UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SEACO AND SIGNAL MUTUAL

INDEMNITY ASSOCIATION, LIMITED,

Petitioner,

v.

No. 96-2635

BOBBY BESS; DIRECTOR, OFFICE OF

WORKERS' COMPENSATION PROGRAM,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(No. 94-2370)

Submitted: May 6, 1997

Decided: August 7, 1997

Before HALL and WILKINS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stephen E. Darling, SINKLER & BOYD, P.A., Charleston, South

Carolina, for Seaco and Signal. Ralph R. Lorberbaum, ZIPPERER &

LORBERBAUM, P.C., Savannah, Georgia, for Bess. J. Davitt

McAteer, Acting Solicitor of Labor, Carol A. De Deo, Associate
Solicitor, Michael S. Hertzig, UNITED STATES DEPARTMENT OF

LABOR, Washington, D.C., for Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Respondent Bobbie Bess, a longshoreman, injured his back in

August 1991 while at work. Bess received disability benefits until

March 1992, when two of his treating physicians opined that he could

return to work. An administrative law judge ("ALJ") awarded benefits, and Petitioners appealed to the Benefits Review Board. Since the

Board failed to resolve the appeal (which had been pending for over

one year) before September 12, 1996, the ALJ's decision was considered affirmed by the Board on that date for purposes of obtaining

judicial review. See Omnibus Appropriations for 1996, Pub. L. No.

104-134, § 101(d), 110 Stat. 1321-219 (Apr. 26, 1996). In their timely

petition for review in this court, Petitioners challenge whether the

ALJ adequately supported his decision granting benefits, whether

there was substantial evidence to support the ALJ's decision, whether

the award should have been for permanent total disability rather than

temporary total disability, and whether they are entitled to relief pursuant to 33 U.S.C. § 908(f) (1994). Since we find that the ALJ failed

to adequately discuss the reasons for his decision, we decline to

address Petitioners' other claims. Accordingly, we vacate the Board's

order and remand with instructions for the Board to remand this

action to the ALJ for the ALJ to address the issue of suitable alternate

employment.

It was undisputed that Bess could not physically return to work as

a longshoreman. In the initial hearing before the ALJ, Petitioners

presented evidence on the availability of suitable alternate employment. The ALJ deferred ruling on this issue and an award of benefits

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pending a psychiatric evaluation to determine whether Bess was

malingering. After receiving the psychiatric reports, the ALJ found

that Bess was not malingering and awarded him temporary total disability benefits, without ever ruling on the issue of suitable alternate

employment.

Decisions of the ALJ are reviewable only as to whether they are

in accordance with the law and supported by substantial evidence in

light of the entire record. 33 U.S.C. § 921(b)(3) (1994). To provide

a basis for thorough review, the ALJ is statutorily required to give a

detailed explanation of his findings and conclusions, especially where

there is evidence in the record contradicting his conclusion. See v.

Washington Metro. Area Transit Auth., 36 F.3d 375, 384 (4th Cir.

1994).

There is a three-step process used to determine whether an award

of disability benefits is appropriate. Newport News Shipbuilding &

Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir. 1988). First, the

employee must show that he is unable to return to his former job. Second, the burden then shifts to the employer to show that suitable alternate employment is available. Finally, the burden shifts back to the

employee to show that he has tried to obtain such alternate employment, but was unable to do so.

It is virtually undisputed that Bess met his burden as to the first

step. Though the medical and psychological reports were contradictory, we find that there was substantial evidence to support a finding

that Bess was physically and psychologically unable to return to longshore work. The record also shows that Petitioners presented evidence

of allegedly suitable alternate employment, including a light-duty job

offered by Seaco. Since this evidence, if credited, may be sufficient

to satisfy the employer's burden under the second step, the ALJ was

required to address it in arriving at his final decision. However, he

failed to do so. This failure to address the issue of suitable alternate

employment renders the ALJ's decision inadequate for review. We

further find that this failure was material given the evidence presented

by Petitioners.

We therefore vacate the order of the Benefits Review Board and

remand the case with instructions for the Board to further remand to

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the ALJ for further proceedings consistent with this opinion. We dispense with oral argument because the facts and legal contentions are

adequately presented in the material before the court and argument

would not aid the decisional process.

VACATED AND REMANDED

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