BRB No. 98-1432


LAWRENCE CLAYTON, JR.                   )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
TRINITY MARINE                          )    DATE ISSUED:   07/28/1999 1999 
  
                                        )
     and                                )
                                        )
RELIANCE NATIONAL INDEMNITY             )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order and Order Denying Motions for
     Reconsideration of Lee J. Romero, Jr., Administrative Law Judge, United
     States Department of Labor.

     Lawrence J. Clayton, Jr., Port Arthur, Texas, pro se.

     Michael D. Murphy (Eastham, Watson, Dale & Forney, L.L.P.), Houston,
     Texas, for employer/carrier.

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

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Decision and Order
and Order Denying Motions for Reconsideration (95-LHC-2280) of Administrative Law
Judge Lee J. Romero, 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). 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); 20 C.F.R.
§§802.211(e), 802.220.  Employer responds, urging affirmance.

     While working as a shipfitter for employer on January 12, 1994, claimant
sustained  injuries as a result of a 20 foot fall.  At the hospital, Dr. Ragula
diagnosed a fracture of claimant's 7th, 8th, and 9th ribs on his right side and an
abrasion of claimant's left forearm, he prescribed medicine, and indicated that
claimant could return to modified light duty work the next day, and work in that
capacity for ten days.  At his follow-up visit on January 22, 1994, claimant
complained of right-sided chest pain and Dr. Ragula extended claimant's light-duty
work restriction for an additional ten days.  Claimant returned to work in a light-duty position with employer and remained in that position until August 13, 1994,
when as a result of employer's decision to shut down its facility, he lost his job. 
Claimant has not returned to any type of work since then.  

     Meanwhile, continued right-sided chest pain prompted claimant to visit his
family physician, Dr. Lee, on January 19, 1994.  Dr. Lee initially provided
treatment for claimant's resolving rib fracture, released him for transitional work
on February 9, 1994, and then on July 28, 1994, projected a "full [work] release
in approximately four to six weeks," with continued compliance with his work
restrictions and treatment regime.  Claimant's Exhibit 2.  In August 1994, Dr. Lee
began conservative treatment of claimant's complaints of back pain, which Dr. Lee
associated to the work-related accident.[1]  
Claimant also was examined by Drs. Haig, Caram, and Wilde, each of whom concluded
that claimant reached maximum medical improvement with regard to his work-related
rib injury.[2]   Employer conceded claimant's
entitlement to temporary partial disability for certain weeks in which claimant
earned less than his average weekly wage at his light-duty job. 

   In his Decision and Order, the administrative law judge initially determined
that claimant was entitled to invocation of the Section 20(a), 33 U.S.C.
§920(a), presumption with regard to both his rib and alleged back injuries and
that employer could not establish rebuttal thereof.  The administrative law judge
therefore concluded that claimant's rib and back injuries are work-related.  The
administrative law judge then found that claimant could not return to his pre-injury position as a shipfitter due to his rib injury, but that employer
established the availability of suitable alternate employment by means of the
light-duty position claimant held within its facility.  The administrative law
judge, however, determined that claimant is entitled to temporary total disability
benefits from the date of his lay-off with employer until the date he reached
maximum medical improvement without any residual disability.  Consequently, the
administrative law judge concluded that claimant is entitled to temporary total
disability from August 13, 1994, to February 26, 1995, and temporary partial
disability for the weeks of January 16, 1994 through February 27, 1994, March 13,
1994 through May 29, 1994, and August 7, 1994 through August 14, 1994.  33 U.S.C.
§908(b), (e).  Lastly, the administrative law judge awarded claimant all
reasonable and authorized medical benefits.  The administrative law judge denied
claimant's motions for reconsideration by Order dated July 10, 1998.[3] 

   Disability is generally addressed in terms of its nature, permanent or
temporary, and its extent, total or partial.  An employee is considered permanently
disabled if he has any residual disability after reaching maximum medical
improvement, the date of which is determined solely by medical evidence. Trask
v. Lockheed Shipbuilding & Construction Co., 17 BRBS 56 (1985).  In order to
establish a prima facie case of total disability, claimant must show that
he cannot return to his regular or usual employment due to his work-related injury. 
Where, as in the instant case, claimant is unable to perform his usual employment,
the burden shifts to employer to establish the existence of realistically available
job opportunities within the geographical area where claimant resides which
claimant, by virtue of his age, education, work experience, and physical
restrictions, is realistically able to secure and perform. New Orleans
(Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981);
Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26 BRBS 30 (CRT)(5th Cir.
1992).  Employer can meet its burden by offering claimant a suitable job in its
facility. Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93 (CRT)
(5th Cir. 1996). 

