Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB No. 98-1176

RICHARD C. ROBBINS                      )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   05/17/1999 1999 
    
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Robert E. Walsh (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

     Melissa Robinson Link (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

     Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
     
     PER CURIAM:

     Claimant appeals the Decision and Order  (93-LHC-0423) of Administrative Law
Judge Fletcher E. Campbell, 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).  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).

     Claimant sustained a back injury while working as a sheet-metal worker with
employer on January 16, 1991.  After an extended recuperative period, claimant
returned to work for employer and thereafter filed a claim for permanent partial
disability benefits based on a loss of overtime and alleged loss of night shift
differential.  Pursuant to the parties' stipulations, as approved by the district
director in a Compensation Order dated February 8, 1995, employer paid claimant
benefits for periods of temporary total  and permanent partial disability.[1]   In addition, employer has furnished claimant
with all work-related medical services in accordance with Section 7 of the Act, 33
U.S.C. §907.

       Employer subsequently filed a motion for modification of the district
director's award of permanent partial disability benefits based on an economic
change in condition.  33 U.S.C. §922.  In his decision, the administrative law
judge determined that claimant no longer has any loss in wage-earning capacity
attributable to his work-related injury and therefore terminated the award of
permanent partial disability benefits as of March 17, 1995.  Moreover, the
administrative law judge considered and rejected claimant's request for a de
minimis award based upon his findings that claimant is a full-time employee and
that any loss in wage-earning capacity in the future is speculative at best.

     On appeal, claimant challenges the administrative law judge's denial of a
de minimis award of benefits.  Employer responds, urging affirmance. 

     Claimant asserts that the administrative law judge erred in denying his
request for a de minimis award as there is substantial evidence in the
record demonstrating a significant possibility that he will suffer a wage loss in
the future.  The United States Supreme Court, in Metropolitan Stevedore Co.  v. 
Rambo, 117 S.Ct.  1953, 31 BRBS 54 (CRT)(1997), held that a nominal award may
be entered on claimant's behalf upon a showing that there is a significant
possibility that a worker's wage-earning capacity will at some future point fall
below his pre-injury wages.  Thus, a worker is entitled to nominal compensation
when his work-related injury has not diminished his present wage-earning capacity
under current circumstances, but there is a significant possibility of future
economic harm as a result of the injury. Id.

     In denying claimant a de minimis award, the administrative law judge
found that the letter of rehabilitation counselor Charles DeMark, who opined that
claimant would likely be unable to secure comparable employment in the local labor
market if he were laid off and that if he did, it would at best be a minimum wage
job, was not sufficient to establish a significant possibility that claimant will
likely experience a loss in wage-earning capacity in the future, in light of the
countervailing record evidence.  The administrative law judge concluded that Mr.
DeMark's letter is of little value because: 1) the possibility that claimant will
be laid-off or further disabled as a result of his work-related injuries in the
future is speculative at best; and 2) Mr. DeMark's opinion relates only to the
labor market as of the date of his letter, September 10, 1997, and cannot be used
as a prediction of the labor market which changes frequently.  Moreover, the
administrative law judge found that there is no evidence of the likelihood that
claimant's back will further disable him, at least insofar as his present job is
concerned.  Specifically, the administrative law judge relied on claimant's
acknowledgment that he has not missed any work because of his back since 1993, and
the testimony of claimant's supervisors, Donald Ogburn and Michael Roach, who both
stated that they know of no plans to lay-off any employees.  Because the evidence
credited by the administrative law judge demonstrates that claimant's medical
condition and prospects for continued employment are stable, it provides
substantial evidence to support his finding that claimant failed to establish a
significant possibility of future economic harm. See Buckland v. Dept. of the
Army, 32 BRBS 99, 101 (1997); Burkhardt v. Bethlehem Steel Corp., 23
BRBS 272, 278 (1990); Palmer v. Washington Metropolitan Area Transit
Authority, 20 BRBS 39,  41-42 (1987).  We therefore affirm that determination
and the consequent denial of a de minimis award in this case.   Id.

     Accordingly, the Decision and Order of the administrative law judge is
affirmed.

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)Specifically, employer paid temporary total disability benefits from January 21, 1992, through April 23, 1993, and from April 24, 1993, through May 17, 1993, and permanent partial disability benefits at the rate of $16 per week from January 21, 1992, to April 23, 1993, and then continuing from May 18, 1993. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document