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                                   BRB Nos. 98-1164
                                     and 00-520 


RONALD BRICKHOUSE                       )
                                        )
          Claimant-Respondent           )
                                        )
       v.                               )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   02/06/2001

AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeals of the Decision and Order, the Order Denying Motion for
     Reconsideration, and the Decision and Order on Motions for Modification
     of Fletcher E. Campbell, Jr., Administrative Law Judge, United States
     Department of Labor.

     John H. Klein (Montagna, Klein & Camden, L.L.P.), Norfolk, Virginia, for
     claimant.

     Jonathan H. Walker (Mason, Cowardin & Mason, P.C.), Newport News,
     Virginia, for self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order, the Order Denying Motion for
Reconsideration, and the Decision and Order on Motions for Modification (1997-LHC-1183; 1999-LHC-1476) of Administrative Law Judge Fletcher E. Campbell, Jr.,
rendered on a claim filed pursuant to the provisions of the Longshore and Harbor
Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(the Act).  We must affirm the administrative law judge's findings of fact and
conclusions of law if they are supported by substantial evidence, are rational, and
are in accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359  (1965).
     Claimant worked for employer as a senior quality inspector, and, in September
1993, during the course of his employment, he injured his back.  Tr.1 at 63-64.[1]   Employer paid temporary total disability
benefits for periods in 1993 and from February 15, 1994, through January 5, 1997. 
33 U.S.C. §908(b); Emp. Ex.1-6.  Claimant has not been able to return to his
usual work, and permanent restrictions were assigned on April 17, 1995, by Dr.
Garner.  Emp. Ex. 1-3; Tr.1 at 64.  In 1994, claimant began working with Ms.
Puckett, a vocational rehabilitation counselor certified by the Department of
Labor's Office of Workers' Compensation Programs (DOL or OWCP).  Tr.1 at 19. 
Together they formulated a retraining plan whereby claimant would attend college
in order to obtain an Associate of Applied Science degree in graphic
communications.  Cl. Ex. 1-1; Tr.1 at 20.  OWCP approved this plan for a period of
two years, expiring on May 15, 1997.  Cl. Ex. 1-1.  In January 1997, employer
interviewed claimant for three potential light-duty positions at its facility. 
Tr.1 at 26, 29-30.  It offered claimant a position as a senior engineering analyst
at a salary of $31,068.  Emp. Ex. 1-1.  Claimant declined the position, and
employer ceased paying disability benefits.  Emp. Ex. 1-6; Tr.1 at 73-74.  In May
1997, claimant graduated from the community college with the sought-after degree
and began to seek employment.  Tr.1 at 32, 76.  In December 1997, he was hired by
the Newport News Gazette as a graphic designer at a rate of $7.50 per hour.  Tr.1
at 77.  Claimant filed a claim for temporary total disability benefits from January
1997, and continuing.  Cl. Ex. 1-7; Emp. Ex. 1-7.

     The administrative law judge conducted a formal hearing on January 15, 1998. 
In his decision, he found that claimant has been permanently disabled since Dr.
Garner issued permanent restrictions on April 17, 1995.  Decision and Order at 7. 
He also found that the job offered by employer, while within claimant's physical
restrictions, was not available suitable alternate employment because claimant was
enrolled in an OWCP-sponsored retraining program and could not have worked at the
same time. Id. at 9-10.  Accordingly, the administrative law judge held
employer liable for permanent total disability benefits from January 6 through
December 29, 1997, when claimant commenced working.  Id. at 11.  The
administrative law judge denied employer's motion for reconsideration.  Employer
appealed these decisions, but prior to any decision by the Board, claimant filed
a motion to dismiss, as he had filed a motion for modification with the
administrative law judge based on a change in his economic condition.[2]   The Board granted claimant's motion and
dismissed the appeal, BRB No. 98-1164.  Order (April 16, 1999).
     Claimant lost his post-injury job when the newspaper closed on December 31,
1998.  At the second hearing, on February 16, 1999, claimant testified that he was
due to begin part-time work on March 3, 1999, at Hypnotic Changes where he would
earn $8.75 per hour for the first 90 days and then be eligible for a full-time
position and a pay increase.[3]   Tr.2 at 33-34. 
Due to the loss of his job with the newspaper, claimant filed the motion for
modification based on the change in his economic condition, seeking permanent
partial disability benefits from December 29, 1997, and continuing.

