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                                    BRB No. 01-0666

BICKETT THEOPHILE                       )
          Claimant-Respondent           )
     v.                                 )
MASSE CONTRACTING,                      )    DATE ISSUED:   05/10/2002
INCORPORATED                            )
     and                                )
LOUISIANA WORKERS'                      )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Clement J.
     Kennington, Administrative Law Judge, United States Department of Labor.

     Scott W. McQuaig and W. Chad Stelly (McQuaig & Stelly), Metairie,
     Louisiana, for claimant.

     Ted Williams (Egan, Johnson & Stiltner), Baton Rouge, Louisiana, for

     Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.


     Employer appeals the Decision and Order Awarding Benefits (2000-LHC-3333) of
Administrative Law Judge Clement J. Kennington 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 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, a pipefitter, sustained a work-related injury on August 25, 1995. 
The parties stipulated that claimant has been temporarily totally disabled as a
result of his injury, and that employer has paid compensation benefits of $190.23
per week since August 26, 1995.  In his decision, the administrative law judge
found that claimant's average weekly  wage could not be calculated under Section
10(a), 33 U.S.C. §910(a), because he did not work a substantial part of the
year as a pipefitter, as he worked a total of 25.2 weeks during the preceding 52
weeks, of which only 13.8 were as a pipefitter.  Next, the administrative law judge
found that he could not calculate claimant's average weekly wage under Section
10(b), 33 U.S.C. §910(b), because there is no evidence of the wages of any
comparable employee.  Thus, the administrative law judge found that neither of the
above sections can be  "reasonably and fairly" applied and that therefore
claimant's average weekly wage is appropriately determined under Section  10(c),
33 U.S.C. §910(c).  Pursuant to Section 10(c), the administrative law judge
found that a reasonable estimation of claimant's earning potential is the salary
that employer agreed to pay claimant, i.e., $10 per hour, 40 hours per week,
for an average weekly wage of $400.   Decision and Order at 6-7.

     On appeal, employer contends that the administrative law judge erred in
determining claimant's average weekly wage without taking into account claimant's
sporadic work history or the fact that claimant did not work any 40-hour weeks for
employer prior to his injury. Claimant responds, urging affirmance. 

     Section 10(c) of the Act is to be used, as here, when neither Section 10(a)
nor 10(b) can be "reasonably and fairly  applied." 33 U.S.C. §910(c).  The
objective of Section 10(c) is to insure that compensation awards are based on an
accurate assessment of the claimant's earning capacity at the time of injury.
See Hall v. Consolidated Employment Systems, Inc., 139 F.3d 1025, 32 BRBS 91(CRT) (5th Cir. 1998);
see also Empire United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26(CRT) (5th Cir. 1991). 
The administrative law judge has broad discretion in determining annual earning
capacity under Section 10(c). See, e.g., Hall, 139 F.3d 1025, 32 BRBS
91(CRT).  In determining earning capacity under Section 10(c), it is
appropriate to consider the employee's "ability, willingness and opportunity to
work," Jackson v. Potomac Temporaries Inc., 12 BRBS 410, 413 (1980), or 
"the amount of earnings the claimant would have the potential and opportunity to
earn absent injury," Tri-State Terminals, Inc. v. Jesse, 596 F.2d 752, 757,
10 BRBS 700, 706-707 (7th Cir. 1979). See also  Empire United Stevedores,
936 F.2d 819, 25 BRBS 26(CRT).  

     We vacate the administrative law judge's average weekly wage determination,
and remand for further findings in light of all relevant evidence.  The
administrative law judge may, as in the instant case, set claimant's average weekly
wage at a figure higher than claimant earned in the past, due to claimant's "good
fortune" in obtaining a higher paying job. Harrison v. Todd Pacific Shipyards
Corp., 21 BRBS 339 (1988).  The administrative law judge, in utilizing
claimant's higher earnings, however, did  not accurately state claimant's brief
work history with employer.  Claimant was to commence working for employer on
August 14, 1995.  The wage records in evidence indicate that claimant did not work
that day.  EX 8.  Indeed, contrary to the administrative law judge's finding that
claimant worked an eight-hour day  on six of the seven days claimant worked, the
wage records indicate that claimant worked an eight-hour day on only six out of ten
days he was scheduled to work, plus one four-hour day.  EX 8.  Thus, although
claimant was hired to work a 40-hour week, his brief work history with employer
does not demonstrate that he did so.   On remand, the administrative law judge
should reconsider claimant's average weekly wage in light of this fact, and
determine if claimant had the potential to earn $400 a week absent injury.
Jesse,  596 F.2d at 757, 10 BRBS at 706-707. 

     In this regard, as employer contends, the administrative law judge may find
relevant claimant's work history prior to his obtaining the job with employer.  The
calculation of average weekly wage under Section 10(c) is not limited to the wages
claimant earned at the time of injury or in the 52 weeks preceding the injury.
Empire United Stevedores, 936 F.2d at  822-823, 25 BRBS at 29(CRT).  
Claimant's Social Security earnings statement shows that claimant earned $7,123.80
in 1990, $11,283.57 in 1991, $1,347.85 in 1992, $19,543.73 in 1994, and $2,587.50
in 1995, in addition to his wages earned from employer.[1]    EX 1, 8.  Claimant earned approximately $10,700 in the 52 weeks
prior to his injury;  he testified he was unable to find much work for the first
five months of 1995.  Tr. at 26-27.  While the administrative law judge is not
required to base an average weekly wage finding on these past wages, see
Hall, 139 F.3d 1025, 32 BRBS 91(CRT), claimant's past work history may be relevant
in determining whether claimant had the potential, absent injury,  to earn wages
for a full 40-hour week.  Consequently, we vacate the administrative law judge's
average weekly wage calculation, and remand the case for reconsideration in light
of all relevant factors.

      Accordingly, the Decision and Order Awarding Benefits is vacated as to
claimant's average weekly wage, and the case is remanded to the administrative law
judge for consideration consistent with this opinion. 


                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         BETTY JEAN HALL
                         Administrative Appeals Judge

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1)The records do not reflect any earnings for 1993. Claimant was incarcerated for most of that year. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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