UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NEWPORT NEWS SHIPBUILDING AND         
DRY DOCK COMPANY,
                        Petitioner,
                 v.
SHEILA HARRIS-SMALLWOOD;                      No. 02-1590
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
                      Respondents.
                                      
               On Petition for Review of an Order
                 of the Benefits Review Board.
                             (01-566)

                      Argued: May 4, 2004

                      Decided: July 12, 2004

  Before WILKINSON, KING, and GREGORY, Circuit Judges.



Petition for review denied by unpublished per curiam opinion.


                           COUNSEL

ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER
& HEDRICK, Newport News, Virginia, for Petitioner. Matthew Har-
ley Kraft, RUTTER MILLS, L.L.P., Norfolk, Virginia, for Respon-
dent Harris-Smallwood; Peter Brule Silvain, Jr., UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Director, Office
2         NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
of Workers’ Compensation Programs. ON BRIEF: Robert E. Walsh,
RUTTER MILLS, L.L.P., Norfolk, Virginia, for Respondent Harris-
Smallwood; Howard M. Radzely, Acting Solicitor of Labor, Donald
S. Shire, Associate Solicitor, Mark S. Flynn, Acting Counsel for
Longshore, UNITED STATES DEPARTMENT OF LABOR, Wash-
ington, D.C., for Director, Office of Workers’ Compensation Pro-
grams.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Newport News Shipbuilding and Dry Dock Company (the "Ship-
yard") petitions for review of a decision of the Benefits Review Board
(the "BRB") affirming an administrative law judge’s (1) award of
benefits to Sheila Harris-Smallwood under the Longshore and Harbor
Workers’ Compensation Act, and (2) denial of the Shipyard’s request
for relief pursuant to section 8(f) of the Act. Because the administra-
tive law judge’s rulings were supported by substantial evidence, as
the BRB correctly decided, we deny the petition for review.

                                  I.

                                  A.

   In October 1987, Sheila Harris-Smallwood commenced employ-
ment with the Shipyard as a sheet-metal worker aboard ships. The
next year, she developed problems with her left hand and was treated
by Dr. Thomas Stiles. She was given temporary light-duty work
restrictions and subsequently returned to her duties aboard ships. In
February 1990, Harris-Smallwood injured her right leg while working
aboard a ship. During her treatment for the leg injury, she was
assigned to work in a building doing "grinding" work. In April 1991,
          NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD               3
while performing such work, she began to experience problems with
her right hand and wrist. She was initially seen by Dr. Peter Vonu but
eventually was treated by Dr. Samuel Kline. Dr. Kline diagnosed her
with carpal tunnel syndrome, treated her with injections, and initially
limited her to light-duty work, requiring her to wear a splint full time
and instructing her not to lift more than five pounds. By December
1992, Dr. Kline had increased the restriction to ten pounds but kept
Harris-Smallwood on light-duty work. In February 1993, Dr. Kline
released her to full work duties, with the exception that she was not
to use vibratory tools.

   Throughout the following year, Harris-Smallwood returned to Dr.
Kline with various complaints of arm and hand pain. In March 1994,
Dr. Kline again restricted her to light-duty work, that is, "no lifting
greater than 10 pounds, no high torque, vibratory tools, or pulling."
In July of that year, Dr. Kline continued Harris-Smallwood’s work
restrictions for one year, citing her repeated problems with tendinitis
and carpal tunnel syndrome.

   By 1995, Harris-Smallwood was reassigned to work in the sail loft,
where she cut material from large bolts and sewed hoods, tents, or
bags. In July 1995, she began experiencing problems with her left
shoulder, for which she again visited Dr. Kline. Dr. Kline restricted
Harris-Smallwood from "pulling cables" and added "no overhead lift-
ing" to her work restrictions. He also treated her shoulder with medi-
cation and an injection. In October 1995, Dr. Kline wrote in his
progress notes concerning Harris-Smallwood that "[a]pparently she is
doing a new job which requires a lot of shoulder elevation. Is having
pain. . . . I discussed her work capacity with her employer and she
will be off work on Monday. She will return to see her supervisor on
Monday and he will respect the fact that she needs to keep her elbow
down at her side while working." Ten days later, on October 30,
1995, Dr. Kline wrote, "I cannot help but feel that a major component
of her problem is that her new supervisor is not working well with her
to determine the activities that are uncomfortable for her and avoid
these. I discussed with Dr. Reid at the Shipyard."

