                                   UNITED STATES COURT OF APPEALS
                                          FOR THE FIFTH CIRCUIT


                                                                No. 98-60544
                                                              Summary Calendar


AVONDALE INDUSTRIES, INC.,

                                                                                                                                     Petitioner,

                                                                        versus

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR; WILFRED BROSSETTE, IV,

                                                                                                                                    Respondents.


                                           Petition to Review the Decision and Order
                                           of the United States Department of Labor,
                                                     Benefits Review Board
                                                       (BRB No. 97-1374)


                                                              December 2, 1999

Before KING, Chief Judge, HIGGINBOTHAM, and STEWART, Circuit Judges

PER CURIAM:*

           Avondale Industries, Inc. (“Avondale”) petitions this court for a review of the order of the

Benefits Review Board (“BRB”). The BRB affirmed Decisions and Orders of the Administrative Law

Judge (“ALJ”) rendered on claims filed by Wilfred Brossette, IV (“Brossette”) pursuant to the

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

For the following reasons we affirm the decision of the Benefits Review Board in all respects.


                                                            FACTS

           Brossette injured his right shoulder and neck on June 21, 1991 and June 27, 1991 while

working as a shipfitter for Avondale. Initially, he hurt his shoulder readjusting his grasp on a heavy

box to avoid dropping it. Several days later, he was operating a drill which caught and tweaked his

           *
            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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
right shoulder. Brossette was seen by a host of doctors including the company doctor, an orthopedic

surgeon appointed by the Department of Labor, a neurosurgeon, his own physicians and a physical

therapist.1 He underwent surgery to his shoulder in July of 1992 under Dr. Hambig. Subsequently,

Brossette was restricted to no overhead lifting of over 5-10 pounds, and declared 15% permanently

disabled. His neck injury was was unrelated to this surgery.

        The ALJ found that Brossette established a prima facie case o f total disability and that

Avondale established suitable alternate employment. He found that Brossette attempted to secure

employment with reasonable diligence but was unsuccessful, and was therefore entitled to total

disability benefits. The ALJ also found that Brossette reached maximum medical improvement with

regard to his neck March 15, 1994. Consequently, the ALJ awarded Brossette temporary disability

benefits from the date of the second injury to March 14, 1994, and permanent disability benefits from

March 15, 1994 and continuing. In a supplemental decision and order awarding attorney’s fees, the

ALJ awarded Brossette’s counsel a reasonable fee including expenses. On appeal to the BRB, each

of the ALJ’s decisions, findings of fact and conclusions of law were affirmed.


                                      DISCUSSION


        “In reviewing BRB decisions, 33 U.S.C.A. Sec.921(c), this court is limited to considering

errors of law, making certain that the BRB adhered to its statutory standard of review of factual

determinations, that is whether the ALJ’s findings of fact are supported by substantial evidence and

consistent with the law.[citations omitted] The ALJ is entitled to deference and his selection of

reasonable conflicting factual inferences is conclusive upon the Board if supported by the evidence

and not inconsistent with the law.” New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031,

1037 (5th Cir.1981); Hole vs. Miami Shipyards Corp., 640 F.2d 769, 771-772 (5th Cir.1981).

        First we address the award of disability benefits. To establish a prima facie case of total

disability, a claimant must show that he is unable to perform his usual employment due to work


    1
    The various physical restrictions advised by the doctors will be
discussed where relevant.
related injury. Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988). The issue here is whether the

individual can return to his usual employment, not whether he can work at all. “Usual employment”

is whatever work was being performed at the time the injury occurred. Manigault v. Stevens

Shipping Co., 22 BRBS 332 (1989). That three doctors, Dr. Correa, Dr. Ochsner and Dr. Russo,

each advised Brossette not to go back to work is sufficient evidence to establish his prima facie case

of total disability.

