BRB No. 02-0294
LONNIE SMITH
Claimant-Petitioner
v.
AVONDALE
INDUSTRIES,
INCORPORATED
Self-Insured
Employer-Respondent
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DATE ISSUED:
01/09/2003ATE
ISSUED:_Jan. 9,
2003
DECISION and ORDER
Appeal of the Decision and Order and Order Granting in Part and Denying in Part Employer's
Motion for Reconsideration and Denying Claimant's Motion for Reconsideration of James W. Kerr,
Jr., Administrative Law Judge, United States Department of Labor.
William S. Vincent, Jr. (Law Office of William S. Vincent, Jr.), New Orleans, Louisiana, for
claimant.
Joseph J. Lowenthal, Jr., and Christopher S. Mann (Jones, Walker, Wachter, Poitevent, Carrere &
Denegre, L.L.P.), New Orleans, Louisiana, for self-insured employer.
Before: SMITH, HALL and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order and Order Granting in Part and Denying in Part
Employer's Motion for Reconsideration and Denying Claimant's Motion for Reconsideration (00-LHC-2931) of Administrative Law Judge James W. Kerr, 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. (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 was injured during the course of his employment for employer in the scaffolding
department, when the side mirror of a truck struck his left shoulder on April 22, 1996. Claimant
continued working for employer until he underwent an acromioplasty in February 1997. CX 6.
Claimant returned to work for employer in June 1997 in the electrical department on board ships. He
required a second left shoulder surgery on October 16, 1997. CX 3. Claimant returned to work for
employer on January 7, 1998, with permanent restrictions barring lifting over 20 pounds and overhead
work. CX 1; Tr. at 35. Thereafter, claimant was assigned to the electrical layout department, where
he worked outdoors. Employer voluntarily paid claimant compensation for all periods of temporary
total disability. The parties agreed that claimant's left shoulder condition reached maximum medical
improvement on January 6, 1998. Claimant underwent an arthrogram of his left shoulder on September
20, 1999, after which his work restrictions were amended to prohibit repetitive pulling with the left arm.
Claimant sought compensation for permanent partial disability based on a loss of wage-earning capacity
due to loss of overtime and employer's inability to provide suitable work in the electrical layout
department when it rained. Claimant also sought compensation based on a higher average weekly wage
than that calculated by employer.
In his decision, the administrative law judge found that claimant did not sustain a loss of wage-earning capacity prior to his shoulder reaching maximum medical improvement on January 6, 1998,
because claimant voluntarily declined overtime. The administrative law judge also found that claimant
did not sustain a loss in wage-earning capacity after reaching maximum medical improvement in
January 1998, crediting evidence that claimant was offered overtime when it was available, but chose
not to work. Additionally, the administrative law judge found no evidence that claimant lost wages
when he was unable to work due to inclement weather. The administrative law judge further determined
that claimant is not entitled to a de minimis award. He reasoned that no doctor opined
that claimant's condition would worsen such that his future earnings would be affected and claimant
earns $1.53 per hour more than he earned at the time of injury, concluding that there is not a significant
possibility of economic harm in the future due to claimant's left shoulder condition. The administrative
law judge determined claimant's average weekly wage under Section 10(a) of the Act, 33 U.S.C.
§910(a). The administrative law judge agreed with employer's calculation, which divided by 52
claimant's total wages earned in the year prior to his work injury. On reconsideration, the
administrative law judge employed the same methodology to calculate claimant's average weekly wage
under Section 10(c), 33 U.S.C. §910(c), finding it is unclear whether claimant was a five- or six-day per week employee.
On appeal, claimant contends the administrative law judge erred in his average weekly wage
determination, in finding no loss of wage-earning capacity either before or after claimant's shoulder
condition reached maximum medical improvement, and by denying a de minimis award.
Employer responds, urging affirmance.
Claimant initially challenges the administrative law judge's average weekly wage determination.
Specifically, claimant contends that the administrative law judge erred by relying on claimant's total
earnings during the year preceding the April 22, 1996, work injury instead of on the hourly rate, $13.03,
claimant earned at the time of injury, which would fully incorporate a 44-cent per hour raise he received
in January 1996.
Section 10(c) of the Act is a catchall 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.[1] See Louisiana Ins. Guar. Ass'n v.
Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5th Cir. 2000). 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 determined
that claimant's average weekly wage is $550.14, by dividing by 52 claimant's total earnings of
$28,607.28 during the year preceding his work injury. On reconsideration, the administrative law
judge found that it would be "an unfair and unreasonable windfall" to adjust claimant's average
weekly wage for the first eight months before the work injury to reflect the raise claimant received
four months prior to his injury. Order on Recon. at 3.
