Kristopher V. Worrell v. Virginia Interntional Terminals, Incorporated (Board decision, December 9, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's finding that the employer offered suitable alternate work and the worker was not entitled to additional disability compensation. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Kristopher Worrell injured his lower back while operating a ship-to-shore crane for Virginia Interntional Terminals. The employer paid temporary total disability benefits until December 2021, then disputed further disability compensation. A labor judge found that Worrell's injury was work-related and permanent, but that the employer had offered him a suitable remote crane operator job at its facility. The Board upheld the judge's reliance on testimony that the job used an adjustable desk and fit Worrell's physical restrictions despite a written description listing continuous sitting. It also upheld the finding that the job remained available after a second offer in April 2021. Because Worrell did not challenge the finding that he failed to pursue the offers diligently, the Board affirmed the denial of additional disability compensation. Medical benefits for his work-related back condition remained in place.

Decision snapshot

• Authority: Suitable alternate employment under the Longshore Act; Board review under 33 U.S.C. § 921(b)(3).
• Outcome: Denial of additional disability compensation affirmed; medical benefits remained available.
• Key point: Credited testimony about an adjustable desk supported the finding that the employer's offered job fit the worker's restrictions.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 24-0157

KRISTOPHER V. WORRELL
)
)
Claimant-Petitioner )
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v. )
)
VIRGINIA INTERNTIONAL TERMINALS, )
NOT-PUBLISHED
INCORPORATED
)
)
and ) DATE ISSUED: 12/09/2025
)
SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LIMITED c/o SAGE )
ADJUSTING, LLC
)
)
Employer/Carrier- )
Respondents
)
DECISION and ORDER
Appeal of the Decision and Order of Dana Rosen, Administrative Law Judge, United States Department of Labor.

Gregory E. Camden (Kalfus & Nachman PC), Norfolk, Virginia, for Claimant.

Lawrence P. Postol (Postol Law Firm, P.C.), McClean, Virginia, for Employer and its Carrier.

Before: GRESH, Chief Administrative Appeals Judge, ROLFE, Administrative Appeals Judge, and ULMER, Acting Administrative Appeals Judge.

PER CURIAM:
Claimant appeals Administrative Law Judge (ALJ) Dana Rosen’s Decision and Order (2022-LHC-00310) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§901-950 (Act). We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.1 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 361-62 (1965).

Claimant sustained a lower back injury while working for Employer as a ship-to- shore crane operator on March 12, 2019. Employer and its Carrier (Employer) paid Claimant temporary total disability (TTD) benefits from March 13, 2019, until December 22, 2021, when it terminated benefits. Claimant’s Exhibit (CX) 12. It controverted additional disability compensation based on physicians’ opinions that Claimant’s condition had reached maximum medical improvement (MMI) by that date and its offer of suitable alternate employment (SAE) within its facility.2 Employer’s Exhibits (EXs) 55, 57.

The ALJ found Claimant invoked the Section 20(a) presumption, 33 U.S.C. §920(a), linking his lower back injury to his employment and found Employer rebutted the presumption. Weighing the evidence, she found Claimant established his lower back injury is work-related. In determining the nature and extent of Claimant’s disability, she accepted the parties’ stipulation that Claimant’s disability is permanent but found Claimant failed to establish he is totally disabled because Employer met its burden of establishing the availability of SAE. Therefore, she found Claimant is not entitled to additional disability compensation.

1 This case arises within the jurisdiction of the United States Court of Appeals for

the Fourth Circuit because Claimant sustained his injuries while working for Employer in Norfolk, Virginia. 33 U.S.C. §921(c); see Roberts v. Custom Ship Interiors, 35 BRBS 65, 67 n.2 (2001), aff’d, 300 F.3d 510 (4th Cir. 2002), cert. denied, 537 U.S. 1188 (2003); 20 C.F.R. §702.201(a).
2 Claimant contends he is entitled to TTD from March 13, 2019, through January

14, 2022, when his treating physician, Dr. Paul B. Mitchell, cleared him to return to work. Claimant’s Post-Hearing Br. at 40; Claimant’s Br. at 7. He further contends he is entitled to permanent total disability (PTD) benefits from January 14, 2022, through the present and continuing because he asserts Employer failed to establish available SAE. Claimant’s Br. at 22.