  Dr. Kline then referred Harris-Smallwood to Dr. Colin Hamilton.
A Dr. Hamilton examined Harris-Smallwood on November 6, 1995,
and reported:
4        NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
    Greatly guards against allowing passive ROM and only
    actively abducted or forward flexed to approx. 90o [.] I then
    was able to passively fully forward flex and abduct in spite
    of her pain complaint and extensive facial grimacing. There
    was absolutely no restriction of passive motion and she had
    full passive E.R., which caused no pain complaint. Mani-
    fested the unusual response of complaining of left shoulder
    pain with simple elbow flexion against resistance with the
    shoulder in extension.

In sum, Dr. Hamilton reported "[n]o objective findings regarding the
diffuse shoulder and neck complaints" and told Harris-Smallwood to
take Advil or Aleve and do exercises. Dr. Hamilton said that Harris-
Smallwood was fit to return to her duties with the same restrictions
under which she had worked for the past two years.

   Dr. Kline also referred Harris-Smallwood to Dr. Eric Mein. In
August 1996, Dr. Mein renewed Dr. Kline’s restrictions, prohibiting
overhead lifting and lifting more than ten pounds. Harris-Smallwood
suffered repeated flare-ups of her shoulder pain, and Dr. Mein
excused her from work from August 21 through 25 and September 4
through 6. Dr. Kline extended Harris-Smallwood’s work restrictions
on a permanent basis, and Dr. Mein continued to treat her for shoulder
pain until April 24, 2000.

   Due to her shoulder restrictions, Harris-Smallwood’s work in the
sail loft was limited to using a sewing machine to make nylon bags
and hoods. She continued to perform these limited duties until June
1, 1998, when she was terminated as part of a massive layoff at the
Shipyard. Subsequently, when other employees were called back to
work, a spokesperson for the Shipyard told Harris-Smallwood that she
was not asked to return because the Shipyard was rehiring people who
could work on the ship, and Harris-Smallwood was not able to do so
because of her shoulder restrictions. Harris-Smallwood collected
unemployment and eventually found a job working at a dry cleaner
that paid less money than she earned at the Shipyard.

   In May 2000, Harris-Smallwood was examined by Dr. Glenn Nich-
ols, who reviewed her MRI and diagnosed her as suffering from
degenerative tendinopathy/chronic tendinitis, tearing, lesion, and
          NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD                5
degeneration in the shoulder. Nichols’s impression of Harris-
Smallwood was "chronic impingement syndrome of the left shoulder."1
Nichols opined that Harris-Smallwood was unfit for duty in her previ-
ous job in the sail loft and that her "injury is the direct result of the
repetitive lifting of heavy loads at work in the sail loft at Newport
News Shipbuilding."

                                   B.

   On May 18, 1999, Harris-Smallwood filed a claim for benefits
under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 901 et seq. (the "Act"), which provides benefits for disability
or death arising from workplace injuries on the navigable waters of
the United States and its related docks. See 

July 2000,
a hearing was held in Newport News, Virginia, before an administra-
tive law judge ("ALJ"), who issued his decision on the Harris-
Smallwood claim on March 23, 2001. The ALJ found that her claim
was timely and that Harris-Smallwood suffered from a permanent
partial disability due to her shoulder problems. He awarded benefits
from the date of June 16, 1998, the day after Harris-Smallwood was
laid off. In addition, the ALJ concluded that the Shipyard was not
entitled to relief under section 8(f) of the Act, 

allows disability benefits to be paid, after a certain point, from a spe-
cial fund rather than by the employer when the claimant’s disability
does not result solely from the injury being compensated.

