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                                   BRB No. 92-2290
                                         
THOMAS D. HAMILTON                      )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
TODD SHIPYARDS CORPORATION              )
                                        )
     and                                )
                                        )
AETNA CASUALTY AND SURETY               )
COMPANY                                 )    DATE ISSUED:   03/30/1995
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Additional Benefits of Kenneth
     A. Jennings, Administrative Law Judge, United States Department of
     Labor.

     Stephen M. Vaughan (Mandell & Wright, P.C.), Houston, Texas, for
     claimant.

     Michael D. Murphy (Fulbright & Jaworski), Houston, Texas, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Additional Benefits (91-LHC-447) of Administrative Law Judge Kenneth A. Jennings 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 an electrician, claimant injured his back on
January 27, 1987, and suffers from recurring back pain.  Employer laid claimant off
on February 9, 1987, due to a reduction in force, and claimant has not worked for
employer since that date.  Claimant subsequently obtained a job as a supervisor
trainee with RTK Construction Company in San Antonio where he worked at an hourly
rate of $7.50 from June 15, 1987 to September 1988, when the company filed for
bankruptcy.  Claimant then obtained work as a construction supervisor in a company
started by his wife and another individual, called the Sterling Group, and he
worked there from the end of 1988 until some time in 1989, when the Sterling Group
filed for bankruptcy.  On May 9, 1990 claimant obtained a job as a subcontractor
cable installer with Rainbow Cable Company for whom he continues to work, six days
a week, 65 to 80 hours a week.  He does not have an hourly wage but is compensated
based on the job he performs.  Employer voluntarily paid claimant temporary total
disability benefits from February 9, 1987 through June 8, 1987, and from October
16, 1989 through November 12, 1989 at a weekly rate of $390.70.  33 U.S.C.
§908(b). 

     The administrative law judge found that claimant cannot perform his usual work
and that he reached maximum medical improvement on June 15, 1987, when he returned
to work for RTK Construction.  The administrative law judge also found that
claimant's average weekly wage is $602.50 pursuant to Section 10(a), 33 U.S.C.
§910(a), of the Act, and that claimant's post-injury wage-earning capacity is
$255.15 per week based on his cumulative post-injury employment.  The
administrative law judge therefore awarded claimant benefits for temporary total
disability from February 9, 1987 through June 14, 1987, based on an average weekly
wage of $602.50, and for permanent partial disability from June 15, 1987, and
continuing based on claimant's loss in wage-earning capacity.    

     On appeal, employer contends that the administrative law judge erred in
applying Section 10(a) instead of Section 10(c) to calculate claimant's average
weekly wage, and in calculating claimant's post-injury wage-earning capacity. 
Claimant responds, urging affirmance.

     The administrative law judge determined that Section 10(a) was applicable
because claimant's job in the year preceding his January 1987 injury was permanent
and full-time.  The administrative law judge noted that the parties agreed that in
the 52-week period preceding his injury, claimant earned $22,653.89 and worked 188
days or 37.6 weeks.  Applying Section 10(a), the administrative law judge divided
$22,653.89 by 188 yielding an average daily wage of $120.50.  He then multiplied
$120.50 by 260 yielding average annual earnings of $31,329.85, and divided
$31,329.85 by 52 to obtain claimant's average weekly wage of $602.50.

     On appeal, employer contends that the administrative law judge erred in
applying Section 10(a) because he failed to consider that claimant was laid off
from September 30, 1986 [actually, from October 5, 1986] through January 4, 1987,
the period immediately preceding claimant's injury.  Employer contends that under
Section 10(c), claimant's average weekly wage would be $435.52, obtained by
dividing $22,653.89 by 52.  Employer contends that applying Section 10(a) instead
of Section 10(c) under these circumstances significantly inflates claimant's
average weekly wage. 

