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                                 BRB No. 92-1365

  
DONALD CRAWFORD                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
GENERAL DYNAMICS CORPORATION            )    DATE ISSUED:   05/30/1995
                                        )
     and                                )
                                        )
INSURANCE COMPANY OF                    )
NORTH AMERICA                           )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits Upon Remand of Martin
     J. Dolan, Jr., Administrative Law Judge, United States Department of
     Labor.

     Richard D. Haviland (Rakosky, Smith, Miller & Papp, P.C.), New London,
     Connecticut, for claimant.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Benefits Upon Remand (87-LHC-21) of Administrative Law Judge Martin J. Dolan, 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).  

     Claimant worked as a rigger for employer from August 31, 1952, to April 25,
1958, when he left to take other employment.  Subsequent to 1958, claimant worked
in a variety of jobs including fisherman, utilityman, timekeeper, metal cutter and
lobsterman.  Claimant testified that he first started having breathing problems in
1976, and was advised to give up offshore fishing in 1980 due to an asthmatic
condition for which he had been hospitalized on several occasions.  On September 21, 1981, claimant suffered a serious injury
while fishing inshore which left him incapacitated until March 1983.  In 1983,
claimant became self-employed as a lobsterman.  On June 14, 1984, Dr. Cullen
diagnosed claimant as having pulmonary asbestosis.  At the time of the August 14,
1987, hearing, claimant was still self-employed as a lobsterman, but he testified
that he had to hire a deckhand to do most of the work.  

     On June 27, 1984, claimant filed a claim for permanent partial disability
compensation, alleging he suffered a lung injury caused by asbestos exposure during
his tenure with employer.  In his original Decision and Order dated August 14,
1987, the administrative law judge found that claimant did not suffer a work-related injury and denied benefits.  Claimant appealed.  In an unpublished
decision, the Board summarily affirmed the denial of benefits, stating that the
administrative law judge's Decision and Order was supported by substantial
evidence. Crawford v. General Dynamics Corp., BRB No. 88-3368 (June 27,
1990) (unpublished).  Claimant's motion for reconsideration en banc was
denied.  Subsequently, on May 3, 1991, the United States Court of Appeals for the
Second Circuit vacated the administrative law judge's Decision and Order and
remanded the case for the administrative law judge to determine whether claimant
sustained an injury due to asbestos exposure in accordance with Romeike v.
Kaiser Shipyards, 22 BRBS 57 (1989), and whether medical benefits or a de
minimis award are warranted based on the analysis contained in LaFaille v.
Benefits Review Board, 884 F.2d 54, 22 BRBS 108 (CRT) (2d Cir. 1989).
Crawford v. Director, OWCP, 932 F.2d 152, 24 BRBS 123 (CRT) (2d Cir. 1991). 
On July 16, 1991, the Board vacated its June 27, 1990, Decision and Order and
remanded the case to the Office of Administrative Law Judges for further
proceedings consistent with the Second Circuit's opinion.

     In his Decision and Order Awarding Benefits Upon Remand, the administrative
law judge concluded that claimant sustained a work-related injury as a result of
asbestos exposure during claimant's employment with employer.  He then determined
that claimant's date of injury was June 14, 1984, when Dr. Cullen diagnosed his
asbestosis, and determined that his average weekly wage was $498.32, a figure
derived by dividing claimant's $25,944 in gross receipts as a lobsterman in
calendar year 1983 by 52 weeks. Thereafter, he determined that claimant's post-injury wage-earning capacity was $564.58 per week based on the average of
claimant's actual gross earnings for the years 1984 through 1986.  In light of
claimant's higher post-injury earnings, the administrative law judge found that he
had not sustained any loss of wage-earning capacity or economic disability within
the meaning of Section 8(h) of the Act, 33 U.S.C. §908(h).  However, the
administrative law judge found a de minimis award of $1.00 per week
appropriate given the progressive nature of claimant's obstructive pulmonary
impairment and the substantial likelihood that he would suffer a future loss of
earnings.  The administrative law judge also awarded claimant past medical expenses
and future periodic monitoring.[1]   Claimant
appeals the administrative law judge's determination of his average weekly wage and
the finding that he sustained only a de minimis loss in his wage-earning
capacity on various grounds.  Employer does not respond.

