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                                    BRB No. 00-0593
                                         
RONALD ARCENEAUX                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
LOMBAS CONTRACTORS,           )    DATE ISSUED:   02/27/2001 
INCORPORATED                            )
                                        )
          and                           )
                                        )    
LOUISIANA WORKERS'           )               
COMPENSATION CORPORATIO      )
                                  )     
          Employer/Carrier-            )     
          Petitioners                  )     DECISION and ORDER                           
     Appeal of the Second Decision and Order on Remand of James W. Kerr, Jr., Administrative Law Judge,
     United States Department of Labor.

     Ford T. Hardy, Jr., New Orleans, Louisiana, for claimant.

     David K. Johnson, Baton Rouge, Louisiana, for employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and McATEER, Administrative Appeals
     Judges.

     PER CURIAM:

     Employer appeals the Second Decision and Order on Remand (96-LHC-2581) of Administrative Law Judge James
W. Kerr, 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 findings of fact and conclusions of law
of the administrative law judge if they are rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).


     This case is before the Board for the second time.  To briefly recapitulate, on March 12, 1994, claimant injured his
back and neck in an explosion during his first day of employment with employer as a pipefitter.  Prior to the injury, claimant
was unable to work during all of 1993 and until March 9, 1994, due to malignant hypertension and congestive heart failure. 
On March 9, 1994, he returned to the workforce with another employer, J. R. Merit, where he was paid for 36 hours of work
during the course of three days of employment.

     In his initial Decision and Order, the administrative law judge found that claimant reached maximum medical
improvement on April 25, 1996, that claimant was totally disabled, and that $450 represented claimant's average weekly
wage at the time of his injury.  Claimant thus was awarded temporary total disability compensation, 33 U.S.C.
§908(b), from March 12, 1994, until April 25, 1996, and permanent total disability compensation, 33 U.S.C.
§908(a), thereafter.

     Employer appealed the award of benefits.  The Board affirmed the administrative law judge's finding that claimant
is totally disabled due to his work injuries.  The Board vacated the administrative law judge's date of maximum medical
improvement and average weekly wage findings.  The Board instructed the administrative law judge on remand to make
a specific determination, based upon the medical evidence of record, regarding the date claimant's condition became
permanent.  Moreover, the Board held there was no evidence of record  that $450 represents a reasonable estimate of
claimant's wage-earning capacity at the time of injury.  Arceneaux v. Lombas Contractors, Inc., BRB No. 97-1731
(Sept. 3, 1998) (unpublished), recon. denied, March 25, 1999 (Order). 

     The administrative law judge issued his initial Decision and Order on Remand based on the existing evidence of
record. The administrative law judge credited the medical report of claimant's treating physician and found that claimant's
condition reached maximum medical improvement on April 7, 1997.  The administrative law next recalculated claimant's
average weekly wage as $27.29, based on the record evidence of claimant's annual earnings for 1990 and 1992 divided by
104.  EX 4.  Claimant appealed the administrative law judge's average weekly wage determination to the Board.  BRB No.
99-1035.  Before the Board issued a decision on claimant's appeal, claimant requested modification of the administrative
law judge's decision on remand pursuant to Section 22 of the Act, 33 U.S.C. §922.  By Order issued August 19, 1999,
the Board dismissed claimant's appeal, and remanded the case to the administrative law judge.

     On modification, the administrative law judge admitted into the record additional evidence submitted by claimant,
including claimant's social security earnings record, the Dictionary of Occupational Titles (D.O.T.) profile for pipefitters
in the 1998-1999 Occupational Outlook Handbook issued by the Bureau of Labor Statistics, United States Department of
Labor (DOL), CBX 2, and the DOL's 1996 and 1997 occupational wage estimates for the New Orleans metropolitan area.[1]    CBX 6, 7.  In his Second Decision and Order on Remand, the administrative law
judge determined that claimant had an average weekly wage of $450 at the date of injury.  The administrative law judge
found that claimant's employment as a pipefitter at the time of injury would have been regular and continuous based on
the newly submitted evidence of record, and he credited the parties' stipulation that claimant's hourly wage at the date of
injury was $11.25.  The administrative law judge multiplied claimant's hourly wage of $11.25 times 40 hours to derive an
average weekly wage of $450.

     On appeal, employer challenges the administrative law judge's average weekly wage determination.  Claimant
responds, urging affirmance.

     Employer contends that the administrative law judge's average weekly wage determination is not supported by
substantial evidence or in accordance with law given: (1) the absence of any evidence showing a change of claimant's
personal circumstances at the date of injury; (2) the absence of evidence specific to claimant's wage-earning capacity at
the date of injury; (3) claimant's inability to work during the 14 months prior to the date of injury; (4) claimant's testimony
that his work as a pipefitter in 1992 was intermittent; and (5) claimant's earnings history during the five years preceding
the date of injury.  We reject employer's contentions and affirm the administrative law judge's average weekly wage
calculation.

     The object of Section 10(c) of the Act, 33 U.S.C. §910(c), is to arrive at a sum that reasonably represents
claimant's annual earning capacity at the time of his injury.[2]    Empire United
Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26(CRT) (5th Cir. 1991); Fox v. West State Inc., 31 BRBS 118
(1997).  It is well-established that the administrative law judge has broad discretion in determining an employee's annual
earning capacity under Section 10(c); the Board will affirm an administrative law judge's determination of claimant's
average weekly wage under Section 10(c) if the amount represents a reasonable estimate of claimant's annual earning
capacity at the time of the injury. See Story v. Navy Exchange Service Center, 33 BRBS 111 (1999); Fox,
31 BRBS at 124.