We vacate the administrative law judge's calculation of claimant's average weekly wage. The goal
of Section 10(c) is to approximate the earnings claimant had the potential and opportunity to earn
absent injury. Empire United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26(CRT) (5th
Cir. 1991). Rather than resulting in a "windfall" to claimant as the administrative law judge found,
the use of claimant's hourly wage at the time of injury fully compensates claimant for the earnings
he lost due to his injury. Hastings v. Earth Satellite Corp., 628 F.2d 85, 14 BRBS 345
(D.C. Cir.), cert. denied, 449 U.S. 905 (1980); Tri-State Terminals, Inc. v. Jesse,
596 F.2d 752, 10 BRBS 700 (7th Cir. 1979). Specifically, absent his work injury, claimant would
have earned an average weekly wage after April 22, 1996, that fully incorporated the 44-cent per
hour raise he received four months prior to the date of injury. Thus, we hold that, pursuant to
Section 10(c), claimant's average weekly wage at the time of injury must be determined using his
hourly wage rate at that time, rather on claimant's total earnings during the year preceding his work
injury. See Le, 18 BRBS at 177. Accordingly, we vacate the administrative law judge's
average weekly wage finding, and we remand for the administrative law judge to re-calculate
claimant's average weekly wage utilizing claimant's hourly wage rate of $13.03 at the time of
injury.
We next address claimant's contention that the administrative law judge erred in finding that he did
not sustain a loss of wage-earning capacity due to his work injury. An award for permanent partial
or temporary partial disability is based on the difference between claimant's pre-injury average
weekly wage and his post-injury wage-earning capacity. 33 U.S.C. §908(c)(21), (e);
McKnight v. Carolina Shipping Co., 32 BRBS 165, aff'd on recon. en banc, 32
BRBS 251 (1998). Section 8(h) of the Act, 33 U.S.C. §908(h), provides that claimant's wage-earning capacity shall be his actual post-injury earnings if these earnings fairly and reasonably
represent his wage-earning capacity. Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26
BRBS 30(CRT) (5th Cir. 1992); Penrod Drilling Co. v. Johnson, 905 F.2d 84, 23 BRBS
108(CRT) (5th Cir. 1990). The fact that claimant received actual post-injury wages equal to or
greater than his pre-injury earnings does not mandate a conclusion that claimant has no loss of
wage-earning capacity. See generally Mangaliman v. Lockheed Shipbuilding Co., 30 BRBS
39 (1996). If claimant's actual earnings do not represent his wage-earning capacity, the
administrative law judge must determine a reasonable dollar amount that does. Devillier v.
National Steel & Shipbuilding Co., 10 BRBS 649, 660 (1979). In either case, relevant
considerations include the employee's physical condition, age, education, industrial history, and
availability of employment which he can do post-injury. 33 U.S.C. §908(h); Louisiana
Ins. Guar. Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994); Penrod Drilling
Co., 905 F.2d 84, 23 BRBS 108(CRT). Loss of overtime also is a factor in determining post-injury wage-earning capacity; claimant must establish that, absent his injury, he would have worked
available overtime. Brown v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 110
(1989). Finally, in determining a claimant's post-injury earnings, the administrative law judge must
use the wage rates for the post-injury job in effect at the time of the injury in order to neutralize the
effect of inflation. See, e.g., Sestich v. Long Beach Container Terminal, 289 F.3d 1187, 36
BRBS 15(CRT) (9th Cir. 2002); Richardson v. General Dynamics Corp., 23 BRBS 327
(1990).
In this case, employer provided claimant with suitable employment at its facility when he was
released to return to work with restrictions due to his shoulder condition. Regarding the period
before his shoulder condition reached maximum medical on January 6, 1998, claimant asserts he
sustained a loss in wage-earning capacity based on a lack of overtime in various departments to
which he was assigned when he was able to work, and his inability to "hustle" overtime in other
departments due to his work restrictions. The administrative law judge did not address this
contention in his initial decision. On reconsideration, the administrative law judge found no loss of
wage-earning capacity before claimant's shoulder condition reached maximum medical
improvement "for the same reasons that support no loss of wage-earning capacity after Claimant
reached maximum medical improvement, namely that claimant made a personal choice not to
perform overtime..." Order on Recon. at 4.
The administrative law judge relied on the testimony of claimant and claimant's supervisors,
regarding his work after he reached maximum medical improvement on January 6, 1998, to find that
claimant refused to work available overtime before January 1998. Decision and Order at 8-9. Jerry
Martin is the general foreman of the electrical department. Johnny Rome is claimant's first line
supervisor in the electrical layout department. Mr. Martin and Mr. Rome testified that claimant did
not begin working for them until sometime in 1998 or early 1999. EXS 10 at 12-13; 11 at 16-20.
