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                                 BRB No. 99-1117

TIMOTHY SANSONE                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
CERES MARINE TERMINALS                  )    DATE ISSUED:   07/27/2000

                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of John C. Holmes, Administrative Law
     Judge, United States Department of Labor.

     P. Matthew Darby (Albertini & Darby, L.L.P.), Baltimore, Maryland, for
     claimant.

     William H. Kable (Semmes, Bowen & Semmes), Baltimore, Maryland, for
     self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order (99-LHC-0331) of Administrative Law
Judge John C. Holmes 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 sustained an injury to his neck in the course of his employment  on
January 30, 1996.  He was diagnosed with a herniated disk, and, on May 24, 1996,
Dr. McAfee performed a diskectomy and fusion at C6-7.  Cl. Ex. 1.  Claimant
returned to work on November 4, 1996.  Claimant is a member of ILA Local 1429,
which supplies various waterfront employers with labor for container repair,
lashing, line handling and warehouse work.   Paul Kursch, president of the local,
deposed that the job of container repairman is physically the most demanding job,
and that cleanup work is the easiest.  Cl. Ex. 20 at 5.  Claimant secures work from
the union hall on a day to day basis.  According to claimant's  testimony, as
corroborated by Mr. Kursch, during cold weather, when the more senior members do
not want to work outside, he is able to get some of the lighter duty jobs.  Cl. Ex.
20 at 10.  Claimant also occasionally obtains Trailer Interchange Report (TIR)
jobs, which involve inspections while walking around with a clipboard and a pen;
these jobs are described as easy, and, due to their desirability, are difficult to
obtain for employees such as claimant who have low seniority.  Cl. Ex. 20 at 34-36. 
Claimant also has owned and managed his own health club for 15 years.   Employer
paid claimant for two periods of temporary total disability.   33 U.S.C.
§908(b).  Claimant sought an award of permanent partial disability benefits
based on a loss of wage-earning capacity, or in the alternative, a nominal award.

     In his decision, the administrative law judge found that claimant has not
demonstrated that he is incapable of pursuing his usual work as a longshoreman. 
The administrative law judge also found that claimant sustained no loss of wage-earning capacity, as his post-injury earnings are roughly the same as prior to his
injury.   The administrative law judge further denied claimant a nominal award. 
On appeal, claimant alleges that the administrative law judge erred in finding that
he can perform his usual employment and has no loss of wage-earning capacity, or,
in the alternative, in denying him a nominal award.  Employer responds, urging
affirmance of the administrative law judge's decision.

     Claimant first argues that the administrative law judge erred in finding that
he can perform his usual employment as a container repairman.  In this regard,
claimant contends the administrative law judge erred in crediting Dr. Matz's
opinion, and in finding Dr. McAfee's opinion supportive of his conclusion. 
Claimant's usual employment comprises  all of his regular duties at the time he was
injured. Delay v. Jones Washington Stevedoring Co., 31 BRBS 689 (1998);
Ramirez v. Vessel Jeanne Lou, Inc., 14 BRBS 689 (1982).  After discussing
the medical evidence of record,  the administrative law judge credited Dr. Matz's
final diagnosis that imposes no restrictions on claimant, based on Dr. Matz's
viewing of a surveillance videotape which he said shows claimant performing "heavy
duty work easily, gracefully, with  no problems."  Emp. Ex. 2 at 49.  The
administrative law judge also commented that due to claimant's good conditioning,
as noted particularly by Dr. Matz, claimant was capable of heavier lifting than an
average longshoreman.  Decision and Order at 7.  The administrative law judge
further found that the restrictions placed by Dr. McAfee do not preclude claimant
from performing his usual work.

     Claimant argues that the administrative law judge should not have given Dr.
Matz's opinion any weight because Dr. Matz admitted that he did not know the weight
of the items claimant was shown carrying in the videotape, and that, in fact, the
items were well within the restrictions imposed by the functional capabilities
evaluation (FCE).  As Dr. Matz, however, did not impose any work restrictions on
claimant's employability, claimant's argument in this regard is without merit,
Gacki v. Sea-Land Service, Inc., 33 BRBS 127 (1998), and the administrative
law judge is entitled to determine the weight to be given to the evidence of
record. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan,
300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403
(2d Cir. 1961). 