2
On appeal, Claimant asserts the ALJ erred in finding Employer established the availability of SAE.3 Employer responds in support of the ALJ’s findings.

Suitable Alternate Employment

After a claimant establishes he is unable to perform his usual work, the burden shifts to the employer to demonstrate the availability of SAE within the geographic area where the claimant resides that he can perform considering his age, education, work experience, and physical and psychological restrictions. See Lentz v. The Cottman Co., 852 F.2d 129, 131 (4th Cir. 1988); Gacki v. Sea-Land Serv., Inc., 33 BRBS 127, 128 (1998). The employer may meet its burden by offering the employee a suitable job in its facility. Spencer v. Baker Agric. Co., 16 BRBS 205, 207 (1984); Harrod v. Newport News Shipbuilding & Dry Dock Co., 12 BRBS 10, 15-16 (1980); see also Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 688 (5th Cir. 1996). The ALJ need not examine job opportunities on the open market where the employer offers suitable work at its facility that is not sheltered employment. Conover v. Sun Shipbuilding & Dry Dock Co., 11 BRBS 676, 679 (1979). If the employer demonstrates the availability of SAE, the burden shifts back to the employee to establish he diligently tried to obtain work but was unable to do so. Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 542 (4th Cir. 1988).

Employer offered Claimant a rail mounted gantry remote operator station (ROS) position within its facility on January 27, 2021, and again on April 27, 2021.4 EXs 69 at 3, 88 at 9-10. The ALJ determined the ROS job is sedentary duty work within Claimant’s medical restrictions, as it would not require him to perform repetitive or extensive forward flexion or bending, or continuous sitting or standing. Decision and Order (D&O) at 81-82. Having found Claimant can perform sedentary duty work, the ALJ determined the ROS job is within Claimant’s physical limitations and, therefore, constitutes SAE. Id. at 82, 87.

3 We affirm, as unchallenged on appeal, the ALJ’s finding Claimant established his

lower back injury is work-related and permanent in nature and that he established a prima facie case of total disability. See Scalio v. Ceres Marine Terminals, Inc., 41 BRBS 57, 58 (2007); D&O at 60-68.
4 The ALJ accepted the parties’ stipulation that Claimant’s average weekly wage at

the time of the injury was $2,502.70. D&O at 96. The ALJ found Claimant would earn the same wages as a ROS operator as he earned as a ship-to-shore crane operator. Id. at

97. We affirm this finding as unchallenged. See Scalio, 41 BRBS at 58.

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    Claimant argues the ALJ erred in finding the ROS position is within his physical
    

    limitations because the job would require him to sit continuously. Claimant’s Br. at 26-29. We disagree.

    An ALJ is entitled to weigh the evidence and draw her own inferences. See Newport
    News Shipbuilding & Dry Dock Co. v. Cherry, 326 F.3d 449, 452 (4th Cir. 2003); Pittman Mech. Contractors, Inc. v. Director, OWCP [Simonds], 35 F.3d 122, 127 (4th Cir. 1994). Moreover, questions of witness credibility are for the ALJ as the trier-of-fact. Simonds, 35 F.3d at 127. The Benefits Review Board may not reweigh the evidence but must affirm the ALJ’s decision if it is supported by substantial evidence and in accordance with law. See Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Brickhouse], 315 F.3d 286, 294 (4th Cir. 2002); Tann, 841 F.2d at 543.

    In determining whether the ROS job is suitable, the ALJ considered the job
    description and the testimony of Mr. William Robinson and Mr. Kyle Bassham. D&O at 81-82. The formal job description stated ROS operators work ten-hour shifts with a one- hour meal break and restroom breaks as needed. CX 13 at 1. It stated ROS operators use a computer seated at a desk, a headset with a microphone to communicate with the truck drivers, and right and left joysticks with push buttons to move the crane while observing three computer monitors. Id. In the physical activity checklist attached to the job description, it listed seldom walking, standing, and lifting of less than one ounce, and continuous sitting and hand and wrist simple grasping. Id. at 2. At the hearing, Mr. Robinson stated ROS operators “have a desk that will raise up and down” to allow them to perform the job by sitting in a chair or standing as needed. Hearing Transcript (HT) at 82-
    83. Mr. Bassham stated the ROS operators are in a remote location “looking at TV screens,
    more or less, with the joysticks.” CX 15 at 7. He said it “looks like a simulator” of the machine cab. Id.

