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                                   BRB Nos. 91-1625
                                     and 92-1625A
                                         
MARK G. WAINWRIGHT                      )
                                        )
          Claimant-Respondent           )
          Cross-Petitioner              )
                                        )
     v.                                 )
                                        )         
JACKSONVILLE SHIPYARDS,                 )
INCORPORATED                            )    DATE ISSUED:   04/27/1995
                                        )
          Self-Insured                  )         
          Employer-Petitioner           )
          Cross-Respondent              )    DECISION AND ORDER


     Appeals of the Decision and Order-Award of Benefits and Ruling Denying
     Motion for Reconsideration of Aaron Silverman, Administrative Law Judge,
     United States Department of Labor.

     John E. Houser, Thomasville, Georgia, for claimant.

     Paul M. Doolittle and Robert M. Sharp (Sharp & Doolittle), Jacksonville,
     Florida, for employer.

     Carol B. Feinberg (Thomas S. Williamson, Jr., Solicitor of Labor; Carol
     DeDeo, Associate Solicitor; Janet R. Dunlop, Counsel for Longshore),
     Washington, D.C., for the Director, Office of Workers' Compensation
     Programs, United States Department of Labor.

     Before:  SMITH, BROWN and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals, and claimant cross-appeals, the Decision and Order-Award of
Benefits and Ruling Denying Motion for Reconsideration (89-LHC-257) of
Administrative Law Judge Aaron Silverman 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 if they 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 injured his back on August 22, 1980 while working for employer as a
first class shipfitter.  Claimant underwent lumbar laminectomies on March 31, 1981,
October 7, 1981, and February 16, 1987.  Claimant was unable to return to his usual
work, and subsequently worked at various light duty jobs.  Claimant testified that
most of these jobs hurt his back.  At the time of the hearing claimant worked for
First Solution performing smoke and fire restoration services 27 to 30 hours a week
at $6 per hour.    

     The administrative law judge found that employer did not establish suitable
alternate employment and that claimant is totally disabled, but nonetheless
concluded that claimant is entitled to an award of temporary partial disability
benefits based on his earnings at First Solution.  In finding claimant is totally
disabled, the administrative law judge noted that claimant worked with limitations,
could not work five days a week, and that his boss understands his condition and
does the heavy lifting for him.  The administrative law judge also found that due
to the sympathy of his boss, claimant's wages may be more than the real worth of
his services.  Decision and Order at 3.  The administrative law judge also found
that claimant's disability was not permanent because there is no "updated
information" in the record on maximum medical improvement.  Decision and Order at
4.  

     The administrative law judge further found that claimant's average weekly wage
at the time of the injury was not in the record, and he therefore calculated
claimant's average weekly wage based on claimant's testimony that a shipfitter
earned $11 per hour or $440 per week at the time of the hearing.  The
administrative law judge determined claimant's post-injury wage-earning capacity
was $171 per week, which he obtained by multiplying claimant's average weekly
number of hours at First Solution, 28.5, times $6 per hour.  The administrative law
judge therefore awarded temporary partial disability benefits based on the
difference between the current average weekly wage of a shipfitter, $440, and
claimant's post-injury wage-earning capacity, $171, commencing on the date
claimant's job at First Solution began, although, as the administrative law judge
noted, that date is not in the record.

     Employer filed a Motion for Reconsideration in which it contended that the
administrative law judge erred in failing to rely on the parties' stipulation that
claimant's average weekly wage was $215, and that, therefore, claimant's loss in
wage-earning capacity should be $29.33 ($215 - $171 x 2/3) per week.  The
administrative law judge denied the motion without addressing the parties'
stipulation, and stated that, due to the absence of information in the record, his
were the only findings and conclusions the evidentiary record permitted.  Decision
and Order on Recon. at 2.   

     On appeal, employer challenges the administrative law judge's findings as to
average weekly wage and loss in wage-earning capacity.  BRB No. 91-1625.  On cross-appeal, claimant contends that the administrative law judge erred in failing to
find that he is permanently totally disabled, in failing to calculate the date of
maximum medical improvement, and in failing to award Section 10(f), 33 U.S.C.
§910(f), adjustments.  BRB No. 91-1625A.  The Director responds to these
appeals, agreeing with the contentions of both parties, and she also contends that
the administrative law judge erred in failing to account for claimant's disability
status for the eight-year period following his injury.