     Nevertheless, we must remand this case for the administrative law judge to
reweigh the evidence relevant to claimant's ability to perform his usual work, as
his conclusion that the restrictions placed on claimant by Dr. McAfee also would
not prevent him from performing his usual work is not supported by substantial
evidence.  Claimant testified that, due to his low seniority, the major part of his
usual work was that of a container repairman, allegedly the most physically
difficult of the jobs for which his union provided workers.  Part of that job
involved taking off and lifting heavy tires, with tire and brake drum together
weighing 100 pounds.  Following an October 3, 1996, FCE, claimant was restricted
to handling such weight seldom, 90 pounds occasionally, 45 pounds frequently, and
20 pounds constantly.  Based on these restrictions, Dr. McAfee stated claimant
could perform medium to heavy work, but after a second FCE administered in 1997,
changed the category to light to medium duty.  Following the 1997 FCE, Dr. McAfee
lowered the allowable weight to be lifted by claimant to 70 pounds seldom, 55
pounds occasionally, 25 pounds frequently, and no lifting at all on a constant
basis.  Tr. at 30-33.   Dr. McAfee explained the change in his opinion was based
on his observation that claimant could not handle the harder work and that "any
heavy manual labor will cause an exacerbation of [claimant's] position."  Cl. Ex.
1 (April 16, 1998 report); Cl. Ex. 16 at 16, 34-36.  Claimant  testified that his
duties as a container repairman included lifting 100 pounds; this  exceeds the
lifting restrictions imposed by Dr. McAfee.  As the administrative law judge did
not discuss this evidence, the case is remanded for the administrative law judge
to reconsider whether Dr. McAfee's restrictions preclude claimant's performance of
all of the duties of his usual employment. See generally Curit v. Bath Iron Works
Corp., 22 BRBS 100 (1988); Carroll v. Hanover Bridge Marina, 17 BRBS 176
(1985). 

     Claimant next contends the administrative law judge erred in finding that he
does not have a loss in wage-earning capacity.  The post-injury wage-earning
capacity of a partially disabled employee for whom compensation is determined
pursuant to Section 8(c)(21), 33 U.S.C. §908(c)(21), is equal to his actual
earnings if they fairly and reasonably represent his wage-earning capacity.  33
U.S.C. §908(h).  Relevant considerations include the employee's physical
condition, age, education, and industrial history, as well as the availability of
employment which he can perform post-injury. Fleetwood v. Newport News
Shipbuilding & Dry Dock Co., 776 F.2d 1225, 18 BRBS 12(CRT) (4th Cir. 1985);
Devillier v. National Steel & Shipbuilding Co., 10 BRBS 649 (1979).  The
fact that claimant returns to his pre-injury employment does not preclude a finding
that claimant nonetheless has a loss in wage-earning capacity.  Factors such as
claimant's pain, the need for assistance in performing his work, and the physical
limitations which cause him to avoid certain jobs offered by the hiring hall, are
relevant in determining claimant's post-injury wage-earning capacity and may
support an award of permanent partial disability benefits under Section 8(c)(21),
based on a  reduced earning capacity, despite the fact that claimant's actual
earnings may have increased. See generally Metropolitan Stevedore Co. v. Rambo
[Rambo II], 521 U.S. 121, 31 BRBS 54(CRT) (1997); Container Stevedoring Co. v.
Director, OWCP [Gross], 935 F.2d 1544, 24 BRBS 213(CRT) (9th Cir. 1991);
Adam v.  Nicholson Terminal & Dry Dock Co., 14 BRBS 735 (1981).

