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MATT  T.  SPILLERS                      )    BRB No. 95-1167
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   01/08/1998

INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
                                        )
MATT  T.  SPILLERS                      )    BRB No. 97-571
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeals of the Decision and Order Awarding Benefits, Order Denying
     Motions for Reconsideration, and Decision and Order on Section 22
     Modification of Lee J. Romero, Jr.,  Administrative Law Judge, United
     States Department of Labor.

     D.A. Bass-Frazier (Huey & Leon), Mobile, Alabama, for claimant.

     Paul M. Franke, Jr. (Franke, Rainey & Salloum, PLLC), Gulfport,
     Mississippi, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Benefits, and Order Denying Motions
for Reconsideration, and employer appeals the Decision and Order on Section 22 Modification (93-LHC-1718, 2788) of Administrative Law Judge Lee J. Romero, 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).

     On October 17, 1991, claimant sustained a concussion during the course of his employment for employer
when a welding torch caused an explosion.  Claimant did not lose any time from work as a result of this incident,
but subsequently complained of frequent headaches, sleep loss, and dizziness.  On August 12, 1992, claimant
sustained at second injury at work when he fractured his left knee after he stepped on a pile of angle iron. 
Employer voluntarily paid claimant temporary total disability benefits for this injury from August 14, to November
1, 1992, November 16, 1992, and from November 30, 1992, to March 29, 1993.  33 U.S.C. §908(b). 
Claimant returned to modified duty at employer's tool room on March 29, 1993;
however, on April 19, 1993, claimant was terminated and  has since  been
unemployed. 

     In his initial Decision and Order, the administrative law judge accepted
employer's stipulation that claimant's October 17, 1991, head injury and August 12,
1992, left knee injury are work-related. The administrative law judge next found
that claimant did not sustain any temporary disability from the date of his head
injury until he reached maximum medical improvement on November 1, 1993; in support
of this finding, the administrative law judge credited, inter alia, evidence
that claimant's head injury did not cause claimant to miss any time from work. 
Next, the administrative law judge determined that claimant's knee reached maximum
medical improvement on March 19, 1993, and he awarded claimant temporary total disability
benefits from August 13, 1992, to March 19, 1993, and  permanent total disability
benefits from March 20, 1993, to March 28, 1993, since claimant did not return to
work after reaching maximum medical improvement until March 29, 1993.  The
administrative law judge also found that the knee injury prevents claimant from
returning to his usual employment as a machinist; however, he found that employer 
established the availability of suitable alternate employment from the date of
claimant's termination.  Claimant was therefore awarded compensation for a 5
percent impairment of his left knee.  33 U.S.C. §908(c)(2), (19). Claimant was
further awarded past medical benefits for his head injury and future medical
benefits and neuropsychological treatment for depression related to post-concussive
syndrome from the head injury.

     The administrative law judge next addressed claimant's average weekly wage. 
He found that Section 10(a), 33 U.S.C. §910(a), provides the best method for
determining claimant's average weekly wage as claimant worked full-time during the
year prior to each injury. The administrative law judge determined that claimant's
average weekly wage was $427.75 at the time of his October 17, 1991, head injury
and $483.50 at the time of his August 12, 1992, knee injury.

     Claimant and employer filed motions for reconsideration.  Claimant requested,
inter alia, reconsideration of the administrative law judge's average weekly
wage findings, arguing that his average weekly wage should be based on an 8 hour
work day.  In his Order Denying Motions for Reconsideration, the administrative law
judge denied claimant's motion for reconsideration; employer's motion was granted
insofar as the Decision and Order did not provide employer a credit for
compensation previously paid claimant.  In all other respects, employer's motion
for reconsideration was denied.

     Claimant appealed the administrative law judge's average weekly wage findings
to the Board.  BRB No. 95-1167.  He subsequently requested modification pursuant to
Section 22 of the Act, 33 U.S.C. §922; by Order dated September 18, 1995, the
Board granted claimant's motion to remand the case for modification proceedings.
In support  of his petition for modification before the administrative law judge,
claimant contended that he is temporarily totally disabled due to
neuropsychological problems which were not completely diagnosed until after the
original hearing.  Employer, which had denied neuropsychological treatment to
claimant until the administrative law judge ordered such treatment in his Decision
and Order, responded that claimant could have obtained this evidence prior to the
hearing and that, therefore, modification was improper as there had not been a
change of condition.  Alternatively, employer argued that claimant's condition is
not disabling and that any disability is related to his refusal to obtain suitable
alternate employment rather than to the head injury. 

