UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-60569
Summary Calendar
AVONDALE INDUSTRIES, INC.,
Petitioner
VERSUS
RODNEY PULLIAM; DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents
Petition for Review of an Order of the
Benefits Review Board
March 31, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
Appellee injured his shoulder and sued Appellant, his former
employers, for permanent and total disability payments under the
Longshore and Harbor Workers’ Compensation Act. The administrative
law judge awarded him permanent, partial disability payments and
calculated his wage earning capacity by averaging the hourly wage
of five jobs which Appellant had found for Appellee. The Benefits
Review Board affirmed. The res nova issue presented is the proper
method of computing post-injury wage earning capacity when the
employer locates more than one suitable job for the claimant. We
affirm the ALJ’s use of averaging.
I
In May 1992, Rodney Pulliam (“Pulliam”), a sheet metal
mechanic for Avondale Shipyards (“Avondale”), fell off a scaffold
and injured his shoulder. Pulliam continued to work for Avondale
until July when he quit.
In February 1994, Pulliam underwent surgery on his shoulder
but was not able to return to work until January 1995. In the
meantime, Avondale hired a certified rehabilitation counselor to
analyze Pulliam’s ability to be re-employed. The counselor
conducted a labor market survey to identify jobs within Pulliam’s
mental and physical capabilities as well as his geographic area.
The counselor found forty-four such jobs, none of which Pulliam
secured.
Pulliam sued Avondale for permanent, total disability
compensation under the Longshore and Harbor Workers’ Compensation
Act (“LWHCA”). In attempting to establish total disability,
Pulliam argued to the administrative law judge (“ALJ”) that he had
diligently tried to obtain other employment, but that no one would
hire him. He pointed to the fact that he contacted all but five1
of the prospective employers. The ALJ disagreed, finding that
Pulliam had not been diligent in his job search. Rather, the ALJ
found that Pulliam had, in at least two instances, misrepresented
1
We note that the ALJ stated that Pulliam contacted all but
six of the prospective employers; however, we are concerned with
only five of those jobs because Pulliam gave no explanation for
failing to contact those prospective employers.
2
the status of his injury so as to hurt his chances of being hired.
Thus, Pulliam was entitled only to permanent, partial disability.2
In calculating Pulliam’s post-injury wage earning capacity,
the ALJ averaged the hourly wage of the five jobs for which Pulliam
did not apply. Avondale unsuccessfully appealed to the Benefits
Review Board (“BRB”) arguing alternatively that the ALJ should have
based Pulliam’s compensation on the highest wage of the five jobs
and that the ALJ should have considered all forty-four jobs in his
calculation. The BRB affirmed the ALJ’s findings and adjusted the
ALJ’s calculation of the average.3 Avondale now appeals to this
court.
II
When the BRB affirms an ALJ’s decision, we may reverse the
ALJ’s decision only if it is not supported by substantial evidence
and is not in accordance with the law. New Thoughts Finishing Co.
v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir. 1997). Substantial
evidence is evidence that “a reasonable mind might accept as
adequate to support a conclusion.” Pierce v. Underwood, 487 U.S.
552, 564-65 (1988) (internal quotation marks omitted).
A
While 33 U.S.C. § 908(c)(21) sets forth the formula for
calculating an employee’s lost wage earning capacity, it does not
2
Under the LWHCA, the ALJ calculates loss of wage earning
capacity by taking two thirds of the difference between the average
of what the worker had earned and what the worker can earn post-
injury. See 33 U.S.C. § 908(c)(21).
3
The ALJ had initially found that the average of the five jobs
was $5.25/hour. The BRB adjusted the average to $5.99/hour.
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give any guidance for determining what the post-injury earning
capacity is. Thus, the courts have determined post-injury earning
capacity on a case by case basis. See Licor v. Washington
Metropolitan Area Transit Authority, 879 F.2d 901 (D.C. Cir. 1989);
Pilkington v. Sun Shipbuilding and Dry Dock, 9 B.R.B.S. 473.
Avondale argues that the BRB should have vacated and remanded
the ALJ’s decision because the ALJ used the average of the wages
rather than the highest wage. In P & M Crane v. Hayes, 930 F.2d
424 (5th Cir. 1991), this Court held that an employer could satisfy
its burden of proving alternate employment by showing that there
was one job available in the local community. Here, Avondale
points out that it more than satisfied its burden by showing that
there were forty-four jobs available. Moreover, Avondale could
have avoided this litigation altogether by finding the highest
paying alternate employment for Pulliam. Instead, it provided
Pulliam with a choice of forty-four jobs.
Avondale also urges this Court to reverse the ALJ’s judgment
based on policy. It contends that were we to affirm the ALJ, we
would be discouraging other employers from attempting to find a
range of suitable, alternate employment. To get around the
averaging scheme, all an employer would have to find only one, high
paying job. Thus, should we reverse the ALJ, we would be
encouraging employers to find a range of alternate employment. We
disagree.
First, we find the policy argument unpersuasive. The
employer, to avoid paying permanent, total disability benefits, has
4
to show that there is suitable, alternate employment. We think it
unlikely that an employer would risk having to pay permanent, total
disability benefits by showing only one job available. Rather, the
presumption that the employee is permanently and totally disabled
would seem to encourage the employer to find as many alternate jobs
as possible.
Second, in Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318
(5th Cir. 1997), we held that averaging was a reasonable method for
determining an employee’s post-injury wage earning capacity. We
now explain why. We have held that an employer need not show that
a specific job opening is available when proving suitable,
alternate employment. See, Avondale Industries, Inc. v. Guidry,
967 F.2d 1039 (5th Cir. 1992) (holding that an employer has to show
only general availability). Thus, the courts have no way of
determining which job, of the ones proven available, the employee
will obtain. Averaging ensures that the post-injury wage earning
capacity reflects each job that is available.
B
We now address Avondale’s argument that the ALJ should have
calculated Pulliam’s post-injury wage earning capacity by using all
forty-four jobs. Avondale argues that the ALJ acted improperly in
finding that Pulliam was not diligent and that he had applied for
all but five of the forty-four jobs. While we agree that these
findings seem inconsistent, we give deference to an ALJ’s findings
of fact. Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904,
906 (5th Cir. 1997). It is reasonable that the ALJ could find that
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Pulliam merely applied for most of the forty-four jobs and yet was
not diligent in his job search. Thus, we do not find error in the
ALJ using the five jobs to determine the average.
CONCLUSION
For the above reasons we AFFIRM.
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