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                                   BRB No. 98-0355


BEVERLY J.  WILLIAMS                    )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   10/28/1998
                                        )
     v.                                 )        
                                        )
INGALLS SHIPBUILDING,                   )    
INCORPORATED                            )
                                        )    
          Self-Insured                  )
          Employer-Petitioner           )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Respondent                    )    DECISION and ORDER

     Appeal of the Decision and Order and Decision Granting Employer's Motion
     For Reconsideration and Granting Relief in Part of Richard K. Malamphy,
     Administrative Law Judge, United States Department of Labor.

     D.A. Bass-Frasier (Huey & Leon), Mobile, Alabama for claimant.

     Paul B.  Howell  (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
     Mississippi, for self-insured employer.

     LuAnn B. Kressley (Martin Krislov, Deputy Solicitor for National
     Operations; Carol DeDeo, Associate Solicitor; Janet R.  Dunlop, Counsel
     for Longshore), Washington, D.C., for the Director, Office of Workers'
     Compensation Programs, United States Department of Labor.

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

     PER CURIAM:

     Employer appeals the Decision and Order and Decision Granting Employer's
Motion For Reconsideration and Granting Relief in Part  (96-LHC-1990) of
Administrative Law Judge Richard K. Malamphy  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).  

     On September 2, 1994, claimant, a welder for employer, developed symptoms of
carpal tunnel syndrome (CTS).  Dr. William Crotwell, a Board-certified  orthopedic
surgeon, ultimately performed  four surgical procedures for this condition.  After
the initial  surgeries in October and November 1994, claimant  was released to full
duty work in February 1995. Following an exacerbation of her condition, claimant
was again taken off work.  Claimant returned to full duty in May 1995, but her
problems persisted.  In July 1995, Dr. Crotwell diagnosed recurrent CTS and imposed
permanent restrictions.  On July 21, 1995, claimant  left her job with employer due
to a lack of suitable work within her department.  Employer  voluntarily paid
various periods of temporary total disability compensation, and permanent partial
disability compensation under the schedule for 10 percent impairment of each hand
and a 15 percent impairment of the left third finger. Claimant sought temporary
total disability and permanent total disability compensation under the Act.

     In his Decision and Order, the administrative law judge found that as claimant
had worked substantially all of the year prior to her injury and the record
reflected that she was a 5-day worker who had worked 184 days and earned
$19,686.35, her average weekly wage calculated pursuant to Section 10(a), 33 U.S.C.
§910(a), was $534.95.  The administrative law judge further found that
inasmuch as claimant was unable to perform her usual  work and employer had not
introduced evidence of suitable alternate employment, claimant was entitled to
permanent total disability compensation as of July 21, 1995.  Finally, he denied
employer's request for Section 8(f), 33 U.S.C. §908(f), relief.

     Employer requested reconsideration of the administrative law judge's  findings
with regard to the applicable average weekly wage, the availability of suitable
alternate employment, and the date of maximum medical improvement. In his Decision
Granting Employer's Motion For Reconsideration and Granting Relief in Part, the
administrative law judge modified his initial Decision and Order  to reflect that
claimant reached maximum medical improvement on  January  9, 1996 rather than July
2, 1995, but otherwise rejected employer's arguments.

     On appeal, employer contends that the administrative law judge erred in
finding that it failed to establish the availability of suitable alternate
employment, in calculating claimant's average weekly wage, and in denying Section
8(f) relief.  Claimant responds, urging affirmance of the administrative law
judge's findings regarding the applicable average weekly wage and the extent of
disability.  The Director, Office of Workers' Compensation Programs (the Director),
also  responds, urging affirmance of the administrative law judge's denial of
Section 8(f) relief.  Employer replies, reiterating the arguments made in its
Petition for Review.

     Employer's argument that the administrative law judge erred in finding that
it did not meet its burden of establishing the availability of suitable alternate
employment is rejected.  In the present case, inasmuch as it was undisputed that
claimant was unable to perform her usual welding work for employer, the burden
shifted to employer to establish the availability of suitable alternate employment
which claimant, considering her age, education, work experience, and physical
restrictions, is capable of performing and for which she can compete and reasonably
secure. See P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS 116 (CRT),
reh'g denied, 935 F.2d 1293 (5th Cir. 1991); New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981). In the
present case, employer attempted to meet this burden through the vocational
testimony of Ms. Berthaume and Mr. Walker, who, after considering Dr. Crotwell's
limitations,[1]  identified a number of available
job opportunities within the categories of jobs Dr. Crotwell indicated claimant
might  be capable of performing.[2]   Based on a
labor market survey performed in April 1996, Ms. Berthaume identified a security
job, two dispatcher positions, and a parking lot attendant position.  EX-20, pp.1-6.  In addition, in February and March 1997, she conducted additional vocational
surveys and identified jobs available for a security guard, a parking toll booth
cashier/attendant,  and an appointment setter.  EX-20, pp. 8-14.  In August 1995,
Mr. Walker also conducted a labor market survey and  identified available cashier,
security, dispatcher, telephone sales, and cab driving jobs which he believed were
within claimant's capabilities.  EX-19.

