UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY,
v. No. 01-2300
ARTHUR L. VINSON; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
On Petition for Review of an Order of the
Benefits Review Board.
Submitted: May 20, 2002
Decided: June 20, 2002
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan H. Walker, MASON, COWARDIN & MASON, P.C., New-
port News, Virginia, for Petitioner. Chanda W. Stepney, RUTTER,
WALSH, MILLS, & RUTTER, L.L.P., Norfolk, Virginia, for
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
Newport News Shipbuilding & Dry Dock Co. petitions this Court
for review of the Benefit Review Board's ("BRB") order affirming an
award of temporary total disability to Arthur Vinson under the Long-
shore and Harbor Workers' Compensation Act, as amended, 33
U.S.C.A. SS 901-950 (West 2001) ("LHWCA"). Newport News raises
several errors related to the determination that Vinson was entitled to
disability benefits for the period during which he returned to his
employ as a welder despite his injury. We affirm.
This Court will reverse an order of the BRB only if the award is
predicated on an error of law or a factual determination supported by
only a scintilla of evidence. See Gilchrist v. Newport News Shipbuild-
ing & Dry Dock Co., 135 F.3d 915, 918 (4th Cir. 1998); See v. Wash-
ington Metropolitan Area Transit Authority, 36 F.3d 375, 380 (4th
Cir. 1994). Newport News challenges both the legal ground for Vin-
son's award and the evidentiary basis supporting it. We find both of
these assignments of error to be meritless.
The BRB properly found Vinson's return to work after his injury
did not preclude a disability award as a matter of law. This Court has
noted the statutory standard for disability "turns on the claimant's
capacity for work, not actual employment." See Newport News Ship-
building & Dry Dock Co. v. Tann, 841 F.2d 540, 543 (4th Cir. 1988)
(emphasis in original). Accordingly, if a claimant continues employ-
ment after an injury only through "extraordinary effort to keep work-
ing" and despite the attendant "excruciating pain" and substantial risk
of further injury, he may nevertheless qualify for a disability award.
Haughton Elevator Co. v. Lewis, 572 F.2d 447, 451 (1978) (Winter,
J., concurring). Because a disability award under the LHWCA is
predicated on an employee's diminished capacity for work due to
injury rather than actual wage-loss, we find this objection to be merit-
Nor was there an insufficient evidentiary basis to support the appli-
cation of Haughton Elevator to Vinson's situation. The BRB and the
administrative law judge ("ALJ") noted Vinson's subjective assess-
ment of the pain he endured while working after his injury was sup-
ported by medical reports. Additionally, Newport News presented no
evidence to refute Vinson's allegations of pain. Furthermore, the ALJ
and the BRB identified and reconciled the dispute in the record as to
whether Vinson's responsibilities during his post-injury return to
work required efforts outside his medical restrictions, which included
limited use of stairs. Testimony at Vinson's hearing indicated he was
obliged to use stairs more than minimally while at work, and his
supervisor acknowledged Vinson could not perform his regular duties
as a welder under those restrictions. Accordingly, we find there was
a sufficient evidentiary basis to support Vinson's disability award
during the period in question in accordance with Haughton Elevator.
In light of the foregoing, we affirm Vinson's award.* We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
*Newport News has waived review of the ALJ's award of disability
benefits covering the period during which Vinson honored his union's
labor strike. By failing to challenge this portion of Vinson's award before
the BRB, Newport News has waived further review of this issue. See
Parker v. Motor Boat Sales, 314 U.S. 244, 250-51 (1941); Aetna Cas. &
Sur. Co. v. Director, Office of Worker's Compensation Programs, 97
F.3d 815, 819 (5th Cir. 1996); General Dynamics Corp. v. Sacchetti, 681
F.2d 37, 40 (1st Cir. 1982). Furthermore, Newport News' contention that
it did challenge this portion of Vinson's award before the BRB but that
the BRB failed to consider it is not properly before this Court, as it was
raised for the first time in its reply brief. See Cavallo v. Star Enter., 100
F.3d 1150, 1152 n. 2 (4th Cir. 1996).