   In determining the nature and extent of claimant's work-related disability,
the administrative law judge reviewed the relevant evidence of record, noting that
Drs. Caram and Wilde each opined that claimant reached maximum medical improvement
for his rib injury on February 27, 1995, that Dr. Haig opined that claimant reached
maximum medical improvement by December 12, 1994, and that although Dr. Lee did not
specifically express an opinion regarding maximum medical improvement, his notes
nonetheless establish that claimant reached a state of stability at least by March
28, 1995.  The administrative law judge therefore concluded, consistent with the
weight of the reasoned medical evidence of record, that claimant reached maximum
medical improvement with regard to his work-related rib injury on February 27,
1995.  Moreover, based on the opinions of Dr. Caram, who, despite agreeing with the
2 percent permanent impairment rating established by an independent work ready
program, concluded that claimant could return to his normal duties, and Drs. Haig
and Wilde, who each opined that claimant did not have any residual permanent
disability from his work-related injuries, the administrative law judge concluded
that claimant suffered no disability after reaching maximum medical improvement. 
In so finding, the administrative law judge explicitly noted that Drs. Caram, Haig
and Wilde are more highly credentialed than Dr. Lee.   Furthermore, the
administrative law judge did not credit claimant's testimony that his back symptoms
were either exacerbated by continuing to work for employer, or were not prominent
until his rib pain subsided, as there is no objective evidence to support his
subjective complaints of back and neck pain and his testimony was not factually
precise and was characterized by equivocation and inconsistencies.  The
administrative law judge is entitled to evaluate the credibility of all witnesses,
and may draw his own inferences and conclusions from the evidence. See, e.g.,
Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 372 U.S. 954 (1963).  In the instant case the credibility
determinations made by the administrative law judge in resolving the issue of
claimant's entitlement to benefits are rational and within his authority as
factfinder. See generally Wheeler v. Interocean Stevedoring, Inc., 21 BRBS
33 (1988).  We therefore affirm the administrative law judge's determination that
claimant reached maximum medical improvement with no residual disability on
February 27, 1995, and the consequent award of temporary total disability benefits
from the date of his lay-off from employer on August 13, 1994, until February 27,
1995, as it is  rational, supported by substantial evidence, and in accordance with
law.  Furthermore, we affirm the administrative law judge's award of temporary
partial disability benefits in addition to those benefits previously conceded by
employer as that award is unchallenged on appeal. 

   Claimant's average weekly wage is determined at the time of injury by
utilizing one of three methods set forth in Section 10 of the Act, 33 U.S.C.
§910. See 33 U.S.C. §910(a)-(c).  Section 10(a) applies when
claimant has worked in the same or comparable employment for substantially the
whole of the year immediately preceding the injury and provides a specific formula
for calculating annual earnings.  Where claimant's employment is regular and
continuous, but he has not been employed in that employment for substantially the
whole of the year, the wages of similarly situated employees who have worked
substantially the whole of the year may be used to calculate average weekly wage
pursuant to Section 10(b).  Section 10(c) provides a general method for determining
annual earning capacity where Section 10(a) or (b) cannot fairly or reasonably be
applied to calculate claimant's average weekly wage at the time of injury. 
Empire United Stevedores v. Gatlin, 936 F.3d 819, 25 BRBS 26 (CRT)(5th Cir.
1991); Palacios v. Campbell Industries, 633 F.2d 840, 12 BRBS 806 (9th Cir.
1980); Lobus v. I.T.O. Corp. of Baltimore, Inc., 24 BRBS 137 (1991).


   In considering this issue, the administrative law judge first found that as
claimant worked substantially the entire year prior to his injury on January 12,
1994, with employer, claimant's average annual wage is to be calculated under
Section 10(a).  Reviewing claimant's payroll records with employer over that period
of time, the administrative law judge rationally determined that claimant worked
a total of 240.2 days,[4]  during which time he
earned $20,622.43, giving claimant an average daily wage of $85.86.  The
administrative law judge then determined that claimant worked a five-day week and,
accordingly, multiplied his average daily wage by 260, as set out in Section 10(a),
which yields an average annual wage of $22,323.60.  Pursuant to Section 10(d), the
administrative law judge divided claimant's average annual wage of $22,323.60 by
52 to conclude that claimant's average weekly wage is $429.30.  As the
administrative law judge's calculation of claimant's average weekly wage is
consistent with the statute and supported by substantial evidence, it is affirmed.
 See generally SGS Control Services v. Director, OWCP, 86 F.3d 438, 30 BRBS
57 (CRT)(5th Cir. 1996).

   Lastly, we reject claimant's allegation that the administrative law judge was
biased in his resolution of this case, as adverse rulings, alone, are insufficient
to show judicial bias. See Olsen v. Triple A Machine Shops, Inc., 25 BRBS
40, 45-46 (1991), aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226
(9th Cir.  1993). 

   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

                                                                   
                       REGINA C. McGRANERY
                       Administrative Appeals Judge

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Footnotes.
 1)Dr. Lee specifically opined that claimant's chronic intermittent
right rib pain, chronic right hip pain, chronic lumbar pain with intermittent left
leg pain and chronic posterior cervical pain were related to his work accident.
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 2)A fourth examining physician, Dr. Stovall, did not offer any
opinions regarding claimant's physical condition or whether claimant reached
maximum medical improvement. 
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 3)As the administrative law judge noted in his Order, claimant
filed three separate requests for reconsideration in which he questioned the
administrative law judge's conclusions, argued that since he was unrepresented he
did not receive the requisite due process in this case, and that his compensation
rate should be modified.
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 4)In calculating this figure, the administrative law judge divided
claimant's total hours by an average eight-hour day.  There is no evidence in the
record to suggest that claimant regularly worked more than an eight-hour day.
Cf.  Wooley v. Ingalls Shipbuilding, Inc.,          BRBS      , BRB No. 98-501 (June 22, 1999).
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