     Employer obtained information from Dr. Davis, the dean of instruction at the
college claimant had attended.  Dr. Davis testified on deposition that, as of
January 1997, claimant needed two classes to graduate.  He stated that one of these
classes was offered at night in the spring 1997 semester and the other was offered
at night in the summer 1997 semester.  Emp. Ex. 2-7 at 3-5.  The dean did not know,
however, whether the courses required lab work.  In light of  the information that
the courses were offered at night, employer filed a motion for modification based
on a mistake in the determination of a fact regarding claimant's ability to accept
its job offer and still maintain his course work.

     The administrative law judge initially found there was a mistake in a
determination of fact.  In particular, he modified his finding that the courses
claimant was required to complete for graduation were not offered at night.  The
administrative law judge, however, did not change his conclusion that the courses
may not have been available to claimant, especially if he did not know they were
offered at night.  Moreover, the administrative law judge stated that claimant
testified there was lab work involved and that working at the shipyard would not
be conducive to completing the necessary course work.  Decision on M/Modif. at 5. 
Therefore, the administrative law judge reaffirmed his conclusion that the job
employer offered while claimant was enrolled in the retraining program was not
suitable alternate employment available to claimant. Id. at 6.  With regard
to claimant's motion that he suffered a change in his economic condition, the
administrative law judge found that claimant's condition had changed because he
lost his post-injury job through no fault of his own and that there was no evidence
that the job previously offered by employer was still available.  The
administrative law judge determined that claimant has a post-injury wage-earning
capacity of $314.28 and is entitled to permanent partial disability benefits at a
rate of  $182.62 per week from December 30, 1998, and continuing. Id.  at
6-7.

     Employer appeals the decision on modification, BRB No. 00-520, and also
requested reinstatement of its prior appeal.[4]  
It argues that the administrative law judge erroneously awarded claimant permanent
disability benefits,  that claimant is not entitled to total disability benefits
while he was attending college, as he could have accepted its offer of suitable
alternate employment with no loss in wage-earning capacity, that the administrative
law judge erred in finding that claimant suffered a change in condition which
warranted modification of the award, and that the administrative law judge erred
in calculating claimant's post-injury wage-earning capacity.  Claimant responds,
urging affirmance on all issues.

                             Permanency

     Employer first argues that the administrative law judge erred in considering
claimant's condition to be permanent and in awarding permanent total disability
benefits from January 6 through December 29, 1997.  It asserts that claimant sought
only temporary total disability benefits, and that in raising the issue without
notifying the parties, the administrative law judge prevented employer from seeking
Section 8(f), 33 U.S.C. §908(f), relief.[5] 

     An employee has the burden of establishing the nature and extent of his
disability.  Trask v. Lockheed Shipbuilding & Construction Co., 17 BRBS 56
(1980).  These issues must be raised prior to the hearing, and if they are raised
thereafter, the administrative law judge may not address them without first
notifying the parties. See Klubnikin v. Crescent Wharf & Warehouse Co., 16
BRBS 182 (1984); 20 C.F.R. §702.336.  Consequently, if only temporary
disability benefits were sought, an administrative law judge may not award
permanent disability benefits. Ferrell v. Jacksonville Shipyards, Inc., 12
BRBS 566 (1980); Seals v. Ingalls Shipbuilding, Div. of Litton Systems,
Inc., 8 BRBS 182 (1978).  However, where a claimant raises entitlement to
permanent disability benefits for the first time at the hearing, having previously
claimed temporary total disability benefits, an administrative law judge may award
permanent total disability benefits without further notice to the employer, if the
administrative law judge determines that no further notice or preparation by the
parties is necessary, because there is no significant difference in the burdens of
proof for permanent versus temporary total disability. Duran v. Interport
Maintenance Corp., 27 BRBS 8 (1993); 20 C.F.R. §702.336(a).