They did not testify that claimant refused overtime prior to his working for them. The testimony of
claimant that the administrative law judge cited also does not address his refusing overtime before
January 1998, see Tr. at 65-67, and claimant submitted into evidence records showing that
he worked fewer hours after his injury than he did before his injury. CX 10. Accordingly, we
cannot find evidentiary support for the administrative law judge's conclusion on reconsideration that
claimant did not sustain a loss of wage-earning capacity in the period before reaching maximum
medical improvement. See generally Barren Creek Coal Co. v. Witmer, 111 F.3d
352, 356 (3d Cir. 1997). Because substantial evidence does not support the administrative law
judge's denial of partial disability benefits prior to claimant's reaching maximum medical
improvement, we vacate the administrative law judge's denial of compensation for temporary partial
disability. As the administrative law judge must in the first instance evaluate the evidence regarding
claimant's wage-earning capacity during the period in question, we remand this case to the
administrative law judge for reconsideration of whether claimant established that his injury
precluded his working available overtime. See 5 U.S.C. §557(c)(3)(A);
McCurley v. Kiewest Co., 22 BRBS 115 (1989).
Claimant also asserts he sustained a loss in wage-earning capacity after his shoulder condition
reached maximum medical improvement on January 6, 1998, based on a lack of available overtime,
and, after his assignment to the electrical layout department, due to his inability to work outside
during inclement weather. On reconsideration, the administrative law judge found no evidence that
claimant missed work when the weather was inclement. Order on Recon. at 4. The administrative
law judge determined that claimant did not submit time cards to support his assertion, and that the
time sheets in evidence do not indicate claimant was sent home when it rained.[2] CXS 2, 10. With regard to overtime, the administrative law
judge noted the testimony of Mr. Miller and Mr. Rome that daily overtime was available, which entailed
working ten-hour days and occasional work on Saturdays. EX 10 at 18-22; see also Tr. at 84-86. The administrative law judge credited Mr. Rome's testimony that claimant refused daily overtime
because he needed to catch a ride home, EX 11 at 16-19, and claimant's testimony that he, at times,
chose not to perform overtime on Saturdays due to a previous commitment, and because he wanted to
spend more time with his daughter, Tr. at 66-67, 85.
We cannot affirm the administrative law judge's finding that there is no evidence supporting
claimant's contention that he sustained a loss in wage-earning capacity after his condition reached
maximum medical improvement. Claimant's assertion is premised on evidence showing that he
averaged 43.24 hours a week during the year preceding his April 23, 1996, work injury, 37.94 hours
after the date of injury to January 6, 1998, when his shoulder condition maximum medical
improvement, and 34.46 hours thereafter, when, at an undetermined date, he was assigned to the
electrical layout department. CX 10. Claimant asserted that the reduction in his work week is due, in
part, to his being sent home when it rained, and in part to the unavailability of overtime in his post-injury positions. Claimant and his supervisor, Mr. Rome, testified to the unavailability of work in the
electrical layout department when it rained. Tr. at 41; EX 11 at 8. Thus, there is evidence supporting
claimant's contention that, in the suitable job provided by employer, he worked fewer hours post-injury
due to inclement weather, and there is no evidence to the contrary. See generally Newport
News Shipbuilding & Dry Dock Co. v. Stallings, 250 F.3d 868, 35 BRBS 51(CRT) (4th Cir. 2001),
aff'g in pert. part 33 BRBS 193 (1999). Accordingly, we vacate the administrative law judge's
denial of partial disability benefits after January 6, 1998, and we remand for the administrative law
judge to address the relevant evidence of record in this regard.
On remand, the administrative law judge also must reconsider his finding that claimant refused
available overtime when he worked for employer in the electrical layout department. If less overtime
is available in the light duty positions to which claimant was assigned or if claimant is unable to work
available overtime due to his injury, claimant has established a basis for an award of partial disability
benefits. See Everitt v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 316 (1989).
If, however, claimant declines available overtime for reasons other than his injury, claimant is not
entitled to benefits for a loss of overtime. See generally Sears v. Newport News Shipbuilding & Dry
Dock Co., 19 BRBS 235 (1987). On appeal, claimant challenges the administrative law judge's
reliance of the testimony of Mr. Miller and Mr. Rome on the basis that he was not working in the
electrical layout department during much of the time they testified overtime was actually available in
that department.[3] In support of this assertion, claimant notes that the administrative law judge granted his subpoena
requesting documentation from employer showing when, after his return to work in January 1998,
claimant transferred from the cable department to electrical layout. See Feb.1, 2001, letter from
claimant's attorney to the administrative law judge and the attached exhibit list at #10. Claimant
alleged that these documents would support his assertion that he was not working in the electrical layout
department when overtime was available there, and that overtime was not available in the cable
department. Claimant also averred that the records would establish that he did not refuse available
overtime. At the hearing, the administrative law judge granted employer's motion to leave the record
open for two weeks post-hearing in order for it to comply with claimant's subpoena. Tr. at 20-22.
