ALD-212                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 12-1381
                                ___________

                              ALVIN MOFFIT,
                                        Petitioner
                                    v.

                 METRO MACHINE OF PENNSYLVANIA;
          SIGNAL MUTUAL INDEMNITY ASSOCIATION, LIMITED;
            DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
          PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
                                      Respondents
                 ____________________________________

                    On Appeal from a Decision and Order
                       of the Benefits Review Board
                           (Agency No. 11-0341)
                 ____________________________________

              Submitted for Possible Summary Action Pursuant to
                   Third Circuit LAR 27.4 and I.O.P. 10.6
                                June 28, 2012

           Before: SLOVITER, FISHER AND WEIS, Circuit Judges

                         (Opinion filed: July 3, 2012)
                                ___________

                                 OPINION
                                ___________

PER CURIAM.



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       Alvin Moffit petitions for review of a decision of the Benefits Review Board

(“BRB”). Because we conclude that the BRB’s decision affirming the findings of the

Administrative Law Judge (“ALJ”) was supported by substantial evidence and accorded

with the law, the petition will be denied.



                                              I.

       Petitioner filed a claim under the Longshore and Harbor Workers’ Compensation

Act (“LHWCA” or “Act”), 33 U.S.C. §§ 901-950, alleging that in October, 2000, he

sustained work-related injuries to his wrist, and, in a separate incident, to his shoulder,

spine, and back. He returned to work after each incident and continued his employment

until voluntarily leaving the next month. In a decision dated December 19, 2007, ALJ

Ralph Romano denied Moffit’s claim for benefits, concluding both (1) that his wrist and

shoulder conditions were not related to his employment with Metro Machine of

Pennsylvania (“Metro Machine”) and (2) that his spine and back conditions were work-

related but did not prevent him from performing his usual employment duties until he

resigned.

       On appeal, the BRB vacated the ALJ’s finding that Moffit had failed to show a

causal relationship between his wrist and shoulder conditions and his employment with

Metro Machine. On remand, ALJ Romano again determined that those conditions were

not work-related but found that Moffit was entitled to medical benefits as a result of his


                                              2
spine and back conditions. Moffit appealed this decision to the BRB, which dismissed

the appeal upon learning he had filed a motion for modification alleging new evidence.

       Moffit’s case was then assigned to ALJ Janice K. Bullard, who denied Moffit’s

claim for modification, finding he had failed to establish either a mistake in determination

of fact in ALJ Romano’s previous decisions or a change in his condition. Moffit

appealed that decision to the BRB, which determined that her findings of fact and

conclusions of law were rational, supported by substantial evidence, and in accordance

with the law, and thus affirmed her decision in full. The BRB subsequently denied

Moffit’s motion for reconsideration of that decision. Moffit now petitions for review of

this latest decision pro se.

                                             II.

       We exercise jurisdiction over final orders of the BRB pursuant to 33 U.S.C. §

921(c). Our examination is limited to deciding whether the BRB acted in conformance

with applicable law and within its proper scope of review. Maher Terminals, Inc. v. Dir.,

Office of Workers’ Comp. Programs, 330 F.3d 162, 166 (3d Cir. 2003). Because the

BRB does not administer the LHWCA, our review of its interpretation of the Act is

essentially plenary but we will respect its interpretation provided it is reasonable. Id.

The BRB must accept the ALJ’s findings as long as they are not contrary to law,

irrational, or unsupported by substantial evidence. Barbera v. Dir., Office of Workers’

Comp. Programs, 245 F.3d 282, 287 (3d Cir. 2001). The BRB exceeds its authority if it

makes independent factual determinations. Dir., Office of Workers’ Comp. Programs v.
                                              3
U.S. Steel Corp., 606 F.2d 53, 55 (3d Cir. 1979). We will find that the BRB acted within

the scope of its review provided its findings of fact are “supported by substantial

evidence in the record considered as a whole.” 33 U.S.C. § 921(b)(3). Substantial

evidence is “less than a preponderance of the evidence but more than a mere scintilla.”

Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (internal quotation marks and

citation omitted).

                                            III.