     In this case, employer is correct in arguing that claimant sought temporary
total disability benefits from January 6, 1997, and continuing, and that employer
disputed the nature and extent of claimant's disability.  Tr.1 at 6; Cl. LS-18
(Feb. 12, 1997).  Employer's defense, both below and on appeal, however, is
somewhat circular:  employer argues that claimant is not entitled to temporary
disability benefits because his condition is permanent but that the administrative
law judge may not award permanent disability benefits because claimant did not seek
benefits for a permanent disability.  We reject this reasoning and affirm the
administrative law judge's finding that claimant's condition is permanent.  First,
the administrative law judge's finding that claimant received permanent
restrictions from Dr. Garner on April 17, 1995, is supported by the record.  Emp.
Ex. 1-3.  Moreover, employer had sufficient time to prepare for a claim for
permanent disability, as this case was transferred to the Office of Administrative
Law Judges on March 5, 1997, and the first hearing was held on January 15, 1998,
both dates which were well after claimant's permanent restrictions went into effect
in 1995.  As employer itself asserted that claimant's condition was permanent based
on the 1995 medical restrictions, it cannot now be permitted to argue it was
unprepared for a claim of permanency. See Duran, 27 BRBS at 12; Bonner
v. Ryan-Walsh Stevedoring Co., Inc., 15 BRBS 321 (1983); 20 C.F.R.
§702.336(a).

     We also reject employer's contention that the administrative law judge's
sua sponte award of permanent disability benefits prejudiced its right to
seek Section 8(f) relief.  An employer is obliged to raise the applicability of
Section 8(f) at the earliest hearing after it became aware permanency was an issue
in the case. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS
119(CRT) (4th Cir. 1997); Serio v. Newport News Shipbuilding & Dry Dock Co.,
32 BRBS 106 (1998); Egger v. Willamette Iron & Steel Co., 9 BRBS 897 (1979);
see also 33 U.S.C. §908(f)(3); 20 C.F.R. §702.321.  By its own
admission, employer considered claimant's condition permanent as of April 1995 and,
thus, could have anticipated the need to apply for Section 8(f) relief at the first
hearing before the administrative law judge. See Verderane v. Jacksonville
Shipyards, Inc., 772 F.2d 775, 17 BRBS 155(CRT) (11th Cir. 1985); see also
Mowl  v.  Ingalls Shipbuilding, Inc., 32 BRBS 51 (1998).  Therefore, we reject
employer's contention that the administrative law judge erred in awarding claimant 
permanent disability benefits from January 6 through December 29, 1997.

                   Suitable Alternate Employment

     Employer contends the administrative law judge erred in finding that claimant
was entitled to total disability benefits while he was enrolled in an OWCP-sponsored retraining program, pursuant to Louisiana Ins. Guar. Ass'n v.
Abbott, 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994), aff'g 27 BRBS 192
(1993).    Where a claimant has established he is incapable of returning to his
usual employment, he has established a prima facie case of total disability,
and the burden shifts to his employer to show the availability of suitable
alternate employment which the claimant can perform. Lentz v. The Cottman
Co., 852 F.2d 129, 21 BRBS 109(CRT) (4th Cir. 1988).  If the employer makes
such a showing, the claimant nevertheless can prevail in his quest for total
disability benefits if he demonstrates he diligently tried but was unable to secure
alternate employment.  Newport News Shipbuilding & Dry Dock Co. v. Tann, 841
F.2d 540, 21 BRBS 10(CRT) (4th Cir. 1988); Hooe v. Todd Shipyards Corp., 21
BRBS 258 (1988).  Where a claimant is enrolled in a retraining program, he bears
the burden of showing that he is unable to perform such suitable alternate
employment due to his participation in that program. Kee v. Newport News
Shipbuilding & Dry Dock Co., 33 BRBS 221 (2000); Gregory v. Norfolk
Shipbuilding & Dry Dock Co., 32 BRBS 264 (1998)

     The case before us involves the question of whether claimant satisfied his
burden of establishing that the suitable alternate employment presented by employer
was unavailable due to his participation in an OWCP-sponsored rehabilitation
program.  The seminal case on this issue is Abbott, 40 F.3d 122, 29 BRBS
22(CRT).  In that case, a claimant was enrolled in a retraining program sponsored
by the DOL. The employer submitted minimum-wage jobs as evidence of suitable
alternate employment the claimant could perform.  The United States Court of
Appeals for the Fifth Circuit affirmed the Board's determination that the jobs
could not be secured by the claimant due to his participation in the rehabilitation
program and, therefore, were not shown to be available.  The court also noted that,
in completing the retraining program, the claimant increased his wage-earning
capacity well-above the minimum wage level, thereby reducing the employer's long-term liability for benefits.  Consequently, the claimant was entitled to total
disability benefits while he was in the program. Abbott, 40 F.3d 122, 29
BRBS 22(CRT).  

