* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-60446

(Summary Calendar)

_________________

ALFORD WALTERS; DIRECTOR, OFFICE OF WORKER’S

COMPENSATION PROGRAMS, U.S. DEPARTMENT OF

LABOR,

Petitioners,

versus

INGALLS SHIPBUILDING, INC.,

Respondent.

Petition for Review of a Decision of the

Benefits Review Board 

(93-1950)

May 19, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Claimant Alford Walters petitions for review of a decision of

the Benefits Review Board (“BRB”) with respect to a claim he filed

pursuant to the Longshore and Harbor Worker’s Compensation Act
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(“the Act”), as amended, 33 U.S.C. § 901 et seq. In its decision,

the BRB affirmed the finding of an administrative law judge (“ALJ”)

that respondent, Ingalls Shipbuilding, Inc. (“Ingalls”), met its

burden of proving the availability of suitable alternative

employment by offering Walters a modified burner position within

its facility.

While working as a welder-burner for Ingalls in June of 1989,

a scaffold board fell from a crane and struck Walters on his left

side, injuring his back and neck. Walters sought medical treatment

and returned to light-duty burner work in February 1990. Walters’s

treating physician, Dr. Eugene T. Saiter, prescribed work

restrictions discouraging heavy lifting and allowing only

intermittent walking, standing, kneeling, stooping, or climbing.

Even with the restrictions, however, Walters found the modified

burner position to be too demanding physically, and Dr. Saiter

removed Walters from work and placed him in physical therapy.

Walters returned to the modified burner position after completion

of therapy, but again left work to undergo a heart catheterization

unrelated to his previous work-related injury. After recuperating

from the procedure, Walters again returned to work with additional

climbing restrictions authorized by Dr. Saiter. 

Walters worked successfully in the modified burner position

and as a material runner and jig cutter until August 1990 when he

experienced a second work-related injury. While cutting jigs for
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scrap metal, an I-beam fell on him, injuring his ankle and

aggravating his prior back injury. Walters again received medical

treatment and was released to return to work with restrictions on

December 19, 1990. Ingalls, however, refused to provide Walters

with a modified burner position at that time. Walters has not

worked at Ingalls since the date of his second injury. 

Ingalls voluntarily paid benefits for temporary total

disability under 33 U.S.C. § 908(b) during the periods Walters was

unable to work until December 20, 1990. Walters requested a formal

hearing to resolve the extent of his work-related disability and

entitlement to benefits after that date. On May 13, 1992, after

the hearing but before the record was closed, Ingalls offered

Walters a light-duty burner position at the same wage. Walters

refused this offer. 

The ALJ determined that Walters established a prima facie case

of entitlement to permanent total disability benefits by showing

that he was unable to return to his duties as they existed prior to

his first injury. The burden then shifted to Ingalls to

demonstrate the availability of suitable alternative employment in

the relevant community. Louisiana Ins. Guar. Ass'n v. Abbott, 40

F.3d 122, 127 (5th Cir. 1994). The ALJ awarded Walters permanent

total disability for the period beginning December 20, 1990 and

ending April 1, 1991, the date on which Ingalls established the

availability of security guard positions that would be suitable for
1 Citing Wheatley v. Adler, 407 F.2d 307 (D.C.Cir. 1968),

Walters asserts that under the “true doubt” rule, all factual

doubts must be resolved in his favor. The Supreme Court, however,

has explicitly rejected the “true doubt” rule as inconsistent with

§ 7(c) of the Administrative Procedure Act. Director, OWCP v.

Greenwich Collieries, ___ U.S. ___, ___, 114 S. Ct. 2251, 2259, 129

L. Ed. 2d 221 (1994); see also Mendoza, 46 F.3d at 501 n.1.

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Walters. The ALJ then awarded permanent partial disability from

April 1 to May 13, 1992, the day on which Ingalls offered Walters

the modified burner position at the same wage. As of May 13, 1992,

the ALJ terminated all disability compensation.

On appeal, the BRB found that the ALJ erred in determining

that the security guard positions cited by Ingalls fell within Dr.

Saiter’s work restrictions and modified the ALJ’s order to award

permanent total disability benefits to Walters up until May 13,

1992. The BRB, however, affirmed the ALJ’s denial of disability

benefits after May 13, 1992, based on Ingalls’s offer of a modified

burner position within its own facility. Walters petitions for

review of the latter portion of the BRB’s decision.

We have jurisdiction to review final decisions of the BRB

under 33 U.S.C. § 921(c). We review decisions of the BRB for

errors of law and apply the same substantial evidence standard that

governs the BRB’s review of the ALJ’s factual findings. Mendoza v.

Marine Personnel Co., Inc., 46 F.3d 498, 500 (5th Cir. 1995). 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.” Id. (citation omitted).1
Walters therefore bears the burden of persuasion with respect to

his entitlement to permanent total disability benefits.

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Walters first argues that Ingalls should not be allowed to

escape liability for payment of benefits under the Act because it

offered him the modified burner position for the sole purpose of

discharging liability. Walters cites the fact that Ingalls waited

until after the hearing to offer him the position as evidence of

bad faith. 

An employer may meet its burden of demonstrating the

availability of suitable employment by offering the claimant a

light-duty position within its own facility. Darby v. Ingalls

Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996). We can

discern no basis for concluding that Ingalls’s offer was made in

bad faith other than the inference that might be drawn from the

timing of the offer. The ALJ, however, concluded that the job

offer was a bona fide offer of employment. The ALJ’s selection

among permissible inferences is conclusive, and we will not disturb

that choice on review. Mendoza, 46 F.3d at 500-01; Fulks v.

Avondale Shipyards, Inc., 637 F.2d 1008, 1011 (5th Cir.), cert.

denied, 454 U.S. 1080, 102 S. Ct. 633, 70 L. Ed. 2d 613 (1981).

Walters next disputes the suitability of the modified burner

position in light of his medical restrictions. Walters argues that

he “already on three occasions returned to the modified burner

positions only to not be able to perform the work or be reinjured.”
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The evidence supports Walters’s claim that he was initially unable

to perform the work and left Ingalls in order to undergo physical

therapy. However, the evidence shows that Walters left the

modified burner position the second time because of his heart

condition, not his work-related injuries. Moreover, Walters’s

reinjury occurred when he was struck by a falling object, an event

completely unrelated to his preexisting physical condition.

Therefore, Walters’s heart-related absence and second injury do not

support his contention that he is unable to perform the duties of

the modified burner position due to his initial back injury.

The ALJ credited medical evidence that the second accident

merely resulted in a disabling injury to Walters’s ankle and only

briefly exacerbated his previous back injury when he fell to the

ground. Therefore, the ALJ found that the initial work

restrictions imposed by Dr. Saiter after the first injury,

including the additional climbing restrictions, applied for any

subsequent employment. The ALJ credited the testimony of Joe

Walker, Ingalls’s vocational expert, that the modified burner

position was light-duty and did not require climbing, heavy

lifting, or squatting in tight places. Moreover, the ALJ took into

account Walters’s own testimony that he satisfactorily performed

the responsibilities of the modified burner position after physical

therapy but prior to his second injury.

As the factfinder, the ALJ determines the weight to be given

the evidence and makes credibility determinations with respect to
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expert testimony. Mendoza, 46 F.3d at 500-01. The ALJ’s

determination that Walters is able to perform the duties of the

modified burner position is supported by substantial evidence in

the record. We therefore DENY Walters’s petition for review.