      Claimant's average weekly wage is determined at the time of injury by
determining claimant's average annual earnings utilizing one of three methods set
forth in Section 10 of the Act and then dividing claimant's annual earnings by 52. 
33 U.S.C. §910.  Section 10(a) applies when claimant has worked in the same
or comparable employment for substantially the whole of the year immediately
preceding injury and provides a specific formula for calculating annual earnings. 
Section 10(b) also applies to permanent and continuous jobs, but applies where
claimant has not been employed for substantially the whole of the year within the
meaning of subsection (a) and submits the wages of similarly situated employees who
have worked substantially the whole of the year.  Section 10(c) provides a general
method for determining annual earnings where Section 10(a) or (b) cannot fairly or
reasonably be applied to calculate claimant's annual earning capacity at the time
of injury. Empire United Stevedores v. Gatlin,  936 F.2d 819, 25 BRBS 26
(CRT) (5th Cir. 1991); Lobus v. I.T.O. Corp. of Baltimore, Inc., 24 BRBS 137
(1991); Duncan v. Washington Metropolitan Area Transit Authority, 24 BRBS
133 (1991).

     We hold that the administrative law judge's use of Section 10(a) is proper on
the facts of this case.  The administrative law judge rationally determined that
claimant, who worked 37.6 weeks in the year prior to his January 1987 injury,
worked substantially the whole of the year. Compare Duncan, 24 BRBS at 135-136 (34.5 weeks is substantially the whole of the year where claimant's employment
is permanent); Hole v. Miami Shipyards Corp., 12 BRBS 38 (1980), rev'd
on other grounds, 640 F.2d 769, 13 BRBS 237 (5th Cir. 1981) (41 weeks with a
10-week absence is substantially the whole of the year); Lozupone v. Stephano
Lozupone & Sons, 12 BRBS 148 (1990) (33 weeks with an eight-week absence is not
substantially the whole of the year).  The administrative law judge noted in his
decision that claimant had a 14-week absence due to a reduction in force, and while
he did not consider this fact in his Section 10(a) analysis, he rationally
determined that claimant's work record of 37.6 weeks established that his job was
permanent and warranted the application of Section 10(a).  Moreover, that
claimant's average weekly wage is greater under Section 10(a) than it would be
under Section 10(c) in this case,[1]  does not
undermine the validity of the administrative law judge's calculation as Section
10(a) seeks to arrive at a theoretical approximation of what claimant would have
earned based on actual earnings. Mulcare v. E. C. Ernest, Inc., 18 BRBS 158
(1986).  We therefore affirm the administrative law judge's determination of
claimant's average weekly wage.


     In calculating claimant's post-injury wage-earning capacity, the
administrative law judge considered that after his January 1987 injury, claimant
diligently searched for work and was successful in obtaining three jobs.[2]   The administrative law judge found that claimant
worked 210 weeks and 1 day from 1987 through 1991 and that he earned $53,618.05
during this time period.  The administrative law judge therefore divided $53,618.05
by 210 weeks and 1 day yielding a post-injury wage-earning capacity of $255.15 per
week.  The administrative law judge found that $255.15 "persuasively demonstrates
claimant's earning power on the open market, given his motivation to work, age
(39), vocational background and physical condition."  Decision and Order at 17. 
The administrative law judge also found that the opinion of the vocational
rehabilitation counsellor, Viola Lopez, that claimant had "done everything
possible" in completing the medical rehabilitation program and following through
with his physician and recommendations corroborates his finding.  

     On appeal, employer contends that the administrative law judge should use the
median hourly wages of a cable installer in 1990, scaled back to 1987 rates to
account for inflation, in calculating claimant's post-injury wage-earning capacity. 
Employer states that the median hourly wage for cable installers for a six month
period in 1990 was $12.77 in Houston, $12.41 in Dallas, and $12.66 in Fort Worth. 
Employer contends that these median wages may be reduced to 1987 rates by
multiplying them by a ratio of the National Average Weekly Wage in 1991 and in
1987.  Employer contends that the National Average Weekly wage was $341.07 in 1991
and $302.66 in 1987 yielding a percentage increase of 88.74 ($302.66/$341.07). 
Employer therefore contends that in 1987 the median hourly pay of a cable installer
in Houston was $11.33 ($12.77 x 88.74 percent) and in Fort Worth, $11.23 ($12.66
x 88.74 percent).  

