BRB No. 97-1527
NATHANIEL BRUNSON )
)
Claimant-Petitioner ) DATE ISSUED: 07/27/1998
)
v. )
)
SOUTHERN CAROLINA )
STEVEDORING )
)
and )
)
LIBERTY MUTUAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of Robert G. Mahony, Administrative Law
Judge, United States Department of Labor.
Nathaniel Brunson, Jacksonville, Florida, pro se.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Claimant, without the assistance of counsel, appeals the Decision and Order
(93-LHC-1557) of Administrative Law Judge Robert G. Mahony 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). In an appeal by a
claimant without representation by counsel, the Board will review the
administrative law judge's findings of fact and conclusions of law to determine 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); 20 C.F.R. §§802.211(e), 802.220.
Claimant suffered two injuries during the course of his covered employment.
On March 10, 1981, claimant sustained a fractured foot while employed by Strachan
Shipping (Strachan). Claimant remained off work until January 27, 1982, when he
commenced working for employer; however, a few hours into his first shift with
employer, claimant suffered an injury to his low back. Claimant has not returned
to longshore employment since the date of his second injury. At the time of his
March 1981 injury, claimant's average weekly wage was $519.36; there is no evidence
in the record concerning the rate at which claimant was hired to perform his
longshore job with employer. Following claimant's January 1982 injury, employer
paid claimant temporary total disability compensation based upon his average weekly
wage while working for Strachan; on July 7, 1987, based upon a labor market survey,
employer determined that claimant had a residual wage earning capacity of $3.35 per
hour, and began paying claimant permanent partial disability compensation at the
weekly rate of $256.89.
In his Decision and Order, the administrative law judge found, inter
alia, that employer erred in paying claimant compensation based upon his
average weekly wage while working for Strachan, and that claimant's average weekly
wage while working for employer, determined under Section 10(c), 33 U.S.C.
§910(c), was $200. Accordingly, the administrative law judge awarded claimant
temporary total disability compensation for the period of January 27, 1982, through
July 7, 1987, and permanent partial disability thereafter, based on an average
weekly wage of $200, and a post-injury wage-earning capacity of $109.88.
On appeal, claimant, representing himself, challenges the administrative law
judge's decision to reduce his weekly compensation benefits. Employer has not
responded to this appeal.
In his decision, the administrative law judge initially addressed the issue
of claimant's applicable average weekly wage at the time of his injury while
working for employer. For the reasons that follow, we affirm the administrative
law judge's calculation. A claimant's average weekly wage for compensation purposes
is to be calculated pursuant to Section 10 of the Act, 33 U.S.C. §910.
Section 10(a) is to be applied when an employee has worked substantially the whole
of the year immediately preceding his injury and requires the administrative law
judge to determine the average daily wage claimant earned during the preceding
twelve months. 33 U.S.C. §910(a); see Gilliam v. Addison Crane Co.,
21 BRBS 91 (1988). Section 10(b), 33 U.S.C. §910(b), is applicable to injured
workers who have not been employed for substantially the whole year preceding the
injury and utilizes the earnings of a comparable worker. Harrison v. Todd
Pacific Shipyards Corp., 21 BRBS 339 (1988). Section 10(c), 33 U.S.C.
§910(c), is a catch-all provision to be used in instances when neither
Section 10(a) nor 10(b) can be reasonably and fairly applied. See Newby v.
Newport News Shipbuilding & Dry Dock Co., 20 BRBS 155 (1988). The object of
Section 10(c) is to arrive at a sum which reasonably represents the claimant's
annual earning capacity at the time of the injury. See Empire United Stevedores
v. Gatlin, 936 F.2d 819, 25 BRBS 26 (CRT)(5th Cir. 1991); Richardson v.
Safeway Stores, Inc., 14 BRBS 855 (1982). The Board will affirm an
administrative law judge's determination of a 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 Richardson, 14 BRBS at 855;
Hicks v. Pacific Marine & Supply Co., Ltd., 14 BRBS 549 (1981).
In the instant case, the administrative law judge declined to utilize Section
10(a) as claimant had not worked during the ten months preceding his injury;
additionally, as no evidence in the record related to Section 10(b), the
administrative law judge declined to use that subsection.[1] We hold that the administrative law judge rationally determined that
Sections 10(a) and 10(b) could not be applied to the instant case; accordingly, we
affirm the administrative law judge's decision to use Section 10(c) to calculate
claimant's average weekly wage.
In calculating claimant's average weekly wage as of January 1982 pursuant to
Section 10(c), the administrative law judge initially found that claimant's
physician had precluded his return to longshore employment. Given the state of the
record, which contains no documentation regarding claimant's rate of pay in January
1982, the administrative law judge determined claimant's average weekly wage by
relying upon the opinion of Mr. Albert, a vocational consultant, who opined that
claimant was, at the time of his injury with employer, capable of earning between
$186.27 and $200 per week.[2] Based upon this
testimony, the administrative law judge concluded that claimant was capable of
earning $200 per week at the time of his January 1982 injury. As there is no
evidence as to claimant's hourly rate or earnings from employer, we must conclude
the result reached by the administrative law judge is reasonable, as it is
supported by the only relevant evidence of record. See Hastings v. Earth
Satellite Corp., 628 F.2d 85, 14 BRBS 345 (D.C. Cir.), cert. denied, 449
U.S. 905 (1980); Gilliam, 21 BRBS at 91. We therefore affirm the
administrative law judge's determination of claimant's average weekly wage at the
time of his injury with employer.
With regard to the extent of disability, in the instant case it is
uncontroverted that claimant is unable to return to his usual employment duties.
Thus, the burden shifted to employer to establish the existence of realistically
available jobs within the geographc area where the claimant resides, which he is
capable of performing, considering his age, education, work experience, and
physical restrictions, and which he could secure if he diligently tried. See New
Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir.
1981); see also Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d
540, 21 BRBS 10 (CRT) (4th Cir. 1988); Roger's Terminal & Shipping Corp. v.
Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT) (5th Cir. 1986). The
administrative law judge credited the testimony of employer's vocational
consultant, Mr. Albert, who, with the approval of Dr. Graham-Smith, located
specific job opportunities within claimant's physical restrictions. See EX-14. As the administrative law judge's determination that employer established the
availability of suitable alternate employment is rational, supported by substantial
evidence, and in accordance with applicable law, we affirm his finding regarding
this issue and his consequent award of permanent partial disability compensation
to claimant. See generally Southern v. Farmers Export Co., 17 BRBS 64
(1985).
Accordingly, the administrative law judge's Decision and Order 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)Moreover, the administrative law judge noted that, as Dr. Hardy had concluded that claimant could
not work as a longshoreman after his first injury, it would not be proper to use the wages of a similar longshoreman.
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2)The lower end of this range utilizes the minimum hourly wage rate in effect at the time of
claimant's injury.
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NOTE: This is an UNPUBLISHED LHCA Document.
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