   The Shipyard appealed to the BRB, which, on April 3, 2003,
affirmed the ALJ’s decision. The Shipyard now petitions for our
review of the BRB’s decision.2 We possess jurisdiction pursuant to 33
U.S.C. § 921(c).
  1
     Impingement syndrome is "the progressive pathologic changes result-
ing from mechanical encroachment of the acromion, coracoacromial lig-
ament, coracoid process, or acromioclavicular joint on the rotator cuff,
including reversible edema and hemorrhage, fibrosis, tendinitis, pain,
bone spur formation, and tendon rupture." Dorland’s Illustrated Medical
Dictionary 1821 (30th ed. 2003).
   2
     The Director of the Office of Workers’ Compensation Programs par-
ticipates in this proceeding as a respondent with respect to the issue of
the Shipyard’s eligibility for section 8(f) relief.
6         NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
                                   II.

   In addressing a petition for review of a BRB decision, we must
assess "whether the [BRB] observed its statutorily-mandated standard
for reviewing the ALJ’s factual findings." Newport News Shipbldg. &
Dry Dock Co. v. Stallings, 

, 871 (4th Cir. 2001) (internal
quotations and citations omitted). That standard, as set forth in section
21(b)(3) of the Act, requires the BRB to determine whether the ALJ’s
factual findings are "supported by substantial evidence in the record
considered as a whole." 33 U.S.C. § 921(b)(3). Substantial evidence
is "more than a scintilla but less than a preponderance, and such rele-
vant evidence as a reasonable mind might accept as adequate to sup-
port a conclusion." Norfolk Shipbldg. & DryDock Co. v. Faulk, 

, 380-81 (4th Cir. 2000) (internal citations and quotations
omitted). Moreover, the findings of an ALJ "may not be disregarded
on the basis that other inferences might have been more reasonable.
Deference must be given the fact-finder’s inferences and credibility
assessments, and we have emphasized [that] the scope of review of
ALJ findings is limited." Newport News Shipbldg. & Dry Dock Co.
v. Tann, 

, 543 (4th Cir. 1988).

                                   III.

                                   A.

   We turn first to the question of whether the ALJ’s award of bene-
fits to Harris-Smallwood was supported by substantial evidence. As
a preliminary matter, we must address the Shipyard’s contention that
Harris-Smallwood’s claim was not timely filed. We conclude that,
although her claim was filed three and a half years after she began
experiencing shoulder problems, the claim is timely under the Act.

   The Act provides that a claimant has no right to compensation for
a disability or death unless a claim is filed within one year of the dis-
ability or death. 33 U.S.C. § 913(a). The Act further explains, how-
ever, that "[t]he time for filing a claim shall not begin to run until the
employee or beneficiary is aware, or by the exercise of reasonable dil-
igence should have been aware, of the relationship between the injury
or death and the employment." 

one-year
period does not begin to run until the claimant becomes aware that the
          NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD              7
injury is likely to impair her earning capacity. See Newport News
Shipbldg. & Dry Dock Co. v. Parker, 

, 26-27 (4th Cir.
1991); see also Paducah Marine Ways v. Thompson, 

, 134
(6th Cir. 1996) (collecting decisions and observing that "all of the
courts of appeals that have interpreted the amended section 913(a)
have held that the statute of limitations begins to run only after the
employee . . . knows or should know that the injury is work-related,
and knows or should know that the injury will impair the employee’s
earning power").

   Additionally, an employer bears the burden under the Act to prove
that a claim was untimely filed. Pursuant to 33 U.S.C. § 920, "it shall
be presumed, in the absence of substantial evidence to the contrary—
(a) That the claim comes within the provisions of this chapter. (b)
That sufficient notice of such claim has been given. . . ." 33 U.S.C.
§ 920; see also Bath Iron Works Corp. v. U.S. Dep’t of Labor, 

, 57 (1st Cir. 2003) (concluding that § 920(b) creates presump-
tion that claim was timely filed and recognizing that employer bears
burden of demonstrating non-compliance).

