Empire United Stevedores v. Gatlin

936 F.2d 819, 1991 WL 126446
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 30, 1991
DocketNo. 90-4858
StatusPublished
Cited by10 cases

This text of 936 F.2d 819 (Empire United Stevedores v. Gatlin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Empire United Stevedores v. Gatlin, 936 F.2d 819, 1991 WL 126446 (5th Cir. 1991).

Opinion

PER CURIAM:

Petitioners, Empire United Stevedores and Signal Administration, Inc., (collectively Empire) appeal the order of the Benefits Review Board affirming the Administrative Law Judge’s award of compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901, et seq., to Reginald Gatlin on the grounds [821]*821that the AU erred in computing Gatlin’s average weekly wage and loss of wage earning capacity. Finding that the BRB’s decision was supported by substantial evidence and was in accordance with the law, we affirm.

BACKGROUND

Gatlin was working as a longshoreman on April 23, 1986, his second day on the job with Empire, when he injured his knee in the course of his employment. He underwent arthroscopic surgeries on his knee but was unable to return to longshore employment. Gatlin sought temporary total disability benefits for the time he was unable to work and permanent partial disability benefits thereafter. The AU found that Gatlin was entitled to temporary total disability compensation benefits from April 23, 1986 through September 3, 1987, and permanent partial disability benefits for 50% loss to the knee thereafter.

Prior to his employment with Empire, from 1982 through 1984, Gatlin was employed as a sales representative/store manager at ColorTile, Inc. He earned $14,-797.65 in 1984. He worked intermittently during the period from the end of 1984 through the time of the accident at various jobs for different employers. During the 52 weeks prior to his injury, Gatlin earned only $3,202.54. Using this employment history, the AU found that Gatlin's wages during the 52 weeks preceding his injury were not representative of his actual wage-earning capacity, and that Section 10(a) and (b) of the LHWCA could not be used to determine Gatlin’s average weekly wage. The AU therefore resorted to Section 10(c) to determine that Gatlin’s average weekly wage was $284.57.

Empire appealed to the BRB claiming, inter alia, that the AU erred in failing to consider Gatlin’s wages for the 52 week period preceding the injury in determining his average weekly wage. The BRB held that the AU’s conclusion that Gatlin’s average weekly wage in 1984 more accurately represented his earning capacity than his 1985 earnings from sporadic employment was rational and supported by substantial evidence. The BRB then affirmed the award. Empire appeals to this court pursuant to section 21(c) of the LHWCA, 33 U.S.C. § 921(c).

The Statutory Scheme

Under the LHWCA, compensation awards run from the date the work-related injury for which a claim is made renders the claimant disabled. 33 U.S.C. §§ 902(2), 908(a)-(e). The rate of compensation payable for such injury is based on “66%% of the difference between the average weekly wages of the employee and the employee’s wage earning capacity thereafter in the same employment or otherwise, payable during the continuance of partial disability.” 33 U.S.C. § 908(c)(21). The determination of the average weekly wage is governed by section 10 of the Act, which provides three alternative methods for calculating the employee’s average annual earning capacity, 33 U.S.C. § 910(a)-(c), the amount of which is then divided by 52 weeks to arrive at the average weekly wage, 33 U.S.C. § 910(d)(1).

Section 10(a) provides that when the employee has worked in the same employment for substantially the whole of the year immediately preceding the injury, his annual earnings are computed using his actual daily wage. 33 U.S.C. § 910(a). Section 10(b) provides that if the employee has not worked substantially the whole of the preceding year, his average annual earnings are based on the average daily wage of an employee in the same class who has worked substantially the whole of the year. 33 U.S.C. § 910(b). But, if neither of these two methods “can[] reasonably and fairly be applied” to determine an employee’s average annual earnings, then resort to section 10(c) is appropriate. 33 U.S.C. § 910(c); Walker v. Washington Metro. Area Transit Authority, 793 F.2d 319, 321 (D.C.Cir.1986).

Under section 10(c) an employee's average annual earnings shall be:

[SJuch 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 the other [822]*822employees 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). Accordingly, application of section 10(c) is appropriate when the employee’s work is inherently discontinuous or intermittent, Palacios v. Campbell Industries, 633 F.2d 840, 841-842 (9th Cir.1980), and when “ ‘otherwise harsh results’ would follow were an employee’s wages invariably calculated simply by looking at the previous year’s earnings,” Walker, 793 F.2d at 322.

DISCUSSION

We review a decision of the Benefit Review Board under the same standard as it reviews the decision of the AU: Whether the decision is supported by substantial evidence and is in accordance with the law. Odom Constr. Co. v. United States Dept. of Labor, 622 F.2d 110, 115 (5th Cir.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981). This court may not substitute its judgment for that of the ALJ, see O’Keeffe v. Smith, Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 363, 85 S.Ct. 1012, 1015, 13 L.Ed.2d 895 (1965), nor may we reweigh or reappraise the evidence, but may only inquire into the existence of evidence to support the AU’s factual findings, see, e.g., Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87-88 (5th Cir.1990); South Chicago Coal & Dock Co. v. Bassett, 104 F.2d 522 (7th Cir.1939), aff'd,

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936 F.2d 819, 1991 WL 126446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empire-united-stevedores-v-gatlin-ca5-1991.