       Our independent review of the record finds that there is substantial evidence for

the denial of modification. Section 22 of the LHWCA permits modification based on

mistake of fact in the initial decision or a change in claimant’s physical or economic

condition. Metro. Stevedore Co. v. Rambo, 515 U.S. 291, 301 (1995). The ALJ has

broad discretion under this section to correct mistakes of fact “whether demonstrated by

wholly new evidence, cumulative evidence, or merely further reflection on the evidence

submitted.” O’Keeffe v. Aerojet-Gen. Shipyards, Inc., 404 U.S. 254, 256 (1971). The

ALJ may so correct in order to “render justice under the act,” id. at 255, and in so doing

may draw her or his own inferences from evidence in the record. Del Vecchio v. Bowers,

296 U.S. 280, 287 (1935).

       Because there was substantial evidence in the record to deny modification, as

discussed below, Moffit has failed to meet his burden to show that the BRB erred in

affirming ALJ Bullard’s findings. The affirmed findings were that petitioner failed to

establish a mistake in fact with respect to (1) ALJ Romano’s determination that Moffit’s
                                             4
wrist condition is not work-related, and (2) Moffit’s ability to work and the suitability of

the employment Metro Machine offered, which are dispositive of his entitlement to

disability benefits. We now discuss each of these findings.

       The first finding is that Moffit’s wrist condition is not work-related. Under the

LHWCA, there is a presumption that an employee’s claim comes within the Act’s

provisions “in the absence of substantial evidence to the contrary.” 33 U.S.C. § 920(a).

An employer may rebut this presumption by offering substantial evidence that the

employee’s disability did not result from a work-related injury. C&C Marine

Maintenance Co. v. Bellows, 538 F.3d 293, 298 (3d Cir. 2008). ALJ Romano determined

that Metro Machine had established this rebuttal, and on modification ALJ Bullard found

that Moffit did not establish a mistake in fact with respect to this finding. ALJ Bullard

also found that Moffit’s new evidence did not show that his post-injury wrist surgery was

related to his work injury. In reaching these findings, ALJ Bullard considered the

relevant medical evidence, including the fact that Moffit’s doctor could not correlate

Moffit’s wrist condition to his work injury. The BRB concluded, and we agree, that these

findings are rational and supported by substantial evidence.

       With respect to the second finding, concerning Moffit’s ability to work and the

suitability of the employment Metro Machine offered, “disability” refers to an

“incapacity because of injury to earn wages which the employee was receiving at the time

of injury in the same or any other employment.” 33 U.S.C. § 902(10). To establish a

prima facie case of disability, a claimant must prove he is unable to perform his previous
                                             5
job because of a work-related injury, and the burden then shifts to the employer to show

other fitting jobs were on offer to him. McCabe v. Sun Shipbuilding & Dry Dock Co.,

602 F.2d 59, 62 n.7 (3d Cir. 1979). ALJ Romano determined, and ALJ Bullard agreed,

that Moffit failed to establish entitlement to disability benefits: the light-duty work

Metro Machine offered him to indulge his complaints was within the limitations outlined

by his doctor, and he voluntarily abandoned this suitable work by resigning for reasons

unconnected to his work injury. In reaching these findings, ALJ Bullard declined to

credit Moffit’s doctor’s opinion regarding Moffit’s post-injury physical limitations

because of the doctor’s uncertainty about the origins of Moffit’s pain. She also found,

however, that even if the doctor’s opinion regarding Moffit’s physical limitations were

creditable, the light-duty work Metro Machine offered fell within the doctor’s

restrictions. Besides, Moffit had testified before ALJ Romano that although he had

resigned from his employment, he was capable of light-duty work after his injury. The

BRB decided, and we agree, that these findings are rational and supported by substantial

evidence.

                                             IV.

       Having reviewed the record as a whole, we conclude that the BRB’s decision to

affirm the ALJ’s findings was supported by substantial evidence and accorded with the

law. Thus finding no substantial question, we will summarily deny the petition pursuant

to Third Circuit LAR 27.4 and I.O.P. 10.6. Petitioner’s motion for appointment of

counsel is denied.
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