     It is undisputed that claimant here cannot return to his usual employment with
employer.  It is also undisputed that employer presented evidence of suitable
alternate employment at its facility as of January 1997 which the administrative
law judge found was within claimant's physical restrictions.  Thus, the burden
shifted to claimant to show that he was unable to perform such work due to his
participation in the DOL-sponsored rehabilitation program. Kee, 33 BRBS 221. 
Based on relevant factors,[6]  the administrative
law judge found: 1) claimant diligently pursued his studies; 2) OWCP approved the
program; 3) employer knew about the program and did not object; 4) claimant's wage-earning capacity would not have immediately benefited from retraining, as employer 
offered claimant a job which paid $31,000, but a labor market survey indicated that
as a graphics designer claimant could start at a salary of $22,500-25,000, and
future increases in that field were speculative; and, 5) claimant's participation
in the program precluded employment, as although night classes were offered, there
is no evidence they were available to claimant.  Decision and Order at 10; Decision
on M/Modif. at 5.

     Initially, employer argues that the two remaining courses required before
claimant could graduate in 1997 were offered at night in the Spring and Summer 1997
semesters; thus, it avers claimant could have accepted the position it offered and
still have graduated in 1997. We reject employer's assertion that claimant's
participation in the retraining program did not preclude his acceptance of its
offer of employment.   The administrative law judge specifically found that,
although the evidence established that one of the courses necessary for claimant
to graduate from the program was offered at night in each of the Spring and Summer
semesters of 1997, the courses may not necessarily have been available to claimant
because claimant did not know they were available at night and because one may have
involved additional lab work.  The administrative law judge's conclusion is
supported by evidence of record.  Cl. Ex. 1-1; Tr.1 at 75; Tr.2 at 43.  Moreover,
claimant submitted a copy of the OWCP approval document which outlined the
requirements for claimant's participation in the retraining program.  Specifically,
OWCP required completion of the program within two years: between  May 22, 1995,
and May 15, 1997.  It also stipulated that claimant had to be a full-time student
each session, including summers, had to attend classes and maintain a 2.0 GPA, had
to have his official transcript submitted to OWCP after each semester and could not
change the curriculum without prior approval.  Cl. Ex. 1-1.  This document, though
not discussed by the administrative law judge, is uncontradicted and supports the
determination that claimant could not have accepted employer's job offer.  Because
only one of the courses claimant needed to take was offered at night in the Spring
semester of 1997, claimant could not have completed his retraining program within
the time allotted by OWCP, i.e., by May 15, 1997, if he had accepted
employer's offer of employment.   For this reason, the administrative law judge
correctly concluded that employer's proffered employment was not available to
claimant.[7]   Abbott, 40 F.3d 122, 29 BRBS
22(CRT); Bush v. I.T.O. Corp., 32 BRBS 213 (1998).  