     Pursuant to Section 8(c)(21), an award for permanent partial disability is
based on 66 and 2/3 percent of the difference between claimant's pre-injury average
weekly wage and his post-injury wage-earning capacity.  33 U.S.C. §908(c)(21),
(h); Abbott v. Louisiana Insurance Guaranty Association,  27 BRBS 192, 204
(1992), aff'd, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994).  Section 8(h)
of the Act provides that claimant's wage-earning capacity shall be his actual post-injury earnings if those earnings fairly and reasonably represent his wage-earning
capacity. See Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26 BRBS 30
(CRT)(5th Cir. 1992); Container Stevedoring Co. v. Director, OWCP, 935 F.2d
1544, 24 BRBS 213 (CRT)(9th Cir. 1991).  Only if such earnings do not represent
claimant's wage-earning capacity does the administrative law judge calculate a
dollar amount which reasonably represents claimant's wage-earning capacity.  33
U.S.C. §908(h).  The objective of this inquiry is to determine the post-injury
wage to be paid under normal employment conditions to claimant as injured. See
Long v. Director, OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th Cir. 1985).  Some
factors to be considered in determining whether claimant's post-injury wages fairly
and reasonably represent his post-injury wage-earning capacity include claimant's
physical condition, age, education, industrial history, the beneficence of a
sympathetic employer, claimant's earning power on the open market and any other
reasonable variable that could form a factual basis for the decision. See
LaFaille, 884 F.2d at 61, 22 BRBS at 119-120 (CRT); Cook v. Seattle
Stevedore Co., 21 BRBS 4 (1988). 

     Claimant's average weekly wage is determined at the time of injury by
utilizing one of the three methods set forth in Section 10 of the Act. See
33 U.S.C. §910.  Section 10(a) applies when claimant has worked in the same
employment for substantially the whole year immediately preceding injury. See
Duncan v. Washington Metropolitan Area Transit Authority, 24 BRBS 133, 140
(1990).  Section 10(b) also applies to permanent and continuous jobs, but applies
where claimant has not been employed for substantially the whole year.  Section
10(c) provides a general method for determining average weekly wage where Section
10(a) or (b) cannot fairly or reasonably be applied to calculate claimant's annual
earning capacity at the time of injury. Browder v. Dillingham Ship Repair,
24 BRBS 216, aff'd on recon., 25 BRBS 88 (1991).  The administrative law
judge has broad discretion in determining annual earning capacity under Section
10(c). See Bonner v. National Steel & Shipbuilding Co., 5 BRBS 290 (1977),
aff'd in pert. part, 600 F.2d 1288 (9th Cir. 1979).



     In the present case, after determining that June 14, 1984, the date claimant
was first diagnosed with asbestosis, was the applicable date of injury for purposes
of determining claimant's average weekly wage, the administrative law judge
calculated claimant's average weekly wage based on claimant's gross receipts in
1983, the year prior to this date.  Citing LaFaille, 884 F.2d at 54, 22 BRBS
at 108 (CRT), claimant initially argues on appeal that the administrative law judge
erred in using June 14, 1984, as the applicable date for purposes of determining
his average weekly wage inasmuch as he experienced disability prior to this date. 
Although claimant maintains that the best proof that he suffered a wage loss prior
to 1984 is his inability to perform jobs which he once had both in his old job with
employer and as a offshore fisherman, he does not argue that his average weekly
wage should have been based on some earlier date.  Rather, claimant argues that his
average annual earning capacity should have been calculated pursuant to Section
10(c) based on the 1983 and 1984 gross earnings of Mr. Grimshaw, another commercial
lobsterman. 

