UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60686
Summary Calendar
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NEW THOUGHTS FINISHING COMPANY;
TRAVELERS INSURANCE COMPANY,
Petitioners,
versus
DONALD CHILTON;
DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
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Appeal from the United States Department of Labor
Benefits Review Board
(94-2386)
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June 17, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Petitioners, New Thoughts Finishing Company (“New Thoughts”)
and Travelers Insurance Company (“Travelers”), appeal the final
order of the Benefits Review Board affirming the Administrative Law
Judge’s award of compensation to respondent Donald Chilton under
*
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this opinion should not be published and is not precedent except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.
the Longshore and Harbor Workers’ Compensation Act (“the Act”), 33
U.S.C. § 901, et seq. The ALJ’s award was affirmed as a matter of
law when the Board did not act on the appeal within a year. See
Omnibus Appropriations for Fiscal Year 1996, Pub. L. No. 104-134,
§ 101(d), 110 Stat. 1321-219 (enacted 1996). New Thoughts and
Travelers filed a notice of appeal to this court pursuant to 33
U.S.C. § 921(c).
I.
On March 10, 1992, Chilton injured his lower back when the
crane he was operating “toppled over.” The only dispute between
the parties below and in this court is the computation of Chilton’s
average weekly wage.
The average weekly wage is determined by dividing the
claimant’s average annual earnings by 52. 33 U.S.C. § 910(d)(1).
The parties and the ALJ agree that the computation of Chilton’s
average annual earnings is governed by Section 10(c) of the Act, 33
U.S.C. § 910(c), which provides that:
. . . average annual earnings shall be such sum as,
having regard to the previous earnings of the injured
employee in the employment in which he was working at the
time of the injury, and of other employees of the same or
most similar class working in the same or most similar
employment in the same or neighboring locality, or other
employment of such employee, including the reasonable
value of the services of the employee if engaged in
self-employment, shall reasonably represent the annual
earning capacity of the injured employee.
33 U.S.C. § 910(c). Section 910(c) applies when the claimant’s
work is seasonal or intermittent. Empire Union Stevedores v.
2
Gatlin, 936 F.2d 819, 822 (5th Cir. 1991); Gilliam v. Addison Crane
Co., 21 BRBS 91 (1987)(citing Lozupone v. Stephano Luzopone & Sons,
12 BRBS 148, 156-57 (1979)).
The ALJ found that Chilton’s average weekly wage was $467.67,
which yields a weekly benefit of $311.78. The ALJ based Chilton’s
average weekly wage on an annual earning capacity of $24,319.
Petitioners point out that although Chilton earned $24,319 in 1988,
his earnings were considerably less in the three years immediately
preceding the accident. He earned $17,960 in 1991, $14,621 in
1990, and $13,735 in 1989. Chilton’s testimony reflected that his
work in construction industry for the previous three years had been
intermittent because work was not available. He testified that he
worked whenever work was available, but in recent years had been
laid off frequently, even during the course of finishing a project.
The ALJ evidently chose the 1988 figure because he concluded
that Chilton’s earnings in the more recent years reflected a
depression in the industry and that Chilton had “shown that work in
the industry was again available for him after the accident.”
Petitioners contend that the record contains no evidence to support
these conclusions.
II.
We review a decision of the Benefits Review Board using the
same standard the Board applies to review a decision of the ALJ:
whether the decision is supported by substantial evidence and is in
3
accordance with law. SGS Control Servs. v. Director, Office of
Worker’s Compensation Programs, U.S. Dep’t of Labor, 86 F.3d 438,
440 (5th Cir. 1996)(citing Gatlin, 936 F.2d at 822). “Substantial
evidence is evidence that provides ‘a substantial basis of fact
from which the fact in issue can be reasonably inferred . . . more
than a scintilla . . . more than create a suspicion . . . such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Avondale Indus., Inc. v. Director, Office
of Workers' Compensation Programs, 977 F.2d 186, 189 (5th Cir.
1992) (quoting Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003,
1006 (5th Cir. 1978) (quoting NLRB v. Columbian Enameling and
Stamping Co., 306 U.S. 292, 299-300, 59 S. Ct. 501, 504-05, 83
L.Ed. 660 (1939))). The substantial evidence standard is less
demanding than that of preponderance of the evidence, and the ALJ's
decision need not constitute the sole inference that can be drawn
from the facts. Id.