     Employer also challenges whether claimant's participation in a program which
does not have the immediate potential of increasing his wage-earning capacity
renders Abbott inapplicable.  Although an increased wage-earning capacity
benefits not only the claimant, but also the employer by ultimately reducing its
liability for disability compensation, Abbott, 40 F.3d 122, 29 BRBS 22(CRT);
Gregory, 32 BRBS 264; Bush, 32 BRBS 213, the Board has recently held
that Abbott may apply even when an  increased wage-earning capacity does not
result from the vocational retraining program. Brown v. National Steel &
Shipbuilding Co., __ BRBS __, BRB No. 00-419 (Jan. 10, 2001).  In Brown,
the claimant sustained an injury to his wrists and was unable to perform his usual
work.  He entered into a vocational rehabilitation program under the auspices of
the California Workers' Compensation Act.  Upon completion of the program, he
successfully secured a position as a press operator. Brown, slip op. at 1-2. 
The administrative law judge found, and the Board affirmed, that Abbott
applied and the claimant was entitled to total disability benefits while he was
enrolled in the program. Id. at 2-3.  The Board rejected the employer's
assertion that application of Abbott was unwarranted in a case involving an
injury under the schedule, 33 U.S.C. §908(c)(1)-(20), as the claimant's wage-earning capacity did not affect his award of partial  disability benefits and would
not serve to reduce the employer's liability.  Rather, based on the recognized goal
of the Act of  rehabilitating injured employees, Stevens v. Director, OWCP,
909 F.2d 1256, 23 BRBS 89(CRT) (9th Cir. 1990), cert. denied, 498 U.S. 1073
(1991); Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1(CRT) (2d Cir.
1991), and in conjunction with the Fifth Circuit's reasoning which recognized that
the degree of disability is not affected solely by a claimant's physical condition,
but is also based on factors such as age, education, employment history,
rehabilitative potential and the availability of work the claimant can perform, the
Board held that Abbott was applicable. Brown, slip op. at 3, 5-6. 
The Board acknowledged that the claimant's vocational interests were furthered by
his retraining in that he would obtain additional skills which would enhance his
ability to resume his place as a productive member of the labor market. See,
e.g., Abbott, 40 F.3d at 127, 29 BRBS at 26(CRT).  Such skills, the Board
concluded, would then increase the claimant's chances of securing suitable
alternate employment and would benefit the employer by releasing it from the
obligation of paying total disability benefits. Brown, slip op. at 6.  In
light of the Board's holding in Brown, therefore, we reject employer's
contention that Abbott is not applicable because claimant was retrained for
lower paying work, and we hold that the administrative law judge correctly applied
Abbott to this case.  Thus, we affirm the administrative law judge's award
of total disability benefits between January 6 and December 29, 1997.
Abbott, 40 F.3d 122, 29 BRBS 22(CRT); Brown, slip op. at 6.

                        Change of Condition

     Employer lastly contends the administrative law judge erred in granting
claimant's motion for modification because claimant's economic condition did not
change merely because he was laid off from his post-injury job.  Section 22 of the
Act, 33 U.S.C. §922, permits the modification of a decision if the proponent
of the modification can establish either a change in a claimant's condition or a
mistake in a determination of fact.  The Supreme Court has held that modification
pursuant to Section 22 may be appropriate where there is a change in an employee's
wage-earning capacity, even without a change in his physical condition.
Metropolitan Stevedore Co. v. Rambo [Rambo I], 515 U.S. 291, 30 BRBS 1(CRT)
(1995).  However, modification is not permitted with every change in actual wages
or with every transient change in the economy. Id.; Price v. Brady-Hamilton Stevedore Co., 31 BRBS 91 (1996).  In this case, claimant's economic
condition changed, through no fault of his own, with the loss of his post-injury
position due to the closing of the newspaper.  As such a loss affected claimant's
capacity to earn wages, it was more than a transient change in the economy or a
periodic change in his actual wages.  Therefore, we affirm  the administrative law
judge's decision to modify claimant's award based on a change in his economic
condition. Id.

     Employer also asserts that if  modification is warranted, then the
administrative law judge erred in determining claimant's post-injury wage-earning
capacity.  Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), provides for
an award of permanent partial disability benefits based on the difference between
a claimant's pre-injury average weekly wage and his post-injury wage-earning
capacity.  Section 8(h), 33 U.S.C. §908(h), provides that a claimant's wage-earning capacity shall be his actual post-injury earnings if they fairly and
reasonably represent his wage-earning capacity.  If these earnings do not represent
the claimant's wage-earning capacity, the administrative law judge must consider
relevant factors and calculate a dollar amount which reasonably represents the
claimant's wage-earning capacity. Long v. Director, OWCP, 767 F.2d 1578, 17
BRBS 149 (CRT) (9th Cir. 1985); Mangaliman v. Lockheed Shipbuilding Co., 30
BRBS 39 (1996); Cook v. Seattle Stevedore Co., 21 BRBS 4 (1988);
Devillier v. National Steel & Shipbuilding Co., 10 BRBS 649 (1979).