      The administrative law judge found that claimant's lower wages post-injury
reflect that claimant has worked fewer hours and are "readily explained by the loss
of work at the shipyards in the Baltimore area, from which claimant was employed,
and union rules and perhaps claimant's own attitude of not accepting work that he
deemed too difficult."  Decision and Order at 6.  The administrative law judge
commented that "it is disturbing that because of union rules, employer had little
if any control over its ability to place claimant in suitable employment." 
Decision and Order at  7.  If claimant is working fewer hours post-injury than pre-injury because he is turning down jobs because he cannot perform the lifting
requirements of those jobs due to his work-related injury, this factor may support
a finding of a reduced earning capacity.  See Cooper v. Offshore Pipelines
Int'l, 33 BRBS 46 (1999); Ezell v. Direct Labor, Inc., 33 BRBS 19
(1999); Jennings v. Sea-Land Service, Inc., 23 BRBS 312 (1990); see also
Ramirez v. Sea-Land Services, Inc., 33 BRBS 41, 45 n.5 (1999).  Mr.
Oakley, claimant's former supervisor, deposed that claimant sometimes asked for
help lifting pieces of panel, or putting panel sections in, and that some of the
other men also asked for help on the heavier jobs.  Emp. Ex. 12 at 12.  He agreed
that claimant asked for more help than some of the other employees who worked for
him.  Emp. Ex. 12 at 30.  Special consideration or help from co-workers is a factor
to be considered in determining wage-earning capacity. See, e.g., Fleetwood,
776 F.2d at 1225, 18 BRBS at 32(CRT). Moreover, if, because of union rules as
to seniority, claimant is not able to obtain work which he can perform, this could
establish loss of wage-earning capacity as well. See generally Delay, 31
BRBS at 197.  

     Furthermore, the administrative law judge's statement that "Any slightly lower
hours of [claimant's] work are readily explained by the loss of work at the
shipyards in the Baltimore area," Decision and Order at 6, demonstrates error on
several grounds.  Initially, availability of shipyard work is irrelevant to a
determination of claimant's wage-earning capacity in this case, as claimant works
as a longshoreman at the Port of Baltimore rather than as a shipbuilder in the
shipyards.  In addition, there is no evidence to support this statement.  To the
contrary, both Mr. Kursch and claimant testified  that there was "full employment"
for container repairmen.  Cl. Ex. 20 at 24-25.   As the administrative law judge
did not consider this evidence in determining that claimant has no loss in wage-earning capacity, the case is remanded for further consideration of this issue.

     Claimant lastly challenges the administrative law judge's denial of a
nominal award in the event he finds that claimant has no current loss in
wage-earning capacity.   A claimant is entitled to nominal compensation when his
work-related injury has not diminished his present wage-earning capacity, but there
is a significant potential of future economic harm due to the injury.  Rambo
II, 521 U.S. at 121, 31 BRBS at 54(CRT).  

     In this case, the administrative law judge erroneously based his denial partly
on the premise that "the Benefits Review Board has adopted a skeptical attitude" 
toward awarding nominal awards.  Decision and Order at 8.  As the United States
Supreme Court in Rambo has spoken on this issue, its determination
supersedes any prior statement by the Board in this regard.  Moreover, prior to
Rambo, the United States Court of Appeals for the Fourth Circuit, within
whose jurisdiction the present case arises, did not preclude the award of nominal
awards in certain circumstances. See Fleetwood, 776 F.2d at 1234 n.9, 18
BRBS at 32 n.9 (CRT).   Furthermore,  prior to Rambo II, the Board
had acquiesced in the holdings of several circuit courts to endorse nominal awards.
See Ward v. Cascade Gen'l, Inc., 31 BRBS 65 (1995).

     The administrative law judge stated he was tempted  to grant claimant a
nominal award as claimant is relatively young and has an acknowledged impairment
that required surgery, and that may cause problems in the future. The
administrative law judge nonetheless denied the award because "any future lack of
ability to work because of his work injury would be pure and unwarranted
speculation."  Decision and Order at 8.  He reasoned that claimant has a year from
the time of the denial to bring a modification proceeding which is ample time to
"test" his work effort out on the waterfront.  This approach is contrary to that
dictated by the  Supreme Court in Rambo II, wherein the Court rejected the
notion that a claimant should have to apply for modification within one year of
every denial of benefits in order to keep any potential future claims open.  
Rambo II, 521 U.S. at 134 n.6, 31 BRBS at 59 n.6(CRT).  Thus, as the
administrative law judge denied claimant a nominal award based on incorrect
premises, we vacate his finding and remand the case for the administrative law
judge to reconsider this issue in accordance with the standard set out in Rambo
II.

     Accordingly, the Decision and Order of the administrative law judge is
vacated, and the case is remanded for further consideration consistent with this
opinion.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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