   Applying these provisions of the Act, the ALJ correctly concluded
that the Shipyard failed to meet its burden of demonstrating that
Harris-Smallwood’s claim was untimely filed. The Shipyard contends
that "[t]he record reflects considerable lost work time based on
Claimant’s left shoulder complaints" during 1995 and 1996, and that
Harris-Smallwood was thereby put on notice of the relationship
between her injury and her earning capacity much earlier than one
year before her claim was filed in May 1999. Although the Shipyard
refers to certain medical records reflecting that Harris-Smallwood was
excused from several days of work on various occasions during 1995
and 1996, the Shipyard has produced no evidence that Harris-
Smallwood was not paid for those days. Absent any indication that
she suffered an adverse economic impact due to her injury and con-
comitant loss of work time, we have no reason to believe that Harris-
Smallwood recognized or should have recognized the relationship
between her shoulder injury and her loss of wage-earning potential
prior to her layoff in June 1998. Therefore, the ALJ’s conclusion that
8             NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
Harris-Smallwood’s claim was timely filed in May 1999 is, as the
BRB correctly recognized, supported by substantial evidence.3

                                       B.

   We turn now to the merits of Harris-Smallwood’s claim for bene-
fits. Having carefully considered the materials presented, we conclude
that the BRB was correct in its determination that the ALJ’s decision
was supported by substantial evidence.

    The Act provides compensation for disabilities or death resulting
to an employee from injuries occurring on the navigable waters of the
United States, including dry docks and buildings used for constructing
or repairing vessels. 33 U.S.C. § 903(a).4 "Disability" means, in perti-
nent part, "incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or any other
employment . . . ." 

"[t]he term ‘injury’ means acci-
dental injury or death arising out of and in the course of employment
. . . ." 

Shipyard maintains that the ALJ erred in his
conclusion that Harris-Smallwood suffered an injury and a disability
arising from that injury, as defined by the Act.
    3
     The Shipyard also complains that Harris-Smallwood did not provide
notice of her injury within thirty days, as required by 33 U.S.C. § 912(a).
Section 912(d), however, provides that a claimant is excused from the
notice requirement when, inter alia, the employer had knowledge of the
injury. In light of the evidence in Dr. Kline’s notes that he discussed
Harris-Smallwood’s shoulder injury and work limitations with the Ship-
yard on October 20 and 30, 1995, the ALJ’s conclusion that Harris-
Smallwood’s failure to give the § 912(a) notice was excusable was
amply supported by substantial evidence.
   4
     Section 903(a) of Title 33 provides, in pertinent part, that
        compensation shall be payable under this chapter in respect of
        disability or death of an employee, but only if the disability or
        death results from an injury occurring upon the navigable waters
        of the United States (including any adjoining pier, wharf, dry
        dock, terminal, building way, marine railway, or other adjoining
        area customarily used by an employer in loading, unloading,
        repairing, dismantling, or building a vessel).
33 U.S.C. § 903(a).
          NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD                   9
                                     1.

   In particular, the Shipyard takes issue with the ALJ’s assessment
of the medical opinions provided. In conducting our review, "[w]e
defer to the ALJ’s evaluation of the proper weight to accord conflict-
ing medical opinions," Stiltner v. Island Creek Coal Co., 

,
342 (4th Cir. 1996), and we seek simply to ascertain whether the BRB
"‘adhered to its statutory standard of review of factual determina-
tions.’" Doss v. Dir., Office of Workers’ Comp. Programs, 

, 658 (4th Cir. 1995) (quoting Presley v. Tinsley Maint. Serv., 

, 436 (5th Cir. 1976)).