     We agree that the administrative law judge's decision contains numerous errors
and that the case must be remanded for further findings.  We first address the
issue of permanency. Claimant contends that his disability is permanent, and that
the parties stipulated at the hearing that claimant reached maximum medical
improvement on July 18, 1981.  Claimant notes that his treating physician, Dr.
Sullivan, opined that he reached maximum medical improvement on that date, that he
was 5 percent permanently partially disabled, and cannot return to his usual
work.[1]   The Director also contends that the
administrative law judge erred in failing to accept the parties' stipulation. 
Additionally, the Director contends that the evidence establishes that claimant's
disability was permanent since 1981 because since then claimant's condition did not
improve to the point that his wage-earning capacity increased.  Employer responds,
contending that the administrative law judge's finding that claimant's disability
is temporary should be affirmed.  In the alternative, employer contends that it did
not stipulate that the date of maximum medical improvement was July 18, 1981.[2]   

     A disability is considered permanent as of the date claimant's condition
reaches maximum medical improvement or if the condition has continued for a lengthy
period and appears to be of lasting or indefinite duration as opposed to one which
merely awaits a normal healing period. Louisiana Ins. Guaranty Ass'n v.
Abbott, 40 F.3d 122, 29 BRBS 22 (CRT) (5th Cir. 1994), aff'g 27 BRBS 192
(1993); Watson v. Gulf Stevedore Corp., 400 F.2d 649, petition for reh'g
denied sub nom. Young & Co. v. Shea, 404 F.2d 1059 (5th Cir. 1968), cert.
denied, 394 U.S. 976 (1969).  A determination of maximum medical improvement
is primarily a question of fact based on medical evidence. Ballesteros v.
Western Willamette Corp., 20 BRBS 184 (1988).  A condition becomes permanent
when the employee is no longer undergoing treatment with a view towards improving
his condition, see Abbott, 40 F.3d at 126, 29 BRBS at 25 (CRT), but a
prognosis that claimant may improve in the future does not preclude a finding of
permanency. See Mills v. Marine Repair Service, 21 BRBS 115 (1989),
modified on other grounds on recon., 22 BRBS 340 (1989); Trask v.
Lockheed Shipbuilding & Construction Co., 17 BRBS 56 (1985).  Although maximum
medical improvement may not be reached when surgery is anticipated, see
Kuhn v. Associated Press, 16 BRBS 46 (1983), the possibility that claimant
may undergo surgery does not necessarily preclude a finding of permanency
especially where claimant's ability to recover or to do work after surgery is
unknown. See White v. Exxon Co., 9 BRBS 138 (1978), aff'd mem., 617
F.2d 292 (5th Cir. 1980). 

     In the instant case, we must vacate the administrative law judge's finding
that claimant's condition is temporary, and remand for the administrative law judge
to determine whether the parties stipulated to the date of maximum medical
improvement.  The administrative law judge may accept the parties' stipulation if
it is in accordance with law. See Duncan v. Washington Metropolitan Area Transit
Authority, 24 BRBS 133, 135 (1991).  The administrative law judge's rejection
of a stipulation, however, must be adequately explained. Grimes v. Exxon Co.,
U.S.A., 14 BRBS 573 (1981).  If, on remand, the administrative law judge
determines that the parties did not stipulate to a date of permanency or if he
rejects the stipulation, he must determine whether claimant's disability is
permanent in accordance with the Watson criteria.  Contrary to the
administrative law judge's finding that there is insufficient evidence in the
record on which to make a determination of permanency, there appears to be ample
evidence in the record on the issue, including claimant's medical history and Dr.
Sullivan's opinions.

