UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TARTAN TERMINALS, INCORPORATED;
SIGNAL MUTUAL INDEMNITY
ASSOCIATION,
Petitioners,

v.
                                     No. 98-1302
JEROME PULLER; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

TARTAN TERMINALS, INCORPORATED;
SIGNAL MUTUAL INDEMNITY
ASSOCIATION,
Petitioners,

v.
                                     No. 98-1937
JEROME PULLER; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petitions for Review of Orders
of the Benefits Review Board.
(96-362, 98-768)

Argued: March 5, 1999

Decided: April 22, 1999
Before WILLIAMS and MICHAEL, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Martin Battista, ANDREW M. BATTISTA,
P.A., Towson, Maryland, for Petitioners. Michael Carl Eisenstein,
Baltimore, Maryland; LuAnn Blanche Kressley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON BRIEF: Marvin Krislov, Deputy Solicitor for National Opera-
tions, Carol A. De Deo, Associate Solicitor for Employee Benefits,
Janet R. Dunlop, Counsel for Longshore, 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Unpublished opinions are not binding precedent in this circuit.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:

Petitioners appeal from a final order of the Benefits Review Board
("BRB"), which granted summary judgment in favor of respondents.
The BRB affirmed the Administrative Law Judge's determination
that: (1) Jerome Puller was permanently totally disabled as a result of
a work-related accident; and (2) the employer, Tartan Terminals, Inc.,
was not entitled to relief under Section 8(f) of the Longshore and Har-
bor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 908(f).
For the reasons discussed below, we affirm.

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I.

Jerome Puller ("claimant" or "Puller") filed a claim alleging total
permanent disability from an injury sustained on the job on April 23,
1993. At the time of his injury, Puller was employed by petitioner
Tartan Terminals, Inc. ("Tartan" or "employer"). Petitioner Signal
Mutual Indemnity Association insures Tartan. An Administrative Law
Judge ("ALJ") heard the claim and issued his decision granting bene-
fits on August 22, 1995. He denied a motion for reconsideration on
November 1, 1995.

Petitioners appealed to the Benefits Review Board ("BRB"), which
remanded the case to the ALJ on the sole issue of whether the 1993
accident was the cause of claimant's cervical problems. The BRB
upheld the ALJ's resolution of the two other main issues: (1) that the
employer had failed to establish the availability of suitable alternative
employment; and (2) that the employer was ineligible for Section 8(f)
relief, which allows the payment of benefits out of a special,
federally-established fund. See 33 U.S.C.§ 908(f). On remand, the
ALJ found that the accident was the sole cause of claimant's total dis-
ability and granted benefits. Petitioners appealed for the second time
to the BRB, which granted summary judgment on April 28, 1998,
upholding the ALJ's decision on the issue of causation and recogniz-
ing its own previous decision as the law of the case on the other
issues.

Petitioners originally appealed to this court from the BRB's first
decision to affirm in part and remand to the ALJ on the issue of cau-
sation. Petitioners' first appeal was dismissed because the BRB had
not yet made a final decision. A second appeal was brought after the
ALJ's decision on remand from the BRB. Petitioners' third appeal
from the BRB's April 28, 1998 final decision has been consolidated
with their second appeal in this action.

II.

The BRB's decision to grant disability benefits is subject to a def-
erential standard of review. The court examines the BRB's review of
the ALJ's determination for errors of law. If the BRB has affirmed the
ALJ's decision after conducting appropriate review, this court must

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likewise affirm the BRB's decision if the ALJ's findings are rational,
supported by substantial evidence, and consistent with the law. See
O'Keeffe v. Smith, Hinchman and Grylls Associates , 380 U.S. 359,
362 (1965). Substantial evidence has been described as "more than a
scintilla but less than a preponderance." See v. Washington Metropoli-
tan Area Transit Authority, 36 F.3d 375, 380 (4th Cir. 1994). In par-
ticular, the credit the ALJ gives to witness testimony and the
inferences made by the ALJ from the evidence are entitled to defer-
ence, even when it is the appeals court's opinion that other conclu-
sions would have been more reasonable. See id . Applying this
standard, we find no basis for reversing the decision of the ALJ,
which was properly upheld by the BRB.

Claimants for disability benefits under the LHWCA must success-
fully proceed through a step-by-step inquiry in which the burden
shifts twice between the claimant and the employer. First, the claim-
ant must establish total disability by demonstrating an inability to
return to his former employ. See id. (citing Newport News Shipbuild-
ing & Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir. 1988)).
Then, the employer has the burden of rebutting claimant's showing
of disability by demonstrating suitable alternative employment avail-
able to the claimant upon a reasonably diligent search. See id. (citing
Lentz v. Cottman Co., 842 F.2d 129, 131 (4th Cir. 1988)). Finally, if
the employer has met its burden, the claimant can counter the show-
ing of suitable alternative employment "by demonstrating a diligent
but unsuccessful search for such employment." See, 37 F.3d at 380
(citing Tann, 841 F.2d at 542).