     In his Decision and Order on Section 22 Modification, the administrative law
judge initially found that claimant's request for modification was appropriate in
order to determine the nature and extent of claimant's psychological disability. 
The administrative law judge next found that claimant's psychological problems are
related to claimant's knee injury, that claimant requires further
neuropsychological treatment, and that claimant is temporarily totally disabled as
a result of this condition.  The administrative law judge further found that
claimant's psychological disability did not commence until May 1, 1995, when Dr.
Koch opined that claimant's disability prevented his return to work.   Employer
appeals the administrative law judge's findings on modification.  BRB No. 97-571.
On January 27, 1997, at claimant's request, the Board reinstated his appeal of the
administrative law judge's initial Decision and Order,  BRB No. 95-1167, and
consolidated that appeal with employer's appeal of the administrative law judge's
Decision and Order on Section 22 Modification.

                              BRB No. 95-1167

     On appeal, claimant concedes that the administrative law judge properly used
Section 10(a) to calculate his average weekly wage; however, claimant contends the
administrative law judge erred in his computation of claimant's average daily wage
under that subsection.  Section 10(a) is applicable where the employee has worked
 substantially the whole of the year" preceding the injury and aims at a
theoretical approximation of what a claimant could ideally have been expected to
earn.[1]   33 U.S.C. §910(a); see Duncan
v. Washington Metropolitan Area Transit Authority, 24 BRBS 133 (1990).  In the
instant case, the administrative law judge divided claimant's total earnings during
the year preceding each injury by 52, then divided that sum 5 to derive an average
daily wage.[2]   This sum was then multiplied by
260, then divided by 52, to arrive at claimant's average weekly wage at the time
of each work-incident. As claimant contends, the administrative law judge's calculation (divide by 52,
divide by 5, multiply by 260) results in a null mathematical calculation, as it divides earnings and then multiplies
them by the same number.  Moreover, it is essentially the identical number as dividing claimant's yearly
earnings prior to each work injury by 52.  Section 10(a) does not sanction this method.  The
administrative law judge's calculation is not, therefore, a correct application of 
Section 10(a), which requires an average daily wage based on the actual time
claimant worked in the year prior to injury.[3]    As the
administrative law judge's method of computing claimant's average daily wage is not
a correct application of Section 10(a), it cannot be affirmed. See Duncan,
24 BRBS at 136. 

     Pursuant to Section 10(a), 33 U.S.C. §910(a), claimant's average daily
wage is best calculated by dividing claimant's earnings during the year prior to
the work injury by the actual number of days claimant worked during the year
preceding the work injury. See Matthews v. Jeffboat, Inc., 18 BRBS 185
(1986).  In the instant case, this method is unavailable, as there is no evidence
of the actual number of days claimant worked.[4] 
 However, the number of hours actually worked by claimant preceding his injury is
in the record, and the number of days may rationally be derived by dividing by 8
the total number of hours claimant worked during the year preceding each injury.
See Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS 70, 75
(1997).[5]   In the instant case, claimant worked
1,809.9 hours in the year prior to his October 17, 1991, injury; by dividing these hours
worked by 8, it can be determined that claimant worked 226.24 days prior to his
October 17, 1991, injury.  Similarly, when the 1,982.8 hours claimant worked in the
year preceding his August 12, 1992, injury are divided by 8, the result indicates
that claimant worked 247.8 days in the year preceding that injury.  Thus,
claimant's average daily wage based on claimant's total earnings for the years
preceding each injury is as follows:  $22,241.85  226.24 = $98.31; $25,141.37 
247.8 = $101.46, respectively.  Accordingly, we hold that claimant's average daily
wage at the time of his October 17, 1991, head injury was $98.31 and claimant's
average daily wage at the time of his August 12, 1992, knee injury was $101.46.

