UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
Petitioner,

v.
                                                               No. 00-1591
LYNETTE RILEY; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(99-148)

Argued: April 3, 2001

Decided: May 29, 2001

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge,
and Frederic N. SMALKIN, United States District Judge
for the District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jonathan Henry Walker, MASON, COWARDIN &
MASON, P.C., Newport News, Virginia, for Petitioner. Robert Elliott
Walsh, RUTTER, WALSH, MILLS & RUTTER, L.L.P., Norfolk,
Virginia; Mark A. Reinhalter, Senior Appellate Attorney, Office of
the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Christopher R.
Hedrick, MASON, COWARDIN & MASON, P.C., Newport News,
Virginia, for Petitioner. Henry L. Solano, Solicitor of Labor, Carol A.
De Deo, Associate Solicitor for Employee Benefits, Kristin M.
Dadey, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Newport News Shipbuilding and Dry Dock Company (Newport
News) appeals from a decision of the Benefits Review Board award-
ing disability benefits under the Longshore and Harbor Workers
Compensation Act, 33 U.S.C.A. §§ 901 et seq., to Lynette Riley.
Because Riley made out a prima facie case of disability and Newport
News's evidence of a performance-based reason for her discharge is
nonresponsive to its burden of showing suitable alternative employ-
ment, we affirm.

I.

A.

Riley began working for Newport News on March 5, 1995, as part
of an apprentice program. The program included a 180-day probation
period that required participants to undergo training and to attain
passing grades in all subjects.* Riley's training consisted of course
_________________________________________________________________
*Failure to complete the probationary period can result in the appren-
tice's discharge, at the discretion of the supervisor. After the probation-

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work and hands-on instruction. Her first assignment was in the New-
port News pipefitters' department. Initially, Riley was working in the
copper shop, learning how to assemble pipe. In May of 1995, she was
sent to welding school, where she experienced pain in her right wrist
after two weeks at the school. At the benefits hearing before an
Administrative Law Judge (ALJ), she confirmed that her wrist "con-
stantly hurt" during this time and that as a result she would soak it
periodically. (J.A. at 29.) Riley testified that the pain in her right hand
affected her ability to perform well in the welding school.

Riley received a failing grade in May 1995 while in the welding
school. When her supervisor spoke to her regarding this failing grade,
Riley did not mention the pain in her right hand as a cause of her poor
performance, and she did not go to the Newport News medical clinic
to seek treatment for her hand pain. Because Riley was still in her
probationary period, her supervisor used his discretion to allow her to
remain in the apprentice program following this failing grade. Riley
continued in the apprentice program and received passing grades in
June, July, and August of 1995.

In September 1995, Riley ended the craft section of the apprentice
program and began her course work. All of her grades through April
1996 were passing, but twice -- in October 1995 and May 1996 --
her supervisor warned her that she could not continue to pass unless
her performance improved. Riley's supervisor through January 1996,
Carlton, testified that Riley never told him of her wrist problems and
that he attributed her low grades to difficulty understanding and per-
forming the work.

Riley was then transferred to the U.S.S. Truman , where she worked
running pipes overhead in an elevator shaft. In May 1996, she
received a failing grade of 68.5 for her shop work. She verified that
_________________________________________________________________

ary period, an apprentice must continue to maintain a monthly passing
grade to remain in the apprentice program. A post-probationary appren-
tice who receives a failing monthly grade on job performance is placed
on shop probation for a four-month period beginning on the second
month following the failing grade. The apprentice is advised of the fail-
ing grade and is counseled.

