Todd Shipyards Corp v. Hamilton

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60270
Summary Calendar
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TODD SHIPYARDS CORPORATION and
AETNA CASUALTY & SURETY CO.,

Petitioners,

versus

THOMAS HAMILTON, DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.
_________________________________________________________________

On Appeal from the Benefits Review Board
United States Department of Labor
(92-2290)
_________________________________________________________________
January 16, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

This is an appeal from a decision and order of the Benefits

Review Board (the "Board"), adjudicating a claim under the

Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et

seq (the "Act"). Having reviewed the record, briefs of the

parties, and supporting memoranda, we conclude that the Board's

review of the administrative law judge's (the "ALJ") careful

decision was correct on each issue appealed by the employer, and we

therefore affirm.

*
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this opinion should not be published and is not precedent except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.
 I

In this appeal the employer, Todd Shipyards ("Todd"), appeals

the ALJ's finding--and the Board's subsequent affirmance of that

finding--of the amount of Thomas Hamilton's ("Hamilton") average

weekly wage preceding his on-the-job injury, as well as its finding

of post-injury wage-earning capacity.

A

As to the pre-injury average weekly wage, Todd argues that the

ALJ should have applied subsection 10(c) of the Act, instead of

subsection 10(a). Todd contends that subsection 10(a) unnaturally

inflated Hamilton's theoretical wage earning capacity at the time

of his injury, because Hamilton worked only 188 days (37.6 weeks)

of the previous year. Hamilton worked less than the full year

because Todd laid him off due to a reduction in force.

Subsections 10(a) and 10(c) read in pertinent part as follows:

(a) If the injured employee shall have worked in the
employment in which he was working at the time of the
injury . . . during substantially the whole of the year
immediately preceding his injury, his average annual
earnings shall consist of . . . two hundred and sixty
times the average daily wage or salary for a five-day
worker, which he shall have earned in such employment
during the days when so employed.

* * *

(c) If [subsection (a) or (b)] cannot reasonably and
fairly be applied, such 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

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 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(a),(c). Citing earlier published Board decisions

and Fifth Circuit cases where section 10(a) had been applied to

claimants who had worked less days than Hamilton the year before

their injuries, the ALJ held that subsection (a) was applicable in

this case because Hamilton worked substantially the whole of the

year preceding his injury, and because Hamilton's job with Todd was

permanent in nature. We must affirm the Benefits Review Board's

decision if it correctly concluded that the ALJ's findings were

supported by substantial evidence and are in accordance with the

law. Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 1042-43

(5th Cir. 1992). Under this standard of review, we find that the

Board's decision should be affirmed.

B

Todd also contends that the Board erred as a matter of law

when it affirmed the ALJ's finding as to Hamilton's current wage

earning capacity. Based on its conclusion that Hamilton reached

maximum medical improvement in June 1987, the ALJ utilized

Hamilton's earnings in 1987, 1988, and 1989 to ascertain his

current wage earning capacity. We have reviewed the calculations

of the ALJ, and find that it considered the proper factors in

determining Hamilton's post-injury wage-earning capacity. Although

reasonable minds could differ in their conclusion as to the proper

award, the ALJ has significant discretion in fashioning a

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reasonable post-injury wage-earning capacity for the injured

worker. Louisiana Ins. Guar. Ass'n v. Abbott, 40 F.3d 122, 129

(5th Cir. 1994). The Board concluded on appeal that the ALJ's

determination was supported by substantial evidence, and our review

of the record reveals no reason to disagree.

II

Because it correctly concluded that the ALJ's compensation

order was supported by substantial evidence on the record as a

whole, and that it was in accordance with the law, the decision of

the Benefits Review Board is

A F F I R M E D.

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