    The ALJ found Mr. Robinson’s description of the adjustable desk consistent with
    

    Mr. Bassham’s testimony that ROS operators are not in the cab of a machine but are in a remote location “looking” at screens with joysticks. D&O at 21; CX 15 at 7; HT at 81-82. In crediting his testimony, the ALJ noted Mr. Robinson has been the manager of operations training with Employer for four years and directly reports to Mr. Bassham, the director of labor relations of workforce development, so they would be familiar with the ROS position. D&O at 21, 53; CX 15 at 3, 6; HT at 81. Consequently, she permissibly gave “significant weight” to their opinions regarding the sitting requirements over the written job description, D&O at 82-83, and she found the ROS job is within Claimant’s physical limitations. Id. at 82; see Simonds, 35 F.3d at 127; Lentz, 852 F.2d at 131; Gacki, 33 BRBS at 128.

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    Claimant’s argument that the ALJ “should” have given “controlling weight” to the
    written job description is a request for the Board to reweigh the evidence, which we are not empowered to do. Claimant’s Br. at 29; see Newport News Shipbuilding & Dry Dock Co. v. Winn, 326 F.3d 427, 430 (4th Cir. 2003) (the Board may not reweigh the evidence or substitute its opinion for that of the ALJ even if the evidence could support other inferences or conclusions). As it is supported by substantial evidence, we affirm the ALJ’s finding that the ROS job Employer offered is within Claimant’s physical limitations.5 See Brickhouse, 315 F.3d at 294; D&O at 87.

    Claimant next asserts the ALJ erred in finding the ROS position is SAE satisfying
    Employer’s burden because the job was not available. Claimant’s Br. at 22-25. He argues the ALJ erred in finding the ROS position was available SAE when Employer offered it to him on January 27, 2021, because he was scheduled for surgery on February 22, 2021, and Employer did not offer to leave the position open. Id. at 22-23. In addition, he contends the ROS position was not actually available when Employer offered it to him again on April 27, 2021. Id. at 22-25. We reject Claimant’s assertions.

    Employer first offered Claimant the ROS position on January 27, 2021. 6 EX 69 at
    

    3. Claimant testified he wanted to speak to his attorney and doctor before accepting the
       offer, but he did not respond to Employer about the offer before or after his back surgery on February 22, 2021. HT at 45-47. On April 27, 2021, Employer re-offered Claimant the ROS position and gave him until May 7, 2021, to respond. EX 59.

    5 We decline to address Claimant’s assertion that the ALJ erred in finding Mr.
    Bassham stated the ROS position has an adjustable desk as Claimant has not explained how “the error to which he points could have made any difference.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009); see Island Creek Coal Co. v. Blankenship, 123 F.4th 684, 691 (4th Cir. 2024) (explaining that if a reviewing court can discern what the ALJ did and why they did it, the duty of explanation is satisfied); Claimant’s Br. at 27-28. The record contains substantial evidence showing the ROS position is based at an adjustable desk. HT 82-83; CX 15 at 7; see Rainey v. Director, OWCP, 517 F.3d 632, 634 (2d Cir. 2008) (substantial evidence is evidence which a reasonable mind could accept as adequate to support a conclusion).
    6 Claimant testified he put his name on a list and made himself available for the ROS

position in July 2020. HT at 44. Claimant explained the then-union representative informed Claimant that he was not aware of an ROS job posting, and Claimant testified the “job just kind of went away.” Id. at 45.

5
After receiving the job offer the second time, Claimant initially stated he “just called” his union to ask if there was an ROS job posting. EX 80 at 52. He explained he did not accept the job offer because his union told him there was no ROS job posting. Id. at 51-52; HT at 60-61. In addition, he testified he did not inquire further about the job offer because his union representative told him they were going “to get back with [him] if they see that they posted this job.” HT at 61. When asked why he did not follow up with his union representative, he explained he “was still going by what [his] union hall asked [him] to [do]” which was to wait for a call back. Id. Because of the discussion with the union, Claimant did not respond to Employer; however, Claimant conceded he knew Employer stated it was holding the job for him to recover from surgery. Id. at 65-66; EX 84.