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she initialed the failing grade and that this was her second failing
grade during her employment with Newport News. Following this
grade, her supervisor, Darden, asked her if there was anything he
needed to know regarding her performance; she said there was no
problem. Darden informed Riley that she was not completing a suffi-
cient amount of work; she replied that she did not know why she did
not do more. She confirmed during the hearing before the ALJ that
she had no wrist problems in May 1996. After Riley's failing grade
in May 1996, Newport News placed her on probation. She was given
a grace period of one month to get her performance back up to par
and then a mandatory probationary period during which a single fail-
ing grade would result in automatic discharge from the program.
Riley earned the minimum passing grade of 70 in June 1996 and a 71
in July. After her July grade, Darden told Riley that her performance
was still not satisfactory.

In August of 1996, Riley was working with a hydraulic pipe in an
elevator shaft of the Truman and was using grinders, levels, scribes,
rulers, and sandpaper. Darden evaluated her performance for the first
two weeks of August as unsatisfactory and warned her that she would
fail unless she improved her work. He again asked if there was any-
thing he needed to know regarding her performance, and she emphati-
cally denied needing any help. Darden testified that Riley never
offered an explanation for her poor grades, and he believed she was
physically capable of performing her work.

On August 26, 1996, Riley began having problems with swelling,
pain, and numbness in her right hand. She stated that she did not start
having wrist problems before August 26, and that any problems with
her grades before the injury had nothing to do with the injury. On
August 27, 1996, Riley went to the Newport News company clinic to
report the development of hand problems due to work performed on
August 26, 1996. The clinic gave her work restrictions, which stated
that she was to avoid "heavy gripping, repetitive motion at [the] wrist,
use of vibratory or impact tools on [the] right [hand]," and further that
she was to be allowed four minutes twice per shift for wrist exercises
and cool soaks. (J.A. at 240.) These restrictions ran until September
10, 1996. (Id.)

Riley received a failing grade for the month of August and was ter-
minated on September 24, 1996. Because she was using her left hand

                  4
to perform work after August 26, her work slowed down. Her super-
visor testified that he was aware of her restrictions and assigned three
co-workers to help her, although there is some dispute in the evidence
as to whether these co-workers actually provided any help. Darden
asserted that Riley's work during the last two weeks of August was
within her restrictions and that her grade was calculated in a manner
that compensated for her restrictions so that she was not penalized.
Darden testified that Riley did not say that she could not perform the
work following her injury. Riley testified that she was working within
her restrictions. Darden, however, testified that virtually every aspect
of her job involved activities that fell outside her restrictions,
although he later indicated that this would have been the case only if
Riley had told him that she believed she was working outside her
restrictions.

Riley filed a grievance with her union after being informed of her
termination, claiming that her release was in violation of the union
contract; this grievance did not mention her injury. Raymond Stall-
ings, personnel manager for Riley's department, testified that he
could have found her light-duty work to accommodate her injury, that
he was not asked to do so, that individuals who fail the apprentice
program usually are not placed in any other employment at Newport
News, and that if Riley had applied for employment, Newport News
would not have turned her away because of her injury. Riley began
working at West Telemarketing on October 28, 1996, earning sub-
stantially less than she earned as a Newport News employee.

B.

These proceedings arose out of Riley's claim under the Longshore
and Harbor Workers' Compensation Act for temporary total disability
benefits from September 24, 1996 to October 28, 1996. A hearing was
held in this case before Administrative Law Judge Fletcher E. Camp-
bell, Jr. on May 4, 1998, in Newport News, Virginia. In a decision
and order issued on October 5, 1998, Judge Campbell denied Riley's
claim and made the following findings:

       - During the time period in which Riley continued to work
       for Newport News after her wrist injury, she could not

                  5
       return to her regular and usual employment and, thus,
       established her prima facie case of total disability.

       - Newport News did not establish the existence of suitable
       alternate employment during the time period, but paid
       Riley a wage equal to her pre-injury wage at the time of
       discharge.

       - Riley's discharge was based on her poor performance in
       the apprentice program; and because Riley did not prove
       that her injury played any part in her discharge, she was
       not entitled to benefits following her discharge.

