UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY I. ELLIOTT,
Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND
                                                                      No. 96-2736
DRY DOCK COMPANY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-490)

Argued: May 6, 1998

Decided: July 22, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and
FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Friedman wrote the majority
opinion, in which Judge Niemeyer joined. Judge Michael wrote a dis-
senting opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Benjamin McMullen Mason,
MASON & MASON, P.C., Newport News, Virginia, for Respon-
dents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

FRIEDMAN, District Judge:

Petitioner Larry Elliott (Elliott) appeals from the Benefits Review
Board's (the Board) summary affirmance of the Administrative Law
Judge's (ALJ) denial of his claim for permanent total disability bene-
fits under the Longshoreman and Harbor Workers' Compensation Act
(the Act), 33 U.S.C. §§ 901-950 (1994). For the reasons that follow,
we affirm.

I.

In June 1989, Elliott was injured while working for the Newport
News Shipbuilding and Dry Dock Company (the Company) when he
dropped a laminated steel plate on his left foot. Elliott went to the
Company's clinic immediately after the injury, and followed with a
visit to the Riverside Hospital for treatment. Elliott did not return to
work until January 1990, when his treating physician, Dr. Stiles,
released him for work with the restrictions from standing on his feet
for prolonged periods of time and from climbing. After four days
back at work, Elliott complained that his foot was swelling and left
work. On February 2, 1990, Dr. Stiles changed the restrictions he
placed on Elliott's work by requiring that he sit while working.

Additionally, Dr. Stiles referred Elliott to a rheumatologist, Dr.
Maxwell. Dr. Maxwell released Elliott to return to work but restricted
him from working while standing for more than five to ten minutes,
or from walking more than one or two blocks without rest. Dr. Stiles
also referred Elliott to a vocational rehabilitation counselor who

                     2
determined that Elliott was of low to average intelligence and capable
of performing sedentary and light duty supply work jobs. Elliott was
additionally seen by an orthopedist, Dr. Weitzman, who stated that
Elliott could perform a predominantly sitting job requiring only a
small amount of walking and standing.

The Company looked for a job for Elliott within the Company
based on the restrictions identified by his doctors. By a letter dated
September 13, 1991, the Company instructed Elliott to report to the
Company clinic prepared to work on September 17. On September
16, 1991, Dr. Maxwell modified Elliott's restrictions to avoid any job
that required walking or standing. On September 17, 1991, Elliott
reported to the Company clinic with Dr. Maxwell's note from the
September 16 appointment. When he again complained of swelling in
his foot, he was excused and told to return on September 23, 1991,
for work within his restrictions.

Elliott never returned to the Company. Instead, Elliott sought an
award of permanent disability benefits under the Act from September
1991, to the present. The ALJ denied Elliott's claim on November 16,
1993. On September 12, 1996, the Board summarily affirmed the
ALJ. This appeal follows.

II.

Under ordinary circumstances, this Court reviews the decision of
the Benefits Review Board to determine if the Board followed the
statutory standard of review in evaluating the ALJ's factual findings.
Newport News Shipbuilding and Dry Dock Co. v. Director, Office of
Workers' Compensation Programs, 131 F.3d 1079, 1080-81 (4th Cir.
1997). In this case, the Board affirmed the ALJ's decision without an
opinion.1 Since there is no Board opinion for this Court to review, the
_________________________________________________________________
1 The Board never specifically addressed the merits of Elliott's appeal.
Instead, on September 12, 1996, the Board sent the parties a notice that
pursuant to the provisions of Public Law Number 104-134, enacted on
April 26, 1996, all appeals to the Board pending for one year or more and
relating to claims under the Act were deemed affirmed. Omnibus Con-
solidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-
134, § 101(d), 110 Stat. 1321-218 (1996). Elliott's appeal met these
criteria and, therefore, was affirmed by the Board on September 12,
1996.

                    3
ALJ's findings of fact must be upheld if supported by substantial evi-
dence. Id.

To prevail on a claim of total disability, a claimant must establish
a prima facie case that he cannot return to his regular or usual
employment due to a work-related injury. See Universal Maritime
Corp. v. Moore, 126 F.3d 256, 263 (4th Cir. 1997) (citing Newport
News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th
Cir. 1988)). If a claimant is able to show that he is unable to do his
regular or usual work, then the burden shifts to the employer to show
that a suitable alternative to employment exists. Id. Even if the
employer can meet its burden, the claimant may still prevail for dis-
ability benefits if he can show that he diligently sought employment,
and was unable to secure a suitable position. Id.

III.

In this case, the claimant, Elliott, easily meets his prima facie bur-
den since the Company concedes that Elliott cannot return to his regu-
lar employment due to his injury. Therefore, the burden shifts to the
Company to show that a suitable alternative to Elliott's regular
employment existed. The Company was made aware of Elliott's work
restrictions on September 17, 1991, when he reported to work with
Dr. Maxwell's September 16 note. Being aware of the restrictions on
Elliott's work capabilities, the Company nevertheless told Elliott to
report back on September 23 prepared to work. As explained above,
Elliott did not report as instructed.