     The administrative law judge found the identified jobs were insufficient to
establish that jobs suitable for claimant were available.  The administrative law
judge relied on Dr. Crotwell's opinion claimant could "possibly" or "probably"
perform desk-type work or work as a parking lot attendant, toll booth operator, or
cashier provided that her restrictions were strictly followed.  CX-1, pp. 22, 24. 
He then discussed the physical requirements of the jobs described in the vocational
reports, and found that as each job required writing, the use of a phone or
computer, or involved activities such as making change, stamping cards, or
receiving money, the jobs were not suitable given Dr. Crotwell's serious doubts
about claimant's dexterity.  In his Decision Granting Employer's Motion For
Reconsideration and Granting Relief in Part, after reconsidering the relevant
testimony, the administrative law judge again found the evidence insufficient;  he
concluded that while employer  had made the satisfactory argument that work was
available within the generic classifications approved by Dr. Crotwell, it had not
proven that the jobs identified were suitable, given that Dr. Crotwell had
questioned claimant's strength, dexterity, and gripping ability.  Inasmuch as the
administrative law judge rationally found that the jobs identified by employer's
vocational experts require substantial hand usage, and Dr. Crotwell specifically
conditioned his opinion regarding the types of work claimant might be able to do
on strict adherence to her restrictions and on the potential jobs involving little
or no use of her hands, the administrative law judge acted within his authority in
concluding that employer did not meet its burden of showing that these jobs were
suitable.   Inasmuch as the administrative law judge's conclusion that the jobs
identified by Ms. Berthaume and Mr. Walker were not, in fact, suitable is rational
and supported by substantial evidence, his determination that employer failed to
meet its burden of establishing the availability of  suitable alternate employment
is affirmed.[3]    

     We agree with employer, however, that the administrative law judge erred in
calculating claimant's average weekly wage. To determine a claimant's average
annual earnings under Section 10(a), her average daily wage is multiplied by 260
(for a five-day-per-week worker), and the resulting figure is divided by 52,
pursuant to Section 10(d), 33 U.S.C. §910(d), in order to yield claimant's
statutory average weekly wage. See O'Connor v. Jeffboat, Inc., 8 BRBS
290 (1978).  Thus, Section 10(a) seeks to approximate claimant's annual earnings;
time lost due to strikes, personal business, illness or other reasons is therefore
not deducted from the computation. See Johnson v. Newport News Shipbuilding &
Dry Dock Co., 25 BRBS 340, 343 n.4 (1992); Duncan v. Washington Metropolitan
Area Transit Authority, 24 BRBS 133, 136 (1990).  

     Based on information contained in employer's wage records, CX-3, the
administrative law judge calculated claimant's average daily wage by dividing her
yearly earnings of  $19,686.35 by 184 days, and then, as claimant was a 5-day
worker,  multiplying the resulting figure of $106.90 by 260, which resulted in
annual earnings under Section 10(a) of  $27,817.40.  He then divided this figure
by 52 as is required under by Section 10(d), 33 U.S.C. §910(d), yielding an
average weekly wage of $534.95.  In contesting this computation, employer correctly
argues that the administrative law judge erred in determining that claimant had
worked for 184 days rather than 189 days in the year prior to her injury.  Inasmuch
as average weekly wage under Section 10(a) includes vacation pay in lieu of
vacation, we agree with  employer that the 5 days of vacation pay received by
claimant on January 1, 1994,[4]  CX-3, p.18, should
have been included in determining the number of days she worked in the year prior
to her injury. Duncan, 24 BRBS at 136.  Accordingly, we vacate the
administrative law judge's average weekly wage determination and modify his
Decision and Order to reflect that as claimant worked 189 rather than 184 days in
the year prior to her injury, her average weekly wage under Section 10(a) is
$520.80[5]  rather than $534.95.

       Finally, employer argues that the administrative law judge erred in denying
its request for Section 8(f) relief.  Employer maintains that  as claimant
testified at the hearing that prior to her work injury she suffered from
hypertension and arthritis which required medical attention, caused her to miss
time from work, and prevented her from performing work requiring climbing stairways
and exposure to temperature extremes,  the administrative law judge erred in
concluding that these medical conditions were not pre-existing permanent partial
disabilities.