Riley appealed this decision to the Benefits Review Board, and in
an opinion issued on October 19, 1999, the Board reversed Judge
Campbell's decision and order. The Board found that by the time
Riley was discharged, she was unable to perform her usual work due
to her injury. As a matter of law, the Board held that Riley's dis-
charge from work for unsatisfactory performance did not prevent her
from receiving disability benefits for an injury which preceded her
discharge. The Board thus held that Newport News had the burden of
demonstrating suitable alternative employment, and found, as had the
ALJ, that Newport News had not met this burden. The Board there-
fore found Newport News liable to Riley. Newport News moved for
reconsideration, arguing that because no work-related injury caused
Riley's disability, her disability was not compensable under the Act.
The Board denied this motion on April 10, 2000, and Newport News
timely filed a Petition for Review with this Court.

II.

This Court reviews the Board's decisions for errors of law and to
ascertain whether the Board adhered to its statutorily mandated stan-
dard for reviewing the ALJ's factual findings. Gilchrist v. Newport
News Shipbuilding & Dry Dock Co., 135 F.3d 915, 918 (4th Cir.
1998). The factual findings of the ALJ must be affirmed if supported
by substantial evidence. 33 U.S.C.A. § 921(b)(3) (West 1986).
Review of legal questions is de novo, and no deference is due to the
Board's legal conclusions. Gilchrist, 135 F.3d at 918. Both the
Supreme Court and this Court, however, have stated that the Office

                  6
of Workers' Compensation Programs' (OWCP's) interpretation of the
Act in its briefs is entitled to some deference. See Metro. Stevedore
Co. v. Rambo ("Rambo II"), 521 U.S. 121, 136 (1997) (citing
OWCP's brief as the source of an interpretation of the Act, and stat-
ing that "the Director's reasonable interpretation of the Act brings at
least some added persuasive force to our conclusion"); Norfolk Ship-
building & Drydock Corp. v. Hord, 193 F.3d 797, 801 (4th Cir. 1999)
("We note that this is the result advocated by the Director of the
Office of Workers' Compensation Programs, to whose reasonable
interpretation of the LHWCA we accord some deference.").

A burden-shifting proof scheme applies to claims under the Act.
The claimant bears the initial burden of establishing a prima facie
case of disability. Newport News Shipbuilding & Dry Dock Co. v.
OWCP (Chappell), 592 F.2d 762, 764-65 (4th Cir. 1979). If the
claimant establishes this prima facie case, the burden shifts to the
employer to demonstrate the availability of suitable alternative
employment within the geographic area where the claimant resides.
See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 380 (4th
Cir. 1994). The claimant may then counter this showing by demon-
strating a diligent but unsuccessful search for suitable alternative
employment. Id.

Newport News argues that Riley's wage-earning disability resulted
from her termination, not her injury. Because Riley's termination was
for good cause, and was not a result of her injury, Newport News
argues that Riley was not disabled at all within the meaning of the
Act. In support of this proposition, Newport News cites Marino v.
Navy Exchange, 20 BRBS 166 (1988), which held that "psychological
injury resulting from a legitimate personnel action . . . is not compen-
sable under the Act." Id. at *2. Newport News also cites Brooks v.
Newport News Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992),
aff'd, 2 F.3d 64 (4th Cir. 1993) (per curiam), which held that when
an injured employee is given suitable alternative employment which
is within his medical restrictions, and the employee is then fired from
that position for providing false information on an employment appli-
cation, no benefits are due. See id. at *3 ("In cases where alternate
employment is terminated for reasons unrelated to claimant's disabil-
ity, he is not entitled to further benefits."). Unlike the situation in
Brooks, however, here the ALJ found as a factual matter that Riley

                   7
was not performing suitable alternative employment within Newport
News when she was terminated.