The question in this case is whether the Company's instruction to
return prepared to work is sufficient to meet its burden of providing
suitable alternative employment. An employer can meet its burden by
showing that suitable work is available within the geographic area and
that the claimant could obtain a position if he or she diligently tried.
Trans-State Dredging v. Benefits Review Board (Tarner), 731 F.2d
199, 201 (4th Cir. 1984) (describing the shifting burden where a
claimant is seeking disability benefits under the LHWCA). Addition-
ally, an employer can also meet its burden by offering the claimant
a position within its company. In Darby v. Ingalls Shipbuilding, Inc.,
99 F.3d 685, 688 (5th Cir. 1996), the Fifth Circuit held that an
employer's offer of a suitable job in the claimant's current place of

                    4
work sufficed to discharge the burden of establishing suitable
employment. Similarly in this case, the Newport News Shipbuilding
Company offered Elliott a position after reviewing the medical limita-
tions the various doctors had imposed on Elliott's work, i.e., no stand-
ing, walking or lifting. Additionally, as the ALJ acknowledged,
Elliott's educational background and work history made him capable
of performing sedentary work.

The record in this case does not reveal the exact employment posi-
tion the Company had in mind for Elliott, nor does it reveal whether
the position would necessarily have been suitable for his physical
restrictions. Had the Company written a letter to Elliott with a precise
offer for alternative employment, the result in this case would be
more obvious. However, the absence of a written offer of an exact
position is not necessarily fatal to the Company's position. In
Universal Maritime Corp., we declined to impose additional adminis-
trative burdens on employers responding to a claim of total disability.
Universal Maritime Corp., 126 F.3d at 264 (citations omitted) (find-
ing that an employer may meet its burden of demonstrating available
employment in a local market by relying on standardized job descrip-
tions). Similarly here, we decline to substantially increase the
employer's burden without "commensurate benefit." Id. The record
reflects that on September 13, 1991, the Company clinic, being aware
of Elliott's physical condition and limitations, requested that Elliott
report to the clinic on September 17, "prepared to work," or, if he was
unable to come to the Clinic, that he notify them. 2 Elliott reported to
the clinic on September 17, and delivered a copy of what at that time
was his most recent Doctor's note from September 16. Based on his
complaints of foot pain and swelling, he was sent home. However,
significantly he was asked to return on September 23 to work.

The missing link in this case is not the absence of a written offer
from the Company. On September 17, the Company, being com-
pletely aware of Elliott's work restrictions as defined by doctors as
recently as September 16, asked Elliott to return to work on Septem-
ber 23. The missing link, if any, is the result of Elliott's personal deci-
sion to not return prepared for work on September 23, indicating his
_________________________________________________________________
2 The clinic notes reflect that from as early as July 1991, the Company
was attempting to find suitable employment for Elliott. See JA 30.

                    5
unwillingness to work in a position the Company located based on his
restrictions. See Trans-State Dredging v. Benefits Review Bd., 731
F.2d 199, 201 (4th Cir. 1984) (finding that once the employer demon-
strates the existence of alternative employment, the claimant must
demonstrate a willingness to work). After considering the information
in the record, the ALJ found and this Court agrees that substantial evi-
dence supports the conclusion that the Company met its burden by
locating a suitable alternative position for Elliott, and that Elliott
effectively declined the Company's offer by failing to report to the
clinic on September 23.

IV.

There is substantial evidence in the record to support the ALJ's
decision to deny Elliott's request for total disability benefits. There-
fore, the ALJ's decision is affirmed.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

The issue in this case is whether Newport News has satisfied its
burden of proving the existence of available employment that Elliott
could perform within his physical and educational limitations.
Although Newport News presented evidence that it instructed Elliott
to report back to its medical clinic ready to work, no evidence was
admitted to show that the company actually had any job openings at
that time. Because Newport News failed to present any evidence that
it had a single position available, let alone one that would satisfy
Elliott's physical restrictions and educational qualifications, the com-
pany did not meet its light evidentiary burden. The record is therefore
devoid of the substantial evidence needed to affirm the ALJ. Because
of that, I respectfully dissent.

As the majority correctly notes, a burden shifting scheme is used
to determine whether a claimant is totally disabled under the Long-
shore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-
950. See See v. Washington Metro. Area Transit Auth., 36 F.3d 375,
380 (4th Cir. 1994); Newport News Shipbuilding & Dry Dock Co. v.

                     6
Tann, 841 F.2d 540, 542 (4th Cir. 1988). If a claimant can establish
that he is incapable of returning to his prior job, he has proven a
prima facie case of total disability. See See , 36 F.3d at 380. The bur-
den then shifts to his employer, who may rebut disability by proving
the existence of "suitable alternative employment available upon a
reasonably diligent search by the claimant." Id. If the employer meets
this burden, the "claimant may then counter [the] showing of suitable
alternative employment by demonstrating a diligent but unsuccessful
search for such employment." Id. It is undisputed that Elliott proved
a prima facie case, so the question before us is whether Newport
News met its burden of establishing the existence of suitable alterna-
tive employment.