In this case, only the second step, in which the employer has the
burden of showing suitable alternative employment, is properly
before the court on appeal.1 Petitioners argue that they met this bur-
den through the testimony of their vocational expert, which they
claim was partially confirmed by the testimony of claimant's own
witnesses that claimant could perform other, less demanding work.
Respondent Puller asks the court to uphold the decision of the ALJ
not to credit the testimony of Tartan's vocational expert because it
_________________________________________________________________
1 The BRB's April 28, 1998 Decision recites which issues the employer
has raised for appeal: the adequacy of its showing of suitable alternative
employment and its eligibility for Section 8(f) relief.

                    4
was not realistic and failed to account for all of claimant's disabilities.
The parties also disagree as to whether the vocational expert's testi-
mony was as specific as the law requires.

To rebut claimant's showing of disability under this second step of
the inquiry, the employer must answer two questions: (1) whether
there are jobs the claimant is capable of performing, taking into con-
sideration his age, background, education, training, etc.; and (2)
whether those jobs are reasonably available in the community in
which the claimant is able to compete and could realistically be
secured by the claimant. See Trans-State Dredging v. Benefits Review
Bd., 731 F.2d 199, 201 (4th Cir. 1984); see also Newport News Ship-
building and Dry Dock Co. v. Dir., Ofc. of Workers' Comp.
Programs, 592 F.2d 762, 764 (4th Cir. 1979) (adopting the reasoning
in Perini Corp. v. Heyde, 306 F.Supp. 1321, 1329 (D.R.I. 1969)).

The disagreement between the parties in this case as to the specific-
ity required of employers in demonstrating alternative suitable
employment reflects the variation among the courts of appeals on this
issue. The Ninth Circuit, for example, has held that the employer can-
not satisfy the second step of the inquiry merely by pointing to gen-
eral work that a claimant may be able to perform;"rather `the
employer must point to specific jobs that the claimant can perform.'"
Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1196 (9th Cir.
1988) (quoting from Bumble Bee Seafoods v. Director, Ofc. of Work-
ers' Comp. Progs., 629 F.2d 1327, 1330 (9th Cir. 1980)). The Ninth
Circuit's specificity requirement, set forth in Bumble Bee also holds
that the employer's demonstration of the availability of jobs should
be realistic, taking into consideration the claimant's age, education
and background and the likelihood that the claimant would actually
be hired if he diligently sought the job. See id. (citing New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1042-43 (5th Cir.
1981)).

The Fourth Circuit has followed the Fifth Circuit in adopting a
modified version of the specificity requirement in Bumble Bee. See
Turner, 661 F.2d at 1042 (Fifth Circuit modifying Bumble Bee), and
Trans-State Dredging, 731 F.2d at 201 (Fourth Circuit adopting
Turner for its modifications of Bumble Bee ). Under this modified
specificity requirement, the employer need not prove that some spe-

                     5
cific employer would actually offer claimant a job. See Turner, 661
F.2d at 1042. However, the employer must take into account the spe-
cific capabilities of the claimant, namely,"his age, background,
employment history and experience, and intellectual and physical
capacities." Id. The employer cannot meet the specificity requirement
by matching general statements of job skills retained by the claimant
with general job descriptions fitting those skills. Nor does the Fourth
Circuit's specificity requirement mean that the employer must show
that there are specific prospective employers willing to hire the claim-
ant. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 264 (4th
Cir. 1997) ("The employer need not contact prospective employers to
inform them of the qualifications and limitations of the claimant and
to determine if they would in fact consider hiring the candidate for
their position."). The Fourth Circuit's common sense approach strikes
a balance between these two extremes.

Applying the Trans-State Dredging reasoning here, there is no
error of law requiring reversal. The BRB properly considered, under
the appropriate standard, the ALJ's determination not to credit the
vocational expert's testimony. The employer failed to meet its burden
of showing, with the specificity required in the Fourth Circuit, that
there was suitable alternative employment available to claimant.
Although the petitioners are correct that they need not have named
specific employers willing to hire claimant, respondent Puller is also
correct that the employer must show specific jobs reasonably likely
to be available to the claimant considering his specific capabilities.

Furthermore, the ALJ's decision not to credit the vocational
expert's testimony is entitled to great deference. The ALJ rejected the
vocational expert's testimony because it failed to be specific in con-
sidering claimant's capabilities, not because it failed to be specific in
naming actual employers who would hire claimant. The vocational
expert did not take into account all of claimant's capabilities, includ-
ing his age, training, education, background, and various impair-
ments. Rather, she isolated a few of his specific impairments,
determined which job skills a person with only those impairments
would possess, and found job descriptions matching those skills.
Likewise, some of the testimony of claimant's own doctors was prem-
ised on only limited consideration of claimant's capabilities, rather
than a more holistic view. The ALJ's finding that the vocational

                     6
expert's opinion was not realistic was entirely in keeping with the
Fourth Circuit's enunciation of the burden on the employer in show-
ing suitable available alternative employment. See Trans-State
Dredging, 731 F.2d at 201. That burden cannot be met with opinion
testimony that is not realistic, in light of all the limitations of the
claimant. Thus, the ALJ and the BRB properly found that the
employer failed to meet its burden in the second step of the disability
inquiry.

