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                                  BRB No. 92-761

GARY RANDO                              )
                                        )
          Claimant-Petitioner           )
                                        )
       v.                               )
                                        )
STANDARD BOAT COMPANY,                  )
INCORPORATED                            )    DATE ISSUED:   02/23/1995
                                        )
       and                              )
                                        )
STATE INSURANCE FUND                    )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Interim Decision and Order and the Final Decision and
     Order Awarding Benefits of Ralph A. Romano, Administrative Law Judge,
     United States Department of Labor.

     Richard E. Spillane (Caruso, Spillane, Contrastano & Ulaner, P.C.), New
     York, New York, for claimant.

     Leonard J. Linden (Linden & Gallagher), New York, New York, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Interim Decision and Order and the Final Decision and
Order Awarding Benefits (91-LHC-382) of Administrative Law Judge Ralph A. Romano
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 injured his right elbow on July 22, 1988, when he fell while
attempting to close a crane door. Tr. at 4, 22.  Employer voluntarily paid claimant
temporary total disability benefits from July 23, 1988, through September 13, 1990,
and permanent partial disability benefits from September 14, 1990, pursuant to
Section 8(c)(1) of the Act, 33 U.S.C. §908(c)(1).[1]   Claimant filed a claim for unscheduled permanent partial disability
benefits, pursuant to Section 8(c)(21), 33 U.S.C. §908(c)(21), contending that
he has only a minimal earning capacity as a result of the injury.  Employer
contested the claim, asserting that claimant has a scheduled impairment of 28
percent to the right arm.

     At the hearing before the administrative law judge, claimant and employer
stipulated that claimant cannot return to his usual work, that claimant's condition
reached maximum medical improvement on July 10, 1990, and that employer voluntarily
paid temporary total and permanent partial disability benefits as set forth above.
Interim Decision and Order at 2; Tr. at 4-6.  Therefore, the only disputed issues
were whether claimant sustained a scheduled or an unscheduled injury and the degree
of his impairment.  The administrative law judge found that claimant cannot return
to his usual work, that employer presented evidence establishing the availability
of suitable alternate employment, and that claimant failed to show due diligence
in seeking work.  Consequently, he concluded that claimant is permanently partially
disabled. Interim Decision and Order at 3-5.  The administrative law judge rejected
employer's assertion that Section 8(c)(1) applies to this case, as well as
claimant's argument that Section 8(c)(21) applies; however, he determined that
claimant sustained a scheduled injury, and he awarded permanent partial disability
benefits pursuant to Section 8(c)(19), 33 U.S.C. §908(c)(19). Interim Decision
and Order at 5.  Thereafter, in his Final Decision and Order, the administrative
law judge noted the parties' agreement that claimant has a 30 percent loss of use
to his right arm, and he awarded permanent partial disability benefits from July
10, 1990, pursuant to Section 8(c)(19). Final Decision and Order at 1.  

     Claimant appeals the administrative law judge's decisions.  Claimant contends
administrative law judge erred in not awarding benefits pursuant to Section
8(c)(21), and in determining the onset of permanent partial disability.  In its
response brief, employer asks the Board to modify the administrative law judge's
award to reflect claimant's entitlement to benefits under Section 8(c)(1), and it
urges affirmance in all other respects.

     Claimant contends administrative law judge erred in awarding benefits pursuant
to Section 8(c)(19).  In support of his argument, he cites Potomac Electric
Power Co. v. Director, OWCP [PEPCO], 449 U.S. 268, 14 BRBS 363 (1980),
rev'g 606 F.2d 1324, 10 BRBS 1048 (D.C. Cir. 1979), urging the Board to
consider the decision rendered by the United States Court of Appeals for the D.C.
Circuit as well as the dissenting opinion in the Supreme Court's decision. 
Further, claimant urges the Board to distinguish the facts of this case on the
basis that the claimant in PEPCO returned to light duty work for the same
employer whereas claimant in this case did not.  Claimant's argument is not
persuasive.  In PEPCO, the Supreme Court held that an injury to a scheduled
member resulting in permanent partial disability limits a claimant to compensation
under the schedule set forth in Section 8(c)(1)-(20) of the Act, 33 U.S.C.
§908(c)(1)-(20), and the claimant may not elect to receive compensation under
Section 8(c)(21), 33 U.S.C. §908(c)(21).  The Court noted, however, that such
an injury does not bar an award of permanent total disability benefits.
PEPCO, 449 U.S. at 277 n.17, 14 BRBS at 366-367 n.17.  We decline to
distinguish PEPCO in the manner espoused by claimant, as it is clear that
the Supreme Court's decision in PEPCO applies to the case at bar.  In this
case, claimant sustained an injury to his right elbow, and the administrative law
judge correctly determined that such an injury is an injury to a scheduled member. 
Consequently, as claimant is permanently partially disabled, he is entitled to
benefits under the schedule and not, as he contends, to continuing benefits under
Section 8(c)(21).  Thus, the administrative law judge properly rejected claimant's
argument. PEPCO, 449 U.S. at 282-283, 14 BRBS at 369.

