UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES M. CHAMBLEE,

Petitioner,

v.

No. 96-1100

NEWPORT NEWS SHIPBUILDING AND

DRY DOCK COMPANY,

Respondent.

On Petition for Review of an Order

of the Benefits Review Board.

(92-2477)

Argued: March 5, 1997

Decided: June 24, 1997

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,

and BLACK, Senior United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert Elliott Walsh, RUTTER & MONTAGNA, L.L.P.,

Norfolk, Virginia, for Petitioner. Benjamin McMullan Mason,

MASON & MASON, P.C., Newport News, Virginia, for Respondent.

ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA, L.L.P.,

Norfolk, Virginia, for Petitioner.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner James M. Chamblee ("Chamblee") appeals a decision of

the Benefits Review Board ("BRB") affirming the decision of an

Administrative Law Judge ("ALJ"), which involved his workers'

compensation claim under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (West 1986 & Supp.

1997). The ALJ's Decision and Order required Chamblee's employer

to compensate Chamblee, pursuant to 33 U.S.C. § 908(c)(1), for a

twenty-five percent permanent partial disability due to an injury to

Chamblee's left arm. Chamblee contends that the ALJ erred in determining the extent of Chamblee's disability by adopting the impairment rating of one of the many physicians who examined him. This,

in Chamblee's view, constituted a failure on the part of the ALJ to

consider all the relevant evidence necessary to make a proper assessment of Chamblee's disability and violated the pertinent provisions of

the LHWCA.

I.

On July 25, 1985, Chamblee suffered a work-related injury to his

elbow while employed by the Newport News Shipbuilding and Dry

Dock Company ("NNS"). Chamblee, a twenty-three year employee of

NNS, has worked for most of his career as a shipfitter. As a shipfitter,

Chamblee's work entailed, to a great extent, repair work and tank

work on vessels in the shipyard. To do this work, Chamblee was

required to lift weights, climb vertical ladders, and operate a variety

of heavy tools. As a result of his injury, and the related pain, Chamblee no longer has the physical capacity to perform the same job at

work. NNS, however, has apparently found light duty work for

Chamblee since his injury.

As part of the extensive medical treatment Chamblee received after

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his injury, a series of doctors offered assessments of Chamblee's

impairment.* Chamblee was first treated by Dr. Bartlett from August

1985 to March 1987, and again from January 19, 1990 to February

13, 1992. Dr. Bartlett made two assessments of the level of Chamblee's impairment: first, on March 6, 1986, Dr. Bartlett judged Chamblee had "about a 5% permanent partial disability" to his left arm, and

later, on March 18, 1987, Dr. Bartlett found Chamblee's injuries warranted a "35% disability" rating. A NNS clinic referred Chamblee to

Dr. Giannotto who treated him from March 31, 1987 until he resumed

treatment with Dr. Bartlett. Dr. Giannotto found:"limited use of the

left upper extremity" and concluded that "the disability rating would

be a permanent partial disability of 10% referrable to the left upper

extremity." Lastly, Dr. Neff examined Chamblee on January 8, 1991.

On March 12, 1992, at NNS's request, and based on his notes of

Chamblee's prior visit and X-rays, Dr. Neff stated in a letter: "I would

rate Mr. Chamblee as having a twenty-five percent permanent impairment to his left upper extremity."

In accordance with the LHWCA, Chamblee filed a claim for compensation benefits. NNS voluntarily compensated Chamblee at a ten

percent permanent partial disability rate. Chamblee, not satisfied with

this compensation, requested a hearing on the issue of the extent of

his permanent partial disability, claiming he was entitled to compensation at a fifty percent permanent partial disability rate, and a formal

hearing was held before the ALJ on March 5, 1992. The ALJ issued

a Decision and Order dated July 24, 1992 in which he reviewed the

aforementioned medical opinions and awarded benefits based on a

finding that Chamblee had a twenty-five percent permanent partial

disability to his left arm.

Chamblee filed a timely Notice of Appeal to the BRB. After briefing on the issues by the parties, the BRB issued a Decision and Order

dated November 28, 1995 affirming the ALJ. This appeal followed.