There are several ways for an employer to do this. It can satisfy its
burden by showing that the claimant actually performed a job after his
injury. See Brooks v. Director, OWCP, 2 F.3d 64, 65 (4th Cir. 1993)
(per curiam). More commonly, however, the employer's burden is
satisfied by "presenting evidence of other jobs that are available in the
relevant geographic market for which the claimant is physically and
educationally qualified." Universal Maritime Corp. v. Moore, 126
F.3d 256, 264 (4th Cir. 1997). This may be done by producing
employment listings or newspaper advertisements for positions whose
occupational requirements (according to the Dictionary of Occupa-
tional Titles) satisfy the restrictions of the claimant. See id. at 264-65.
Similarly, the employer may discharge its burden by showing that it
had a specific, suitable job within the company and that it offered this
job to the claimant. See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d
685, 688 (5th Cir. 1996). These showings are not difficult to make.
And, as the majority observes, Universal Maritime declined to "sub-
stantially increase the employer's [evidentiary] burden," 126 F.3d at
264. See Op. at 5. What the majority ignores, however, is that
Universal Maritime explicitly held that an employer must still meet
its burden "by demonstrating the availability of specific jobs in a local
market and by relying on standard occupational descriptions to fill
out the qualifications for performing such jobs." Id. at 265 (emphasis
added). Newport News did not even attempt to offer evidence to sat-
isfy this requirement.

Instead, the company would have us accept its unproven assertion
that it had a suitable job available for Elliott but that he never showed

                     7
up to take it. We might assume that this is true, but that is not enough.
When a party bears the burden of persuasion on an issue, it cannot
rely on argument alone, as Newport News attempts to do here. New-
port News's obligation to prove the existence of suitable alternative
employment was not a heavy or complicated one. A witness from the
personnel department might have testified about any suitable (open)
positions within the company. Even an internal job posting or want
ads from a local newspaper might have been sufficient to satisfy the
company's burden. But here we have nothing. As the majority can-
didly acknowledges, "[t]he record . . . does not reveal the exact
employment position the Company had in mind for Elliott, nor does
it reveal whether the position would necessarily have been suitable for
his physical restrictions." Op. at 5.* Because Newport News has
failed to present evidence indicating the existence of a single position
that would serve as suitable alternative employment for Elliott, I
would hold that it failed to meet its burden of persuasion.

Unlike the majority, I fail to see any material similarity between
this case and the Fifth Circuit's decision in Darby. Cf. Op. at 4-5. In
Darby the employer not only offered Darby a position in the company
after his injury, the company actually employed Darby in this position
for nearly a year before he claimed that it was not suitable employ-
ment. See 99 F.3d at 687. Moreover, evidence demonstrated "Darby's
satisfactory performance of his modified job responsibilities" during
this year. See id. at 688. Darby therefore was a case where the
employer identified a specific job with known physical and educa-
tional requirements and the claimant successfully performed it for
nearly a year after his injury. The differences between Darby and this
_________________________________________________________________

*Although the majority says that "[t]he Company looked for a job for
Elliott within the Company based on the restrictions identified by his
doctors," Op. at 3, I do not believe the evidence supports even this mod-
est conclusion. The medical clinic notes from July 1991 cited by the
majority, See Op. at 5 n.2, state that "[w]e need to determine if work can
be provided within the restrictions now available." J.A. 30. The notes
add, "I told [Elliott] . . . that he needed to take the [physical restriction
paperwork] to his dept. to see if they had a sit-down job that he could
do." J.A. 30. This evidence does not indicate that the company in fact
looked for a position. Indeed, these medical notes suggest that the com-
pany had yet to conduct any such search.

                     8
case could not be more pronounced. This case does not contain one
bit of evidence that an alternative position existed at Newport News
or that it would have met Elliott's physical restrictions and educa-
tional qualifications. What we have here is the employer's bare asser-
tion that such a job existed, with no facts of record to back it up.

The majority nevertheless maintains that the "missing link" in this
case results not from the absence of Newport News's proof but rather
from Elliott's decision not to return to the clinic ready to work. See
Op. at 5. This muddles the second and third stages of the burden shift-
ing scheme. Elliott's decision not to pursue the company's invitation
to return may affect his ability to demonstrate a"diligent but unsuc-
cessful search for . . . employment," See, 36 F.3d at 380, in the third
phase of the proof scheme, but it does not affect whether Newport
News has met its burden of proof in the second. Our cases require an
employer to prove first that there are available jobs before a claimant
must show an unsuccessful but diligent search for a position. If it has
not been proven that there are jobs that meet the claimant's limita-
tions, he does not need to demonstrate a diligent search. That is the
substance of our proof scheme. Elliott's failure to return is simply
irrelevant to the question of whether Newport News has met its bur-
den of showing that suitable alternative employment existed in the
first place. On the record before us, the only possible conclusion is
that no such job existed.

Today we have excused the employer from its burden of proof.
Because bare assertions do not constitute substantial evidence and
because the majority's approach abandons our precedent on the
employer's burden, I respectfully dissent.

                    9
