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                                 BRB No. 97-1308

LARRY GEORGE                            )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   06/19/1998 
                                        )
     v.                                 )
                                        )
CALIFORNIA STEVEDORE AND                )
BALLAST COMPANY                         )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order Upon Remand of Thomas Schneider,
     Administrative Law Judge, United States Department of Labor.

     Larry George, Novato, California,  pro se.

     Robert E. Babcock (Babcock & Company), Lake Oswego, Oregon, for self-insured employer.

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

     PER CURIAM:

     Employer appeals the Decision and Order Upon Remand (88-LHC-3220, 90-LHC-1333)
of Administrative Law Judge Thomas Schneider 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).

     This is the second time this case is before the Board.  Claimant, a
longshoreman, suffered injuries to his back during the course of his employment on
October 29, 1986, and November 10, 1988.  Following the second injury claimant
returned to work on March 1, 1989, and continued to work as of the date of the
hearing.  Claimant is seeking, inter alia, compensation for a permanent
partial disability arising out of his work injuries.
     In his Decision and Order Awarding Benefits, the administrative law judge
found, inter alia, that claimant is entitled to periods of temporary total
disability following both the 1986 and 1988 injuries and to continuing compensation
for permanent partial disability following his return to work in 1989.  In making
his award of permanent partial disability benefits, the administrative law judge
found that the 1986 injury alone caused claimant's permanent loss of wage-earning
capacity.  Based on his calculations, he awarded claimant permanent partial
disability compensation commencing April 30, 1988, based upon a post-injury wage-earning capacity of $418.69.

     Employer appealed to the Board, contending that the administrative law judge
erred in determining claimant's post-injury wage-earning capacity.  The Board
agreed, and vacated the administrative law judge's findings regarding claimant's
loss of wage-earning capacity, remanding the case for the administrative law judge
to reconsider the issue under Section 8(h), 33 U.S.C. §908(h), which governs
the determination of post-injury wage-earning capacity. George v. California
Stevedore & Ballast Co., BRB No. 92-2235 (Aug. 30, 1996)(unpublished).

     On remand, the administrative law judge conceded that his initial
determination of claimant's post-injury weekly earnings was facially irrational. 
After determining that claimant's actual post-injury earnings do not fairly and
reasonably represent his wage-earning capacity, the administrative law judge
addressed several possible methods to determine an accurate calculation but failed
to reach a satisfactory conclusion.  Because he concluded that there was no
accurate way to determine claimant's post-injury wage-earning capacity from the
record before him, the administrative law judge reinstated the figure he arrived
at in his first decision, i.e., $418.69.  Decision Upon Remand at 3.

     Employer again appeals, arguing that the administrative law judge erred by
arriving at an unreasonably low figure for claimant's residual wage-earning
capacity.  Claimant, representing himself, responds, urging affirmance of the
administrative law judge's determinations on remand.

     Under Section 8(c)(21), 33 U.S.C. §908(c)(21), an award for permanent
partial disability is based on the difference between claimant's pre-injury weekly
wage and his post-injury wage-earning capacity.  Section 8(h) of the Act provides
that claimant's wage-earning capacity shall be his actual post-injury earnings if
these earnings fairly and reasonably represent his wage-earning capacity.  If such
earnings do not represent claimant's wage-earning capacity, the administrative law
judge must calculate a dollar amount which reasonably represents claimant's wage-earning capacity.  33 U.S.C. §908(h).  The objective of the inquiry concerning
claimant's wage-earning capacity is to determine the post-injury wage to be paid
under normal employment conditions to claimant as injured. See Long v. Director,
OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th Cir. 1985).  Among the factors to
be considered in determining whether claimant's post-injury wages fairly and
reasonably represent his post-injury wage-earning capacity are claimant's physical
condition, age, education, industrial history, the beneficence of a sympathetic
employer, claimant's earning power on the open market and any other reasonable
variables that could form a factual basis for the decision. See Abbott v.
Louisiana Ins. Guaranty Ass'n, 27 BRBS 192 (1993), aff'd, 40 F.3d 122,
29 BRBS 22 (CRT)(5th Cir. 1994); Devillier v. National Steel & Shipbuilding
Co., 10 BRBS 649 (1979).  Additionally, in calculating claimant's post-injury
wage-earning capacity, the administrative law judge must adjust post-injury wage
levels to the levels paid pre-injury in order to neutralize the effects of
inflation. See Richardson v. General Dynamics Corp., 23 BRBS 327 (1990);
Cook v. Seattle Stevedore Co., 21 BRBS 4 (1988); Bethard v. Sun
Shipbuilding & Dry Dock Co., 12 BRBS 691 (1980).

     On appeal, employer contends that the administrative law judge erred in
finding that claimant's actual wages do not represent his post-1986 wage-earning
capacity and in reinstating the same figure, i.e., $418.69, which the Board
had previously found to be based on irrational reasoning.[1]   Employer urges that either an award be entered based upon claimant's
actual weekly earnings during the 27 week period of employment between claimant's
two injuries, i.e., $667.86, or that the case be remanded for further fact-finding necessary to establish a more representative figure.