      Section 8(f) shifts the liability to pay compensation for permanent
disability or death after 104 weeks from an employer to the Special Fund
established in Section 44 of the Act. 33 U.S.C. §§908(f), 944.  An
employer may be granted Special Fund relief, in a case where a claimant is
permanently partially disabled, if it establishes that the claimant had a manifest
pre-existing permanent partial disability, and that his current permanent partial
disability is not due solely to the subsequent work injury and "is materially and
substantially greater than that which would have resulted from the subsequent work
injury alone." 33 U.S.C. §908(f)(1); Two "R" Drilling Co., Inc. v.
Director, OWCP, 894 F.2d 748, 23 BRBS 34 (CRT) (5th Cir. 1990); C&P
Telephone Co. v. Director, OWCP, 564 F.2d 503, 6 BRBS 399 (D.C. Cir. 1977);
see generally CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT) (1st
Cir. 1991); Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996); Quan v.
Marine Power & Equipment Co., 30 BRBS 124 (1996).  To constitute a pre-existing
permanent partial disability, the prior injury must have resulted in a serious
lasting physical problem prior to the injury on which the compensation claim is
based. Director, OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS
974 (9th Cir. 1982), cert. denied, 459 U.S. 1104 (1983); C&P
Telephone, 564 F.2d at 513, 6 BRBS at 415.

     In the instant case, the administrative law judge found that employer failed
to establish that claimant's arthritis and hypertension were pre-existing permanent
partial disabilities within the meaning of Section 8(f).  In so concluding, he
noted  that claimant's hearing testimony reflected that she had undergone treatment
for arthritis and elevated blood pressure prior to her 1994 hand injury.  Tr.  at
19.  Inasmuch, however, as employer did submit the relevant medical records from
Dr. Coleman documenting this treatment, and the record is devoid of evidence that
claimant's hypertension and arthritis resulted in any restrictions, or in any way
affected her ability to work as a welder prior to her 1994 hand injury, the
administrative law judge rationally determined that employer failed to demonstrate
that these conditions qualified as pre-existing disabilities.[6] See generally Campbell Industries, 678 F.2d
at 836, 14 BRBS at 974.  As mere evidence of prior injuries does not establish the
existence of a serious lasting physical problem, Legrow, 935 F.2d at 430,
24 BRBS at 202 (CRT); Kubin v.  Pro-Football, Inc., 29 BRBS 117 (1995), we
affirm  the administrative law judge's determination that employer did not
establish the pre-existing permanent partial disability element of Section 8(f)
entitlement, and consequently his denial of Section 8(f) relief. See Goody v.
Thames Valley Steel Corp.,  31 BRBS 29 (1997), aff'd mem. sub nom. Thames
Valley Steel Corp. v. Director, OWCP,  131 F.3d 132 (2d Cir. 1997).

     Accordingly, the administrative law judge's average weekly wage determination
is modified to $520.80.  In all other respects, his Decision and Order  and
Decision Granting Employer's Motion For Reconsideration and Granting Relief in Part 
are affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                   
                         ROY P.  SMITH
                         Administrative Appeals Judge




                                                                   
                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)In July 1995, Dr. Crotwell imposed permanent restrictions of no lifting more than 5 pounds, no repetitive hand or wrist motion, and no heavy gripping or bending. Back to Text
2)Dr. Crotwell opined that claimant could probably perform desk-type work involving little or no use of her hands, if such a position could be found for her, EX-17, p. 31, or work as a parking lot attendant, toll booth operator, or cashier if she is not doing a lot of repetitive motion, or twisting and bending with the hands, or lifting anything heavy. EX-17, p. 33. Back to Text
3)A claimant may rebut employer's showing of suitable alternate employment and retain entitlement to total disability benefits by demonstrating that he diligently tried but was unable to secure alternate employment. See Roger's Terminal and Shipping Corp. v. Director, OWCP, 781 F.2d 687, 18 BRBS 79 (CRT) (5th Cir. 1986), cert. denied, 107 S.Ct. 101 (1986). In his initial Decision and Order, although the administrative law judge stated that he did not need to decide whether claimant had exhibited due diligence in attempting to secure alternate work in light of employer's failure to establish suitable alternate employment, he nonetheless noted that claimant had made some attempts to find work and was not successful, and explicitly concluded that claimant had made a good case in disputing the availability of the alternate jobs. Inasmuch as these findings equate to a finding of due diligence, we note that any error the administrative law judge may have made with regard to whether suitable alternate employment was established would, in any event, be harmless. See generally Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir. 1991); CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT) (1st Cir. 1991). Back to Text
4)On this date claimant was paid for one day of work and five days of vacation. CX-3, p.18. Back to Text
5)$19,686.35 in earnings divided by 189 days = average daily wage of $104.16 x 260 = $27,081.75 divided by 52 = $520.80. Back to Text
6)In addition, even if the pre-existing permanent partial disability requirement of Section 8(f) entitlement had been satisfied, inasmuch as the administrative law judge found that Dr. Coleman's reports regarding treatment of claimant's pre-existing conditions were not submitted into evidence, and there is no other record evidence in existence prior to claimant's 1994 injury documenting these conditions, the manifest requirement was not met. See generally Ceres Marine Terminal v. Director, OWCP [Allred], 118 F.3d 387, 31 BRBS 91 (CRT) (5th Cir. 1997). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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