BRB No. 99-0861
BORIS LA ROSA )
)
Claimant-Respondent )
)
v. )
)
CROWLEY AMERICAN ) DATE ISSUED: 06/09/2000
TRANSPORT, INCORPORATED )
)
and )
)
SIGNAL MUTUAL INDEMNITY )
ASSOCIATION, LIMITED )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order of Richard E. Huddleston,
Administrative Law Judge, United States Department of Labor.
Mark N. Hirsch (Templer & Hirsch), Miami, Florida, for claimant.
James W. McCready (Seipp, Flick & Kissane), Miami, Florida, for
employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order (98-LHC-1831) of Administrative Law
Judge Richard E. Huddleston 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).
Claimant injured his lower back on April 29, 1996, during the course of his
employment for employer as a driver. An MRI and CT scan showed a herniated disc
at L3-4 and L4-5 and bulging and desiccation at L5-S1. Claimant's treating
physician, Dr. Pagan, performed a discectomy at L3-4 and L4-5 on February 11, 1997.
On September 3, 1997, Dr. Pagan noted depression. Employer referred claimant to
Dr. Jarrett for a psychological evaluation on September 30, 1997. Dr. Jarrett
diagnosed a non-disabling adjustment disorder. At the formal hearing, Dr. Pagan
opined that claimant's back reached maximum medical improvement on March 26, 1997,
and that he has an eleven percent whole body impairment under the American Medical
Association Guides to the Evaluation of Permanent Impairment. He
restricted claimant from lifting more than 25 pounds and to occasional bending.
Furthermore, he opined that claimant needs a ten minute per hour rest period to
stretch.
In his Decision and Order, the administrative law judge found that Dr. Pagan's
testimony that claimant is unable to return to his former employment with employer
was uncontradicted. He next addressed employer's evidence of suitable alternate
employment. Specifically, employer introduced labor market surveys conducted on
November 10, 1997, February 29, 1998, April 3, 1998, and September 8 and 11, 1998.
The administrative law judge found that the former two surveys established the
availability of suitable alternate employment, but that the latter two surveys did
not. The administrative law judge next found that claimant diligently but
unsuccessfully sought work from October 15, 1997, to December 23, 1997, and from
July 15, 1998, to the formal hearing on October 19 and 22, 1998. The
administrative law judge thus awarded claimant benefits for temporary total
disability, 33 U.S.C. §908(b), from the date of injury until the date of
maximum medical improvement on March 25, 1997, and for permanent total disability,
33 U.S.C. §908(a), from March 26, 1997, until the conclusion of claimant's
first job search on December 23, 1997. Claimant was awarded benefits for permanent
partial disability, 33 U.S.C. §908(c)(21), based on employer's November 10,
1997, labor market survey, which the administrative law judge found established a
residual wage-earning capacity of $260, from December 24, 1997, to February 19,
1998.[1] Claimant was awarded benefits for
permanent partial disability, based on employer's February 29, 1998, labor market
survey, which the administrative law judge found established a residual wage-earning capacity of $240, from February 20, 1998, to April 2, 1998. Finally,
claimant was awarded continuing benefits for permanent total disability from the
date of the rejected April 3, 1998, labor market survey.
All of these disability benefits for claimant's April 1996 work injury were
based on the administrative law judge's finding of an average weekly wage of
$513.41, which he derived pursuant to Section 10(c) of the Act, 33 U.S.C.
§910(c), by dividing by 52 claimant's total earnings in 1994. The
administrative law judge found that these earnings included $1,267.50, representing
a meal allowance, which claimant received as part of the total of $20,320, which
he was paid in 1994 by EP Production Services, a non-longshore employer for whom
claimant worked as a driver. Claimant received $2,450 in 1994 from employer for
his work as a casual longshoreman. Claimant's earnings in the 52 weeks prior to
the work injury on April 29, 1996, were disregarded by the administrative law judge
based on claimant's testimony, which the administrative law judge found uncontradicted,
that claimant worked fewer hours than normal during this period.
