UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLOBAL ASSOCIATES, INCORPORATED,
Petitioner,

v.

JAMES SUMNER; DIRECTOR, OFFICE OF
                                                               No. 97-2764
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-599)

Submitted: May 5, 1998

Decided: July 1, 1998

Before HAMILTON and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Susan B. Potter, VANDEVENTER BLACK, L.L.P., Norfolk, Vir-
ginia, for Petitioner. Robert E. Walsh, RUTTER & MONTAGNA,
L.L.P., Norfolk, Virginia, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Global Associates ("Global") seeks review of an order of
the Department of Labor's Benefits Review Board ("the Board"). The
Board affirmed the decision of the administrative law judge ("ALJ")
to grant James Sumner's claim under the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C.A. §§ 901-950 (West 1986 &
Supp. 1998), for temporary total disability benefits. Global contends
that the Board erred in finding that (1) Sumner was unable to perform
his usual work duties as of April 19, 1994 and (2) Global failed to
show the availability of suitable alternate employment. Because sub-
stantial evidence supports the findings of the ALJ in awarding tempo-
rary total disability benefits, we affirm.

Sumner worked as a ship maintenance crew leader with Global.
The crew leader position required him to perform all the duties of a
laborer in addition to overseeing four to five other crew members.
The job description required that a crew leader"[m]ust be physically
able to handle and lift heavy objects (75 lbs. or over)" and "[m]ust be
physically able to climb 50-75 feet."

On October 14, 1993, Sumner suffered an injury to his back while
on the job. At the recommendation of a physician, Global assigned
Sumner clerical duty. In January 1994, Dr. Blasdell, an orthopedic
surgeon and Sumner's treating physician, released Sumner to full duty
work. In February 1994, Sumner aggravated his injury when he fell
while working at a height of 8 to 10 feet after his left leg "gave out."
Dr. Durica, Blasdell's associate, recommended that Sumner avoid
climbing. As a result, he was reassigned to clerical duty.

On February 18, 1994, Blasdell examined Sumner and advised him
that he could return to full duty with the exception of no climbing as
of February 21. Blasdell also referred Sumner to Dr. Grant, a neuro-

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surgeon. On February 22, Grant examined Sumner and determined
that he should refrain from climbing or carrying heavy weights, as he
may injure himself or a co-worker. Grant recommended that he con-
tinue to do only light-duty clerical work. On March 4, Blasdell exam-
ined Sumner again and recommended that he continue with the same
work restriction against climbing.

On March 15, Sumner was given the job of driving a van to shuttle
crews to the shipyard in addition to retaining some of his clerical
duties. The job required that he make three or four daily trips of
approximately three miles over railroad tracks and potholes. After the
first day of driving the van, Sumner reported to his supervisor, Ken-
neth Engle, that driving the van was aggravating his back pain. Engle
asked Sumner to try to continue driving the van, which Sumner did
the following day. After the second day, Sumner reported to Engle
that the driving caused him to experience increased back pain.

The next day, Sumner and Engle met with Assistant Maintenance
Manager Dale Bruce Raxter and Health, Safety, and Quality Assur-
ance Manager Edwin Dudley regarding his continued operation of the
van. Sumner was reassigned to his clerical position and was instructed
to have his job restrictions updated by Blasdell. According to Dudley
and Engle, the only job restriction was that Sumner could not do any
climbing. Sumner was unable to make an appointment with Blasdell
because he was out of town.

On March 21, Sumner was placed on temporary leave of absence
due to his injury because there was no other light-duty work available.
He was instructed not to return to work until he was"one hundred
percent" and able to perform the job he was hired to do. At Blasdell's
recommendation, Sumner went to the Work Center to participate in
a work conditioning program. Two reports issued by the Work Center
stated that Global's safety director disclosed that Sumner would not
be expected to lift in excess of fifty pounds without assistance and
that driving would be limited to short distances. The Work Center rec-
ommended that Sumner return to his customary work within these
guidelines. Blasdell then released Sumner to return to full-duty work
with the understanding that he would be working within the limits
suggested by Global's safety director. Blasdell instructed Sumner to
see him in four weeks for a follow-up visit.

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On April 19, Sumner reported to work. He met with Maintenance
Manager William Beale. Beale asked Sumner why it was necessary
to visit Blasdell again. Sumner told Beale that Blasdell wanted to find
out how he would do in his crew leader position. Beale conferred with
Hill and then instructed Sumner to go home and not return to work
until he was "one hundred percent." Hill changed his mind and
decided to terminate Sumner's employment.

At the hearing before the ALJ, Sumner contended that he told
Beale on April 19 that he was ready to resume his prior crew leader
position. In contrast, Beale testified before the ALJ that Sumner
believed he was unable to work, in spite of Blasdell's recommenda-
tion.

Our review of the Board's decision is limited to a search for errors
of law and deviations from the statutory conclusiveness afforded to
those factual findings by the ALJ that are supported by substantial
evidence. See Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540, 543 (4th Cir. 1988). Substantial evidence, described as
"more than a scintilla but less than a preponderance," is "`such rele-
vant evidence as a reasonable mind might accept as adequate to sup-
port a conclusion.'" Elliott v. Administrator, Animal & Plant Health
Inspection Serv., 990 F.2d 140, 144 (4th Cir. 1993) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
must defer to the ALJ's credibility determinations and inferences
from the evidence, despite our perception of other, more reasonable
conclusions from the evidence. See See v. Washington Metro. Area
Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994).

A claimant for disability benefits must first establish total disability
by demonstrating his inability to return to his former employment.
The burden then shifts to the employer to rebut disability by proving
the availability of suitable alternative employment upon a reasonably
diligent search by the claimant. See Tann, 841 F.2d at 542.

We find that there was substantial evidence to support the ALJ's
finding that Sumner could not return to his former position. Global
contends that Blasdell found Sumner was able to return to full-duty
work. Blasdell testified that he recommended Sumner for full-duty
work with the understanding that he would not be required to lift any-

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thing heavier than fifty pounds. However, the crew leader position
required Sumner to lift up to seventy-five pounds. Although the evi-
dence suggests that Sumner was willing to return to his crew leader
position without any limitations, he was actually not cleared for such
work. As to whether Sumner refused to return to work or was pre-
vented from returning to work by Global, we defer to the ALJ's credi-
bility determinations and resolution of factual inconsistencies. See
Director, OWCP v. Newport News Shipbuilding & Drydock Co., 134
F.3d 1241, 1246 (4th Cir. 1998); See, 36 F.3d at 385.

We also find that there was substantial evidence for the ALJ to
conclude that Global failed to show that there was suitable alternative
employment available upon a reasonably diligent search by the claim-
ant. Specifically, Global contends that Sumner could have either
driven the van or, as crew leader, delegated many of the strenuous
tasks to his subordinates. There is nothing in the evidence to indicate
that Sumner was given the opportunity to drive the van on April 19,
or that he was given the opportunity to be reassigned to any less phys-
ically demanding position. Furthermore, there is no evidence that
Sumner could have delegated some of his tasks. The job description
does not give Sumner such authority and there is nothing in the record
to indicate that Sumner was aware that he could delegate such author-
ity. Furthermore, this is inconsistent with Global's own request that
Sumner not return to work until he was "one hundred percent."

Accordingly, we affirm the Board's decision and order. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid in the decisional process.

AFFIRMED

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