     Initially, we affirm the administrative law judge's conclusion that claimant's
actual post-injury wages do not fairly and accurately represent his wage-earning
capacity.  Pursuant to Section 8(h), the administrative law judge properly
considered claimant's physical condition, age, education, industrial history, and
the beneficence of his employer to make his determination. See Wayland v. Moore
Dry Dock, 25 BRBS 53 (1991); Darcell v. FMC Corp., Marine & Rail Equip.
Div., 14 BRBS 294 (1981).  In so concluding, the administrative law judge
stated that 

     claimant is well before customary retirement age; has severe medical
     restrictions on what he can do; works out of necessity and with pain and
     medication for sleep; and works a job which takes account of his
     limitations but is not available all the time.

Decision Upon Remand at 3.  Employer does not contest the severity of claimant's
condition or contend that the administrative law judge's findings are inaccurate. 
As the administrative law judge properly considered the factors necessary to making
such a determination, we affirm his conclusion that claimant's post-injury wages
do not fairly and accurately represent his wage-earning capacity. See Price v.
Brady-Hamilton Stevedore Co., 31 BRBS 91 (1996).

     In attempting to calculate a dollar amount which does reasonably represent
claimant's wage-earning capacity at the time of his November 1988 injury, the
administrative law judge considered several different methods based upon the wages
claimant actually earned or the number of hours he worked.  Based upon the actual
wages earned, i.e, $18,366.23,  divided by the number of weeks worked,
i.e., 27.5, during the relevant period, the administrative law judge found
that claimant's post-injury wage-earning capacity was $667.86, resulting in a loss
of $289.14 per week.  The administrative law judge then divided claimant's pre-injury weekly wage, i.e., $957, by the percentage of post-injury hours
claimant was able to work, i.e., 37 percent, to find a post-injury wage-earning capacity of $354.09, resulting in a loss of $602.91 per week.  He found the
first amount too low and the second too harsh on employer.  Decision Upon Remand
at 3.  Noting that his prior figure, i.e., $418.69, is the "best
determination possible for a figure which is inherently difficult to compute," he
summarily reinstated that amount.  Decision Upon Remand at 3.

     In arriving at his conclusions, however, the administrative law judge erred
in his calculations of the post-injury hours worked by claimant and his ultimate
finding of claimant's wage-earning capacity is premised upon these mathematical
errors.  In the relevant 27.5 weeks of claimant's employment prior to his second
injury, claimant's actual wages decreased 30 percent.  However, based upon his
finding that claimant worked 12.1 hours per week during this period, the
administrative law judge concluded claimant suffered a 63 percent loss in hours
worked.  This second calculation is in error because the administrative law judge
used the 12.1 figure from his first decision in which he erroneously stated that
claimant worked 45 weeks, rather than 27.5 weeks, prior to the 1988 incident;
claimant actually worked 19.25 hours per week during this time.[2]   The correct figure of 19.25 hours, when compared
with claimant's 33 hours worked per week pre-injury, results in a 42 percent loss
of hours post-injury, thereby eliminating the large discrepancy noted by the
administrative law judge.  Using the correct number of hours, the loss of hours,
i.e., 42 percent, now relates more closely with claimant's loss of wages,
i.e., 30 percent.

     In attempting to calculate a dollar amount which reasonably represents
claimant's wage-earning capacity at the time of his November 1988 injury, the
administrative law judge noted that a "more realistic basis for establishing
claimant's wage-earning capacity might be to compare the hours worked before and
after the [1986] injury." Decision Upon Remand at 3.  However, he rejected his
resultant calculations based upon his reasoning that not only was the resulting
figure was too harsh on employer but also that it was so significantly different
than the amount arrived at based upon claimant's actual earnings.  It is now
evident that both the figure he arrived at in making his calculations based upon
the percentage of hours worked and his reason for rejecting it were premised on
erroneous mathematical calculations.  In view of these errors, therefore, we vacate
the administrative law judge's post-injury wage-earning capacity finding and remand
this case for the administrative law judge to reconsider the issue of claimant's
post-injury wage-earning capacity based upon the correct figures.

     Accordingly, the administrative law judge's Decision and Order Upon Remand is
affirmed in part and vacated in part, and the case is remanded for reconsideration
consistent with this opinion.

     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)The parties agreed that claimant's benefits should be calculated based upon the difference between his average weekly wage at the time of his 1986 injury, i.e., $957, and his wage-earning capacity at the time of his November 10, 1988, injury. Back to Text
2)The administrative law judge also referred to his calculation that claimant worked approximately 12.5 hours per week after his 1988 incident. Decision Upon Remand at 2. However, it is claimant's wage-earning capacity as of November 10, 1988, which is at issue; thus, although the 12.5 figure for the period following his March 1989 return to work may be accurate, it is irrelevant to a comparison between claimant's pre- and post-injury hours/earnings ratio. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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