*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-60762

_______________________

MARY CREAR COVAN,

Petitioner,

versus

INGALLS SHIPBUILDING, INC.; DIRECTOR,

OFFICE OF WORKER’S COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

Respondents.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-491)

_________________________________________________________________

September 23, 1997

Before JONES, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

I. BACKGROUND

On January 31, 1990, Mary Crear Covan filed a claim for
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disability insurance benefits against her employer, Ingalls

Shipbuilding, Inc. (“Ingalls”), under the Longshoremen’s and

Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.

Covan was a welder for Ingalls when she fell and injured her

right knee. Ingalls provided temporary total disability during

her convalescence from two knee surgeries. Ingalls provided

Covan with vocational assistance in seeking another job, but

Covan resumed her work for Ingalls on July 31, 1991 after a

welding position with slightly modified duties became available. 

In February, 1993 Covan returned to the physician who had treated

her knee, in order to increase her work restrictions. Her

physician placed greater restrictions on her, especially

regarding tasks involving climbing, crawling, and stooping. 

Ingalls was unable to employ her with these restrictions, and

attempted to help Covan find work elsewhere. Covan sued Ingalls,

alleging permanent and total disability under 33 U.S.C. § 908(a)

of the LHWCA. The trial was held before an Administrative Law

Judge (ALJ). The ALJ determined in a written order that Covan

was entitled to temporary total disability payments for the

period from December 18, 1989 (the date of Covan’s injury) to

July 31, 1991 (when Covan was deemed recovered from her second

surgery), but that Covan was limited thereafter to compensation

for a permanent partial disability of a scheduled injury of 15%

impairment of her right leg, pursuant to § 908(c)(2). The ALJ
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also awarded Covan interest on her past due compensation,

attorney’s fees and costs, and required Ingalls to pay any future

medical treatment necessary and reasonable for the work-related

injury.

Covan appealed to the Benefits Review Board, which

failed to rule on the appeal within a year, thereby affirming the

ALJ decision as a matter of law. See Omnibus Appropriations for

Fiscal Year 1996, Pub.L. No. 104-134, S 101(d), 110 Stat.

1321-219 (enacted 1996). On appeal, Covan argues the ALJ erred

in not awarding her permanent total disability, because the

employer failed to show suitable alternative employment.

II. STANDARD OF REVIEW

This court reviews the decision of the Benefits Review

Board with the same standard the Board applies to an ALJ,

determining whether the ALJ’s decision “is supported by

substantial evidence and is in accordance with law.” New

Thoughts Finishing Co. v. Chilton, No. 96-60686, 1997 WL 420161,

at *2 (5th Cir. June 17, 1997). The ALJ determines the weight

and credibility of the evidence, and may accept or reject any

part of a medical expert’s testimony. Mendoza v. Marine

Personnel Co., Inc., 46 F.3d 498, 500-501 (5th Cir. 1995).

III. ANALYSIS

In order to establish a prima facie case of entitlement

to total disability benefits, a plaintiff must show that he
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cannot return to his regular or usual employment because of his

work-related injury. New Orleans (Gulfwide) Stevedores, Inc. v.

Turner, 661 F.2d 1031, 1038 (5th Cir. 1981). In the instant

case, the ALJ found (and Ingalls does not dispute) that Covan

established her prima facie case by providing medical testimony

that her knee injury prevented her from returning to her work as

a welder, her job at the time her injury. Thus, the burden

shifted to Ingalls to show the availability of realistic job

opportunities in Covan’s community. Id. at 1042-43. This court

has set out the employer’s burden at this point as follows:

(1) Considering claimant's age, background, etc.,

what can the claimant physically and mentally do

following his injury, that is, what types of jobs is he

capable of performing or capable of being trained to

do? 

(2) Within this category of jobs that the

claimant is reasonably capable of performing, are there

jobs reasonably available in the community for which

the claimant is able to compete and which he could

realistically and likely secure? This second question

in effect requires a determination of whether there

exists a reasonable likelihood, given the claimant's

age, education, and vocational background that he would

be hired if he diligently sought the job. . . . If the

employer meets this burden, the claimant may still

establish disability by demonstrating that he

‘diligently tried, [but was] unable, to secure such

[alternative] employment.’

Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 1043 (5th Cir.

1992) (citations omitted, emphasis in the original). 

Covan argues that Ingalls failed to show that there

were jobs located in Covan’s immediate community, or positions
2 The court may have been influenced by the fact that Covan applied for only some of the

jobsidentified by her vocational counselor in a March 25, 1993, job survey, and did not apply for any

of the jobs on that list until the day before trial.

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for which she was reasonably qualified. Thus, she argues that

the ALJ erred in finding there was suitable alternative

employment, and that the ALJ erred as a matter of law in finding

her partially disabled because of his finding that she had

conducted a diligent but unsuccessful job search. 

The ALJ heard testimony from a vocational counselor who

testified that Covan was qualified for eight specific available

job openings at the time of trial. Though Covan asserts she does

not meet the stated requirements of those positions, the

vocational counselor testified that each of the potential

employers had informed her that Covan was qualified and that they

would consider her for the listed position. The ALJ was entitled

to give this testimony more credibility than that of Covan. 

Furthermore, Covan mischaracterizes the ALJ’s finding regarding

her job search, for the language of the ALJ decision clearly

shows Covan failed to persuade the court on this issue: “Although

claimant did testify to a diligent job search which was

unsuccessful, I still find that Employer has satisfied his burden

of proving that there is suitable alternative employment

available to Claimant” (emphasis added).2

IV. CONCLUSION

The ALJ’s decision was supported by substantial
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evidence. Accordingly, the decision of the Benefits Review Board

is AFFIRMED.