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                                  BRB No. 98-512

                                         
JOSE MALDONADO                          )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   12/22/1998
                                        )
     v.                                 )
                                        )
TRANSCONTINENTAL TERMINALS,             )
INCORPORATED                            )
                                        )
     and                                )
                                        )
HOUSTON GENERAL INSURANCE               )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER
          
     Appeal of the Decision and Order and Decision on Claimant's Motion for
     Reconsideration of C. Richard Avery, Administrative Law Judge, United
     States Department of Labor.

     Harry C. Arthur, Houston, Texas, for claimant.

     John R. Walker (Brown, Sims, Wise & White, P.C.), Houston, Texas, for
     employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order and Decision on Claimant's Motion for
Reconsideration (95-LHC-1025) of Administrative Law Judge C. Richard Avery 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, a laborer, slipped and fell on March 9, 1993, after two and
one-half days on the job, while moving 100 pound sacks of flour from pallets
onto a conveyor belt which led to a ship.  He injured his lower back,
stomach, and knee in the fall.  The administrative law judge found that
claimant was a borrowed employee of Transcontinental Terminals and therefore
that Transcontinental Terminals is responsible for the workers' compensation
benefits and medical benefits due claimant.  The administrative law judge
found that claimant's injuries are work-related, that claimant reached
maximum medical improvement by January 23, 1994, that employer established
suitable alternate employment as of October 1, 1994, and that claimant's
post-injury wage-earning capacity is $6.50 per hour based on claimant's
earnings in the suitable alternate employment.  Purportedly using Section
10(b), 33 U.S.C. §910(b), the administrative law judge calculated
claimant's average weekly wage as $177.19 based on the 1992 earnings of
Eugenio Cavazos, a similarly situated employee.  Consequently, the
administrative law judge awarded claimant temporary total disability
benefits from March 9, 1993, through January 27, 1994, and permanent total
disability benefits from January 28, 1994, through October 1, 1994, based
on an average weekly wage of $177.19.  The administrative law judge also
awarded medical benefits pursuant to Section 7 of the Act, 33 U.S.C.
§907, and interest.  The administrative law judge denied claimant's
motion that he reconsider the average weekly wage determination.

     On appeal, claimant challenges the administrative law judge's calculation of
his average weekly wage.  Employer responds in support of the administrative law
judge's calculation, but asserts that the administrative law judge should have
applied Section 10(c), 33 U.S.C. §910(c), instead of Section 10(b), and
alleges that Mr. Cavazos is not an employee similarly situated to claimant.

     Claimant contends that the administrative law judge erred in calculating
his average weekly wage based on the 1992 W-2 Forms of a similarly situated
employee, Mr. Cavazos, as this period did not include the entire 52-week
period prior to claimant's injury on March 9, 1993.  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), which is inapplicable here, 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 determining claimant's average weekly wage in the instant case, the
administrative law judge purported to apply Section 10(b) based on Mr.
Cavazos' 1992 earnings after finding that Mr. Cavazos was a similarly
situated employee and that his wage records are a sufficient substitute for
what claimant would have earned had he worked the entire year.  Decision and
Order at 27-28  The administrative law judge relied on Mr. Cavazos's 1992
W-2 records which indicated that he earned $9,213.63 in the 1992 calendar
year, divided by 52 weeks.  The administrative law judge thus found that
claimant had an average weekly wage of $177.19 based on Mr. Cavazos's 1992
earnings.

     Initially, we affirm the administrative law judge's finding that Mr. Cavazos
is an employee similarly situated to claimant. See 33 U.S.C. §910(b),
(c).  Based on Mr. Cavazos' testimony that his work was similar to that of
claimant's work in that like claimant he lifted sacks onto and off of pallets at
employer's warehouse, and Mr. Cobb's testimony that the employees were all part of
a labor pool, the administrative law judge rationally found that Mr. Cavazos is a
similarly situated employee.  Decision and Order at 12, 27-28; Cl. Ex. 19 at 12;
Cl. Ex. 21 at 10-11; Emp. Ex. 9 at 12.  The administrative law judge rationally
rejected employer's argument that Mr. Cavazos is not a similarly situated employee
based on differences in the two employees' work history, stevedoring experience,
and residency status as employer did not evaluate, classify and hire its employees
based on experience and skill but rather treated its employees as part of a pool
of labor. See generally Harrison v. Todd Pacific Shipyards Corp., 21 BRBS
339 (1988); Decision and Order at 27-28; Emp. Br. at 9-11.