     Employer contends the administrative law judge erred in rejecting its
assertion that claimant's benefits are appropriately awarded under Section 8(c)(1)
and not under Section 8(c)(19).  Section 8(c)(19) of the Act provides the formula
for determining compensation for the partial loss or partial loss of use of a
scheduled member.[2]  33 U.S.C. §908(c)(19). 
This subsection must be used in conjunction with another subsection of the
schedule, depending on the particular member injured, to determine the appropriate
compensation for such injury.  In this case, claimant sustained an injury to his
right elbow; therefore, Section 8(c)(1), which provides the formula for determining
compensation for the loss of an arm, applies. 33 U.S.C. §908(c)(1); see
generally Bachich v. Seatrain Terminals of California, 9 BRBS 184 (1978). 
Accordingly, we modify the administrative law judge's decision to reflect
claimant's entitlement to permanent partial disability benefits for a 30 percent
impairment to the arm pursuant to Section 8(c)(1) and (19). 33 U.S.C.
§908(c)(1), (19).

     Claimant also contends the administrative law judge erred in terminating his
temporary total disability benefits on July 10, 1990.  Specifically, claimant
argues that he is entitled to temporary total disability benefits through November
20, 1991, when the administrative law judge issued his decision, or through May
1991, when he received his high school diploma, or through September 13, 1990, when
employer ceased paying temporary total disability benefits.[3]   In determining the
nature of a disability, a claimant's condition becomes permanent on the date of
maximum medical improvement, and in determining the extent of a disability, a
claimant's condition becomes partial, if he cannot return to his usual work, on the
date on which an employer establishes the availability of suitable alternate
employment. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT) (2d Cir.
1991); Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS 89 (CRT) (9th Cir.
1990), cert. denied, 498 U.S. 1073 (1991).  Thus, permanent partial
disability benefits, whether scheduled or unscheduled, cannot commence until both
maximum medical improvement and suitable alternate employment have been
established. Id.  Further, under certain circumstances, if a claimant is
participating in a rehabilitation program, he may be considered totally disabled
for the duration of the program, if employment is precluded during this period.
Louisiana Insurance Guaranty Ass'n v. Abbott, 40 F.3d 122 (5th Cir. 1994),
aff'g 27 BRBS 192 (1993); Anderson v. Lockheed Shipbuilding &
Construction Co.,  ___ BRBS ___, BRB No. 91-1967 (Oct. 27, 1994).

     In the instant case, claimant and employer stipulated that claimant cannot
return to his usual work and that July 10, 1990, is the date on which claimant's
condition reached maximum medical improvement.  Employer presented evidence of
potential jobs for claimant which were available between May 31 and July 30, 1990,
Emp. Exs. 11-16, and, upon the recommendation from the Department of Labor,
claimant sought and received his high school diploma in May 1991.  The
administrative law judge did not determine the date on which employer established
the availability of suitable alternate employment, as required by Palombo. 
Therefore, we vacate the administrative law judge's finding that permanent partial
disability benefits are to commence on July 10, 1990, and we remand the case for
him to reconsider the onset of permanent partial disability in light of the
decisions in Abbott and Palombo.

     Accordingly, the administrative law judge's award is modified to reflect
claimant's entitlement to permanent partial disability benefits pursuant to Section
8(c)(1), (19).  His determination regarding the onset date of permanent partial
disability is vacated, and the case is remanded for further consideration in
accordance with this opinion.  In all other respects, the administrative law
judge's decisions are affirmed.

     SO ORDERED.
                                        _______________________________
                                        BETTY JEAN HALL, Chief
                                        Administrative Appeals Judge

                                        _______________________________
                                        ROY P. SMITH
                                        Administrative Appeals Judge

                                        _______________________________
                                        NANCY S. DOLDER
                                        Administrative Appeals Judge

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Footnotes.


1)Employer determined payments would cease on May 17, 1992. Tr. at 4-5. Back to Text
2)Section 8(c)(19) provides: (19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. 33 U.S.C. §908(c)(19). Back to Text
3)Claimant contends that employer conceded claimant's temporary total disability status by paying benefits until September 13, 1990. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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