        Avondale asserts that because counsel in his opening statements, urged that Brossette was

not totally disabled, the ALJ committed clear error in holding that the claimant was permanently and

totally disabled. In counsel’s closing memoranda however, he argued that based on the evidence

presented, Brossette was permanently disabled. Indeed, as the BRB opined, the ALJ was not bound

by the argument made in counsel’s opening statement, “as the extent of claimant’s disability was

clearly at issue in this case…” (BRB opinion, July 2, 1998 pg. 3).

        Next, Avondale contends that the ALJ erred in his determinations regarding suitable alternate

employment. Once a prima facie case is made and it is established that an injured employee is unable

to perform his usual work, the burden shifts to the employer to demonstrate availability of realistic

job opportunities within the geographic area of the employee’s residence, which by virtue of the his

age, education, work experience, and physical restrictions, he is capable of performing. See Turner,

661 F.2d at1042. The ALJ rationally found t hat the alternative jobs which were available at

Avondale’s facility were not suitable employment since they exceeded Brossette’s physical

restrictions, being jobs which involved lifting up to 25 pounds, substantial overhead work, and the

operation of a grinder.2       On appeal to this court, Avondale argues that work in their facility’s

respirator room was alternate employment. Although Brossette worked in the respirator room prior

to his surgery, the job was never re-offered to him afterward. It was not argued at trial before the


2
   Dr. Correa, Dr. Brent, Dr. Hambig, Dr. Murphy and Dr. Russo each advised claimant, in addition
to other restrictions, not to do overhead work at all. Dr. Brent, Dr. Murphy and Dr. Russo advised
him not to operate machines with repetitive vibration, and that doing so would exacerbate his
condition. Each doctor Brossette saw also put a weight rest riction on how much he should carry,
although the ALJ made a determination which was within his discretion from Dr. Murphy’s restriction
that claimant do “sedentary work”….as precluding lifting of more than ten pounds.
ALJ that work in the respirator room was available to Brossette, nor was the job mentioned when

this case was reviewed by the BRB. The alternate jobs available at Avondale itself were either

outside claimant’s physical restrictions or were not offered to him, hence suitable alternate

employment within at Avondale’s facility did not exist for Brossette.

        If an employer successfully shows that there is suitable alternate employment, this can be

rebutted by an employee demonstrating that he diligently tried, without success, to find another job.

See Turner at 1042-1043; Roger’s Terminal & Shipping v. Director, OWCP, 784 F.2d 687, 691 (5th

Cir. 1986). Avondale did establish alternate employment, in its labor market survey performed by

Ms. Favaloro, Avondale’s vocational rehabilitation counselor. Although some of the jobs identified

within the survey were outside of Brossette’s restrictions, some were suitable jobs. Brossette went

out and applied for each one of these jobs, although he was unsuccessful in obtaining one.3 In short,

Brossette established diligence in searching for alternate employment, hence Avondale’s showing of

suitable alternate employment is rebutted. See Director, OWCP v. Bethlehem Steel Corp. [Dollins],

949 F.2d 185 (5th Cir.1991). As supported by substantial evidence, and not contrary to law,

Brossette is entitled to total disability benefits.
       Finally, with respect to at torney’s fees, such fees are awarded and are to be paid by the

employer if a claimant’s counsel engages in a successful prosecution of the claim. 33 U.S.C.A. Sec.

928 (a), Petro-Weld, Inc., v. Luke, 619 F.2d 418 (5th Cir.1980). Brosette’s counsel has successfully

prosecuted this claim and is rightfully awarded attorney’s fees.



                                       CONCLUSION

       We AFFIRM the Decisions and Order of the Benefits Review Board against Avondale

Industries, Inc., finding Wilfred Brossette, IV entitled to an award of total disability benefits and

attorney’s fees.



3
       Employer’s claim that claimant sabotaged his job opportunities is groundless. The evidence
suggests the opposite. After making follow up calls to the employers, Ms. Favaloro testified that they
“spoke highly (of Brossette and), thought that he seemed enthusiastic about looking for a new job.”
(Tr., p. 252, line 1-4).