     Claimant and the Director next contend the administrative law judge erred in
concluding that claimant is partially disabled because the administrative law judge
found that claimant is totally disabled based on claimant's testimony that he is
only able to work part-time at First Solution, his boss is sympathetic to his
situation and performs the heavy work for him, and that without his boss's
sympathy, claimant's wages may exceed the value of his services.  The Director
states that the administrative law judge's conclusion that claimant is partially
disabled is inconsistent with his findings.  Employer responds, urging affirmance
of the administrative law judge's finding that claimant is partially disabled,
contending that it established that claimant is capable of working since 1983 as
claimant had his own landscaping company, and successively worked for Schwab
Investigations, the City of Jacksonville, and Arlington Fence Company prior to
obtaining his current position.    

     To establish a prima facie case of total disability, claimant must show
that he cannot return to his regular or usual employment due to his work-related
injury. Abbott, 40 F.3d at 127, 29 BRBS at  26 (CRT).  The burden then
shifts to employer to establish that the employee is capable of performing other
realistically available jobs. Abbott, 40 F.3d at 127, 29 BRBS at 26 (CRT);
New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 
(CRT)(5th Cir. 1981).  Claimant may be totally disabled even if he is working if
he does so only with extraordinary effort, excruciating pain, or at the beneficence
of employer. Argonaut Insurance Co. v. Patterson, 846 F.2d
715, 21 BRBS 51 (CRT)(11th Cir. 1988); Haughton Elevator Co. v.
Lewis, 572 F.2d 447, 7 BRBS 838 (4th Cir. 1978).  The Board has emphasized that
an award of total disability while claimant is working should be the exception, not
the rule. See Jordan v. Bethlehem Steel Corp., 19 BRBS 82 (1986); Burch
v. Superior Oil Co., 15 BRBS 423 (1983).  

     The case must be remanded for the administrative law judge to determine
whether any of the post-injury jobs, including claimant's current job at First
Solution, were within claimant's restrictions and constitute suitable alternate
employment, or if claimant is totally disabled despite his continued employment. 
On remand, the administrative law judge must reconcile his findings that claimant
is partially and totally disabled as claimant cannot be both at the same time. 
Moreover, the Director asserts in her brief that employer paid claimant temporary
total disability benefits for certain periods between August 30, 1980 and January
11, 1984, and temporary partial disability benefits for periods between February
1, 1983 and the date of the Decision and Order.  It is unclear when the
administrative law judge found claimant became partially disabled since the date
claimant began working for First Solution is not in the record.  On remand, the
administrative law judge should  account for claimant's disability status for all
time periods from the date of injury.  Partial disability, if applicable, commences
at the time suitable alternate employment is established, and claimant is entitled
to total disabilty prior to that time. See Abbott, 40 F.3d at 126, 29 BRBS
at 25-26 (CRT).  If the record does not contain sufficient information to establish
the date suitable alternate employment is established, the administrative law judge
may reopen the record to obtain that information. See 20 C.F.R.
§702.338.

     Employer contends that the administrative law judge erred in failing to rely
on the parties' stipulation that claimant's average weekly wage at the time of
injury was $215, and it contends that claimant's loss in wage-earning capacity
therefore is $29.33 per week.  In its Reply Brief, employer acknowledges that
claimant's loss in wage-earning capacity must be measured by the difference between
his average weekly wage at the time of injury and the wages the post-injury job
paid at the time of injury.  The Director agrees that the administrative law judge
erred in computing claimant's average weekly wage, and, if claimant is partially
disabled, erred in calculating claimant's loss in wage-earning capacity.  
     Under Section 8(c)(21), 33 U.S.C. §908(c)(21), a partially disabled
employee is entitled to 66 2/3 percent of the difference between his average weekly
wage and his post-injury wage-earning capacity. Abbott, 40 F.3d at 129, 29
BRBS at 22 (CRT).  The Act requires comparison of claimant's average weekly wage
at the time of the injury with his post-injury wage-earning capacity adjusted to
wage levels at the time of injury. See Thompson v. Northwest Enviro Services,
Inc., 26 BRBS 53, 59 (1992); Richardson v. General Dynamics Corp., 23
BRBS 327, 330 (1990); Fox v. Melville Shoe Corp, Inc., 17 BRBS 71, 74
(1985).  