On appeal, employer challenges the administrative law judge's continuing award
of benefits for permanent total disability from April 3, 1998. Employer also
challenges the administrative law judge's reliance on claimant's 1994 annual
earnings to derive claimant's average weekly wage and his inclusion of the
$1,267.50 claimant received as a meal allowance.[2]
Claimant responds, urging affirmance.
Employer first alleges error in the administrative law judge's award of benefits for
permanent total disability for the period between April 3 to July 14, 1998, which
is the day before claimant stated he commenced his second job search on July 15,
1998. Employer argues that, consistent with the administrative law judge's
finding that claimant was entitled to benefits for permanent total disability
during his first job search and to permanent partial disability benefits
thereafter, claimant is not entitled to the resumption of benefits for permanent
total disability until the commencement of his second alleged job search on July
15, 1998. We agree that the administrative law judge's basis for awarding claimant
permanent total disability benefits during this period cannot be affirmed.
It is axiomatic that benefits for permanent partial disability based on a loss
of wage-earning capacity continue until either employer or claimant establish an
alternate wage-earning capacity. See generally Metropolitan Stevedore Co.
v. Rambo, 515 U.S. 291, 30 BRBS 1 (CRT)(1995). In the instant case, the
administrative law judge awarded claimant benefits for permanent partial disability
based on his finding that employer's February 29, 1998, labor market survey
established the availability of suitable alternate employment, which the
administrative law judge found established claimant's residual wage-earning
capacity at $240 per week. There is no precedent in law or logic for the
administrative law judge's termination of this award on April 3, 1998, based on
his finding that employer's subsequent April 3, 1998, labor market survey did not
establish the availability of suitable alternate employment. The February 29,
1998, survey is relatively near in time to the April 3, 1998, survey, and the
administrative law judge's finding that claimant's wage-earning capacity is $240
per week based on the jobs in the February survey was in no way invalidated by the
administrative law judge's finding regarding the subsequent survey. Accordingly,
the administrative law judge's award of benefits for permanent total disability
from April 3, 1998, to July 14, 1998, is vacated. The award is modified to provide
for an award of benefits for permanent partial disability based on the
administrative law judge's crediting of the February 29, 1998, labor market survey,
which he found established a wage-earning capacity of $240 per week.
Employer next contends the administrative law judge erred in finding that
claimant diligently sought employment from July 15, 1998, to the date of the formal
hearing in October 1998, such that he is entitled to permanent total disability
benefits, notwithstanding employer's showing of suitable alternate employment.
Specifically, employer contends that the administrative law judge denied it due
process of law when he denied its motion to depose post-hearing the employers
allegedly contacted by claimant. Moreover, employer argues that the administrative
law judge failed to address employer's challenge to claimant's credibility as to
whether he even conducted a search. Finally, assuming, arguendo, that
claimant engaged in a job search commencing on July 15, 1998, employer asserts that
this search was not diligent.
Where, as here, it is uncontested that claimant is unable to return to his
usual employment as a driver, claimant has established a prima facie case
of total disability and the burden shifts to employer to demonstrate the
availability of realistic job opportunities within the geographic area where
claimant resides, which claimant, by virtue of his age, education, work experience
and physical or psychological restrictions, is capable of performing. New
Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th
Cir. 1981). Claimant can rebut employer's showing of the availability of suitable alternate employment, and
retain entitlement to total disability compensation, if he shows he diligently pursued alternate employment
opportunities but was unable to secure a position. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS
1 (CRT) (2d Cir. 1991); 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.), cert. denied, 479 U.S. 826 (1986).
We initially address employer's contention that the administrative law judge denied
it due process. Employer deposed claimant on July 14, 1998. Claimant
testified at the hearing in October 1998 that he conducted a job search
commencing on July 15, 1998. Tr. at 292-299. Employer objected to this
testimony, asserting it should not be allowed unless employer was given an
opportunity to verify or rebut it; the administrative law judge denied
employer's objection on the basis that claimant was not obliged under the
terms of a discovery order to contemporaneously keep employer abreast of his
job search. Tr. at 293-295. At the conclusion of the hearing, employer
moved to depose the prospective employers allegedly contacted by claimant
after July 14, 1998. Tr. at 362. The administrative law judge granted
employer two weeks to submit affidavits from these employers. Tr. at 363.
