United States Department of Labor

   

                                 BRB No. 99-0337

WILLIE INGRAM                           )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
COASTAL STEVEDORING                     )    DATE ISSUED:   12/14/1999
1999
                                        )
     and                                )
                                        )
LIBERTY MUTUAL INSURANCE                )    
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                             )    DECISION and ORDER

     Appeal of the Decision and Order and the Supplemental Decision and
     Order - Motion for Reconsideration and Award of Attorney's Fees of
     Donald W. Mosser, Administrative Law Judge, United States
     Department of Labor.

     Thomas J. Henry (Law Offices of Thomas J. Henry), Corpus Christi,
     Texas, for claimant.

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

     PER CURIAM:

     Claimant appeals the Decision and Order and the Supplemental Decision
and Order - Motion for Reconsideration and Award of Attorney's Fees (97-LHC-2816) of Administrative Law Judge Donald W. Mosser 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 was injured on November 16, 1990, when he was struck by
multiple 110 pound bags of flour.  Claimant underwent a surgical procedure
on his back on February 4, 1993.  Although he has never returned to
employment duties on the docks, claimant has held a variety of short-term
jobs post-injury.  Employer voluntarily paid claimant temporary total
disability compensation from November 17, 1990 through May 2, 1997. 
Claimant thereafter filed a claim under the Act seeking  reinstatement of
his benefits.

     Prior to the formal hearing, claimant and employer attempted to settle
all of claimant's claims for compensation and medical benefits arising from
his November 16, 1990, work-related injury for the lump sum of $22,000.  In
an Order Denying Application for Section 8(i) Settlement, Administrative Law
Judge Mills denied the parties' settlement application, finding that the
forfeiture of future medical treatment provided in the settlement was not
in the best interests of claimant.  The case was thereafter assigned to
Administrative Law Judge Mosser (the administrative law judge). 

     In his Decision and Order, the administrative law judge  found that claimant
had reached maximum medical improvement as of August 8, 1994, and that
employer established the availability of suitable alternate employment as
of August 1, 1995.  The administrative law judge then found that claimant
failed to establish that he was unable to secure such employment.  The
administrative law judge credited claimant's testimony regarding his prior,
yearly earnings in calculating claimant's average weekly wage and denied the
compensation benefits sought by claimant as his wage-earning capacity in the
alternate employment exceeded his average weekly wage.  Claimant was awarded
future medical expenses for care related to his injury.  Claimant's motion
for reconsideration was denied by the administrative law judge.

     On appeal, claimant challenges the administrative law judge's denial of
his claim for compensation benefits asserting, inter alia, that he
should be entitled to either compensation under the Act or the benefit of
the previously denied settlement agreement which he had entered into with
employer.  Employer has not responded to this appeal. 

     Claimant initially asserts that the administrative law judge erred in
failing to find that he diligently yet unsuccessfully sought employment
post-injury.[1]   We disagree.  Where, as in the
instant case, employer has established the availability of suitable alternate employment, claimant can
nevertheless establish entitlement to total disability benefits if he demonstrates  that he diligently tried and was
unable to secure such employment. See Roger's Terminal & Shipping Corp. v. Director, OWCP,
784 F.2d 687, 18 BRBS 79 (CRT)(5th Cir. 1986); see also Edwards v. Director, OWCP,
999 F.2d 1374, 1376 n.2, 27 BRBS 81, 84 n.2 (CRT)(9th Cir. 1993), cert. denied, 114 S.Ct. 1539
(1994); Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir. 1991); CNA
Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT)(1st Cir. 1991); Newport News Shipbuilding
& Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th Cir. 1988); Martiniano v. Golten
Marine Co., 23 BRBS 363, 366 (1990).  Claimant does not have to seek the exact jobs identified by
employer in order to establish due diligence. See Palombo, 937 F.2d at 74, 25 BRBS at 8 (CRT). 

     Contrary to claimant's contention, substantial evidence supports the administrative law judge's conclusion
that claimant was successful in his search for post-injury employment.  In addressing this issue, the
administrative law judge relied upon claimant's testimony that he diligently searched for alternate
employment post-injury and that he had in fact received several job offers as a result of
his efforts. See Decision and Order at 6; Transcript at 25, 41-44. 
The administrative law judge thus concluded that claimant failed to
establish that he was unable to secure employment post-injury.

     In adjudicating a claim, it is well-established that an administrative law judge is entitled to evaluate the
credibility of all witnesses; additionally, the administrative law judge may draw his own inferences and
conclusions from the evidence. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d
741 (5th Cir. 1962).  In the instant case, the administrative law judge's specific finding that claimant
successfully sought employment post-injury is  rational and is supported by the testimony of claimant himself.
Accordingly, we affirm the administrative law judge's finding that claimant failed to demonstrate that he
diligently tried and was unable to secure employment post-injury.

     Claimant next contends that the administrative law judge erred in calculating his average
weekly wage at the time of his injury.  Specifically, while not asserting error by the administrative law
judge in his use of Section 10(c) of the Act, 33 U.S.C. §910(c), claimant challenges the mathematical
calculation used by the administrative law judge.

     In the instant case, the administrative law judge initially determined that Section 10(c) of the
Act was to be used to calculate claimant's average weekly wage.  Decision and Order at 6.  The object of
Section 10(c) is to provide a method to determine a sum which reasonably represents the claimant's annual
earning capacity at the time of his injury when Sections 10(a) and 10(b) are unavailable because claimant has
not been regularly employed. See Richardson v. Safeway Stores, Inc., 14 BRBS 855 (1982).  It is
well-established that the administrative law judge has broad discretion in determining annual earning
capacity under Section 10(c). See generally Empire United Stevedores v. Gatlin, 936 F.2d 819, 25
BRBS 26 (CRT)(5th Cir. 1991).  The Board will affirm an administrative law judge's
determination of a claimant's average weekly wage under Section 10(c) if the
amount represents a reasonable estimate of claimant's annual earning
capacity at the time of the injury. See Richardson, 14 BRBS at 855;
Hicks v. Pacific Marine & Supply Co., Ltd., 14 BRBS 549 (1981).