     To calculate the amount a claimant who worked substantially the whole of the
year preceding the injury could ideally expect to earn, Section 10(a) next directs
multiplying the average daily wage by 260 for a five-day a week worker. See
33 U.S.C. §910(a).  In this case, claimant's average annual earnings for the
October 17, 1991, head injury are $25,560.60 (260 x $98.31) and for the August 12,
1992, knee injury, claimant average annual earnings are $26,379.60 (260 x 
$101.46).  Finally, pursuant to Section 10(d)(1), 33 U.S.C. §910(d)(1),
claimant's average weekly wage is calculated by dividing claimant's average annual
earnings by 52.  In this case, claimant's average weekly wage for the October 17,
1991, head injury is $491.55 ($25,560.60  52), and his average weekly wage for the
August 12, 1992, knee injury is $507.30 ($26,379.60  52).  Accordingly, we vacate and modify
the administrative law judge's average weekly wage  determination for each injury to provide for an average
weekly wage of $491.55 for the October 17, 1991, injury and an average weekly wage of $507.30 for the August
12, 1991, injury.

                              BRB No. 97-571

     Employer appeals the administrative law judge's award on modification of
temporary total disability compensation commencing on May 1, 1995.  Initially,
employer contends that modification is improper as claimant presented evidence
regarding his psychological condition which he could have obtained prior to the
initial formal hearing.  We disagree. 

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for changing otherwise final
decisions; modification pursuant to this section is permitted based upon a mistake of fact in the initial decision
or a change in claimant's physical or economic condition. See Metropolitan Stevedore Co. v. Rambo, 
515 U.S. 291, 30 BRBS 1 (CRT)(1995).  Under Section 22, the administrative law judge has broad discretion
to correct mistakes of fact "whether demonstrated by wholly new evidence, cumulative evidence, or merely
further reflection on the evidence submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254,
256 (1971), reh'g denied, 404 U.S. 1053 (1972); see also Banks v. Chicago Grain Trimmers
Association, Inc., 390 U.S. 459, reh'g denied, 391 U.S. 929 (1968).  In order to obtain modification
based on a mistake of fact, moreover, the modification must render justice under the Act. See McCord v.
Cephas, 532 F.2d 1377, 3 BRBS 371 (D.C. Cir. 1976).  It is well-established that the party requesting
modification bears the burden of proof. See, e.g., Metropolitan Stevedore Co. v. Rambo,     
 U.S.       , 31 BRBS 54 (CRT) (1997).  Once the initial burden of proving a change in
condition or mistake in fact is met, the same standards apply as in the initial adjudicatory proceedings. 
Id.   

     Employer initially contends that the administrative law judge should have
applied the doctrine of res judicata in the instant case in order to prevent
claimant from relitigating the issue of his disability.  The administrative law
judge found that claimant was unable to receive a neuropsychological evaluation
before the initial formal hearing because employer refused authorization for such
an evaluation, notwithstanding the recommendation of Dr. Fleet, claimant's treating
physician, for such an evaluation.  Accordingly, the administrative law judge
concluded that for justice to be rendered under the Act, a review of the medical
evidence generated post-hearing pursuant to his Decision and Order was appropriate. 
We affirm the  administrative law judge's rejection of employer's contention, as
the administrative law judge acted in accordance with law.   Initially, it is well-established that Section 22 displaces traditional notions of res judicata.  See
Hudson v. Southwestern Barge Fleet Services, Inc., 16 BRBS 367 (1984),
citing Banks, 390 U.S. 459; O'Keeffe, 404 U.S. at 255-256.  In this
case, claimant alleged a mistake of fact and offered new evidence to substantiate
his allegation.  See Duran v. Interport Maintenance Corp., 27 BRBS 8, 13-15
(1993).  Moreover, employer's contention that claimant could have produced the
evidence prior to the formal hearing is rejected in view of the administrative law
judge's finding that claimant was unable to receive the appropriate exam prior to
his order.  The administrative law judge, moreover, is entitled to consider wholly
new evidence, cumulative evidence or merely reflect on the evidence initially
submitted when modification is sought. O'Keeffe, 404 U.S. at 256.