Employer timely submitted 11 affidavits. EX 22.
In his Decision and Order, the administrative law judge found that
employer's evidence was insufficient to invalidate claimant's testimony
concerning his job search. He found that employer failed to produce any
evidence of the likelihood of a prospective employer's remembering claimant,
and he noted that employer produced affidavits from only 11 of the almost
50 employers claimant testified he contacted after July 14, 1998. Decision
and Order at 32. On appeal, employer specifically asserts prejudice from
the administrative law judge's denial of its motion to depose and the
administrative law judge's granting it only two weeks to submit affidavits,
since the administrative law judge's rationale for discrediting the
affidavits would not have arisen if it was allowed more than two weeks to
depose the alleged prospective employers.
Employer's argument is rejected. An administrative law judge has broad
discretion to direct discovery; a discovery ruling will constitute reversible error
only if it is so prejudicial as to result in a denial of due process.
Martiniano v. Golten Marine Co., 23 BRBS 363 (1990). Employer did
not object at the hearing to the two week deadline or the administrative law judge's denial
of its motion to depose. Tr. at 363. Moreover, employer did not ask for an extension post-hearing to submit
additional affidavits. Accordingly, employer cannot now argue it was denied due process by procedures to which
it did not raise objections below. See Long v. Director, OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th
Cir. 1985). Furthermore, employer does not offer any proof or argument on appeal that it was unable to establish
through an affidavit that the prospective employers would have remembered claimant's applying for a job. See
generally Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen
v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). Accordingly, we hold that the administrative law judge's
ruling allowing employer a two-week period post-hearing to submit relevant affidavits did not deny it due process
of law.
Employer next asserts the administrative law judge erred by not addressing the contention in its post-hearing brief which challenged claimant's testimony that he conducted a job search. See Employer's Brief
at 39-41. We disagree. In his Decision and Order, the administrative law judge implicitly found claimant's
testimony that he conducted a job search commencing on July 15, 1998, to be credible on the basis that employer
failed to produce substantial evidence impeaching claimant's testimony, i.e., employer submitted
affidavits from only 11 of approximately 50 prospective employers and failed to establish that the employers who
denied claimant's ever having applied for a job would have remembered claimant if he had applied. Decision and
Order at 32. In adjudicating a claim, it is well-established that the administrative
law judge may draw his own conclusions and inferences from the evidence. See
Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT)(5th
Cir. 1991). In the instant case, we hold that the administrative law judge's finding
that claimant conducted a job search from July 15, 1998, to the start of the formal hearing in October 1998 is
affirmed as it is rational and supported by substantial evidence.
Employer also asserts that there is no "competent" evidence that claimant's
job search was diligent. Employer contends that claimant sought jobs outside his
restrictions, or from employers who were not hiring, or who required that claimant
have a dependable car, which claimant testified he did not own. Moreover, employer
asserts that claimant sought these jobs over the telephone rather than by a visit
in person, and he emphasized to prospective employers his work restrictions rather
than his capabilities. Finally, employer imputes a lack of diligence to the fact
that claimant did not start his job search until the day after his July 14, 1998,
deposition. We agree with employer that the administrative law judge's finding
that claimant diligently sought suitable alternate employment from July 15 to the
October 1998 hearing cannot be affirmed as he did not render adequate findings of
fact and conclusions of law with respect to this issue.
Specifically, while the administrative law judge credited claimant's testimony
that he contacted approximately 50 prospective employers after July 14, 1998,
Decision and Order at 32, he further noted that during claimant's first search from October 15, to
December 23, 1997, "most" of the positions sought had requirements exceeding claimant's restrictions, Decision
and Order at 31-32. While claimant is not required to attempt to secure the exact jobs identified by employer in
its labor market survey, his job search should be within the compass of jobs shown to be suitable and available.
