BRB No. 01-0743
JOSE ZAPATA )
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Claimant-Petitioner )
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v. )
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SOUTH BAY SANDBLASTING ) DATE ISSUED: 06/17/2002
AND TANK CLEANING )
)
and )
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EAGLE PACIFIC INSURANCE )
GROUP )
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Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Determining Average Weekly Wage and
Decision on Motions for Reconsideration of Robert J. Lesnick,
Administrative Law Judge, United States Department of Labor.
Jeffrey M. Winter, San Diego, California, for claimant.
Jason Zielinski and Maryann C. Shirvell (Laughlin, Falbo, Levy &
Moresi), San Diego, California, for employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Determining Average Weekly Wage and
Decisions on Motions for Reconsideration (2000-LHC-1566, 2000-LH-1567) of
Administrative Law Judge Robert J. Lesnick 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 administrative
law judge's findings of fact and conclusions of law if they are supported by
substantial evidence, are rational, and are in accordance with law. 33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).
Claimant injured his right knee on February 25, 1998 and July 8, 1998, while
working for employer as a sandblaster. The parties stipulated that: claimant was
temporarily totally disabled from September 4, 1998 to March 9, 1999; employer paid
claimant temporary disability benefits from September 24, 1998, through April 14,
1999, based on an average weekly wage of $600; claimant sustained a 10 percent
permanent impairment to his lower right extremity; and claimant returned to work
on March 9, 1999. The only issue presented for resolution at the hearing was the
average weekly wage to be used in determining claimant's compensation rate.
The administrative law judge found that claimant's average weekly wage was
$429.25, calculated pursuant to Section 10(c), 33 U.S.C. §910(c), by
dividing by 52, claimant's earnings of $22,321.13 in the 52 weeks prior to his July
8, 1998, injury. See Decision and Order at 6; Decision on Motions for
Reconsideration at 1-2. Consequently, the administrative law judge also found that
employer is entitled to a credit for any overpayment of temporary total disability
benefits against its liability for permanent partial disability benefits. On
reconsideration, the administrative law judge denied claimant's motion which argued
that claimant's earnings were better represented by a divisor of 36, the number of
weeks claimant actually worked in the 52 weeks preceding his injury.
On appeal, claimant contends that the administrative law judge erred in
calculating his average weekly wage. Claimant contends that the figure calculated
by the administrative law judge does not represent his wage-earning capacity at
the time of injury, as he earned higher wages with employer in the 29 weeks prior
to his injury than he did in the year prior to injury, which included employment
in a lower paying job. Claimant also states that his earnings over several years
prior to his injury demonstrate a higher wage-earning capacity than that found by
the administrative law judge. Employer responds, urging affirmance.
Section 10 of the Act, 33 U.S.C. §910, sets forth three methods for
determining claimant's average weekly wage. Sections 10(a) and (b), 33 U.S.C.
§910(a), (b), are the statutory provisions relevant to a determination of an
employee's average weekly wage where the injured employee's work is regular and
continuous, and he is a five- or six-day per week worker. The computation of
average annual earnings must be made pursuant to Section 10(c) if subsection (a) or (b) cannot be reasonably and fairly applied.[1] See National Steel & Shipbuilding Co. v. Bonner,
600 F.2d 1288 (9th Cir. 1979). The object of Section 10(c) is to arrive at a sum that
reasonably represents a 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).
After consideration of claimant's contentions, we affirm the administrative
law judge's average weekly wage calculation as it is supported by substantial
evidence and claimant has not demonstrated reversible error in the administrative
law judge's finding. The administrative law judge has broad discretion in
determining claimant's average weekly wage under Section 10(c), see, e.g., Hall
v. Consolidated Employment Systems, Inc., 139 F.3d 1025, 32 BRBS 91(CRT) (5th Cir. 1998); Richardson
v. Safeway Stores, Inc., 14 BRBS 855 (1982); Hicks v. Pacific Marine &
Supply Co., Ltd., 14 BRBS 549 (1981), and it was not irrational for the
administrative law judge to utilize claimant's actual earnings in the year prior
to injury as representative of claimant's annual wage-earning capacity. See
Staftex Staffing v. Director, OWCP [Loredo], 237 F.3d 404, 34 BRBS 44(CRT), modified on other grounds on
reh'g, 237 F.3d 409, 34 BRBS 105(CRT) (5th Cir. 2000). As the administrative law judge's
calculation of claimant's average weekly wage under Section 10(c) is rational and
supported by substantial evidence, it is affirmed. See generally Duhagon v. Metropolitan
Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999), aff'g 31 BRBS 98 (1997); Fox v.
West State, Inc., 31 BRBS 118 (1997).
Accordingly, we affirm the administrative law judge's Decision and Order
Determining Average Weekly Wage and Decision on Motions for Reconsideration.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)Claimant concedes the applicability of Section 10(c), noting
the absence of evidence concerning the actual number of days claimant worked.
See Cl. brief at 6, 9. Section 10(a) cannot be applied if the number of
days claimant worked is not evident from the record. Duhagon v. Metropolitan Stevedore
Co., 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999), aff'g 31 BRBS 98 (1997). No party contended that
Section 10(b) should be applied.
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NOTE: This is an UNPUBLISHED LHCA Document.
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