UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CALVIN WASHINGTON,

Petitioner,

v.

No. 96-2585

MAERSK CONTAINER SERVICE; SIGNAL

MUTUAL INDEMNITY ASSOCIATION,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(BRB-95-508)

Submitted: January 6, 1998

Decided: February 17, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Ralph R. Lorberbaum, ZIPPERER & LORBERBAUM, P.C., Savannah, Georgia, for Petitioner. Stephen E. Darling, SINKLER &

BOYD, P.A., Charleston, South Carolina, for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Calvin Washington petitions for review of an order of the Department of Labor's Benefits Review Board ["the Board"]. The Board

summarily affirmed* the decision of an administrative law judge

["ALJ"] denying Washington's claim for compensation benefits under

the Longshore and Harbor Workers' Compensation Act["LHWCA"],

33 U.S.C. §§ 901-950 (1994), and denying Maersk Container Service

["Maersk"] relief under § 908(f) for preexisting disability. Washington claims that the ALJ erred in determining that Maersk established

suitable alternate employment and in failing to find that his injury

aggravated a pre-existing condition. For the reasons set forth below,

we affirm.

Washington sustained an injury to his left leg in May 1989, and

Maersk paid Washington temporary total disability benefits for the

leg injury. Washington then filed a claim for permanent and total disability under the provisions of the LHWCA, alleging that his leg

injury was permanent and aggravated his pre-existing back condition.

In a proceeding before the ALJ, Maersk claimed that Washington's

leg injury did not aggravate a pre-existing condition and was not permanent. Further, Maersk contended that suitable alternative employment existed and alternatively, that it was entitled to relief pursuant

to § 908(f) for pre-existing disability. The ALJ concluded that Washington was not entitled to permanent disability benefits because his

_________________________________________________________________

*The Board never addressed the merits of the appeal. On September

12, 1996, the Board sent the parties a notice stating that pursuant to the

provisions of Public Law Number 104-134, enacted on April 26, 1996,

all appeals to the Board relating to claims under the LHWCA that have

been pending before the Board for more than one year, shall, if not acted

upon before September 12, 1996, be considered affirmed by the Board.

Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.

L. No. 104-134, § 101(d), 110 Stat. 1321-281 (1996). Because Washington's appeal met these criteria, the Board informed the parties that the

ALJ's decision had been effectively affirmed by the Board on September

12, 1996, for purposes of their rights to obtain review in this court. We

reject Washington's suggestion that this case is not ripe for our review.

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injury was limited to his leg and suitable alternative employment

existed. The Board summarily affirmed the ALJ's decision, and

Washington timely appeals.

Once a claimant shows that he is unable to return to his regular

employment, the burden shifts to the employer to prove that suitable

alternative employment is available. See Newport News Shipbuilding

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

employer need only show that there are jobs available at a time when

the claimant is able to seek and find employment. See Tann, 841 F.2d

at 542-43. An employer must present evidence that a range of jobs

exists that is reasonably available and that the employee is realistically able to secure and perform, see Lentz v. Cottman Co., 852 F.2d

129, 131 (4th Cir. 1988), and is not required to prove the availability

of a job by contacting a prospective employer to see if that employer

would hire someone with the same background, age, and disabilities

as the injured employee, see Trans-State Dredging v. Benefits Review

Bd., 731 F.2d 199, 201 (4th Cir. 1984). Once an employer establishes

suitable alternate employment, the claimant's disability is found to be

partial and not total. See Southern v. Farmers Export Co., No. 81-

1745, 1985 WL 55355, at *2 (B.R.B. 1985).

We review the Board's decision for errors of law and to determine

whether the Board observed its statutorily-mandated standard for

reviewing the ALJ's factual findings. See Newport News Shipbuilding

& Dry Dock Co. v. Director, OWCP (Hess), 681 F.2d 938, 941 (4th

Cir. 1982). In turn the Board's review of the ALJ's factual findings

is limited by the requirement that "[t]he findings of fact in the decision under review by the Board shall be conclusive if supported by

substantial evidence in the record considered as a whole." 33 U.S.C.

§ 921(b)(3) (1994). Because the ALJ's decision was affirmed by

default, there is no Board decision for the court to review; the ALJ's

findings of fact must therefore be upheld if supported by substantial

evidence. We defer to the ALJ's credibility determinations and inferences made from the evidence. See See v. Washington Metro. Area

Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

We conclude that substantial evidence in the record as a whole supports the ALJ's factual findings and that, based on the evidence, the

ALJ did not err in concluding that Washington was not entitled to per-

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manent compensation under the LHWCA. The record establishes that

Washington's injury was limited to his leg and that the leg injury did

not aggravate or exacerbate a pre-existing back condition. Numerous

doctors examined Washington and the substantial weight of the evidence found to be credible by the ALJ indicates that for a period of

at least two years following the accident, Washington sought treatment for pain in his left leg only. Additionally, the record reveals that

suitable alternative employment existed. The record indicates, and

Washington concedes, that a range of jobs existed which was reasonably available and which Washington was realistically able to secure

and perform. Thus, the ALJ correctly concluded that because suitable

alternate employment existed, Washington's disability is partial and

not total. See Southern, 1985 WL 55355, at *2.

Accordingly, because we find that the ALJ's findings were supported by substantial evidence in the record as a whole and that the

ALJ did not err, we affirm the Board's summary order affirming the

ALJ's decision by default. See Hess, 681 F.2d at 941.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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