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                                    BRB No. 00-1118

SAMUEL RUSHING                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
EAGLE MARINE SERVICES                   )    DATE ISSUED:   07/27/2001
                                             
                                        )
          Self-Insured                  )
          Employer-Respondent           )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-In-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Daniel L. Stewart,
     Administrative Law Judge, United States Department of Labor.

     James M. McAdams (Pierry & Moorhead, L.L.P.), Wilmington, California, 
     for claimant.

     Daniel F. Valenzuela (Samuelsen, Gonzalez, Valenzuela, Brown & Mann),
     San Pedro, California, for self-insured employer.  

     Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals  the  Decision and Order Awarding Benefits (1999-LHC-1224,
1999-LHC-1225) of Administrative Law Judge Daniel L. Stewart 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 holdman, sustained a work-related back injury on December 7, 1991. 
Employer voluntarily paid temporary total and partial disability benefits through
June 6, 1993, when claimant returned to work in a light duty capacity.  In August
1996, claimant began working as a marine clerk, a position he held at the time of
the January 2000 hearing.  Claimant sought permanent partial disability benefits
from June 1993, and, alternatively, a  a nominal award for potential future losses
in wage-earning capacity.

     The administrative law judge found that claimant is entitled to permanent
partial disability benefits of $115.52 per week from June 7, 1993, through August
10, 1996.[1]   33 U.S.C. §908(c)(21), (h).  
The administrative law judge found that claimant did not have a loss in wage-earning capacity after August 10, 1996, and also denied claimant a nominal award,
finding that claimant did not establish the significant possibility that his
physical or economic condition would deteriorate in the future.

     On appeal, claimant challenges the administrative law judge's denial of a
nominal award.  Employer responds, urging affirmance of the administrative law
judge's decision. 

     The Supreme Court has held that a nominal award is appropriate when the
claimant's work-related injury has not diminished his present wage-earning
capacity, but there is a significant potential that the injury will cause
diminished capacity in the future. Metropolitan Stevedore Co. v. Rambo [Rambo
II], 521 U.S. 121, 31 BRBS 54(CRT)(1997). The purpose of such awards is to
account for Section 8(h)'s mandate that future effects of an injury be
considered in calculating an injured employee's post-injury wage-earning capacity.
See 33 U.S.C. §908(h).   In order to protect the employee's right to
seek modification in the event that his physical or economic condition
deteriorates, nominal awards are appropriate where a claimant has not established
a present loss in wage-earning capacity under Section 8(c)(21), but has established
a significant potential of future economic harm as a result of his injury. Rambo
II, 521 U.S. at 138, 31 BRBS at 61(CRT); see also Barbera v. Director, OWCP, 245
F.3d 282, 35 BRBS 27(CRT) (3d Cir. 2001).

     In the instant case, the administrative law judge found that both Dr. London,
employer's expert, and  Dr. Marinow, claimant's treating physician, concluded that
claimant's current work as a marine clerk is within his physical restrictions.
Decision and Order at 19; EX 5; CX 25 at 28.   Dr. Marinow also stated that there
is a "moderate possibility" that claimant's back condition will deteriorate.  CX
25 at 29-30.  The administrative law judge found that this statement was
insufficient to meet claimant's burden of establishing the "significant
possibility" of future deterioration as required by Rambo II.  Claimant
challenges this conclusion on appeal.

     Although we agree with claimant that the administrative law judge's statement
of the legal standard misses the mark, we nonetheless affirm the administrative law
judge's denial of a nominal award.  Claimant is not required to establish the
likelihood of a significant deterioration in his physical condition in order to be
entitled to a nominal award.  Claimant must establish the significant possibility
of a deterioration in his wage-earning capacity.  A minor deterioration in one's
physical condition can cause a significant deterioration in wage-earning capacity.
See American Mutual Ins. Co. of Boston v. Jones, 426 F.2d 1263 (D.C. Cir.
1970) ("Even a relatively minor injury must lead to a finding of total disability
if it prevents the employee from engaging in the only type of gainful employment
for which he is qualified."); see also Nardella v. Campbell Machine, Inc., 525 F.2d 46, 3
BRBS 78 (9th Cir. 1975).  In this case, however, the administrative law judge found that claimant did not establish that his
physical condition was likely to deteriorate and result in a future loss of earning capacity.  The administrative law judge
properly reviewed the record as a whole, and in this context, found Dr. Marinow's statement regarding a "moderate"
possibility of physical deterioration was not sufficient.  As the judge noted, the doctor also stated that some patients'
conditions tend to stabilize.

     Moreover, the administrative law judge also found that claimant did not
establish the significant possibility that his wage-earning capacity will decrease,
and claimant does not challenge this finding on appeal.  The administrative law
judge relied on claimant's testimony that marine clerk jobs are plentiful, and the
absence of evidence that such jobs would not continue to be plentiful.  Decision
and Order at 19.  Claimant testified he plans to continue working in this capacity, 
that he is always able to obtain jobs which pay 25 percent more than the basic
clerk jobs, and that he worked five to seven days per week during the last quarter. 
Tr. at 37-38, 40-42.  The administrative law judge thus concluded that claimant
failed to establish the significant possibility of future economic harm as a result
of his injury.  Inasmuch as claimant does not challenge this finding, and as it is
rational, supported by substantial evidence, and in accordance with law, we affirm
the administrative law judge's denial of a nominal award.  See generally
Gilliam v. Newport News Shipbuilding & Dry Dock Co., 35  BRBS 69 (2001);
Buckland v. Dep't of Army, 32 BRBS 99 (1997).


     Accordingly, the administrative law judge's Decision and Order Awarding
Benefits is affirmed.

     SO ORDERED.         
           



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge awarded employer relief pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f), and thus the Special Fund assumed liability for benefits after 104 weeks from June 7, 1993. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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