BRB No. 96-1004

WYLIE P. SMITH                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING AND           )    DATE ISSUED:   02/25/1997
DRY DOCK COMPANY                        )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Granting Motion for Modification of
     Fletcher E. Campbell, Jr., Administrative Law Judge, United States
     Department of Labor.

     John H. Klein (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

     Stephanie Burks Paine (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.  

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

     PER CURIAM:

     Claimant appeals the Decision and Order Granting Motion for Modification (95-LHC-1608) of Administrative Law Judge Fletcher E. Campbell, 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 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 June 15, 1984, claimant sustained an injury to his left thoracic muscle
while working for employer as a helper.  The parties stipulated that claimant is
entitled to temporary total disability benefits from June 29, 1984, through October
14, 1984, temporary partial disability benefits from October 23, 1986, to April 9,
1987, and permanent partial disability benefits from April 10, 1987, to September
30, 1987, and continuing.  The award for permanent partial disability benefits
compensated claimant for a loss of overtime in the amount of $24.13 per week, or 3.2 hours per week.  These stipulations were embodied
in a compensation order issued by the district director.  

     Employer thereafter requested modification of the district director's award
of permanent partial disability benefits pursuant to Section 22 of the Act, 33
U.S.C. §922.  Employer sought termination of the award for permanent partial
disability benefits as claimant's injury has not caused him to lose any overtime
since August 1, 1994, when he was transferred from the sail loft, where little
overtime was available, to the ventilation shop, where more overtime was available. 
 

     In his Decision and Order Granting Motion for Modification, the administrative
law judge found that claimant ceased to suffer any loss of the ability to work
overtime as of August 1, 1994, when claimant was transferred to the ventilation
shop.  Consequently, the administrative law judge terminated employer's liability
for permanent partial disability benefits.  

     On appeal, claimant challenges the administrative law judge's conclusion that
his work injury is not now causing a reduction in his ability to work overtime and
seeks reinstatement of the award of permanent partial disability benefits
compensating him for the loss of overtime.  Employer responds in support of the
administrative law judge's decision.

     Under Section 22, any party-in-interest, at any time within one year of the
last payment of compensation or within one year of the rejection of a claim, may
request modification based on a mistake of fact or change in conditions. 
Modification based on a change in conditions may be granted where claimant's
physical or economic condition has improved or deteriorated following the entry of
an award of compensation. Metropolitan Stevedore Co. v. Rambo,     U.S.  
, 115 S.Ct. 2144, 30 BRBS 1 (CRT)(1995); Fleetwood v. Newport News Shipbuilding
& Dry Dock Co., 776 F.2d 1225, 18 BRBS 12 (CRT)(4th Cir. 1985), aff'g 16
BRBS 282 (1984); Wynn v. Clevenger Corp., 21 BRBS 290 (1988).  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. See Avondale Shipyards, Inc. v.
Guidry, 967 F.2d 1039, 26 BRBS 30 (CRT)(5th Cir. 1992).  A loss of overtime is
relevant to a determination of wage-earning capacity. Peele v. Newport News
Shipbuilding & Dry Dock Co., 20 BRBS 133 (1987).

     After consideration of claimant's contentions on appeal and the administrative
law judge's decision in light of the record evidence, we affirm the administrative
law judge's granting of employer's motion for modification and termination of
claimant's permanent partial disability award for a loss of overtime.  The
administrative law judge properly granted employer's motion for modification as
employer showed a change in claimant's economic condition. Rambo, 115 S.Ct.
at 2144, 30 BRBS at 1 (CRT).  Upon claimant's transfer from the sail loft to the
ventilation shop on August 1, 1994, the administrative law judge found that
claimant has the opportunity to work more than the 3.2 hours per week in overtime for which his permanent partial disability award compensated him.[1]   Emp. Ex. 6.  The administrative law judge also
found that the overtime available to claimant in the ventilation shop is within his
work restrictions and job functions.  Emp. Ex. 9(c); Tr. at 31, 47, 54.

     Claimant's contention that he might be earning more in overtime pay if he
could work on ships, if not for his injury, is without merit.  The administrative
law judge rationally found that although claimant cannot now perform overhead work
due to work restrictions imposed as a result of his injury, claimant could still
work some overtime on ships, if he wanted to, as not all of the work aboard the
ships was overhead work.  Decision and Order at 9; Tr. at 53.  Even if claimant
were able to perform all of the ship overtime available to him, the administrative
law judge's finding that less ship overtime is now available is supported by
substantial evidence, and does not support claimant's claim that he still has a
loss of overtime, see generally Sears v. Newport News Shipbuilding & Dry Dock
Co., 19 BRBS 235 (1987), in view of the increased overtime available in the
ventilation shop.  Decision and Order at 9-10; Cl. Ex. 2(k); Tr. at 43. 
Consequently, as the record supports the administrative law judge's finding that
claimant has sufficient overtime available so that he no longer has the loss in
overtime for which he was being compensated, we affirm the administrative law
judge's granting of employer's motion for modification resulting in the termination
of claimant's award for permanent partial disability benefits. See Everett v.
Newport News Shipbuilding & Dry Dock Co., 23 BRBS 316 (1989); Brown v.
Newport News Shipbuilding & Dry Dock Co., 23 BRBS 110 (1989); Peele, 20
BRBS at 133.

     Accordingly, the administrative law judge's Decision and Order Granting Motion
for Modification is affirmed.  

     SO ORDERED.

                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge


                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge

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Footnotes.
 1)The administrative law judge found that claimant had the opportunity
to work overtime in the ventilation shop at the rate of 4.4 hours per week in 1994
and 6.2 hours per week in 1995.  Emp. Exs. 4(a)-(c), 5.
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