Moreover, we may not substitute our judgment for that of the
ALJ, nor reweigh or reappraise the evidence, but may only determine
whether evidence exists to support the ALJ’s findings. SGS Control
Servs., 86 F.3d at 440 (citations omitted). All doubts are to be
construed in favor of the employee in accordance with the remedial
purposes of the Act. Gatlin, 936 F.2d at 822 (citation omitted).
III.
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After careful review of the record, we agree with petitioners
that the record contains no evidence to support the ALJ’s finding
that $467.67 represented a reasonable average weekly wage.
Contrary to the ALJ’s decision, the record is devoid of evidence
that Chilton at the time of his injury, unlike in the immediately
preceding three years, would have had the opportunity to be
employed year-round. Although Chilton testified that he was
employed in building a wharf at the time of his injury, there is no
indication that the existence of this project would have produced
steady employment for Chilton.1 Indeed, in 1991 he worked on a
single project that continued for the entire year, the construction
of an interstate highway bypass, but was laid off numerous times in
the course of that year. Similarly, his testimony that in 1994
“all his friends are working” does not support the inference that
work was available to him year-round in 1992.2 In short, no
1
Chilton said that he expected to work at the New Thoughts job
seven days a week because a “business agent” told him that it would
be a “time job” (meaning that “there was going to be a lot of time
on the job”). This, however, says nothing about the duration of
this or similar jobs.
2
The parties’ joint exhibits included a transcript of Chilton’s
deposition, which was taken less than a month before the hearing.
It is not clear whether the ALJ considered this deposition in
reaching his conclusion: the ALJ indicated at the hearing that he
would not consider the deposition, but his Decision and Order cites
the deposition (Joint Exhibit 30) as part of the record. The
record does not contain substantial evidence to support the ALJ’s
findings without Chilton’s deposition testimony. Even the
scintilla of evidence that the record does contain without his
deposition testimony is undermined if that testimony is considered.
Contrary to his hearing testimony that “all his friends were
working,” he testified in his deposition that some of his friends
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substantial evidence supports the ALJ’s conclusion that Chilton’s
annual earnings for 1988, when he was employed the entire year,
reflect his average annual earnings at the time of his injury in
1992.
Unlike Sections 910(a) and 910(b) of the Act, Section 910(c)
allows the ALJ to consider more than just the year immediately
preceding the injury. Compare 33 U.S.C. § 910(a), (b) with id. §
910(c). Nevertheless, the ALJ’s task is to determine the “average
weekly wage of the injured employee at the time of the injury . .
. .” Id. § 910 (emphasis added). If the ALJ looks beyond the 52
weeks immediately preceding the injury, “he must take into account
the earnings of all the years within that period.” Gatlin, 936
F.2d at 823 (quoting Anderson v. Todd Shipyards, 13 BRBS 593, 596
(1981)) (emphasis omitted).
In this case, there is no evidence that would allow the ALJ to
skip over the claimant’s earning history for the three years
immediately preceding the accident and select his last full year of
employment as his average annual earnings.3 There is not more than
were working, some were not, and that he “would have to be
guessing” regarding the availability of work. He also testified in
his deposition that work opportunities in the area were “just
steady getting worse” after 1991.
3
As the Seventh Circuit explained in Tri-State Terminals v.
Jesse, “one of the primary reasons for the differentiaton in §
10(c) is that it would be unfair to the employer to calculate an
intermittent employee’s wage under §§ 10(a) or (b), since to do so
would treat the claimant as a full-time worker and thereby
exaggerate his loss.” 596 F.2d at 756 n.3.
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a scintilla of evidence in the record that there was a change in
circumstances that made the claimant’s average annual earnings at
the time of injury greater than his actual earnings in the
immediately preceding years, see, e.g., Tri-State Terminals, Inc.
v. Jesse, 596 F.2d 752, 754 (7th Cir. 1979), or that claimant had
recently changed his field of work. See, e.g., Gatlin, 936 F.2d at
821.
For these reasons, we REVERSE and REMAND to the ALJ for a
redetermination of Chilton’s average weekly wage.
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