 235, 240 (4th Cir. 2011) (citing Newport News 

Shipbldg. & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir.

1988)), there must be some evidence in the record to support the 

findings.

The ALJ’s conclusions regarding Fifer’s problems standing 

and need for breaks were unsupported by the evidence in the 

record. Fifer did not testify that he had trouble standing; 

instead, he indicated that he needed to take breaks during workhardening in 2008 (while performing tasks targeted towards 

returning him to “hard” work parameters) and that he chose to 

return to his family’s restaurant because he knew he could take 

breaks there without reprimand. On one occasion, he had to lay 

down to rest his back; his brother testified that sometimes 

Fifer “needs to sit down right away.” Id. at 129. While the 
15

ALJ credited Fifer’s testimony, she also credited the testimony 

of Dr. Franchetti, who never mentioned standing restrictions or 

rest break requirements, either in his testimony or in the

September 2008 or October 2009 work restrictions. In fact, Dr. 

Franchetti indicated that Fifer’s physical limitations did not 

bar him from restaurant work. Further, the most recent FCE 

indicated that Fifer could stand “frequent[ly]” and walk 

“const[antly]” within light work parameters. J.A. 371.

The ALJ also emphasized Fifer’s medication regimen as a 

barrier to employment, ultimately faulting Marine for failing to 

address Fifer’s medication-related restrictions in its labor 

market studies. The ALJ indicated that the security guard 

positions Marine offered would likely require drug tests which 

Fifer would fail. Nothing in the record, however, indicated 

that Fifer’s medications interfered with his ability to find 

work. There was no evidence to support the ALJ’s conclusion 

that security guards routinely undergo drug testing, that 

prescription painkillers cause applicants to fail required drug 

tests, or that Fifer’s regimen would bar Fifer from employment. 

The ALJ’s determination that Fifer could not qualify for the 

security guard positions because of his medication was thus 

unsupported by any evidence, much less substantial evidence.
16

2.

Second, the ALJ’s emphasis on Fifer’s standing, rest break, 

and medication-related restrictions led her to fault Marine for 

overlooking them in its labor market studies. The ALJ thus 

penalized Marine for failing to address restrictions of which it 

was unaware, imposing too heavy a responsibility under the 

LHWCA’s burden-shifting scheme. This was legal error, for which 

we vacate the underlying decision and order. See Universal Mar. 

Corp. v. Moore, 126 F.3d 256, 264-65 (4th Cir. 1997) (vacating 

the BRB’s decision and remanding after holding that the ALJ’s 

imposition of too great a burden on the employer to demonstrate 

suitable alternative employment was an error of law); TransState Dredging v. Benefits Review Board, 731 F.2d 199, 201 (4th 

Cir. 1984) (reversing the BRB and remanding after finding that 

requiring the employer to contact prospective employers to 

determine whether they would hire someone with the claimant’s 

abilities “place[d] too heavy a burden upon the employer”).

We have held that, to meet its burden, “an employer must 

present evidence that a range of jobs exists which is reasonably 

available and which the disabled employee is realistically able 

to secure and perform.” Lentz v. Cottman Co., 852 F.2d 129, 131 

(4th Cir. 1988). There must be “a reasonable likelihood, given 

the claimant’s age, education, and vocational background that he 

would be hired if he diligently sought the job[s]” the employer
17

presents. Id. (quoting Trans-State Dredging, 731 F.2d at 201). 

Demonstrating a single job opening is not enough. Id. Once the 

employer has presented a range of appropriate jobs, however,

“the employer need not contact prospective employers to inform 

them of the qualifications and limitations of the claimant and 

to determine if they would in fact consider hiring the candidate 

for their position.” Universal Mar., 126 F.3d at 264. Nor must 

the employer “contact the prospective employers in his survey to 

obtain their specific job requirements before determining 

whether the claimant would be qualified for such work.” Id. 

Rather, if the employer demonstrates “the availability of 

specific jobs in a local market,” he may rely “on standard 

occupational descriptions to fill out the qualifications for 

performing such jobs.” Id. at 265.

Marine relied on the physical restrictions of which it was 

aware to present a range of suitable positions for Fifer. Prior 

to the hearing, Dr. Franchetti never indicated a standing 

restriction or a rest break requirement; to the contrary, after 

giving his revised October 2009 restrictions, he indicated that 

“cooking, deliveries and takeout,” as well as managerial work,

would comport with Fifer’s physical restrictions. J.A. 390. 

Marine relied on the restrictions it knew of to prepare labor 

market studies, updating those reports as it became aware of 

revised restrictions.
18

Marine cannot be faulted for failing to account for

restrictions which were unannounced prior to the hearing, a 

conclusion underscored by the ALJ’s unfounded findings with 

respect to Fifer’s medication-related restrictions. While the 

record corroborated the fact that Fifer took medication to 

manage his pain, neither his nor his treating physician’s

testimony supports the conclusion that Fifer’s medication 

interfered with his ability to obtain employment. Indeed, as 

discussed above, nothing in the record indicated that security 

guards must undergo drug tests to qualify for employment. 

Faulting Marine for failing to address unfounded restrictions 

turns the employer’s showing of suitable alternative employment 

into a moving target.

Moreover, the ALJ overstated Marine’s burden of presenting 

suitable alternative employment. The third labor study, at 

least, described with requisite specificity the responsibilities 

of a restaurant manager or assistant manager using the DOT. We 

have expressly approved the use of the DOT’s “standard 

occupational descriptions to fill out the qualifications” of 

suitable alternative employment in LHWCA cases. Universal Mar., 

126 F.3d at 265. In Universal Maritime, we explained that we 

sanction the use of the DOT’s occupational descriptions because 

“the claimant is able to correct any overbreadth in a survey by 

demonstrating the failure of his good faith effort to secure 
19

employment” once the burden shifts back to the employee. Id. at 

264-65. Therefore, the ALJ’s rejection of the third labor 

market study for failing to describe “the specific duties of 

the[] positions” demands more than we require. J.A. 33.

Further, Marine produced at least four alternative

positions which the ALJ recognized would “accommodate [Fifer’s]

lifting restrictions.” J.A. 33. Although “the employer need 

not contact prospective employers to inform them of the 

qualifications and limitations of the claimant,” Universal Mar., 

126 F.3d at 264, Sappington communicated Fifer’s “physical 

limitations as [he] understood them” to the potential employers 

in order to determine whether the jobs were realistically 

available to Fifer, J.A. 168. Because Dr. Franchetti’s lifting 

and sitting restrictions were the only restrictions of which 

Marine was aware prior to the hearing, and because Marine 

presented several suitable positions which the ALJ found 

comported with those restrictions, we conclude that the ALJ 

erred in finding that Marine failed to meet its burden under the 

Act.

Since Marine demonstrated the availability of suitable

alternative employment which Fifer is capable of performing, the 

burden should have shifted to Fifer to prove he could not obtain 

more lucrative employment despite his diligent effort. We 

therefore vacate the final Decision and Order of the BRB, and 
20

remand this matter for further proceedings consistent with this 

opinion.

III.

For the foregoing reasons, Marine’s petition for review is 

granted, the Decision and Order of the BRB is vacated, and the 

claim is remanded for further proceedings.

VACATED AND REMANDED