UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VETUS C. BROWN,

Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND

No. 96-2622

DRY DOCK COMPANY; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(94-610)

Argued: March 4, 1998

Decided: June 4, 1998

Before MURNAGHAN, ERVIN, and WILKINS,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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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 Respondents. ON BRIEF: Matthew H. Kraft, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Petitioner. Dean C. Berry, Assistant

General Counsel, NEWPORT NEWS SHIPBUILDING AND DRY

DOCK COMPANY, Newport News, Virginia, for Respondent Newport News Shipbuilding.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Vetus Brown petitions for review of a final order of the Department of Labor's Benefits Review Board ("BRB" or "Board"). Finding

that Newport News Shipbuilding and Dry Dock Co. ("NNS") had

offered Brown employment that conformed to his medical restrictions, the Administrative Law Judge ("ALJ") denied Brown's claim

for temporary partial disability benefits for loss of wage earning

capacity. Brown noted a timely appeal to the BRB. After a year without action the BRB was deemed to have affirmed the ALJ's decision

pursuant to the provisions of the Omnibus Consolidated Rescissions

and Appropriations Act of 1996, Pub. L. No. 104-134,§ 101(d), 110

Stat. 1321, 1321-29.

On petition for review to this court, Brown argues that the position

offered by NNS was not compatible with his post-injury physical

capacity and medical restrictions. In the alternative, Brown contends

that a remand is required because the ALJ's Decision and Order failed

sufficiently to explicate the evidentiary basis for his conclusions.

Finding no error, we affirm.

I

NNS employed Brown in the shipyard's rigging department.

Brown's pre-injury duties included building stages used in constructing ships, directing crane operators, and moving heavy equipment on

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submarines and carriers. On March 10, 1986, Brown fell from staging

to the ground, a distance of approximately four feet, when a wrench

he was using to tighten a nut slipped. As a result of the fall, Brown

suffered injuries including a blow to the head. Following the accident,

Brown complained of severe and persistent headaches that were

aggravated by noise and light.

Brown obtained treatment for his headaches from Dr. Gilbert

Snider, a neurologist. Dr. Snider prescribed several medications and,

in response to Brown's claim that loud noise intensified the severity

of his headaches, recommended that NNS place Brown in a low-noise

work environment.

Between March 10 and November 11, 1986, Brown endeavored to

return to work at the shipyard several times. Each time, however,

Brown complained that he could not abide the noise levels. Additions

and changes to his medication proved unavailing. On November 11,

1986, NNS laid off Brown in a general reduction in force.

In February 1987, Dr. Snider determined that Brown could return

to work under three restrictions. With respect to Brown's intolerance

for loud noise, Dr. Snider recommended that Brown work in an area

with a background noise level of no more than 90 decibels, and preferably no more than 85 decibels. Dr. Snider noted that a steady noise

level of 90 decibels would be more readily tolerated than intermittent

sounds of 90 decibels. Dr. Snider also recommended that Brown be

permitted to use tinted lenses, and that he not work at heights of more

than 50 feet.

In April or May 1987, Brown obtained a supervisory position at the

Fort Eustis Exchange service station. Brown worked at the service

station until July 1987, when NNS recalled Brown to work at the

shipyard in the rigging department.

Brown reported to work at the shipyard on July 21, 1987. The rigging supervisor, Michael Burke, was informed of Brown's medical

restrictions and assigned Brown to work under the hull of a ship under

construction. Although Brown did not complain to Burke of noiseinduced headaches on July 21 or July 22, he advised Dr. Snider by

telephone that the work environment was aggravating his headaches.

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In response to Brown's call, Dr. Snider requested that Brown be

returned to "his prior job at a low noise level," be permitted to wear

sunglasses, and not be required to wear a hardhat.*

Brown also visited the NNS clinic to complain of excessive noise.

Clinic personnel asked Brown to wait while the noise levels in his

work area were tested. Although testing revealed that the decibel

levels under the ship hull were within the range recommended by Dr.

Snider, Brown did not return to his assigned work at the shipyard

after July 22, 1987.

On July 24, Brown reported to the shipyard to advise NNS of Dr.

Snider's most recent restrictions. Brown was informed that the shipyard had work available within his restrictions and was warned about

unauthorized leave. Nevertheless, Brown left the shipyard and

returned to work at the Fort Eustis service station. On July 28, 1987,

Brown again visited the shipyard and was offered work under the hull

of a ship, which Brown refused. Based on his failure to report to work

after July 22, Brown was released from union rolls effective July 27,

1987, for being absent without leave for five or more consecutive

work days.

Pursuant to an agreement reached in February 1987, NNS paid

Brown temporary total disability benefits from March 25, 1986,

through May 3, 1987, excluding days Brown actually worked, and

temporary partial disability benefits from May 4, 1987, through July

20, 1987. Brown's compensation was terminated when he was

released from duty effective July 27, 1987.

Brown subsequently filed a claim for workers' compensation benefits under the Longshore and Harbor Workers' Compensation Act, 33

U.S.C. §§ 901-50 ("LHWCA"), seeking medical benefits and reinstatement of temporary partial disability benefits for loss of wage

earning capacity from July 23, 1987, and continuing. On March 6,

1990, the ALJ issued a Decision and Order awarding Brown the

requested medical benefits, but denying Brown's claim for temporary

partial disability payments.

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*Following a conversation with the NNS clinic physician, Dr. Lenthall, Dr. Snider eliminated the hard hat restriction.

