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                                  BRB No. 98-634

RONALD JONES                            )
          Claimant-Petitioner           )    DATE ISSUED:   01/26/1999
       v.                               )
OPERATING COMPANY,                      )
INCORPORATED                            )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Robert D. Kaplan, Administrative Law
     Judge, United States Department of Labor.

     Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
     York, for claimant.

     Christopher J. Field (Weber, Goldstein, Greenberg & Gallagher), Jersey
     City, New Jersey, for self-insured employer.

     Before: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.


     Claimant appeals the Decision and Order (95-LHC-1162) of Administrative Law
Judge Robert D. Kaplan 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 was injured on April 27, 1989, during the course of his employment. 
Employer voluntarily paid temporary total disability benefits at a rate of $159 per
week for a total of $21,195.65, and claimant filed a claim for continuing benefits.

     The administrative law judge denied claimant continuing benefits.  He found
that claimant's average weekly wage is $221.69, as proposed by employer. 
Specifically, the administrative law judge noted the parties' agreement that
claimant earned $19 per hour at the time of injury; however, he rejected claimant's
contention that average weekly wage should be based on a 40-hour week when the
evidence establishes that, during the 10 years preceding the injury, claimant only
once worked over 1,000 hours per year, and more frequently averaged around 370
hours per year.[1]   Cl. Ex. 6.  Consequently, the
administrative law judge used claimant's actual hours of work in 1988 and
determined his average weekly wage is $138 (378 hours x $19 divided by 52 weeks). 
Because this number is lower than employer's calculation, he gave claimant the
benefit of employer's calculation.  Decision and Order at 4-6.  Next, the
administrative law judge determined that claimant is permanently disabled and that
maximum medical improvement occurred on July 23, 1990.  Decision and Order at 7. 
However, he found that claimant is not totally disabled.  He concluded that only
claimant's knee injury prevents him from returning to his usual work and that there
are suitable alternate jobs available for claimant.  Decision and Order at 7-9. 
In particular, the administrative law judge relied on a December 22, 1992, letter
from a vocational expert which contained the results of a data base search and
stated that, as of September 1990, there was suitable alternate employment
available to claimant within his physical restrictions.  Decision and Order at 9. 
The administrative law judge also relied on a doctor's report which stated that
claimant has a 25 percent impairment to his right leg, but the administrative law
judge agreed with employer that it is entitled to a credit for benefits it paid for
the 10.5 percent of the impairment that was due to a prior work injury.  Decision
and Order at 9-10.  As employer paid more voluntarily than that to which claimant
is entitled, the administrative law judge denied additional benefits.  Decision and
Order at 10-11.

     On appeal, claimant generally contends the administrative law judge did not
completely review the evidence, did not address all the relevant facts, and did not
provide an adequate rationale for his decision; claimant thus asserts that his
decision does not conform to the Administrative Procedure Act and is not supported
by substantial evidence.  These contentions are stated without reference to legal
authority or to specific error on behalf of the administrative law judge.  The
circumscribed scope of the Board's review authority necessarily requires the party
challenging the administrative law judge's decision to address that decision and
demonstrate why substantial evidence does not support the result reached.  A
decision contrary to the party's expectations, or contrary to some aspect of the
record, is not necessarily an erroneous decision.  When a party is represented by
counsel, mere assignment of error is not sufficient to invoke Board review.
Collins v.  Oceanic Butler, Inc., 23 BRBS 227 (1990); Carnegie v. C & P
Telephone Co., 19 BRBS 57 (1986).  The Board's Rules of Practice and Procedure
provide that a Petition for Review "shall contain a statement indicating the
specific contentions and describing with particularity the
substantial questions of law or fact to be raised by the appeal."  20 C.F.R.
§802.210 (emphasis added).  The party's brief in support of its Petition for
Review must contain a discussion of the relevant law and evidence.

     In the instant case, claimant has failed to meet these threshold requirements. 
Contrary to claimant's brief, the administrative law judge fully considered the
record and the relevant facts in determining the nature and extent of claimant's
disability and his decision is rational and it conforms with the Administrative
Procedure Act.[2]   Further, counsel's summation
of a favorable piece of evidence is not, of itself, an indictment of the
administrative law judge's decision.  Counsel neither cites any relevant law nor
identifies any error in the administrative law judge's consideration of the
evidence. Therefore, we affirm the administrative law judge's denial of additional
disability compensation. 

     Moreover, we also reject claimant's summary challenge to the administrative
law judge's average weekly wage determination on the grounds that such
determination is supported by substantial evidence.  An administrative law judge
has considerable latitude in calculating a claimant's average weekly wage pursuant
to Section 10(c).  33 U.S.C. §910(c); Bonner v. National Steel &
Shipbuilding Co., 5 BRBS 290 (1977), aff'd in pertinent part, 600 F.2d
1288 (9th Cir. 1979).  In this case, the administrative law judge rationally
decided  to use the actual number of hours claimant worked in 1988 as a basis for
calculating average weekly wage in view of the fact that claimant has not
established a history of regularly working 40 hours per week. See New Thoughts
Finishing Co.  v.  Chilton, 118 F.3d 1028, 31 BRBS 51 (CRT)(5th Cir.  1997). 
Thus, the administrative law judge rationally rejected claimant's contention that
his average weekly wage should be his hourly rate, $19, multiplied by 40 hours per
week.  Therefore, the administrative law judge's computation of claimant's average
weekly wage and his subsequent deferral to employer's higher figure are rational,
and, indeed, are beneficial to claimant.  As the administrative law judge's average
weekly wage calculation is rational, we conclude that claimant has established no
error on this issue, and we affirm the administrative law judge's finding that
claimant's average weekly wage is $221.69. Bonner, 600 F.2d at 1288; Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752, 10 BRBS 700 (7th Cir. 1979);
Richardson v.  Safeway Stores, Inc., 14 BRBS 855 (1982); see generally
Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989).

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


                         JAMES F.  BROWN
                         Administrative Appeals Judge

                         REGINA C.  McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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1)The low hours are due to claimant's previous work injuries and to his low seniority. Decision and Order at 5. Back to Text
2)For example, claimant's assertion that he cannot return to his usual work is not disputed by employer and, in fact, was stipulated by the parties; therefore, his assertion does not raise an issue of disability before the Board. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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