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                                    BRB No. 92-978
                                         
THOMAS A. STYLC                         )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
CERES CORPORATION                       )    DATE ISSUED:   05/31/1995
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order and Order Upon Motions for
     Reconsideration of Stuart A. Levin, Administrative Law Judge, United
     States Department of Labor.

     Roger L. Smith, Glen Burnie, Maryland, for claimant.

     Andrew M. Battista (Young & Battista, P.A.), Baltimore, Maryland, for
     self-insured employer. 

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

     PER CURIAM:

     Employer appeals the Decision and Order and Order Upon Motions for
Reconsideration (90-LHC-1052) of Administrative Law Judge Stuart A. Levin 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 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).

     While working for employer as a stripper and stuffer of bulk cargo, claimant
suffered injuries to his neck, back and knee on November 13, 1986.  Claimant
returned to his usual work on May 18, 1987, but found that it hurt his back and
neck.  Due to his seniority, he became a groundman, which involves lighter work,
although claimant testified that the work strains his leg and neck.  Claimant,
however, has continued working as a groundman.  Claimant testified that since his
injury, except for one or two attempts, he has not worked out of the union hall, but that he has not missed any significant periods of work,
and he has always met his orders.  Claimant also testified that if he had not had
his injury, he would probably still be working on the ground.  Claimant's hourly
wage has increased from $17 at the time of the injury to $19 an hour at the time
of the hearing.[1]   

     Dr. Reahl stated that claimant is permanently partially disabled in his
cervical spine, left knee and lumbar spine due to the November 1986 injury, and
that claimant should be restricted from climbing ladders, working in and out of
holds, and bending and carrying heavy objects.  Dr. Reahl deposed that claimant had
some weaknesses, but they would not prevent claimant from working unless the work
pushed him to the "extremes of endurance." Dr. Bellis also stated that claimant has
a permanent disability to his neck resulting from the November 1986 injury, but
that claimant could return to his usual work.  Dr. Cohen opined that claimant has
a 10 percent permanent partial disability to his neck, but that claimant's neck,
knee and back problems are not work-related, and that claimant requires no
restrictions. 

     The administrative law judge found that claimant has a permanent impairment
to his neck as a result of the work injury, but suffers no loss in wage-earning
capacity due to that impairment.  The administrative law judge also found that
claimant's back and knee impairments are not work-related.  The administrative law
judge found that despite claimant's claim that the injury to his neck prevents him
from obtaining extra work and income, due to his seniority, claimant made no "real
effort" to obtain extra jobs and that there is no evidence that his work pushed him
to the "extremes of his endurance."  The administrative law judge found that
claimant worked more hours per year in the years immediately after the injury than
in the three years immediately preceding the injury.  The administrative law judge
also found that most of the overtime work available to claimant involved the
unloading of auto ships, and although Dr. Reahl expressed misgivings about
claimant's being able to perform such work, his misgivings were focused mainly on
claimant's non work-related knee problems.  The administrative law judge concluded
that "in the interests of justice" and to preserve claimant's right to seek
modification under 33 U.S.C. §922, claimant is entitled to a one percent
de minimis award commencing May 19, 1987.  Claimant and employer moved for
reconsideration, which the administrative law judge denied.  

     On appeal, employer contends that the administrative law judge erred in
entering a de minimis award on the ground that the evidence does not
establish a significant possibility of future economic harm.  Specifically,
employer asserts that claimant suffered no loss of wage-earning capacity in the
five years since the November 1986 injury, that claimant has seniority status, that
there is no evidence claimant might lose his job, and claimant testified he always
met his orders and would have worked as a groundman even if he had not been
injured.  Employer also notes that the administrative law judge did not make any
finding that claimant's restrictions might pose a problem to his future employment. 
Alternatively, employer contends that a de minimis award must be issued in
a specific dollar amount, and not as a percentage of average weekly wage.  

     The United States Court of Appeals for the Fourth Circuit, in whose
jurisdiction this case arises, has stated that a de minimis award may be
appropriate where there is sufficient evidence for the administrative law judge to
conclude that there is a likelihood of future economic harm due to the work injury,
but the degree of that harm cannot presently be ascertained. Fleetwood v.
Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1124, 1234 n. 9, 18 BRBS 12,
32 n. 9 (CRT)(4th Cir. 1985); see also Burkhardt v. Bethlehem Steel
Corp., 23 BRBS 273, 277 (1990).  Criteria evaluated in making this
determination include whether claimant's job is secure in light of his physical
restrictions, whether claimant has suffered a loss in wage-earning capacity in the
present or is likely to do so in the future, or whether his physical condition is
likely to deteriorate. See Randall v. Comfort Control, Inc., 725 F.2d
791, 16 BRBS 56 (CRT)(D.C. Cir. 1984); Hole v. Miami Shipyards Corp., 640
F.2d 760, 13 BRBS 237 (5th Cir. 1981); Burkhardt, 23 BRBS at 278; Adams
v. Washington Metro. Area Transit Auth., 21 BRBS 226 (1988). 

     Employer is correct in asserting that the administrative law judge failed to
make any findings that claimant is likely to suffer significant future economic
harm as a result of his neck impairment.  Rather, the administrative law judge
found that claimant's neck impairment and work restrictions do not impair his wage-earning capacity, his ability to perform his job, or his ability to perform
overtime work.  The evidence does not show that claimant's job is in any way
threatened, and in fact reveals that claimant worked more hours after his injury
than before.  The findings made by the administrative law judge cannot support a
conclusion that claimant is likely to suffer significant future harm due to his
neck impairment, and there is no other evidence of record to support such a
conclusion.  The de minimis award, therefore, must be reversed.[2]   Burkhardt, 23 BRBS at 278; Mavar v.
Matson Terminals, Inc., 21 BRBS 336 (1988); Adams, 21 BRBS at 228. 

     Accordingly, the administrative law judge's Decision and Order and Order Upon
Motions for Reconsideration are reversed.

     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)Employer paid claimant temporary total disability benefits from November 14, 1986 to May 18, 1987. Back to Text
2)We therefore need not address employer's argument that a de minimis award must be for a specific dollar amount rather than as a percentage of average weekly wage. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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