Mr. Kenneth Gray, the president of the International Longshoremen’s Association Local 1248 in Norfolk, Virginia, confirmed he told Claimant there were no ROS job postings in April 2021 but testified he was not aware of the April 27, 2021 job offer letter. EX 88 at 7-8, 23-24, 39-40. Mr. Gray stated the union would not object if Employer kept the ROS position open for Claimant while he recovered from surgery or until his doctors released him to return to work. Id. at 29-34.

Based on the totality of the evidence, the ALJ permissibly found the ROS job was available when Employer offered it to Claimant on January 27, 2021, and remained available when Employer reoffered it on April 27, 2021, until the offer expired on May 7, 2021.7 See Simonds, 35 F.3d at 127; Tann, 841 F.2d at 543; D&O at 93. As it is supported by substantial evidence, we affirm the ALJ’s determination that Employer established the availability of SAE by offering Claimant a job at its facility.8 See Brickhouse, 315 F.3d at 294; D&O 93-94.

7 Citing Darden v. Newport News Shipbuilding & Dry Dock, Co., 18 BRBS 224, 226 (1986), Claimant asserts the ROS position was not SAE because Employer did not ever fill the position and therefore the position is not “necessary.” Claimant’s Br. at 25-

26. Claimant misstates the holding in Darden, which is that continued employment due
    solely to the beneficence of an employer may be considered “sheltered employment” and insufficient to demonstrate SAE. Darden, 18 BRBS at 227-28. In this case, as evidenced by the ROS job posting in 2020, the ALJ accurately found the ROS job is not sheltered employment, D&O at 88, 96, and therefore Darden does not apply.
    8 Employer also submitted a labor market survey identifying eight jobs.EX 82. The
    ALJ permissibly declined to discuss the suitability and availability of those jobs as she found Employer met its burden with its own specific ROS job offers to Claimant. D&O at 96 n.38 (citing Conover v. Sun Shipbuilding & Dry Dock Co., 11 BRBS 676, 697 (1979)).

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    Diligence

    Where the employer establishes the availability of SAE, the claimant may
    

    demonstrate he remains totally disabled by showing he diligently tried but was unable to secure employment. See Fox v. W. State, Inc., 31 BRBS 118, 122 (1997). The ALJ determined Claimant’s silence regarding the two job offers constituted a rejection of Employer’s offer of SAE and, consequently, found Claimant failed to show he diligently tried to secure employment. See Berezin v. Cascade Gen., Inc., 34 BRBS 163, 167 (2000) (“Claimant may not retain entitlement to total disability benefits merely by alleging that he did not seek work because he was unsure if he would be hired, or because he preferred another type of work to that identified by [the] employer.”); Wilson v. Va. Int’l Terminals, 40 BRBS 46, 48 (2006); D&O at 94-96. Claimant does not challenge this finding; therefore, we affirm it. See Scalio v. Ceres Marine Terminals, Inc., 41 BRBS 57, 58 (2007).

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    Consequently, we affirm the ALJ’s finding Claimant is not entitled to additional disability compensation.9 See Tann, 841 F.2d at 544; D&O at 97.

    Accordingly, we affirm the ALJ’s Decision and Order.

    SO ORDERED.

                                       DANIEL T. GRESH, Chief
                                       Administrative Appeals Judge
    
                                       JONATHAN ROLFE
                                       Administrative Appeals Judge
    
                                       GLENN E. ULMER
                                       Acting Administrative Appeals Judge
    

    9 Because Claimant has not shown he is entitled to total disability benefits, and
    because the proffered position paid the same amount as Claimant’s usual work, he also is not entitled to partial disability benefits. See note 4, supra; D&O at 97. However, the ALJ found Claimant is entitled to Section 7 medical benefits for treatment of his work-related lower back injury and radiculopathy with Dr. Mitchell. D&O at 99.

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