     The administrative law judge initially found that claimant's employment as a pipefitter at the date of injury was
regular and continuous.  In this regard, the administrative law judge credited the statement in the 1998 D.O.T. profile that
pipefitters generally work a standard 40 hour week. CBX 2 at 2.  In the absence of evidence to the contrary, the
administrative law judge found that this statement applied to conditions of employment in 1994.   The administrative law
judge next credited the hourly wage for pipefitters and welders in the New Orleans area in 1996 and their average annual
wages and corresponding average weekly wage in 1997. See CBX 6 at 8; CBX 7 at 22, 26.  The administrative law
judge found that, based on the 1997 data reduced by a cost-of-living adjustment factor, the average weekly wage for
pipefitters in 1994 was $508.10 and for welders was $498.81.  The administrative law judge also found that it is undisputed
that claimant was employed by employer full-time at the time of the injury.  Accordingly, based on his findings that
claimant's employment as a pipefitter was regular and continuous, that the average weekly wage for pipefitters in 1994 was
$508.10, and the parties' stipulation prior to the initial hearing that $11.25 represented claimant's hourly wage at the date
of injury, the administrative law judge concluded that $450 represents a fair and reasonable average weekly wage for
claimant at the date of injury.    

     We affirm this determination as it is rational and supported by substantial evidence.  Employer does not challenge
the administrative law judge's finding that pipefitters  in the New Orleans area have been regularly and continuously
employed since March 1994.  Moreover, we reject employer's contention that the administrative law judge erred by
crediting wage and hour data specific to claimant's occupation and geographic area.  The administrative law judge acted
within his discretion in inferring from this data, together with the evidence that employer hired claimant on a full-time basis,
that claimant's employment at the date of injury was regular and continuous.  See generally Calbeck v. Strachan
Shipping Co., 306 F.2d 741 (5th Cir. 1962).   Employer submitted no contrary evidence pertinent to claimant's working
conditions at the time of injury.  Furthermore, the instant case is distinguishable from New Thoughts Finishing Co. v.
Chilton, 118 F.3d 1028, 31 BRBS 51(CRT) (5th Cir. 1997), in that this case contains evidence on which the
administrative law judge could rationally rely in calculating claimant's average weekly wage using his actual wage rate for
employer.  In New Thoughts, the court held that the administrative law judge erred in using 1988 wage information
to calculate the claimant's average weekly wage in 1992, given that the claimant had significantly lower earnings in 1989,
1990, and 1991.  The court held there was no evidence of record that the claimant would have the opportunity to be
employed for a full year at the time of his 1992 injury given his earnings history, and that the administrative law judge erred
in not including in the average weekly wage calculation all years between 1988 and 1992 as required by the court's decision
in  Gatlin, 936 F.2d 819, 25 BRBS 26(CRT), when wages other than those at the time of injury are utilized.
     The facts, in the instant case,  that claimant's pre-injury earnings history was spotty, that his employment as a
pipefitter in 1992 was intermittent, and that he was unable to work for approximately 14 months prior to the date of injury
due to his health does not establish error in the administrative law judge's average weekly wage determination or require
him to use claimant's prior earnings.  It is well-established that the administrative law judge's findings between reasonable
factual inferences are entitled to deference. Hall v. Consolidated Equipment Systems, Inc., 139 F.3d 1025, 32 BRBS
91(CRT) (5th Cir. 1998).  In Hall, the United States Court of Appeals for the Fifth Circuit, in which the instant case
arises, stated that it will be an "exceedingly rare case" where the claimant's actual earnings at the date of injury are wholly
disregarded and that, "typically," a claimant's wages at the date of injury will best reflect his earning capacity. Hall,
139 F.3d at 1031, 32 BRBS at 96(CRT).  At the date of injury on March 14, 1994, claimant had recently returned to full-time employment after a health-related absence of approximately 14 months.  In the three days prior to his injury, claimant
earned $469.80 from J. R. Merit for 36 hours of work.[3]   The administrative law
judge credited evidence as to the wages full-time pipefitters would have earned in the relevant geographic area.  Based on
this evidence of record, we hold that the administrative law judge acted with his discretion in calculating claimant's average
weekly wage based on his actual hourly rate times a 40 hour week, instead of the evidence concerning claimant's wages
from 1989 to 1992. See id.; see also Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989). 
Therefore, we affirm the administrative law judge's average weekly wage determination.   
     Accordingly, the administrative law judge's Second Decision and Order on Remand is affirmed.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge

                                                                   
                         J. DAVITT McATEER
                         Administrative Appeals Judge

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Footnotes.


1)Specifically, claimant submitted into evidence the COMP2000 Pilot Survey, New Orleans, Louisiana, Metropolitan Statistical Area, August-September 1996, and the 1997 Metropolitan Area Occupational Employment and Wage Estimates, New Orleans, Louisiana. Back to Text
2)The administrative law judge's use of Section 10(c) as the applicable subsection for calculating claimant's average weekly wage is not challenged on appeal. Back to Text
3)Employer does not assert that claimant stopped working for this employer due to his physical condition. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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