Palombo, 937 F.2d at 70, 25 BRBS at 1 (CRT). Furthermore, claimant testified that during his search
commencing on July 14, 1998, he sought jobs as a courier and dispatcher. Tr. at 292. With respect to these
prospective employers, claimant testified that he was most often not hired because the job required heavy lifting
(beyond his 25 pound restriction) or a dependable car, which he did not own. Tr. at 289, 328-329, 344. Moreover,
the administrative law judge rejected employer's April 3, 1998, labor market survey on the
basis that it identified courier jobs for which claimant did not have reliable
transportation.
We vacate the administrative law judge's finding that claimant is entitled to
total disability benefits commencing with his second job search on July 15, 1998,
and we remand this case for further findings. The administrative law judge is
required to make specific findings regarding the nature and sufficiency of the job
search undertaken by claimant in order to establish whether the job search was, in
fact, diligent. See Palombo, 937 F.2d at 70, 25 BRBS at 1 (CRT);
Livingston v. Jacksonville Shipyards, Inc., 32 BRBS 123 (1998). In this
case, the administrative law judge's finding that claimant diligently sought work is based only on the number
of alleged contacts with prospective employers. On remand, therefore, the administrative law judge must address
employer's contentions regarding the nature and sufficiency of claimant's job search, and render specific findings
of fact on this issue.
We next address employer's contentions regarding claimant's average weekly
wage. Employer asserts that, under Section 10(c), the administrative law judge
should have approximated claimant's average weekly wage at the date of injury by
averaging claimant's annual yearly wages from 1990 to 1996 and dividing the average
by 52. The administrative law judge first stated that only claimant's earnings
from 1994 to 1996 were considered in order to minimize potential unaccounted for
changes in circumstances and to more fairly calculate claimant's average annual
wage. He then excluded from consideration all wages earned in 1995 and 1996 based
on claimant's "uncontradicted" testimony that he worked fewer hours for employer
than normal in that time frame. The administrative law judge therefore divided by
52 claimant's total earnings in 1994 of $26,697.44, which corresponds to an average
weekly wage of $513.41.
Section 10(c) is the appropriate section for calculating claimant's average
weekly wage when claimant's employment is discontinuous or intermittent, as in the
instant case. Hall v. Consolidated Employment Systems, Inc., 139 F.3d 276,
32 BRBS 91 (CRT)(5th Cir. 1998). Section 10(c) states that earnings from other
employment are to be included in a calculation under this subsection. 33 U.S.C.
§910(c); Lobus v. I.T.O. of Baltimore, Inc., 24 BRBS 137 (1990).
Claimant testified that he worked for employer since 1988 as a non-union casual
employee. EX 11 at 72-74. During the year prior to his injury, claimant testified
that he worked 32 hours a week plus overtime. Tr. at 83. Employer's payroll
records covering 44 of the 52 weeks prior to the April 29, 1996, injury, indicate
that claimant averaged approximately 24 hours a week plus overtime.[3]
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 his injury. See Empire
United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26 (CRT)(5th Cir. 1991).