     Given the state of the record, which contains no documentation regarding
claimant's rate of pay or earnings for any employer prior to November 1990,
the administrative law judge determined claimant's average weekly wage by
relying upon the testimony of claimant himself, who stated that in the year
prior to his work-injury he earned $6,000.  Transcript at 28.   Based upon
this testimony, the administrative law judge concluded that claimant was
capable of earning $115.38 per week at the time of his November 1990 injury. 
As there is no documentary evidence as to claimant's actual hourly rates or
earnings at any time prior to his November 1990 work-injury,[2]  we must conclude the result reached by the administrative law judge is
reasonable, as it is supported by the relevant evidence of record. See Hastings v. Earth Satellite Corp., 628
F.2d 85, 14 BRBS 345 (D.C. Cir.), cert. denied, 449 U.S. 905 (1980); Gilliam v. Addison Crane
Co.,  21 BRBS  91 (1988).  We therefore affirm the administrative law judge's determination of claimant's
average weekly wage at the time of his injury with employer.

     Lastly, claimant asserts that "it is unfair for Claimant to be denied the benefit of the settlement agreement
entered between the Claimant and the employer as inadequate and then be denied any wage benefits under the
subsequent order of the Administrative Law Judge." See Claimant's brief at
5.  Accordingly, claimant asserts that he should be entitled to the benefit
of the prior settlement agreement which he entered into with employer.[3]   

     Section 8(i) of the Act, as amended in 1984, 33 U.S.C.
§908(i)(1994),[4]  provides for the
settlement of claims for compensation by a procedure in which an application
for settlement is submitted for the approval of the district director or
administrative law judge.  Claimants are not permitted to waive their right
to compensation except through settlements approved under Section 8(i). 
See 33 U.S.C. §§915, 916; see generally Henson v. Arcwel
Corp., 27 BRBS 212 (1993). The procedures governing settlement
agreements are delineated in the implementing regulations at 20 C.F.R.
§§702.241-702.243. 

     In the instant case, Judge Mills, after taking into consideration the
fact that the proposed settlement agreement  foreclosed all future medical
reimbursement to claimant and that claimant's potential future medical costs
were substantial, determined that the proposed settlement was not in
claimant's best interests. Contrary to claimant's contention on appeal, the
subsequent denial of claimant's request for continuing compensation benefits
does not render the prior settlement denial invalid; moreover, claimant was
awarded reasonable and necessary future medical care for his work-related
back condition.[5]    As claimant has failed
to establish reversible error with regard to the proposed settlement, his
argument is rejected.[6] 

     Accordingly, the Decision and Order and Supplemental Decision and Order
of the administrative law judge, as well as the Order Denying Application
for Section 8(i) Settlement of Administrative Law Judge Mills, are affirmed.

     SO ORDERED.
 
                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)     1We note that claimant has not appealed the
administrative law judge's finding that employer met its burden of
establishing the availability of suitable alternate employment; accordingly,
that finding is affirmed. 
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 2)     2Although claimant additionally testified that he had
previously received as much as $13.60 per hour working on the docks, that
prior to commencing his employment with employer on the day of his injury
he had received wages in the range of $9.00 - $10.00 per hour, and that he
was hired by employer at a rate of $5.00 per hour, claimant submitted no
evidence in support of these statements, see Transcript at 12-13;
similarly, claimant submitted no documentary evidence regarding either his
prior earnings or the  number of hours that he worked for any employer pre-injury.   Employer's LS-202 indicates that claimant was hired at an hourly
rate of $4.50, and it is uncontroverted that claimant worked for four hours
for employer prior to his injury.
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 3)     3As set forth, supra, Judge Mills initially
disapproved the proposed settlement, and the case was thereafter assigned
to Judge Mosser for hearing.
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 4)     4Section 8(i)(1), as amended in 1984, states:

          Whenever the parties to any claim for compensation under this
     chapter, including survivors benefits, agree to a settlement, the
     deputy commissioner or administrative law judge shall approve the
     settlement within thirty days unless it is found to be inadequate or
     procured by duress.  Such settlement may include future medical
     benefits if the parties so agree.  No liability of any employer,
     carrier, or both for medical, disability, or death benefits shall be
     discharged unless the application for settlement is approved by the
     deputy commissioner or administrative law judge.  If the parties to the
     settlement are represented by counsel, then agreements shall be deemed
     approved unless specifically disapproved within thirty days after
     submission for approval.

33 U.S.C. §908(i)(1)(1994).
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 5)     5We note that under the Act an injured employee is
entitled to disability benefits for any period that his work injury causes
a total or partial loss of wage-earning capacity. See Shell Offshore,
Inc. v. Director, OWCP, 112 F.3d 321, 31 BRBS 129 (CRT)(5th Cir. 1997). 
Thus, should claimant's subsequent work-related medical treatment result in
a loss of wage-earning capacity, claimant may seek an appropriate remedy
under the Act.
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 6)     6Claimant's request that the Board approve the
aforementioned settlement agreement is without merit; the Board does not
have the "equitable" power to approve a settlement agreement of the parties,
as the Board's authority is limited by statute.  33 U.S.C. §921(b).
See Rochester v. George Washington University, 30 BRBS 233 (1997).
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