III.

The second issue certified by the BRB as preserved for appeal is
whether petitioners could avail themselves of the special fund, estab-
lished by Section 8(f) of the LHWCA, 33 U.S.C. § 908(f), in meeting
their obligation to pay benefits to claimant. The same deferential stan-
dard of review applies in reviewing this issue. See Newport News
Shipbuilding & Dry Dock Co. v. Dir., Ofc. of Workers' Comp. Progs.,
131 F.3d 1079, 1081 (4th Cir. 1997). Section 8(f) of the LHWCA, 33
U.S.C. § 908(f), allows the employer to reduce its liability for total
disability if the work-related injury aggravated a claimant's pre-
existing partial disability. See Dir., Ofc. of Workers' Comp. Progs. v.
Newport News Shipbuilding & Dry Dock Co., 138 F.3d 134, 138 (4th
Cir. 1998). Section 908(f) provides that in such cases, the employer
provides compensation only for a limited period of 104 weeks, after
which time the benefits are paid to the claimant or his survivor out
of the special fund established by the LHWCA.2

To qualify for Section 8(f) relief when an employee is permanently
_________________________________________________________________

2 In its brief, respondent Department of Labor thoroughly reviews the
history and intent of Section 908(f). In sum, the provision was enacted
to prevent discrimination by employers on the basis of partial disability.
By relieving employers from liability for disabilities caused in part by
partial disabilities which existed before the employee was hired, the fed-
eral government hoped to encourage hiring of persons with disabilities.
But demands on the special fund established by the government for this
purpose have exceeded expectations and, of late, courts have recognized
the suggestion of the Director of the Office of Workers' Compensation
Programs to apply section 908(f) less liberally to alleviate the growing
demand on the special fund.

                    7
totally disabled, an employer must establish three elements: (1) that
the employee had an existing permanent partial disability before the
work-related accident; (2) that the pre-existing disability was manifest
to the employer prior to the work-related injury ("manifest" require-
ment); (3) that the ultimate disability is not attributable solely to the
work-related injury ("combination" requirement). See Newport News
Shipbuilding & Dry Dock Co., 131 F.3d at 1081. 3

The petitioners claim that Puller suffered from a pre-existing dis-
ability, asbestosis, which was manifest to them before the April 23,
1993 accident, and that his disability was aggravated due to the pre-
existing asbestosis. Puller argues that although the asbestosis was a
medical impairment, it did not constitute a permanent partial disabil-
ity. In addition, Puller asserts that even if the asbestosis was manifest
to the employer, the combination element was found lacking by the
ALJ, who determined that permanent total disability was caused
solely by the April 23, 1993 accident. The other respondent in this
case, the Director of the Office of Workers' Compensation Programs,
United States Department of Labor, argues further that the employer
failed to prove that, but for the asbestosis, Puller would have retained
his wage-earning ability.

After reviewing the record, the ALJ's original opinion and opinion
on remand, and the BRB's decisions, we find that the BRB correctly
held that respondents do not qualify for Section 8(f) relief. In his orig-
inal opinion, the ALJ found that the employer had failed to prove that
any pre-existing disability, which was manifest to the employer, had
combined with the effects of the April 23, 1993 accident to cause total
permanent disability. Although the ALJ's order denying the motion
for reconsideration suggested that the only element lacking in qualify-
ing for Section 8(f) relief was the "manifest" requirement, the BRB
_________________________________________________________________
3 The "combination" requirement should not be confused with the "con-
tribution" requirement imposed when determining an employer's liability
in the case of a permanent partial disability. See Newport News Ship-
building & Dry Dock Co., 131 F.3d at 1081. The contribution
requirement--that the ultimate permanent partial disability be materially
and substantially greater than a disability would be from the work-related
injury alone--does not apply in this case, which is one of permanent
total disability.

                     8
and the ALJ on remand both concluded that the April 23, 1993 acci-
dent was the sole cause of claimant's total disability. Thus, even if the
"manifest" element was established because claimant's asbestosis was
a pre-existing partial disability, the combination element was lacking
because there was no showing that claimant's asbestosis combined
with the April 23, 1993 accident to cause permanent total disability.
Nothing in the record suggests that, but for the asbestosis, the acci-
dent would not have caused permanent total disability. Despite any
discrepancies between the ALJ's original opinion, his order denying
reconsideration, and the decision of the BRB, at least one of the ele-
ments of eligibility for Section 8(f) relief was found lacking through-
out the proceedings. This finding is not unsupported by the evidence
in the record. Therefore, the court must defer to the ALJ and BRB in
concluding that payment out of the special fund, established by Sec-
tion 8(f) of the LHWCA, was inappropriate in this case.

IV.

In summary, we find no basis for overturning the BRB's decision,
which upheld the ALJ's findings as to disability and eligibility of the
employer for Section 8(f) relief.

AFFIRMED

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