The Board will therefore 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. Story v. Navy Exchange Service Center, 33 BRBS 111 (1999). In the
instant case, despite claimant's "uncontradicted" testimony that he worked fewer
hours than normal for employer in the year prior to the work injury, his earnings
history does not support the conclusion that this year should be excluded. In
fact, claimant's earnings in the 52 weeks prior to injury are similar to those in
earlier years. Claimant's earnings from 1990 to April 29,1996, were: 1990 -
$22,904; 1991- $20,265; 1992 - $19,040, representing $12,730 from employer and
$6,310 from EP Production Services (EP), a non-longshore employer; 1993 - $21,817,
representing $15,472 from employer and $6,345 from EP; 1994 - $26,697,
representing $2,450 from employer, $20,320 from EP, and $3,927 from Cast & Crew
Production, another non-longshore employer; 1995 - $15,548 from employer; 1996
(through the April 29, 1996 date of injury) - $7,184 from employer.[4] In the 52 weeks preceding claimant's injury on
April 29, 1996, claimant earned a total of $20,594 from employer. See EX 1;
CX 1; EX 10 at 647, 653-654.[5] Claimant's actual
earnings are in contradiction to his testimony that he worked fewer hours than
normal for employer during the year prior to the injury, as they establish that
claimant never earned more from employer than he did in 1995 and during the year
prior to his April 29, 1996, injury.[6] Since
this evidence undermines the administrative law judge's reliance on claimant's
"uncontradicted" testimony that he worked fewer hours than normal for employer
during the year prior to the injury, this is the sole basis for the administrative
law judge's decision to eliminate claimant's wages in 1995 and 1996 in determining
claimant's average weekly wage, and these wages are closer in time to the date of injury than the credited 1994
wages, we vacate the administrative law judge's average weekly wage finding, and remand the case
for further consideration of this issue. See Hall, 139 F.3d at 276, 32 BRBS
at 92 (CRT).
We further hold that, on remand, the administrative law judge may not rely
solely on claimant's 1994 wages to determine claimant's average weekly wage at the
time of his April 29, 1996, as this finding is not supported by the record.
Specifically, claimant's wages in 1994 represent his highest yearly wages of
record; however, he earned less from employer that year than any other year from
1990 to 1995. Most of claimant's 1994 wages were paid by EP, where claimant worked
as a driver for movie stars on location. EX 11 at 76-82. He performed the same
function in 1994 for Cast and Crew. Id. Thus, not only were $24,247 of
claimant's 1994 earnings of $26,697 from non-longshore employers, but claimant
further testified that he earned "$20 odd" dollars an hour with these employers.
EX 11 at 77. Claimant earned $14.99 per hour during the year prior to his injury
in his longshore employment. See EX 1.[7]
We hold that the administrative law judge erred in concluding that claimant's
1994 wages best represent his wage-earning capacity at the date of his April 29,
1996, injury as claimant earned significantly more in 1994 than he did during the
year prior to his injury or any other year since 1990, and most of these 1994
earnings are from non-longshore employers who paid a significantly higher hourly
wage and who did not rehire claimant during the 16 months before the date of his
work injury. Thus, claimant's 1994 wages, as a matter of law, do not represent a
reasonable estimate of claimant's wage-earning capacity at the date of his
injury. See New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 31 BRBS
51 (CRT)(5th Cir. 1997). Accordingly, on remand the administrative law judge may
calculate claimant's annual earning capacity based on claimant's actual earnings
during the 52 weeks prior to his injury, or, as employer argues on appeal, by
taking the average of claimant's annual earnings from 1990 to 1996 and dividing
this average by 52. Alternatively, he could rationally factor in as many or as few
years from the date of injury backwards, so long as all the years within the period
of years credited prior to the date of injury are included. See Empire United
Stevedores, 936 F.2d at 819, 25 BRBS at 26 (CRT).
Employer lastly contends that, pursuant to H.B. Zachry Co. v. Quinones,
206 F.3d 474 (5th Cir. 2000), rev'g 32 BRBS 6 (1998), the administrative
law judge erred by including in claimant's average weekly wage a meal allowance of
$1,267.50 listed in claimant's 1994 W-2 from EP. The administrative law judge
included this sum in claimant's average weekly wage, as the amount is readily
calculable, and is not excluded as a fringe benefits pursuant to the Board's
decision in Cretan v. Bethlehem Steel Corp., 24 BRBS 25 (1990), aff'd
in part and rev'd in part on other grounds sub nom. Cretan v. Director,
OWCP, 1 F.3d 843, 27 BRBS 93(CRT) (9th Cir. 1993), cert. denied, 512
U.S. 1219 (1994). In its recent decision in Quinones, the Fifth Circuit
held that the value of meals and lodging provided to a claimant by his employer
does not constitute "wages" under Section 2(13) of the Act, 33 U.S.C.