We are bound to follow Norfolk Shipbuilding & Drydock Corp. v.
Hord, 193 F.3d 797 (4th Cir. 1999). In that case, we held that the non-
discriminatory nature of a termination of employment does not suffice
to carry the employer's burden of showing the availability of suitable
alternative employment following a prima facie case of disability. See
id. at 801 n.3 (stating that although Norshipco argued that its decision
to lay off a benefits claimant "was unrelated to his injury. . . .
Norshipco's proffer of the economic and nondiscriminatory nature of
its decision to lay Hord off is not responsive to its burden of demon-
strating that Hord had the capacity to earn wages in suitable alterna-
tive employment which was reasonably available to Hord."). Thus, if
Riley has made out a prima facie case of disability, Newport News
must demonstrate the availability of suitable alternative employment
in order to prevail.

Here, the ALJ found as a factual matter that Riley's employment
after her injury until the date of her termination was incompatible
with her medical restrictions. Marino is distinguishable because in
that case, the claimed disability was the psychological trauma caused
by termination; here, Riley alleges that her wrist injury, not her termi-
nation, constitutes her disability. Marino, 20 BRBS 166, at *2. New-
port News misapprehends both the proof scheme applied in this
Circuit to cases arising under the Act and the Act's definition of "dis-
ability," as interpreted by the courts.

Whether an injury is a disability is determined by comparing the
employee's medical restrictions to her job responsibilities. Compare
Brooks v. OWCP, 2 F.3d 64, 65 (4th Cir. 1993) (per curiam) (stating
that an employee establishes a prima facie case of disability by dem-
onstrating that she is unable to return to her usual employment due
to a work-related injury), with Curit v. Bath Ironworks Corp., 22
BRBS 100 (1988) (whether a claimant is precluded from returning to
his usual employment is a finding of fact to be made by comparing
the claimant's medical restrictions with the requirements of her
employment). The resulting determination that the employee has
made out a prima facie case of disability is a question of fact review-
able by this Court only under a "substantial evidence" standard of
review. See Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459,

                   8
467 (1968) (stating the "substantial evidence" standard under the
LHWCA); 33 U.S.C.A. § 921(b)(3).

The ALJ found that Riley made out a prima facie case of total dis-
ability because she was expected to perform duties that were incom-
patible with her medical restrictions and could not perform her job
duties without substantial help from others due to her wrist injury. See
Del Vacchio v. Sun Shipbuilding & Dry Dock Co., 16 BRBS 190, 194
(1984) (worker is totally disabled if worker cannot do her usual work
adequately, regularly, full-time and with no undue help from others).
The evidence relevant to this conclusion is in conflict; some evidence
indicates that Riley received no actual assistance from others, while
other evidence is contrary, and Riley's work restrictions after Septem-
ber 10 did not prohibit "gripping" or "repetitive motion" with her right
wrist, only grinding and the use of impact or vibratory tools with her
right hand. Nevertheless, a reasonable finder of fact could conclude
(1) that Riley received substantial assistance from others following
her injury, and (2) that regardless of whether Riley's post-September
10 restrictions prohibited gripping and repetitive motion with her
right hand, her inability to use vibratory or impact tools with her right
hand impeded her work performance sufficiently to prevent her from
doing her usual work adequately. Thus, some evidence supports the
ALJ's finding that Riley made out a prima facie case of disability.

Because Hord holds that an employer may not rebut a prima facie
showing of disability by showing that an employee was terminated for
cause from alternate employment that is within the employee's
restrictions, it follows that Newport News may not rely on such a
claim where, unlike the situation in Hord, the claimant was not even
in a suitable alternate position at the time of discharge. Riley made
out a prima facie case of disability, and Newport News has not rebut-
ted this case by showing that there was any suitable alternative
employment available either within or without the company; Newport
News instead contends simply that Riley was terminated for poor per-
formance, which under Hord does not enable Newport News to carry
its burden of showing the availability of suitable alternative employ-
ment. Riley has thus made out a prima facie case of disability, and
Newport News has presented no viable defense to liability under the
Act. The decision of the Benefits Review Board is therefore affirmed.

AFFIRMED

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