The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-60762
_______________________
MARY CREAR COVAN,
Petitioner,
versus
INGALLS SHIPBUILDING, INC.; DIRECTOR,
OFFICE OF WORKER’S COMPENSATION PROGRAMS,
U.S. DEPARTMENT OF LABOR,
Respondents.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-491)
_________________________________________________________________
September 23, 1997
Before JONES, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
On January 31, 1990, Mary Crear Covan filed a claim for
*
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this opinion should not be published and is not precedent except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.
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disability insurance benefits against her employer, Ingalls
Shipbuilding, Inc. (“Ingalls”), under the Longshoremen’s and
Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.
Covan was a welder for Ingalls when she fell and injured her
right knee. Ingalls provided temporary total disability during
her convalescence from two knee surgeries. Ingalls provided
Covan with vocational assistance in seeking another job, but
Covan resumed her work for Ingalls on July 31, 1991 after a
welding position with slightly modified duties became available.
In February, 1993 Covan returned to the physician who had treated
her knee, in order to increase her work restrictions. Her
physician placed greater restrictions on her, especially
regarding tasks involving climbing, crawling, and stooping.
Ingalls was unable to employ her with these restrictions, and
attempted to help Covan find work elsewhere. Covan sued Ingalls,
alleging permanent and total disability under 33 U.S.C. § 908(a)
of the LHWCA. The trial was held before an Administrative Law
Judge (ALJ). The ALJ determined in a written order that Covan
was entitled to temporary total disability payments for the
period from December 18, 1989 (the date of Covan’s injury) to
July 31, 1991 (when Covan was deemed recovered from her second
surgery), but that Covan was limited thereafter to compensation
for a permanent partial disability of a scheduled injury of 15%
impairment of her right leg, pursuant to § 908(c)(2). The ALJ
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also awarded Covan interest on her past due compensation,
attorney’s fees and costs, and required Ingalls to pay any future
medical treatment necessary and reasonable for the work-related
injury.
Covan appealed to the Benefits Review Board, which
failed to rule on the appeal within a year, thereby affirming the
ALJ decision as a matter of law. See Omnibus Appropriations for
Fiscal Year 1996, Pub.L. No. 104-134, S 101(d), 110 Stat.
1321-219 (enacted 1996). On appeal, Covan argues the ALJ erred
in not awarding her permanent total disability, because the
employer failed to show suitable alternative employment.
II. STANDARD OF REVIEW
This court reviews the decision of the Benefits Review
Board with the same standard the Board applies to an ALJ,
determining whether the ALJ’s decision “is supported by
substantial evidence and is in accordance with law.” New
Thoughts Finishing Co. v. Chilton, No. 96-60686, 1997 WL 420161,
at *2 (5th Cir. June 17, 1997). The ALJ determines the weight
and credibility of the evidence, and may accept or reject any
part of a medical expert’s testimony. Mendoza v. Marine
Personnel Co., Inc., 46 F.3d 498, 500-501 (5th Cir. 1995).
III. ANALYSIS
In order to establish a prima facie case of entitlement
to total disability benefits, a plaintiff must show that he
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cannot return to his regular or usual employment because of his
work-related injury. New Orleans (Gulfwide) Stevedores, Inc. v.
Turner, 661 F.2d 1031, 1038 (5th Cir. 1981). In the instant
case, the ALJ found (and Ingalls does not dispute) that Covan
established her prima facie case by providing medical testimony
that her knee injury prevented her from returning to her work as
a welder, her job at the time her injury. Thus, the burden
shifted to Ingalls to show the availability of realistic job
opportunities in Covan’s community. Id. at 1042-43. This court
has set out the employer’s burden at this point as follows:
(1) Considering claimant's age, background, etc.,
what can the claimant physically and mentally do
following his injury, that is, what types of jobs is he
capable of performing or capable of being trained to
do?
(2) Within this category of jobs that the
claimant is reasonably capable of performing, are there
jobs reasonably available in the community for which
the claimant is able to compete and which he could
realistically and likely secure? This second question
in effect requires a determination of whether there
exists a reasonable likelihood, given the claimant's
age, education, and vocational background that he would
be hired if he diligently sought the job. . . . If the
employer meets this burden, the claimant may still
establish disability by demonstrating that he
‘diligently tried, [but was] unable, to secure such
[alternative] employment.’
Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 1043 (5th Cir.
1992) (citations omitted, emphasis in the original).
Covan argues that Ingalls failed to show that there
were jobs located in Covan’s immediate community, or positions
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for which she was reasonably qualified. Thus, she argues that
the ALJ erred in finding there was suitable alternative
employment, and that the ALJ erred as a matter of law in finding
her partially disabled because of his finding that she had
conducted a diligent but unsuccessful job search.
The ALJ heard testimony from a vocational counselor who
testified that Covan was qualified for eight specific available
job openings at the time of trial. Though Covan asserts she does
not meet the stated requirements of those positions, the
vocational counselor testified that each of the potential
employers had informed her that Covan was qualified and that they
would consider her for the listed position. The ALJ was entitled
to give this testimony more credibility than that of Covan.
Furthermore, Covan mischaracterizes the ALJ’s finding regarding
her job search, for the language of the ALJ decision clearly
shows Covan failed to persuade the court on this issue: “Although
claimant did testify to a diligent job search which was
unsuccessful, I still find that Employer has satisfied his burden
of proving that there is suitable alternative employment
available to Claimant” (emphasis added).2
IV. CONCLUSION
The ALJ’s decision was supported by substantial
2
The court may have been influenced by the fact that Covan applied for only some of the
jobs identified by her vocational counselor in a March 25, 1993, job survey, and did not apply for any
of the jobs on that list until the day before trial.
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evidence. Accordingly, the decision of the Benefits Review Board
is AFFIRMED.
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