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Brown filed a timely appeal with the BRB. In a decision dated

April 28, 1993, the BRB vacated the denial of disability benefits and

remanded the case to the ALJ for further consideration because the

ALJ had failed adequately to analyze and discuss the medical evidence relating to Brown's work restrictions and his ability to perform

his job. The Board instructed the ALJ on remand to determine, in

light of the medical evidence, whether Brown could perform his usual

work or the work NNS offered him.

On remand, the ALJ concluded that the work offered to Brown in

July 1987 was within the medical restrictions imposed by Dr. Snider

and again denied Brown's claim for temporary partial disability payments. The ALJ's decision was deemed affirmed on September 12,

1996. Brown timely filed a petition for review on November 8, 1996.

Jurisdiction is present under 33 U.S.C. § 921(c). Ordinarily, we

review decisions of the Board for errors of law and to determine

whether the Board heeded the mandate of 33 U.S.C.§ 921(b)(3),

which provides that the ALJ's findings of fact "shall be conclusive if

supported by substantial evidence in the record considered as a

whole." See See v. Washington Metro. Area Transit Auth., 36 F.3d

375, 380 (4th Cir. 1994); Newport News Shipbuilding and Dry Dock

Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988). Absent a decision by

the Board, we inquire whether the ALJ's decision was based on legal

error or on factual findings not supported by substantial evidence.

Substantial evidence, described as "more than a scintilla but less than

a preponderance," is "`such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Elliott v. Administrator, Animal & Plant Health Inspection Serv., 990 F.2d 140, 144

(4th Cir. 1993) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). We defer to the ALJ's credibility determinations

and inferences from the evidence, "despite our perception of other,

more reasonable conclusions from the evidence." See, 36 F.3d at 380.

II

The principal question before us is whether the ALJ correctly concluded that the work NNS offered to Brown in July 1987 conformed

to the restrictions dictated by Dr. Snider. A claimant for disability

benefits under the LHWCA bears the burden of demonstrating that he

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is unable to perform his usual work. See, 36 F.3d at 380. The burden

then shifts to the employer to show the availability of suitable alternate employment. Id. The employer's burden may be satisfied "[b]y

proving that the injured employee retains the capacity to earn wages

in regular, continuous employment." Lentz v. Cottman Co., 852 F.2d

129, 131 (4th Cir. 1988).

The record contains substantial evidence to show that work was

available within Brown's medical restrictions in the rigging department at NNS. Burke, the rigging supervisor to whom Brown reported,

assigned Brown to "scrapping up," or removing materials from underneath the hull of a ship under construction. The job did not require

Brown to work above ground level. Brown was permitted to wear

sunglasses while he worked, but only when he was not under the ship.

Burke explained that the work area was shadowed by the hull and

light bulbs were required to provide adequate illumination.

An industrial hygienist for NNS assessed noise levels under the

hull on July 23, 1987. A dosimeter was used to measure the average

noise level, while a sound level meter took readings at two minute

intervals. The records were reviewed by Larry Bonner, an industrial

hygienist employed by NNS. Bonner testified that the average noise

level under the hull was 80 decibels. The nine sound meter readings

revealed decibel levels ranging from a low of 77 decibels to a high

of 84. The average noise level and highest intermittent noise level

were both within the preferable 85 decibel limit prescribed by Dr.

Snider.

The proper use of earmuffs and earplugs would have further

reduced Brown's exposure to noise. Chris Zambas, an audiologist,

testified that properly sized and fitted earplugs reduce noise exposure

by approximately 26 decibels. Dr. Lenthall stated that Brown was fitted with earplugs to be worn under earmuffs on May 29, 1986. The

earmuffs used at NNS, and worn by Brown when working under the

hull in July 1987, have a noise reduction rating of 22 to 25 decibels.

When earplugs and earmuffs are used in combination, noise levels are

reduced by approximately seven decibels more than by either earmuffs or earplugs alone.

With earmuffs alone, therefore, the average noise level to which

Brown was exposed under the hull would have been 55 to 58 deci-

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bels. The highest intermittent noise level would have been 59 to 62

decibels. Had Brown elected to wear both earmuffs and earplugs, a

practice condoned by NNS, his exposure would have been further

reduced to an average noise level of no more than 48 to 51 decibels,

and an intermittent noise level of no more than 52 to 55 decibels.

The ALJ's conclusion that the work was within Brown's medical

restrictions is not undermined by Bonner's testimony that noise levels

at various locations in the shipyard infrequently and momentarily

exceeded 115 decibels. With the proper use of earmuffs and earplugs,

Brown's exposure to such noises would have been reduced to 86 decibels or less.

Brown argues, however, that Dr. Snider's specific restrictions were

succeeded by a general recommendation that Brown not return to

work at the shipyard. According to Brown, Dr. Snider's advice demonstrates Brown's inability to perform any work at NNS. We do not

agree. Dr. Snider testified that his opinion was based solely on

Brown's assertion that his headaches were aggravated whenever he

worked at the shipyard, but were less severe when Brown worked at

Fort Eustis. No objective medical evidence exists to corroborate

Brown's claim. The ALJ expressly found that Brown was not credible, and we must defer to that determination. Tann, 841 F.2d at 543.

We conclude that there is substantial evidence to support the ALJ's

finding that NNS provided employment to Brown within the specific

restrictions prescribed by Dr. Snider. Furthermore, we find that the

ALJ's Decision and Order contains an adequate explanation of the

basis for the ALJ's conclusions. Therefore, the ALJ's denial of temporary partial disability benefits to Brown is

AFFIRMED.

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