_________________________________________________________________

*The doctors involved in this case used both the"permanent partial

disability" language of the LHWCA, and the term"impairment." It is

unclear from the record whether or not the doctors involved in this case

used these terms in a synonymous fashion, or whether they used these

terms with an appreciation of the differences between them under the

LHWCA.

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II.

The ALJ's decision must be upheld so long as it is supported by

substantial evidence. Newport News Shipbuilding and Dry Dock Co.

v. Tann, 841 F.2d 540, 543 (4th Cir. 1988)."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 factfinder's inferences and credibility assessments, and we have emphasized the scope of review of ALJ findings is limited." Id. Consequently, we must affirm the BRB's decision "if it correctly concluded

that the ALJ's findings are supported by substantial evidence and are

in accordance with the law." P & M Crane Co. v. Hayes, 930 F.2d

424, 428 (5th Cir. 1991).

Chamblee attempts to create a question of law for this Court to

review by asserting that the ALJ was unaware of the difference

between a LHWCA disability assessment and an impairment rating,

and hence, failed to consider all the relevant evidence necessary to

make an independent assessment of his disability. Under the

LHWCA, "disability" is defined as:

incapacity because of injury to earn the wages which the

employee was receiving at the time of injury in the same or

any other employment; but such term shall mean permanent

impairment, determined (to the extent covered thereby)

under the guides to the evaluation of permanent impairment

promulgated and modified from time to time by the American Medical Association, in the case of an individual whose

claim is described in section 910(d)(2) of this title.

33 U.S.C. § 902(10). Applicable LHWCA caselaw demonstrates that

disability is an inclusive concept which recognizes the economic

effects of a physical impairment. See, e.g., Owens v. Traynor, 274 F.

Supp. 770, 774 (D. Md. 1966) ("Anatomical impairment and industrial disability must be distinguished."), aff'd, 396 F.2d 783 (4th Cir.),

cert. denied, 393 U.S. 962 (1968). Pointing to this principle, Chamblee objects to the ALJ's reliance on Dr. Neff's twenty-five percent

impairment rating as an appropriate measure of Chamblee's disability. Chamblee, understandably, would have preferred that the ALJ use

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Dr. Neff's impairment rating as a beginning point from which to

award even greater compensation based on other evidence.

The fact that the ALJ credited the "impairment" rating of Dr. Neff

and awarded Chamblee compensation based on a twenty-five percent

permanent partial disability does not, however, lead to the conclusion

that the ALJ improperly equated disability and impairment, or otherwise shirked his adjudicatory duties. Not only did the ALJ enunciate

the proper definition for disability under the LHWCA-- citing

Owens, 274 F. Supp. at 774, for the proposition that "[d]isability is

an economic concept based on a medical foundation" -- but the

ALJ's opinion properly noted and considered a variety of evidence in

addition to Dr. Neff's medical opinion, including Chamblee's testimony with regard to pain and suffering, and job restrictions due to his

injury. The ALJ is entitled to weigh all the evidence, medical or otherwise, before him and to rely on that evidence which he finds most

credible. Todd Shipyards Corp. v. Donovan, 300 F.2d 741, 742 (5th

Cir. 1962); Ennis v. O'Hearne, 223 F.2d 755, 758 (4th Cir. 1955).

Moreover, while adherence to an impairment rating, consistent with

the American Medical Association guidelines, is not required in a

scheduled loss case, neither is the fact-finder constrained to any set

technique for the determination of a disability rating. Mazze v. Holleran, Inc. & State Ins. Fund, 9 BRBS 1053, 1055 (1978); see also

Maryland Shipbuilding and Drydock Co. v. Director, Office of Workers' Compensation Programs, 618 F.2d 1082 (4th Cir. 1980) (analyzing a claim brought under Section 908(f) of the LHWCA which also

utilizes the term "disability," and finding that the percentages adduced

from the medical testimony can be representative of the entire disability). As there is no evidence in this record which suggests that the

ALJ's twenty five percent disability rating did not accurately reflect

the entire compensable disability, the BRB correctly found the ALJ's

award supported by substantial evidence.

AFFIRMED

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