     We agree with claimant that the administrative law judge's finding that June
14, 1984, is the applicable date of injury for purposes of average weekly wage
cannot be affirmed, as the administrative law judge did not consider this aspect
of the decision in LaFaille.  In LaFaille, the United States Court
of Appeals for the Second Circuit, in whose jurisdiction this case arises,
recognized that when a claimant suffers a wage loss prior to the date of awareness,
the average weekly wage should be determined as of the date of the onset of the
disability.[2]   Id., 884 F.2d at 59-60, 22
BRBS at 116-117 (CRT).  In finding June 14, 1984 to be the operative date in the
present case, the administrative law judge relied solely on a date of injury based
on claimant's awareness of the relationship between his disease, employment and
disability, see 33 U.S.C. §910(i), and did not address claimant's
assertion of prior disability.  Moreover, while the court in remanding the case
specifically cited LaFaille with regard to a de minimis award, it
also instructed the administrative law judge to address the nature and extent of
disability, and LaFaille must be considered in resolving this issue.

     Claimant testified that he first began experiencing breathing problems in
1976, and Dr. Cullen's June 4, 1981, medical report confirms claimant's testimony. 
In addition, claimant testified that he was forced to give up offshore fishing in
1980.  This evidence suggests that claimant's disability may have preceded his June
14, 1984, awareness of the cause of his injury, and it was not considered by the
administrative law judge.  Inasmuch as LaFaille mandates consideration of
such evidence and is controlling in this case, we vacate the administrative law
judge's finding regarding the date of claimant's injury and remand for him to
reconsider this issue.   

     Claimant also raises several arguments relating to the administrative law
judge's calculation of his average weekly wage.  In the present case, the
administrative law judge reasonably employed Section 10(c) to calculate claimant's
average weekly wage, inasmuch as claimant had not been employed for substantially
the whole year prior to his injury,[3]  and Section
10(c) explicitly provides for consideration of "the reasonable value of the
services of an employee if engaged in self-employment."[4]   The administrative law judge employed claimant's gross receipts in
1983 as the basis for his average weekly wage calculation. Claimant argues on
appeal, however, that his average weekly wage should have been based on the average
gross earnings in 1983 and 1984 of Mr. Grimshaw, a similarly situated employee,
contending that Mr. Grimshaw's earnings best represent what claimant would have
been earning had he not been injured.

     While the earnings of a similarly situated employee can properly serve as the
basis for an average weekly wage determination under Section 10(c), any other
rational method may also be used.  See generally Wayland v. Moore Dry Dock,
25 BRBS 53, 59 n.3 (1992).  The Board has held that where the claimant is self-employed, his average annual earning capacity under Section 10(c) must reflect the
value of the services he performed; earning capacity should not include any portion
of claimant's earnings which reflect factors other than the value of the employee's
services, such as profits or goodwill. Roundtree v. Newpark Shipbuilding &
Repair, Inc., 13 BRBS 862 (1981), rev'd on other grounds, 698 F.2d 743,
15 BRBS 94 (CRT)(5th Cir. 1983), panel decision rev'd en banc, 723 F.2d 399,
16 BRBS 34 (CRT)(5th Cir. 1984), cert. denied, 469 U.S. 818 (1984).[5]    Since the administrative law judge summarily
adopted claimant's gross receipts divided by 52 as his average weekly wage, he made
no determination as to the reasonable value of claimant's services.  We therefore
vacate the administrative law judge's average weekly wage calculation on this basis
and remand to allow him to reconsider this issue.  The administrative law judge
must calculate the applicable average weekly wage by determining the reasonable
value of the services of claimant or a similarly situated employee in self-employment, based on the cost of hiring a worker of comparable skill and
experience, or any other reasonable means.  

     Claimant also argues on appeal that the administrative law judge should have
calculated his post-injury wage-earning capacity based on his average gross
earnings in 1983 and 1984 instead of utilizing his average gross earnings for the
years 1984 through 1986.  The analysis of claimant's post-injury wage-earning
capacity will be affected by the administrative law judge's reconsideration of
claimant's date of injury consistent with LaFaille.  It must also be
addressed in the context of claimant's self-employment.  The Board has stated that
wage-earning capacity does not include profits of a business, but "refers to an
injured employee's ability to command regular income as the result of his personal
labor." Seidel v. General Dynamics Corp., 22 BRBS 403, 405 (1989).  Income
from a business owned by the employee should not be used to reduce disability
compensation, but where the employee performs services such that the income
represents salary, it should be considered.  Id.; see 1C A. Larson
The Law of Workmen's Compensation, §57.51(e) (1987).  In this case, the
administrative law judge's use of claimant's average gross earnings in 1984 through
1986 as the basis for determining his post-injury wage-earning capacity cannot be
upheld, as he did not consider these factors.  Accordingly, the administrative law
judge's determination of claimant's post-injury wage-earning capacity and his
finding of no economic disability contingent thereon must also be vacated.  In
reconsidering claimant's post-injury wage-earning capacity on remand, the
administrative law judge must limit his inquiry to those wages which claimant
received as a result of his personal labor.

