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                                 BRB No. 00-1032     

JACK E. JONES                           )    
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
CARDINAL SERVICES,                      )    DATE ISSUED:   07/09/2001
2001
INCORPORATED                            )
                                        )
     and                                )
                                        )
LOUISIANA WORKERS'                      )
COMPENSATION CORPORATION                )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Lee J. Romero, Jr., Administrative Law Judge,
     United States Department of Labor.

     Marcus J. Poulliard (Seelig, Coss‚,  Frischhertz & Poulliard), New Orleans, Louisiana, for claimant.
               
     David K. Johnson, Baton Rouge, Louisiana, for employer/carrier.
     
     Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON, Acting
     Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order on Remand (96-LHC-1095) of Administrative Law Judge Lee
J. Romero, 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., as extended by the Outer Continental Shelf
Lands Act,  43 U.S.C. §1331 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). 

     This case is before the Board for the second time.  To recapitulate, claimant alleged he sustained a back
injury and a resulting psychological disability on May 29, 1995, during the course of his employment on an
offshore oil rig as a wireline operator.  Claimant did not report the injury that day, and he accepted work for the
following morning.  On May 30, 1995, two co-workers met claimant near his home where he informed them that
he was unable to work.  Claimant reported the injury to employer later that day.  Employer instructed claimant to
see Dr. Serio for an examination and to go to a nearby facility for a drug test per  employer's policy regarding
work-related injuries. Instead, claimant received treatment and a drug test on May 31, 1995, at Southwest
Mississippi Regional Medical Center in McComb, Mississippi.  Claimant was terminated on the basis that he failed
to complete an accident report and to submit for drug testing at the designated facility.  Claimant filed a claim for
medical benefits and compensation under the Act, which employer controverted.

     In his Decision and Order, the administrative law judge initially rejected claimant's contention of retaliatory
discharge under Section 49 of the Act, 33 U.S.C. §948a.  The administrative law judge next found that, as
a result of claimant's justifiable termination, claimant is not entitled to compensation under the Act pursuant to
Brooks v.  Newport News Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), aff'd
sub nom. Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS 100(CRT) (4th Cir. 1993), despite his inability to
return to his usual work due to his injury.  The administrative law judge further found that claimant invoked the
Section 20(a) presumption, 33 U.S.C. §920(a), that his back injury and resulting psychological disability
are work-related, and that employer failed to rebut the presumption.  The administrative law judge thus awarded
claimant medical benefits for both of these conditions.

     Claimant appealed the denial of disability compensation, contending that the administrative law judge erred
by applying Brooks to the facts of this case. Employer cross-appealed, contending that the administrative
law judge erred in finding that claimant presented sufficient evidence to invoke the Section 20(a) presumption
linking his back condition to his employment.  Moreover, employer argued that, in the event claimant is awarded
compensation under the Act, his average weekly wage should be $592.44, pursuant to Section 10(c), 33 U.S.C.
§910(c).

     The Board reversed the administrative law judge's denial of compensation, holding Brooks
inapplicable, as it holds that where claimant is successfully performing a light duty job in employer's facility which
he loses due to his own misfeasance, employer does not bear the renewed burden of showing suitable alternate
employment.  In this case, claimant was not discharged from a light duty job he was successfully performing, but
rather, pursuant to the administrative law judge's finding, was medically unable to work.  Claimant was thus
entitled to compensation, pursuant to the administrative law judge's alternate findings,  for temporary total
disability, 33 U.S.C. §908(b), from May 29, 1995, on which date the administrative law judge found that
claimant was totally disabled due to his work-related back injury and psychological disability.  The Board rejected
employer's contention that claimant was not entitled to invocation of the Section 20(a) presumption and the Board
affirmed the administrative law judge's finding that claimant sustained a work-related back injury.  Finally, the
Board remanded for the administrative law judge to determine claimant's average weekly wage and corresponding
compensation rate, 33 U.S.C. §910. Jones v. Cardinal Services, Inc., BRB Nos. 98-0522/A (Sept.
28, 1999).

     On remand, the administrative law judge found Sections 10(a) and 10(b) inapplicable for determining
claimant's average weekly wage as the record lacks sufficient evidence  from which he could calculate the average
daily wage of claimant or of a similarly situated employee; therefore, the administrative law judge found that
claimant's average weekly wage must be determined pursuant to Section 10(c).  After discussing the relevant
evidence of record, the administrative law judge found that claimant averaged $1,002.21 per week during the 25
weeks he worked for employer as a wireline operator prior to his injury.  The administrative law judge found that
claimant's weekly earnings with employer exceeded his weekly earnings over the previous four year period with
another employer as a wireline operator.  However, the administrative law judge determined that an average
weekly wage based on claimant's increased earnings with the instant employer would best reflect claimant's wage-earning capacity at the date of injury.  Accordingly, the administrative law judge concluded that claimant's average
weekly wage at the date of injury is $1002.21. 

