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                                    BRB No. 00-1056

DENA E. SMITH                           )
          Claimant-Respondent           )
     v.                                 )
CISCO CORPORATION                       )    DATE ISSUED:   07/16/2001
     and                                )
CORPORATION                             )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER 

     Appeal of the Decision and Order-Awarding Benefits of Mollie W. Neal,
     Administrative Law Judge, United States Department of Labor.

     Dena E. Smith, Live Oak, Florida, pro se.

     John C. Taylor, Jr., and Lana G. Eicher (Taylor, Day & Currie), 
     Jacksonville, Florida, for  employer/carrier.

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


     Employer appeals the Decision and Order-Awarding Benefits (1996-LHC-1918) of
Administrative Law Judge Mollie W. Neal 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 administrative law
judge's findings of fact and conclusions of law if they are supported by
substantial evidence, are rational, and are in accordance with law. 33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).   

     Claimant, a welder, was injured on June 6, 1990, in a work-related accident,
when she slipped and fell on grease.  In her decision, the administrative law judge
awarded claimant temporary total disability benefits from June 7, 1990 through July
8, 1993, and continuing permanent total disability benefits commencing July 9,
1993, based on an average weekly wage of $746.80.  The administrative law judge
calculated claimant's average weekly wage by dividing her earnings in the year
prior to her injury, $18,670, by 25, as she earned this sum in 25 weeks of work.

     On appeal, employer contends the administrative law judge erred in calculating
claimant's average weekly wage.  Specifically, employer contends that the
administrative law judge erred in dividing claimant's earnings by 25 weeks instead
of by 52 weeks; employer avers that $18,670 represents claimant's annual earning
capacity and therefore that this sum should be divided by 52 weeks.  Claimant, who
is not represented by counsel, has not responded to this appeal.

     Section 10 of the Act, 33 U.S.C. §910, sets forth three alternative
methods for determining claimant's average weekly wage.  Sections 10(a) and (b),
33 U.S.C. §910(a),(b), are the statutory provisions relevant to a
determination of an employee's average weekly wage where the injured employee's
work is regular and continuous, and she is a five or six day per week worker.  The
computation of average annual earnings must be made pursuant to Section 10(c) if
subsection (a) or (b) cannot be reasonably and fairly  applied.  The object of
Section 10(c) is to arrive at a sum that reasonably represents a claimant's annual
earning capacity at the time of her injury. See Hall v. Consolidated Employment Systems,
Inc., 139 F.3d 1025, 32 BRBS 91(CRT) (5th Cir. 1998); Empire United Stevedores v. Gatlin,
936 F.2d 819, 25 BRBS 26(CRT) (5th  Cir. 1991).

     In the instant case, it is uncontested that the administrative law judge's use
of Section 10(c) to calculate claimant's average weekly wage is appropriate, as
claimant's work in the year prior to her injury was intermittent and irregular. 
Rather, employer contends that the administrative law judge law judge erred in
determining that claimant's average weekly wage should be based upon a divisor of
25, the number of weeks claimant actually worked pre-injury, instead of 52. 
Employer contends that claimant voluntarily limited herself to intermittent "shut-down" work, and that claimant's actual earnings for 25 weeks of work represent her
annual earning capacity at the time of injury. 

     In the instant case, the administrative law judge recognized at the outset
that the question of whether claimant's actual earnings should be divided by 52 or
25 weeks turns on whether she voluntarily limited herself to "shut down" jobs that
do not provide steady and consistent employment.  Decision and Order at 18.  The
judge found that the "shut-down" work claimant preferred resulted in intermittent
employment. Id. at 19.  However, the administrative law judge did not answer
the question as to whether this intermittent employment was the result of the type
of work available to her or of her own self-limitation.  As employer suggests on
appeal, claimant is free to limit her work to suit her lifestyle, but employer is
not required to compensate her as if she were a full-time worker if indeed she
voluntarily limited her employment. See Geisler v. Continental Grain Co.,
20 BRBS 35 (1987).  The Board has held that if a claimant voluntarily curtails her
earnings, her actual earnings should be used to calculate average weekly wage under
Section 10(c), rather than the theoretical earnings claimant could have earned.
See Conatser v. Pittsburgh Testing Laboratory, 9 BRBS 541 (1978). The
administrative law judge's calculation of average weekly wage, although based on
claimant's actual earnings,  assumes that claimant was willing to work and could
have earned $746.80 in every week of the year preceding her injury, and this
assumption is not supported by substantial evidence.  Thus, we must vacate the
administrative law judge's average weekly wage calculation and remand this case for
further consideration.

     On remand, there is evidence of record to be addressed which the administrative law judge did not
previously discuss at length or to which she did not assign weight.  In addition to claimant's testimony, her brother testified
that claimant was an excellent welder who, in the year prior to her injury, was capable of performing any job she wanted
to do.  Tr. at 39, 41.  He stated that he knew of no reason why claimant did not work full-time, other than that one might
want to take two months off. Id. at 42.  The evidence concerning claimant's ability to work the entire year before
the injury also is relevant to the inquiry concerning claimant's annual earning capacity.  Claimant was in an automobile
accident in November 1988, and was unable to work for a while.  Claimant testified both that she was available to work
in the entire one-year period prior to her June 1990 injuries, id. at 62, and that she did not return to work until
August 1989 following her accident. Id. at 60.  The administrative law judge stated that
while the exact date was not forthcoming, there was testimony that in recent years
prior to claimant's injury she had worked full-time as a welder suggesting that
claimant would engage in full-time employment,  if available.  Decision and Order
at 19, citing Tr. at 57-62.  On remand, the administrative law judge should
reconsider the evidence bearing on claimant's work history and job availability,
and calculate an average weekly wage under Section 10(c) that approximates
claimant's annual earning capacity.[1]  
James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 34 BRBS
35(CRT) (5th Cir. 2000).

     Accordingly, the administrative law judge's average weekly wage calculation
is vacated, and the case is remanded for further consideration consistent with this
decision.  In all other respects, the administrative law judge's  Decision and
Order-Awarding Benefits is affirmed. 

     SO ORDERED.  

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         NANCY S. DOLDER
                         Administrative Appeals Judge

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1)We note that Section 10(d)(1) of the Act states that, "The average weekly wages of an employee shall be one fifty-second part of his average annual earnings." 33 U.S.C. §910(d). In James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 34 BRBS 35(CRT) (5th Cir. 2000), the Fifth Circuit affirmed an average weekly wage calculation under Section 10(c) arrived at by using claimant's actual wages divided by 48 weeks, as claimant was off for four weeks because of an unrelated in jury. The court noted that this divisor is in technical violation of Section 10(d), but stated that the same result obtains as if the administrative law judge had added four weeks' salary to the wages earned and divided by 52. Thus, under Section 10(c) claimant's actual earnings can be divided by 25 if the resulting weekly amount, when extrapolated over a full year, results in a fair representation of claimant's annual earning capacity. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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