     Claimant also argues that the administrative law judge erred in determining
that he sustained no wage-earning capacity loss inasmuch as he incurred additional
expenses in his business because he was required to hire a helper due to his work-related breathing condition.  Claimant testified that his breathing problems
progressed to the point that he needed to hire a deckhand part time in 1983 and
full time in 1984.  Tr. at 49-53.  The Board has previously recognized in
Wayland v. Moore Dry Dock, 21 BRBS 177, 182 (1988), that the fact that a
self-employed claimant is forced to hire a helper due to his work-related ailments
can properly serve as a basis for a finding of disability.  Moreover, this fact is
clearly relevant in determining what portion of claimant's receipts were due to his
personal labor. Accordingly, the administrative law judge must consider the
additional costs claimant incurred in hiring a helper in reassessing the extent of
his disability on remand.

     Claimant also contends that his business operated at a loss in 1983-84, and
that in the absence of earnings, the 1983 national average weekly wage of $274.17 
should serve as the basis for determining that he sustained a loss of wage earning
capacity.  In light of our decision to remand this case for the administrative law
judge to reassess both claimant's average weekly wage and his post-injury earning
capacity, we decline to address this argument as it is premature.

     Accordingly, the administrative law judge's findings regarding claimant's date
of injury, the applicable average weekly wage, and claimant's post-injury wage-earning capacity are vacated and the case is remanded for additional consideration
of these issues consistent with this opinion.  In all other respects, the
administrative law judge's Decision and Order Awarding Benefits Upon Remand is
affirmed.

     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 February 25, 1992, Administrative Law Judge Dolan summarily denied claimant's motion for reconsideration. He, however, modified Provision No. 1 in the order so that the de minimis award of $1.00 would be paid weekly commencing on June 14, 1984. Back to Text
2)The court cited the Conference Report accompanying the 1984 Amendments, H.R. Rep. 98-1027, 98 Cong., 2d Sess. 29-30, 1984 U.S. Code Cong. & Admin. News 2771. Back to Text
3)Lobstering is a seasonal occupation which generally runs from June until January. Claimant worked from July until January in the year prior to his injury. Tr. at 45. Back to Text
4)In addition, Sections 10(a) and (b) could not be applied because the record does not contain any evidence from which claimant's average daily wage could be extrapolated. See Browder v. Dillingham Ship Repair, 24 BRBS 216, 219, aff'd on recon., 25 BRBS 88 (1991). Back to Text
5)In its decision in Roundtree v. Newpark Shipbuilding & Repair, Inc., 13 BRBS 862 (1981), rev'd, 698 F.2d 743, 15 BRBS 94 (CRT)(5th Cir. 1983), panel decision rev'd en banc, 723 F.2d 399, 16 BRBS 34 (CRT)(5th Cir. 1984), cert. denied, 469 U.S. 818 (1984), the Board found that the administrative law judge properly analyzed the average weekly wage issue under Section 10(c), having reasonably determined that Section 10(a) and Section (b) could not fairly and reasonably be applied, but remanded the case for reconsideration under that section, discussing calculation of average weekly wage where claimant is self-employed. The United States Court of Appeals for the Fifth Circuit reversed the Board's decision to apply Section 10(c), finding that Section 10(b) could be applied and that where it could be applied, its application was mandatory. The court did not address the Board's determination that claimant's gross earnings in self-employment cannot properly be used as a basis for calculating his average weekly wage under Section 10(c). Subsequently, the court, sitting en banc, overturned the panel decision on the ground that the appeal was not of a final order in view of the Board's remand of the case. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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