     On appeal, employer challenges the administrative law judge's finding that Section 10(a) is inapplicable
to calculate claimant's average weekly wage, and the administrative law judge's failure to include claimant's
annual earnings from 1991 to 1994 in determining claimant's average weekly wage under Section 10(c).[1]   Claimant responds, urging affirmance.[2]         

     Claimant's average weekly wage is determined at the time of injury by utilizing one of three methods set forth in
Section 10 of the Act.  Section 10(a) is to be applied when an employee has worked substantially the whole of the year
immediately preceding his injury, for this or another employer, and requires the administrative law judge to determine the
average daily wage claimant earned during the preceding twelve months.  33 U.S.C. §910(a); see  Ingalls
Shipbuilding, Inc. v. Wooley, 204 F.3d 616, 34 BRBS 12(CRT) (5th Cir. 2000), aff'g 33 BRBS 88 (1999). 
This average daily wage is then multiplied by 260 if claimant was a five-day per week worker, or 300 if claimant was
a six-day per week worker; the resulting figure is then divided by 52, pursuant to Section 10(d) of the Act, 33 U.S.C.
§910(d), in order to yield claimant's average weekly wage.  Section 10(c) of the Act, 33 U.S.C. §910(c), is a
catch-all provision to be used in instances when neither Section 10(a) nor Section 10(b), 33 U.S.C. §910(b), can be
reasonably and fairly applied.[3]   See Louisiana Ins. Guar. Ass'n v.
Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5th Cir. 2000).   The object of Section 10(c) is to arrive at a sum which
reasonably represents the claimant's annual earning capacity at the time of his injury. See Empire United Stevedores
v. Gatlin, 936 F.2d 819, 25 BRBS 26(CRT) (5th Cir. 1991).    

     In the instant case, the administrative law judge declined to utilize Section 10(a) because he found that claimant did
not work for employer for substantially all of the year prior to his injury and that the record is devoid of any evidence from
which a daily wage could be computed.  Specifically, the administrative law judge found that claimant worked 25 weeks
for employer and that employer's payroll records do not reflect claimant's daily wages or the wages of a similarly situated
employee.  Decision and Order on Remand at 2-3.  We affirm the administrative law judge's finding that Section 10(a) is
inapplicable to determine claimant's average weekly wage. Employer's wage records of claimant's employment for 25
weeks from December 11, 1994, to May 28, 1995, CX 23, is not, in itself, sufficient evidence of claimant's employment
as a wireline operator during substantially the whole of the year prior to his work injury on May 29, 1995. See generally
Bunol, 211 F.2d 294, 34 BRBS 29(CRT); Lozupone v. Stephano Lozupone & Sons, 12 BRBS 148 (1979). 
Moreover, although claimant worked in similar employment for another employer  in 1994, claimant's 1994 income tax
return, EX 10, is not sufficient evidence from which the administrative law judge could rationally derive claimant's  average
daily wage from May 30 1994, to December 10, 1994, as there is no evidence of claimant's precise earnings or the number
of days he worked during this period.  See generally Duhagon v. Metropolitan Stevedore Co., 31 BRBS 98
(1997), aff'd, 169 F.3d 615, 33 BRBS 1(CRT) (9th Cir. 1999).  Accordingly, the administrative law judge properly
utilized Section 10(c) to calculate claimant's average weekly wage.   
     We also reject employer's assertion that the administrative law judge must
take into account claimant's earnings as a wireline operator during the four years
preceding his work injury.   The goal of Section 10(c) is to calculate a reasonable
approximation of claimant's annual wage-earning capacity at the time of the injury.
See generally New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 31 BRBS
51(CRT) (5th Cir. 1997).  In arriving at this approximation, it is proper for a
Section 10(c) computation to reflect an increase in wages claimant received before
the injury. See Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104
(1989); Le v. Sioux City & New Orleans Terminal Corp., 18 BRBS 175 (1986). 
 In this case, the administrative law judge rationally used claimant's earnings
during the 25 weeks he worked for employer immediately preceding the injury, and
it was unnecessary for him to address any earnings prior thereto.[4]   Although the administrative law judge noted that
claimant's earnings as a wireline operator were lower from 1991 to 1994 than they
were for employer,  he stated that a calculation based on claimant's increased
wages with employer would best reflect claimant's earning potential at the time of
his injury.  Decision and Order on Remand at 4.   As the administrative law judge's
calculation of average weekly wage under Section 10(c) of the Act reasonably
approximates claimant's annual earning capacity at the time of injury, see
Gatlin, 936 F.2d 819, 25 BRBS 26(CRT), we reject employer's assertions of
error, and we affirm the administrative law judge's decision, as it is supported
by substantial evidence.  See generally James J. Flanagan Stevedores, Inc. v. Gallagher, 219
F.3d 426, 34 BRBS 35(CRT) (5th Cir. 2000); Hall v. Consolidated Equipment Systems,
Inc., 139 F.3d 1025, 32 BRBS 91(CRT) (5th Cir. 1998);[5] Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988).     Accordingly, the administrative law judge's Decision and Order on Remand is affirmed.

     SO ORDERED.
                    

                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)Employer states it is reiterating all arguments contained in its Petition for Review and brief filed in support of its prior appeal, BRB No. 98-0522A. The Board's disposition of the issues raised in employer's initial appeal constitutes the law of the case. See generally Alexander v. Triple A Machine Shop, 34 BRBS 34 (2000). We note that in its initial appeal, employer argued that claimant's average weekly wage could not be calculated pursuant to Section 10(a). Back to Text
2)By Order issued December 22, 2000, the Board granted employer's motion and dismissed its appeal of the administrative law judge's Supplemental Decision and Order-Awarding Attorney's Fees. Back to Text
3)In the instant case, no party contends that Section 10(b) is applicable. Back to Text
4)The instant case is thus distinguishable from Chilton, 118 F.3d 1028, 31 BRBS 51(CRT), as the administrative law judge did not randomly select earnings from one of the previous four years' employment, but rather utilized claimant's actual wages from the 25 weeks claimant worked for employer preceding the injury to calculate average weekly wage. Back to Text
5)In Hall, the United States Court of Appeals for the Fifth Circuit, in which the instant case arises, stated that it will be an "exceedingly rare case" where the claimant's actual earnings at the date of injury are wholly disregarded and that "typically," a claimant's wages at the date of injury will best reflect his earning capacity. Hall, 139 F.3d at 1031, 32 BRBS at 96(CRT). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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