     In the alternative, employer contends claimant's actual wages as a cable
installer from May 1990 through June 1991 should be used to reflect his post-injury
wage-earning capacity because the cable installer was essentially claimant's first
"real job" following his January 1987 injury.[3] 
 Cl. Ex. 15 at 5, 7.  Based on claimant's 1990 and 1991 tax returns, employer
contends that using claimant's actual wages, his post-injury wage-earning capacity
is $380.42.[4] 


     Section 8(h) provides that claimant's wage-earning capacity shall be his
actual post-injury earnings if these earnings fairly and reasonably represent his
wage-earning capacity.  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. Louisiana Insurance
Guaranty Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994),
aff'g 27 BRBS 192 (1993); Penrod Drilling Co. v. Johnson, 905 F.2d
84, 23 BRBS 108 (CRT)(5th Cir. 1990); Wayland v. Moore Dry Dock, 25 BRBS 53
(1991).  The objective of the inquiry concerning claimant's wage-earning capacity
is to determine the post-injury wage to be paid under normal employment conditions
to claimant as injured. Wayland, 25 BRBS at 57. 

     Some of the 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 variables that form a factual basis for the decision. 
Wayland, 25 BRBS at 58; Devillier v. National Steel & Shipbuilding Co.,
10 BRBS 649 (1979).  Section 8(h) permits the fact-finder significant discretion
in fashioning a reasonable post-injury wage-earning capacity for the injured
worker. Abbott, 40 F.3d at 129, 29 BRBS at 27 (CRT).   

     We hold that the administrative law judge acted within his discretion as fact-finder in calculating claimant's post-injury wage-earning capacity based on an
average of the cumulative salary of the three jobs he held from 1987 through 1991.
See id.  The administrative law judge specifically rejected use of
the median scale wages for a cable installer as cited by employer as being too
vague and general, and this is within his discretion. Id.  The
administrative law judge noted that a median salary, by definition, is the salary
representing that point in a salary range where 50 percent of the salaries fall
above and 50 percent of the salaries fall below, i.e., an average salary. 
The administrative law judge found that employer did not present any evidence to
demonstrate the scope of the salary ranges for the jobs employer identified, and
therefore employer had not successfully proven that claimant's actual earnings fall
below the expected range.  The administrative law judge concluded that because 50
percent of the expected salaries must fall below the figures cited by employer, and
employer did not cite an expected salary range, employer failed to prove that
claimant's actual wages did not represent his wage-earning capacity.  

     Moreover, in calculating claimant's wage-earning capacity, the administrative
law judge considered many of the relevant factors, consisting of claimant's earning
power on the open market, his motivation to work, age, vocational background and
physical condition.  The administrative law judge found employer's suggestion that
claimant's true wage-earning capacity is $380.42, representing his wages as a cable
installer, overstates claimant's true earning power because the figure does not
account for claimant's wage-earning capacity in the years preceding 1990.  The
administrative law judge found that the three jobs claimant obtained prior to 1990
were significant and needed to be considered in a calculation of claimant's post-injury wage-earning capacity.  The administrative law judge
therefore rationally determined that claimant's cumulative wages best represent the
overall market value of claimant's earning power.  The Board will not disturb the
administrative law judge's findings if they are not inherently incredible or
patently unreasonable. Cordero v. Triple A Machine Ship, 580 F.2d 1331, 8
BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979).  Inasmuch as
the administrative law judge's findings are reasonable and in accordance with law,
we affirm the administrative law judge's determination of claimant's post-injury
wage-earning capacity. See generally Penrod Drilling, 905 F.2d at 87, 23
BRBS at 111 (CRT). 

     Accordingly, the administrative law judge's Decision and Order Awarding
Additional Benefits is 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)A Section 10(c) calculation would not necessarily yield a lower figure, as that section does not require that claimant's actual earnings be divided by 52. Rather, the administrative law judge may use any reasonable means to determine claimant's annual earning capacity, and that figure is divided by 52. Back to Text
2)The administrative law judge also found that employer's identification of available cable installer positions met its burden of establishing suitable alternate employment given that claimant actually secured a position similar to those identified by employer. Back to Text
3)Employer avers that RTK Construction went bankrupt and claimant's pay in the Sterling Group originated from his wife. Back to Text
4)Employer obtained $380.42 by dividing claimant's salary of $32,341.25 in the 1990-1991 period by 60, the number of weeks claimant worked, yielding $539.02. Employer determined claimant's average weekly expenses were $158.60 ($9,515.52 gross expenses divided by 60), and deducted $158.60 from $539.02 to arrive at claimant's post-injury wage-earning capacity. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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