Boyle v. Continental Grain Co

                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit

               _____________________________________

                            No. 96-60624
               _____________________________________


                         PATRICK A. BOYLE,

                                                        Petitioner,

                              VERSUS


                CONTINENTAL GRAIN COMPANY, ET AL.,

                                                       Respondents.

     ______________________________________________________

               Petition for Review of Final Order
                    of Benefits Review Board
                            (94-2641)
     ______________________________________________________

                           May 7, 1997
Before DAVIS, EMILIO GARZA and STEWART, Circuit Judges.

PER CURIAM:*

     In this appeal from an order of the Benefits Review Board, the

employee challenges the ALJ's finding (which was affirmed without

decision by the Benefits Review Board) that suitable alternate

employment was available to the employee.    The ALJ found that the

employer had demonstrated that several jobs were available to Mr.

Boyle which he was capable of performing that would allow him to

earn more than he was earning at his 29-hour per week job with


     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Hobby Hut.    One of these jobs was in newspaper sales in the New

Orleans area.    It paid $7.10 an hour for a 29-hour week and would

yield Mr. Boyle $205.90 per week.

     Mr. Boyle argues that the ALJ erred in concluding that he

would receive $205.90 per week from the newspaper job because this

job required him to use his personal automobile and the ALJ's

computation did not consider automobile expenses.             However, the

employee did not present evidence that automobile expenses are not

reimbursed.      The   only   evidence   on   this   point   was   from   the

rehabilitation counselor who testified that she assumed these

expenses were reimbursed but had made no specific investigation of

this point.     We are persuaded that the ALJ was entitled to infer

from this expert's testimony that ordinarily, in employment of this

type, the employer reimburses the employee's automobile expenses.

So regardless of which party had the burden of proof on this issue,

substantial evidence supported the ALJ's finding.

     AFFIRMED.




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Boyle v. Continental Grain Co

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