BRB No. 97-1390

GARY L. POWELL                          )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   07/07/1998
                                )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order Granting Temporary Partial Disability
     Based on A Loss of Overtime of Richard K. Malamphy, Administrative Law
     Judge, United States Department of Labor.

     John H. Klein and Matthew H. Craft (Rutter & Montagna, L.L.P.), Norfolk,
     Virginia, for claimant.

     Benjamin M. Mason (Mason & Mason, P.C. ), Newport News, Virginia, for
     self- insured employer.

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

     PER CURIAM:

     Employer appeals the Decision and Order Granting Temporary Partial Disability
Based on A Loss of Overtime (96-LHC-1326) of Administrative Law Judge Richard K.
Malamphy awarding benefits 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 which 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).  

     On June 2, 1994, claimant fell at work injuring his knees and ankles.  The
injury  necessitated a change in claimant's work duties and a move to a different
department.  Employer voluntarily paid claimant periods of temporary total
disability benefits.  At issue, however, before the administrative law judge was
whether claimant is entitled to temporary partial disability benefits for lost
overtime due to claimant's work injury for the period from May 2, 1995 through July
29, 1996.  Claimant contended that following his injury, he was unable to work
available overtime because of  the injury.  Employer asserted that claimant is
working more overtime after his work injury than he did before; that he has never
been passed over for overtime work because of his work injury; and that
occasionally claimant refused overtime work offered to him.   

     The administrative law judge concluded that claimant's actual post-injury
wages do not fairly and reasonably represent his wage-earning capacity due to the
fact that claimant lost available overtime as a result of his injury.  Although
claimant worked more overtime in his post-injury department than he did in his pre-injury department, the administrative law judge found that inasmuch as more
overtime was available in the post-injury period than was available to comparable
employees in claimant's pre-injury job, claimant is entitled to compensation based
on the difference between claimant's post-injury overtime and the overtime
available in claimant's pre-injury to comparable employees.

     On appeal, employer contends that the administrative law judge erred in
finding that claimant sustained a loss of wage-earning capacity in the form of lost
overtime. Claimant urges affirmance of  the administrative law judge's decision.

     Employer, specifically, contends that the administrative law judge erred in
finding that claimant sustained a loss of  wage-earning capacity when his post-injury overtime was greater and more consistently available than pre-injury
overtime.  Employer asserts that claimant cannot lose post-injury more overtime
than he had worked in the fifty-two weeks prior to his injury.   The wage-earning
capacity of an injured  employee such as claimant shall be determined by his actual
post-injury earnings if such earnings fairly and reasonably represent his wage-earning capacity. See 33 U.S.C. §908(h).  In the event that claimant's
actual post-injury earnings "do not fairly and reasonably represent his wage-earning capacity," Section 8(h) of the Act provides that a wage-earning capacity
may be set using factors such as the nature of the injury, the degree of physical
impairment, the usual employment, and any other factors which may affect the
capacity to earn wages in a disabled condition, including the effect of disability
as it may naturally extend into the future. See Devillier v. National Steel &
Shipbuilding Co., 10 BRBS 649 (1979).  Loss of overtime is a factor that the
administrative law judge must take into consideration when determining loss of
wage-earning capacity.[1]  Claimant must establish
that absent his injury, he would have worked available overtime. Everett v.
Newport News Shipbuilding & Dry Dock Co., 23 BRBS 316 (1989);  Brown v.
Newport News Shipbuilding & Dry Dock Co., 23 BRBS 110 (1989).  Moreover, higher
post-injury earnings do not preclude compensation if claimant has, nevertheless,
suffered a loss of wage-earning capacity. See Container Stevedoring v. OWCP
[Gross], 935 F.2d 1544, 24 BRBS 213 (CRT)(9th Cir.1991).

     Contrary to employer's contention, the administrative law judge rationally
determined that claimant's actual wages do not reasonably and fairly represent his
wage-earning capacity.   The administrative law judge found that claimant changed
departments because of his work injury resulting in claimant losing overtime which
was available to employees in claimant's pre-injury position, as evidenced by the
overtime worked by two comparable employees in claimant's pre-injury crew.[2]   The administrative law judge found further that
claimant established his willingness to work  overtime post-injury by handing out
tools every morning in his post-injury position to receive thirty minutes per day
in overtime.  The administrative law judge rationally found  that claimant's
refusal to work overtime on three occasions was not determinative.  The
administrative law judge then based claimant's award of overtime on the number of
hours of overtime averaged by the comparable employees in claimant's pre-injury
position during the time periods at issue minus claimant's average post-injury
overtime hours and multiplying by claimant's overtime pay rate.  Employer does not
challenge the administrative law judge's method of calculating the actual number
of overtime hours awarded.  Thus, as the administrative law judge's findings are
rational, supported by substantial evidence and in accordance with law, we affirm
the administrative law judge's  award of temporary partial disability benefits for
a loss of  overtime. See Everett, 23 BRBS at 320; Brown, 23
BRBS at 112-113.

     Accordingly, the administrative law judge's award of temporary partial
disability benefits for the period from May 2, 1995 through July 29, 1996, based
on claimant's loss of post-injury overtime is affirmed.

     SO ORDERED.


       
                                                                   
                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.
 1)Claimant's stipulated average weekly wage at the time of his
injury in 1994 was $502.15,  and his payroll records reflect that he worked
overtime in that year.
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 2)Employer provided the names and pertinent data for comparable
"pre-injury" employees in response to claimant's interrogatories. 
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