     In this case, the administrative law judge erred in failing to address the
parties' stipulation as to claimant's average weekly wage, and in failing to give
reasons for accepting or rejecting it.[3]   See
Thompson, 26 BRBS at 59; Duncan, 24 BRBS at 135; Fox, 17 BRBS at
73-74.  Moreover, absent unusual circumstances, claimant's average weekly wage
should be based on his earnings at the time of his injury, and thus, the
administrative law judge's use of the wages a shipfitter earned at the time of the
hearing is clearly erroneous. See Empire United Stevedores v. Gatlin, 936
F.2d 819, 25 BRBS 26 (CRT) (5th Cir. 1991); Wayland v. Moore Dry Dock, 25
BRBS 53 (1991); 33 U.S.C. §910.    

     Furthermore, the administrative law judge erred in failing to adjust
claimant's post-injury wage-earning capacity to wage levels at the time of
claimant's injury.  If the wages claimant's current job paid at the time of the
injury are unknown, the administrative law judge may reduce claimant's current
wages by the percentile increase in the national average weekly wage over the same
time period.  See Richardson, 23 BRBS at 330.  Therefore, if on remand, the
administrative law judge finds that claimant is partially disabled, he should make
the appropriate comparison of claimant's pre-injury average weekly wage with
claimant's post-injury wage-earning capacity adjusted to wage levels at the time
of injury. 

     Lastly, if on remand the administrative law judge finds that claimant is
entitled to permanent total disability benefits, claimant is entitled to annual
cost-of-living adjustments pursuant to Section 10(f), 33 U.S.C. §910(f), that
occurred during any previous periods of temporary total disability. Director,
OWCP v. Hamilton, 890 F.2d 1143 (11th Cir. 1989), aff'g Hamilton v. Crowder
Construction Co., 22 BRBS 121 (1989). Cf. Bowen v. Director, OWCP, 912
F.2d 348, 24 BRBS 9 (CRT) (9th Cir. 1990); Lozada v. Director, OWCP, 903
F.2d 168, 23 BRBS 78 (CRT) (2d Cir. 1990); Phillips v. Marine Concrete
Structures, Inc., 895 F.2d 1033, 23 BRBS 36 (CRT) (5th Cir. 1990) (en
banc).

     Accordingly, the administrative law judge Decision and Order -Award of
Benefits and Ruling Denying Motion for Reconsideration are vacated, and the case
is remanded for further consideration in a manner consistent with this opinion.[4]   

     SO ORDERED.



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN 
                         Administrative Appeals Judge                      


                         
                                                                        

                         REGINA C. McGRANERY 
                         Administrative Appeals Judge 
                         



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Footnotes.


1)On July 13, 1981, Dr. Sullivan opined that claimant was 5 percent permanently partially disabled and cannot perform his usual work, but he also stated that he anticipates that claimant will reach maximum medical improvement as of August 1, 1981. Cl. Ex. 4. Back to Text
2)Employer notes that Dr. Sullivan's letter dated July 13, 1981, states that he anticipated maximum medical improvement as of August 1, 1981, that he performed a partial hemilaminectomy and decompression at L5 on October 7, 1981, that on October 26, 1982, Dr. Sullivan mentions the possibility of "further surgery," that on January 14, 1983, Dr. Sullivan states that "further improvement is likely," and on July 31, 1983, he states that claimant had reached maximum medical improvement. Emp. Ex. 6, 7, 8, 10. Employer therefore contends the earliest date of maximum medical improvement was July 31, 1983, although employer notes claimant also underwent surgery in 1987. Back to Text
3)At the hearing, the administrative law judge asked that counsel for the parties attempt to agree to an average weekly wage. Two weeks after the hearing, employer submitted a letter to the administrative law judge stating that the parties agreed that claimant's average weekly wage is $215. Back to Text
4)Claimant's counsel filed a "Motion for Attorney Fee," which is not accompanied by a fee petition. The Board cannot award a fee unless and until counsel complies with the regulation at 20 C.F.R. §802.203. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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