     Moreover, we affirm the administrative law judge's calculation of claimant's
average weekly wage, although we do so under Section 10(c), instead of Section
10(b), since the administrative law judge's calculation does not actually apply to
Section 10(b) as he simply divided Mr. Cavazos's earnings by 52.[1]   The administrative law judge acted within his
discretion in calculating claimant's average weekly wage based on the earnings of
the similarly situated employee in the prior calendar year, 1992, based on the
federal tax information of record.[2]   See
Mattera v. M/V Mary Antoinette, Pacific King, Inc., 20 BRBS 43 (1987); Decision
and Order at 28; Cl. Exs. 18, 21 at 10.  Under Section 10(c), the administrative
law judge is not required to employ a specific method of calculation and has broad
discretion in calculating claimant's average weekly wage based on a variety of
factors, including the earnings of co-workers. See 33 U.S.C. §910(c);
Gatlin, 936 F.2d at 819, 25 BRBS at 26 (CRT); Harrison, 21 BRBS at
339.  In denying claimant's motion for reconsideration, in which claimant alleged
the administrative law judge should have calculated his average weekly wage with
reference to Mr. Cavazos' earnings in the 52 weeks immediately prior to claimant's
injury,[3]   the administrative law judge agreed
with employer's contention that even the $177.19 figure he utilized exceeds
claimant's prior earning history.[4]   See
Decision on Claimant's Motion for Reconsideration at 1.  This factor is relevant
to a calculation under Section 10(c), see generally Duncanson-Harrelson Co.  v. 
Director, OWCP, 686 F.2d 1336 (9th Cir.  1982), vacated in part on other
grounds, 462 U.S. 1101 (1983); Turney v. Bethlehem Steel Corp., 17 BRBS
232 (1985), and thus the administrative law judge was not required to accept
claimant's calculation of his average weekly wage based on Mr. Cavazos' earnings
from March 9, 1992 to March 9, 1993. We therefore affirm the administrative law
judge's calculation of claimant's average weekly wage in the amount of $177.19 as
it is rational and supported by substantial evidence.            

     Accordingly, the administrative law judge's Decision and Order and Decision
on Claimant's Motion for Reconsideration are affirmed.       

     SO ORDERED.
         


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         JAMES F.  BROWN
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1) Section 10(b) requires that the administrative law judge determine claimant's average weekly wage under a specific method of calculation, which is to divide the actual earnings of the appropriate employee for the year preceding the injury by the actual number of days he worked during that period. This average daily rate is then multiplied by 260 for a five-day employee, or by 300 for a six-day employee, and the product is divided by 52. See O'Connor v. Jeffboat, Inc., 8 BRBS 290, 292 (1978); see also Mulcare v. E.C. Ernst, Inc., 18 BRBS 158, 160 n. 3 (1986). In the instant case, the administrative law judge merely divided Mr. Cavazos' 1992 earnings by 52. Moreover, there is no evidence of the number of days Mr. Cavazos worked in the 1992 calendar year. Thus, Section 10(b) is inapplicable, and Section 10(c) must be used to calculate claimant's average weekly wage. See Taylor v. Smith & Kelly Co., 14 BRBS 489 (1981). Back to Text
2)Contrary to claimant's contention, the administrative law judge was not required to use the earnings of Mr. Cavazos in the 52 weeks immediately preceding claimant's injury, as Section 10(b) merely refers to the wages earned in the "immediately preceding year," and Section 10(c) seeks earnings which reasonably represent annual earning capacity. 33 U.S.C. §910(b), (c). It thus was within the administrative law judge's discretion to use the wages Mr. Cavazos earned in the immediately preceding calendar year to calculate claimant's average weekly wage. Back to Text
3) 3This calculation results in an average weekly wage of $307.45. Back to Text
4) Previously, claimant was a migrant farm worker. Using claimant's prior earning history, claimant's average weekly wage for 1992 (the previous year's earnings) is approximately $79, for 1990 (the year in which he earned the most from 1990-1992) is approximately $124, and from 1990-1992 is approximately $67. See Emp. Ex. 2; Emp. Br. at 9. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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