   In this matter, the ALJ was presented with the opinions of Drs.
Mein and Nichols, along with the conflicting opinions of Drs. Hamil-
ton and Kline. Dr. Mein had concluded, to a reasonable degree of
medical certainty, that Harris-Smallwood’s work in the sail loft in
1995 contributed to her chronic impingement syndrome of the left shoul-
der.5 Dr. Nichols agreed, opining that Harris-Smallwood was "unfit
for duty from her previous employment capacity as a sail-maker,
working in the sail loft" and that "the patient’s injury is a direct result
of the repetitive lifting of heavy loads at work in the sail loft at New-
port News Shipbuilding." Dr. Hamilton, oppositely, indicated that he
"saw no evidence that [Harris-Smallwood] occurred [sic] any kind of
accumulative trauma injury to her left shoulder as a result of her work
  5
    The Shipyard asserts that Dr. Mein’s opinion is not credible because
it was "spoon-fed" to him by Harris-Smallwood’s lawyer. As we have no
reason to doubt Dr. Mein’s professional integrity, we decline to assume
that he would sign a statement that did not accurately reflect his reasoned
medical opinion. Furthermore, the letter from the lawyer stated, "this let-
ter, . . . to the best of my recollection, sets forth the opinions which you
expressed at the time of our meeting, upon reviewing [Harris-
Smallwood’s] medical records and her work history. Assuming that the
above does accurately set forth your opinions expressed at the time of
our conference, please indicate agreement, where designated . . . ." The
letter also provided a space for Dr. Mein to clarify his opinions, and he
left that space blank, although he filled in other information where
requested on the letter. Particularly in these circumstances, in which Dr.
Mein had treated Harris-Smallwood for several years, we have no reason
to believe that Dr. Mein’s medical opinion was anything other than his
own.
10        NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
of September and November 6, 1995" and that Harris-Smallwood’s
"behaviors were consistent with at least some level of symptom mag-
nification." Dr. Kline wrote a letter in which he agreed with Dr. Ham-
ilton’s report, although Kline’s treatment notes draw connections
between her job duties and her shoulder pain. See supra p. 3

   Faced with these conflicting medical opinions, the ALJ had no
option but to accept one set of findings and reject the other, and,
absent an error of law, we must defer to his decision. See 

. And here, the ALJ made no error of law; rather, he "pro-
vide[d] a sufficient explanation for [his] rationale in crediting certain
evidence." See Bill Branch Coal Corp. v. Sparks, 

, 190
(4th Cir. 2000) (internal quotation omitted). The ALJ cited the corrob-
orating statement of Dr. Nichols and further explained that he
"[found] the reports from Dr. Mein to be the most credible in view
of his extensive records." We therefore agree with the BRB’s determi-
nation that the ALJ did not err in deciding to credit the opinion of Dr.
Mein on the basis that it was well documented.

                                   2.

   The Shipyard also contends that the ALJ failed to properly weigh
testimony when determining whether Harris-Smallwood’s injury
arose out of and in the course of her employment. See 33 U.S.C.
§ 902(2). Harris-Smallwood testified that she was required by the
Shipyard to lift heavy objects even after her ten-pound restriction was
in place. She maintained that she had to "pull muslin" and work with
heavy canvas, whereas Doug Quinn, Harris-Smallwood’s supervisor,
testified that Harris-Smallwood was required to work only with light-
weight materials. The ALJ found Harris-Smallwood’s testimony
about the work she did more credible than Quinn’s because Quinn’s
knowledge appeared to be limited. The Shipyard maintains that this
rationale was insufficient to support the ALJ’s decision.

   The ALJ had the opportunity to observe both Quinn and Harris-
Smallwood during their testimony, and, as we have explained, the
duty to assess the credibility of conflicting witnesses lies with him.
See 

("The ALJ is charged with making factual
findings, including evaluating the credibility of witnesses and weigh-
ing contradicting evidence."). And we "‘may not set aside an infer-
          NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD               11
ence merely because [we] find[ ] the opposite conclusion more
reasonable or because [we] question[ ] the factual basis.’" 

Smith v. Dir., Office of Workers’ Comp. Programs, 

, 1057 (7th Cir. 1988)).