§902(13),[8] where it is not subject to tax
withholding under Section 119 of Title C of the Internal Revenue Code. The court
held that Section 2(13) is "clear on its face. It provides that wages' equals
monetary compensation plus taxable advantages." Quinones, 206 F.3d at 479;
see also McNutt v. Benefits Review Board, 140 F.3d 1247, 32 BRBS 71(CRT) (9th Cir.1998);
Wausau Ins. Companies v. Director, OWCP [Guthrie], 114 F.3d 120, 31 BRBS 41(CRT) (9th Cir. 1997);
contra Universal Maritime Service Corp. v. Wright, 155 F.3d 311, 319 n.10, 33 BRBS 15, 20-21
n.10(CRT) (4th Cir. 1998); Story, 33 BRBS at 111.
The present case arises within the jurisdiction of the United States Courts of Appeals for the Eleventh
Circuit, and this court has yet to address the interpretation of Section 2(13) of the Act as it concerns per
diem or the value of meals and lodging. We conclude it is not necessary to address this issue in this case, as
the meal allowance at issue was included in claimant's income tax withholding, and therefore is properly included
in average weekly wage under any interpretation. On claimant's 1994 W-2 form, the
meal allowance in question is listed under the heading "Included in the above
earnings are the following amounts." CX 1. The "above earnings" are the amounts
paid to claimant for his work for EP, and these earnings were subject to tax
withholding. Thus, should the administrative law judge again use claimant's 1994
earnings in the average weekly wage calculation, we affirm the administrative law
judge's inclusion of the meal allowance.
Accordingly, the administrative law judge's award of permanent total
disability benefits from April 3, 1999 through July 14, 1998, is modified to
reflect claimant's entitlement to permanent partial disability benefits based on
a wage-earning capacity of $240 per week. The award of continuing permanent total disability benefits
from July 15, 1998, is vacated, and the case is remanded for the administrative law judge to make further findings regarding the nature and sufficiency of claimant's job search during this period. The administrative law judge's
calculation of claimant's average weekly wage is vacated, and the case is remanded for further consideration
consistent with this decision. In all other respects, 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
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)However, claimant was awarded benefits for permanent total
disability from January 26, 1998, to February 2, 1998, as Dr. Pagan restricted
claimant from working due to an aggravation of his back condition during this
period.
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2)On January 7, and April 10, 2000, employer filed a
supplemental case authority with the Board regarding the average weekly wage issues in this
case. We hereby accept employer's supplemental pleadings as filed before the Board. See 20 C.F.R.
§802.215.
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3)Claimant worked five days a week twice, four days a week for
ten of the 44 weeks, three days a week in 15 weeks, two days a week in 11 weeks,
one day a week in four weeks, and there are two weeks in which claimant did not
work for employer at all. See EX 1.
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4)Wages are rounded to the nearest whole dollar. In 1995,
claimant also received $1,962 in unemployment compensation payments. CX 1.
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5)Employer's payroll records indicate that it paid claimant
approximately $16,547 from March 13 to December 28, 1995, or $700 more than stated
on claimant's 1995 W-2 from employer.
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6)In response to employer's assertion that claimant made $20,447
for the 52 week period before his injury, claimant replied, "that's the least year
(sic), the least I made since I have been working at Crowley." EX 11 at
84.
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7)In its reply brief, employer states that claimant received a
raise to $15.18 on March 25, 1996. Reply Brief at 3.
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8)Section 2(13) of the Act states:
The term "wages" means the money rate at which the service rendered by
an employee is compensated by an employer under the contract of hiring
in force at the time of the injury, including the reasonable value of
any advantage which is received from the employer and included for
purposes of any withholding of tax under subtitle C of title 26
(relating to employment taxes). The term wages does not include fringe
benefits, including (but not limited to) employer payments for or
contributions to a retirement, pension, health and welfare, life
insurance, training, social security or other employee or dependent
benefit plan for the employee's or dependent's benefit, or any other
employee's dependent entitlement.
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NOTE: This is an UNPUBLISHED LHCA Document.
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