     In a brief analysis, the administrative law judge discussed claimant's post-injury job with the newspaper and his part-time job with Hypnotic Changes which
started on March 3, 1999, at a rate of $8.75 per hour.  He found that claimant's
actual wages of $314.28 per week from his job with the now-defunct newspaper
reasonably represented his post-injury wage-earning capacity.  Accordingly, he
awarded permanent partial disability benefits from December 30, 1998, and
continuing, at a rate of $182.62.  Decision on M/Modif. at 6-7.  The evidence
reveals, however, that claimant also held another job prior to the issuance of the
decision on modification, which the administrative law judge did not address.  In
Ms. Puckett's April 2, 1999, report, which was admitted into the record post-hearing, there is evidence that claimant obtained a full-time job with Harris
Publishing which he started on March 10, 1999, earning $9 per hour,  Emp. Ex. 2-6,
and that claimant subsequently stopped working for Hypnotic Changes.  Thus, there
is evidence of a post-injury job paying actual wages higher than those found to be
representative of claimant's earning capacity.   As the administrative law judge
did not consider all relevant evidence on this issue, we must remand the case for
him to reconsider all evidence relevant to claimant's post-injury wage-earning
capacity.[8]   33 U.S.C. §908(h); see Shell
Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 31 BRBS 129(CRT)  (5th Cir.
1997), cert. denied, 523 U.S. 1095 (1998); Mangaliman, 30 BRBS 39. 

     Accordingly, the administrative law judge's determination of claimant's post-injury wage-earning capacity is vacated, and the case is remanded for further
consideration consistent with this opinion.  In all other respects, the
administrative law judge's decisions are affirmed.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)There were two hearings in this case. Tr.1 and Tr.2 refer to the transcripts of the respective hearings, Cl. Ex. 1-_ and Emp. Ex. 1-_ refer to the exhibits from the first hearing, and Cl. Ex. 2-_ and Emp. Ex. 2-_ refer to the exhibits from the second hearing. Back to Text
2)Employer also filed a motion for modification based on a mistake in a determination of fact. Back to Text
3)According to Ms. Puckett's final report dated April 2, 1999, which was submitted and accepted into evidence after the second hearing, claimant also began a full-time position with Harris Publishing on March 10, 1999, earning $9 per hour. He was unable to maintain both jobs and eventually retained only the full-time position at Harris. Emp. Ex. 2-6. Back to Text
4)By Order dated February 28, 2000, the Board reinstated employer's previous appeal, BRB No. 98-1164, and consolidated the two appeals for purposes of decision. Back to Text
5)Employer also contends that claimant's five-year limit on entitlement to temporary total disability benefits had expired as of March 27, 1995. As the injury occurred in September 1993, it is unclear how employer arrives at a five-year date of March 27, 1995. In any event, the five-year limit is on temporary partial disability benefits and not on temporary total disability benefits. 33 U.S.C. §908(e). Back to Text
6)Factors to consider in determining whether Abbott applies to a particular case include, but are not limited to: whether enrollment in the program precluded employment, whether the DOL approved the rehabilitation plan, whether the employer was aware of the claimant's participation in the program and agreed to continue making temporary total disability payments, whether completion of the program would benefit the claimant, whether the program would affect the claimant's wage-earning capacity, and whether the claimant diligently completed the program. Abbott, 40 F.3d at 127-128, 29 BRBS at 26-27(CRT); Brown v. National Steel & Shipbuilding Co., __ BRBS __, BRB No. 00-419 (Jan. 10, 2001); see also Gregory, 32 BRBS at 266. Back to Text
7)We reject employer's allegation that claimant was working while he took classes, thereby establishing that he was not prevented from working while enrolled in the retraining program. The evidence of record shows that, after he graduated and while he was working for the newspaper, claimant took additional classes, at his own expense, to enhance his career. Tr.2 at 30-31. This course work occurred after the completion of the rehabilitation program. Back to Text
8)The administrative law judge reasonably rejected employer's assertion that claimant's wage-earning capacity should be based on the estimated salary of $48,000 for a position for which claimant testified he applied but did not secure. Decision on M/Modif. at 6 n.5. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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