   In this circumstance, it may have been helpful if the ALJ had elab-
orated further on why he found Quinn’s knowledge to be limited, but,
in light of the testimony presented, the ALJ’s conclusion was not
unreasonable. Quinn relied only on his memory and did not review
records that would have indicated what work Harris-Smallwood had
been assigned to do during the relevant time period. In addition,
Quinn and Harris-Smallwood both testified that employees had to
move rolls of canvas or Facilon (a lightweight material with which
Harris-Smallwood worked) that weighed about fifty pounds each, and
that they had to lift or carry the rolls onto their work tables. In addi-
tion, Harris-Smallwood told her doctors, in the course of seeking
medical treatment, that heavy lifting at work was bothering her shoul-
der. Moreover, Dr. Kline indicated that Harris-Smallwood’s supervi-
sor was not working with her to avoid uncomfortable activities. In
sum, we conclude that the ALJ’s determination that Harris-
Smallwood’s shoulder problem arose out of her employment was sup-
ported by substantial evidence.

                                   C.

   Finally, we must consider whether substantial evidence supported
the ALJ’s determination that the Shipyard was not entitled to relief
under section 8(f) of the Act. Pursuant thereto, if a claimant’s disabil-
ity does not result solely from the injury being compensated, the dis-
ability benefits, after being paid by the employer for a certain period
of time, are paid instead from a special fund. 33 U.S.C. § 908(f); see
also Dir., Office of Workers’ Comp. Programs v. Newport News Ship-
bldg. & Dry Dock Co. (Carmines), 

, 138 (4th Cir. 1998).
To obtain relief under section 8(f), an employer must demonstrate
that, following a covered injury, "the employee has a permanent par-
tial disability and the disability is found not to be due solely to that
injury, and such disability is materially and substantially greater than
that which would have resulted from the subsequent injury alone
. . . ." 33 U.S.C. § 908(f)(1) (emphasis added). Additionally, the
employer must present evidence of both the type and the extent of the
12        NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD
disability that the claimant would have suffered when she sustained
the subsequent work-related injury if she had not been previously dis-
abled. See Dir., Office of Workers’ Comp. Programs v. Newport News
Shipbldg. & Dry Dock Co. (Harcum), 

, 185 (4th Cir. 1993).

   The ALJ found that the Shipyard had failed to demonstrate that
Harris-Smallwood’s disability was materially and substantially
greater than it would have been had she suffered only the claimed
injury, that is, that her previous injuries made the disability worse
than it would otherwise have been. Because the Shipyard failed to
prove the type and extent of the disability that Harris-Smallwood
would have suffered absent the pre-existing injuries, the ALJ’s deter-
mination was supported by substantial evidence.

   In support of its request for section 8(f) relief, the Shipyard pre-
sented the opinion of the Shipyard’s medical director, Dr. David
Tornberg, who asserted, based on his review of Harris-Smallwood’s
medical records, that "Ms. [Harris-]Smallwood’ [sic] disability is not
caused by her October 1995 left shoulder injury alone, but rather her
disability is materially contributed to, and made materially and sub-
stantially worsened [sic] by her pre-existing permanent degenerative
tendinopathy and chronic tendonitis [sic]." Such conclusory state-
ments are insufficient, however, to support a finding in favor of an
employer. As we explained in Carmines,

     [t]o meet its burden, the employer should have offered evi-
     dence from a doctor, such as a treating physician, who could
     testify to the extent and seriousness of the [disability] suf-
     fered by the Claimant and the degree of disability it would
     have caused alone. . . . Without such evidence, the mere
     assertion by the employer’s in-house physician that the
     Claimant’s ultimate disability was made materially and sub-
     stantially worse by the pre-existing conditions is not suffi-
     cient to warrant § 908(f) relief.

. Such is the case in the matter before
us. The Shipyard failed to present evidence quantifying the disability
Harris-Smallwood would have suffered from her claimed injury
alone; rather, it offered only the unsupported and conclusory assertion
         NEWPORT NEWS SHIPBUILDING v. HARRIS-SMALLWOOD             13
of its in-house physician. The ALJ thus did not err in denying section
8(f) recovery.

                                 IV.

   Pursuant to the foregoing, we must deny the Shipyard’s petition for
review.

                                 PETITION FOR REVIEW DENIED