     Employer next contends the administrative law judge's finding that claimant's
psychological condition is due to the knee injury is not supported by substantial
evidence. Rather, employer asserts that any psychological disability experienced
by claimant  is solely due to claimant's lack of diligence in obtaining suitable
alternate employment.  In addressing the issue of causation, the administrative law
judge accorded determinative weight to the opinion of Dr. Maggio, who examined
claimant twice at employer's request,  finding him "highly credentialed."  Decision
and Order on Section 22  Modification at 11.  Dr. Maggio first examined claimant
on September 30, 1994, and opined at that time that claimant has an "adjustment
disorder ... which seems to be causally related to his injury of August 12, 1992
and his inability to be returned to the productive work force."  EX 1.  He
reevaluated claimant on June 30, 1995, at which time he opined that claimant is
unable to work because he can't function psychologically. See Lopez v. Southern
Stevedores, 23 BRBS 295 (1990).  As a claimant's condition need only be related in
part to the work injury and as Dr. Maggio's opinion constitutes substantial
evidence in support of a finding that claimant's psychological condition is related
at least in part to his employment with employer, we affirm the administrative law
judge's finding that claimant's psychological condition is related to his August
1992 knee injury. 

     Lastly, employer, citing Dr. Maggio's September 30, 1994, report in which he opined that claimant
is not mentally incapacitated from working, contends that claimant's neuropsychological
condition is not disabling.  However, in his subsequent report of August 12, 1995,
Dr. Maggio stated that claimant is incapable of work.  EX 1.  On modification, the
administrative law judge credited Dr. Maggio's August 12, 1995, opinion, as well
as the opinion of claimant's treating physician, Dr. Koch.  Decision and Order on
Section 22 Modification at 12.  Dr. Koch unequivocally testified that claimant
cannot return to work.  CX 1 at 40-42.[6]   The
administrative law judge's finding that claimant is totally disabled due to a neuropsychological
condition based on  the medical opinions of Drs. Maggio and Koch  is thus supported by
substantial evidence and rational.   See Cordero v. Triple A Machine Shop, 580 F.2d 1331,
1335, 8 BRBS 744, 747 (9th Cir. 1978), aff'g 4 BRBS 284 (1976), cert. denied, 440 U.S. 911
(1979).  We therefore affirm this finding. 

     Accordingly, the administrative law judge's calculation of claimant's average weekly wages is vacated,
and his decision modified to reflect an average weekly wage of $491.55 at the time of claimant's October 17,
1991, head injury and an average weekly wage of $507.30 at the time of claimant's August 12, 1992, knee
injury.  In all other respects, the administrative law judge's Decision and Order Awarding Benefits, Order
Denying Motions for Reconsideration, and Decision and Order on Section 22 Modification are affirmed. 

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.


1)Section 10(a) requires the administrative law judge to determine the average daily wage claimant actually earned during the preceding twelve months. This average daily wage must then be multiplied by 260, if claimant was a five-day per week worker, or 300 if claimant was a six-day per week worker; the resulting figure is then to be divided by 52, pursuant to Section 10(d) of the Act, 33 U.S.C. §910(d), in order to yield claimant's statutory average weekly wage. See 33 U.S.C. §910(a); SGS Control Services v. Director, OWCP, 86 F.3d 438, 30 BRBS 57 (CRT) (5th Cir. 1996); O'Connor v. Jeffboat, Inc., 8 BRBS 290 (1978). Back to Text
2) $22,241.85 52 weeks = $427.73 5 days = $85.55 per day. $25,141.37 52 weeks = $483.49 5 days = $96.70 per day. Back to Text
3)The administrative law judge's average daily wage calculation assumes claimant, a five-day per week employee, worked each and every weekday during the year preceding his injuries, taking no time off. This computation thus penalizes claimant by proportionally reducing claimant's average weekly wage for any days claimant did not work and was not paid during the year preceding each injury. Back to Text
4)We note that employer refused claimant's discovery request to provide this information. See CX 12 at 3-4. Back to Text
5)We note claimant's uncontradicted testimony that he normally worked 8 hours a day, 5 days a week. Tr. at 27. Back to Text
6)The administrative law judge found that claimant's total disability commenced on May 1, 1995, when Dr. Koch first opined that claimant is unable to work due to his neuropsychological condition. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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