Employer, however, never submitted the requested documentation. In his decisions, the administrative
law judge did not address employer's noncompliance with claimant's subpoena. Accordingly, we must
vacate the administrative law judge's findings regarding the availability of and claimant's willingness
to work overtime after his condition reached maximum medical improvement. On remand, the
administrative law judge must either afford employer another opportunity to submit the subpoenaed
information or address employer's failure to comply with claimant's subpoena requesting this
information. See generally Denton v. Northrop Corp., 21 BRBS 37 (1988)
(discussing the adverse inference rule). The administrative law judge then must reassess the issue of
claimant's loss in wage-earning capacity due to the alleged loss of overtime in light of any evidence
employer submits in accordance with the subpoenaed documents.
Finally, claimant contends that the administrative law judge should, in the alternative, have found
him entitled to a de minimis award. Claimant argues that his permanent work restrictions
prohibiting lifting over 20 pounds, overhead work, and repetitive pulling with his left arm render it
highly likely that he would sustain a loss of wage-earning capacity should employer discharge him from
light duty employment. A claimant is entitled to nominal compensation when his work-related injury
has not diminished his present wage-earning capacity, but there is a significant potential of future
economic harm due to the injury. Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S.
121, 31 BRBS 54(CRT) (1997). In his order on reconsideration, the administrative law judge denied
a de minimis award.[4] The administrative law judge
found that none of the physicians who examined claimant opined that his shoulder condition would
worsen, and there is no evidence of unavailable jobs or that claimant's injury is likely to cause future
economic harm.[5] Order on Recon. at 5. The administrative law judge
therefore concluded that the evidence does not support claimant's assertion of a significant possibility
of future economic harm. As the administrative law judge's conclusion is rational, supported by
substantial evidence and in accordance with law, it is affirmed. See Price v. Stevedoring Services
of America, 36 BRBS 56 (2002); Buckland v. Dept. of the Army, 32 BRBS 99 (1997).
Accordingly, the administrative law judge's Decision and Order and Order Granting in Part and
Denying in Part Employer's Motion for Reconsideration and Denying Claimant's Motion for
Reconsideration are vacated, and the case is remanded for further consideration of claimant's average
weekly wage and post-injury wage-earning capacity consistent with this opinion. In all other respects,
the administrative law judge's decisions are affirmed.
SO ORDERED.
___________________________ ROY P. SMITH
Administrative Appeals Judge
___________________________
BETTY JEAN HALL
Administrative Appeals Judge
___________________________
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge's use, on reconsideration, of Section 10(c) to
calculate claimant's average weekly wage is unchallenged on appeal.
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2)There is no support for the administrative law judge's inference that the
time cards that were not submitted into the record by employer would, or should, support claimant's
testimony of a weather-related loss in wage-earning capacity, as there is no evidence that such
information appears on the time cards.
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3)Claimant also challenges the administrative law judge's finding that he
refused overtime to spend more time with his daughter. In this regard, claimant testified that he
worked fewer hours for this reason at a second job as a security guard with another employer. Tr. at
94. The administrative law judge must address this testimony on remand. However, we reject
claimant's challenge to various alleged inconsistencies in the testimony of Mr. Miller and Mr.
Rome, as the administrative law judge may credit parts of a witness's testimony and disregard other
parts. Avondale Shipyards v. Kennel, 914 F.2d 88, 24 BRBS 46(CRT) (5th Cir. 1990).
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4)In denying a nominal award, the administrative law judge first noted that
claimant did not request such an award until after his decision was issued. Such an award, however,
is encompassed within a claim for a greater partial disability award. See Rambo v. Director,
OWCP, 81 F.3d 840, 30 BRBS 27(CRT) (9th Cir. 1996), vacated and remanded on other
grounds, 521 U.S. 121 (1997).
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5)The administrative law judge also relied on the fact that claimant is
currently earning $1.53 more per hour than he earned prior to his work injury. This fact is relevant
to claimant's wage-earning capacity if his increased wage rate is due to promotions or other merit-based enhancements. If, however, claimant's rate increased only as a result of cost-of-living
adjustments, it does not indicate an increased wage-earning capacity as inflationary effects on
earnings are discounted in computing post-injury wage-earning capacity. See, e.g., Sestich v.
Long Beach Container Terminal, 289 F.3d 1187, 36 BRBS 15(CRT) (9th Cir. 2002);
Richardson v. General Dynamics Corp., 23 BRBS 327 (1990); CX 10.
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NOTE: This is an UNPUBLISHED LHCA Document.
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