L-3 Communications et al v. Director, Office of Workers' Compensation Programs et al

Filing 24

OPINION and ORDER AFFIRMING the decision of the United States Department of Labor Benefits Review Board ("BRB") concerning Respondent's average weekly wage; AFFIRMING the BRB's decision regarding the disqualification of the interp reter position as suitable alternative employment; VACATING the BRB's calculation of Respondent's post-injury wage earning capacity and REMANDING for further proceedings consistent with this Opinion and Order; Respondent's attorney may file his fee petition for work performed in this Court within 30 days of this Opinion and Order. Signed by District Judge Mark S. Davis and filed on 12/2/11. (mwin, )

UNITED STATES

FILED

DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

L-3

DEC -2 2011
CLERK. US D.'SifrOT COURT

COMMUNICATIONS

'<CH: Oi X 7 A

and
INSURANCE COMPANY OF THE STATE
OF PENNSYLVANIA,

Petitioners,

Civil Action No.

v.

DIRECTOR,

2:10cv592

OFFICE OF WORKERS'

COMPENSATION PROGRAMS

and
MICHAEL

SCHBOT,

Respondents.

OPINION AND ORDER

This matter is

Communications
State

of

currently before the Court

("Employer")
Pennsylvania

"Employer/Carrier").
and Order

Benefits
("ALJ

Review Board

D&O")

"Employee")

of

The

Insurance

(collectively

of

{"BRB")

affirming

D&O

benefits

Law

("ALJ")

Schbot

stemming

a

2007,

in Iraq.

the
or

from the Decision

Department

awarded Michael

occurring on January 22,

of

of

Labor

the Decision and Order

Judge

from

Company

"Petitioners"

the United States

Administrative

ALJ

the

These Petitioners appeal

<«BRB D&O")

Solomon.

and

on appeal by L-3

Daniel

F.

("Respondent"

or

work-related

injury

The award of benefits

was

made under

seq.,

which

the Defense Base Act

is

an extension of

Compensation Act

Although
the

issue

court

or

decisions
court

1997);

595

there
whether

a

circuit

under

with

district,
Docket No.

appeal

ALJ's

assert

use

of

that

is

was

Inc.

heard

1651

circuits

by

in

et

of

BRB

district

is

located.
(4th Cir.

Director,

OWCP

[Barrios],

Because

originated
filed

district

803-06

801,

2010) .

on

the

office

F.3d

a

appeals

initiated

v.

order

across

circuit

123

properly

the

BRB

in

the

this

here.

deputy

judicial

Compl.

post-injury

on

an

for

two

challenges

the

BRB

erred

by

post-injury

wages

to

that

Pet'rs'

erred

excessive.

disqualified

raises

allege

wage.

second argument

employment

be

Cir.

Respondent's

weekly

Respondent's
award

(2nd

§

et seq.

commissioner's

Int'l,

appeal

Petitioners

average

this

Inc.,

u.S.C.

Ex.

B,

1.

Petitioners'

First,

in

compensation

the

901

should be

should

Co.,

451-55

§

uniformity

appeals

DBA

Emps.

of

42

Longshore and Harbor Workers'

U.S.C.

lack

deputy

Serv.

commissioner's

33

court,

Boeing

447,

a

BRB

the

the

Lee v.

F.3d

is

of

where

Compare

("LHWCA"),

the

("DBA"),

in

purposes

Mem.

contentions:

interpreter
of

2.

affirming

earning

Pet'rs'
two

Mem.

1)

position

calculating

the

the

ALJ's

as

the

calculation

that
base

should not

suitable

Respondent's

an

Petitioners

arguing

ALJ

D&O.

calculate

Petitioners
the

BRB

affirming

Second,

capacity,
2.

to

of

the
their
have

alternative
post-injury

earning

capacity;

of positions
at

and

2)

identified as

failed

Congress

workers'
outside

enacted

average

the

salaries

suitable alternative employment.

id.

the

U.S.C.

War

to

for

workers'

compensation

cost

of

and its

obtaining

of

Act and War Hazard's
(Matthew Bender)
472

cert,

provisions

333

of

installations

the

123

and

liability

overseas

to

in

by

enable

contractors

avoid

insurance

employees."

U.S.

the

aff'd,

845

LHWCA

abroad.

See

164

(1948).

to

42

U.S.C.

the provisions of the

apply in respect

to

[covered]

(citing

of

States

the substantial

10,

v.

§

Lowe,

(2nd

10.01
69

Cir.

F.

1947),

extended

on

1651(a)

{"Except

[LHWCA]

the

Defense Base

ch.

DBA

for

working

§

the

state

United

coverage

18

The

employees

804

on

compensation

Levy,

F.2d

or

numerous

the

Compensation Act Handbook,

1946),

working

the request

presented

to

"provide[]

bases

F.3d at

conflicts

herein modified,

any

military

(citing Republic Aviation Corp.

(S.D.N.Y.

denied,

at

to

employees

"was adopted at

laws

tort

order

certain

Lee,

employees

defense

in

States

prevent

overseas

identified classes

Supp.

1941

for

United

The DBA

coverage

government

in

defense projects."

1651).

of

DBA

coverage

continental

§

Secretary

HISTORY OF THE DBA

the

compensation

other national

in

to

19-20.
I.

42

the ALJ

the

federal

as amended,

as

shall

the injury or death of any employee engaged

employment.").

Thus,

the

provisions

of

the

LHWCA

govern

DBA

otherwise.

See

Worldwide v.
When

cases,

Lee,

Felkner,

Congress

review

of

LHWCA

courts

of

the

33

U.S.C.

§

(1972)).

however,

any

unless

123

enacted

district

where

the

judicial

that

DBA

w[j]udicial

instituted

the United

district

is

commissioner whose
§

provides

AFIA/CIGNA

1991)}.

federal

occurred.

33

only

judicial

district

Id.

U.S.C.

(citing

921(c)

overseas

to

§

sites,

could not possibly occur within

Id_;_

pursuant

States

Congress,
...

to

the

compensation

order

respect

[the

DBA]

court

district

located

in

therefore,

of

office
is

shall

the

of
.

.

a
be

judicial

the

involved

to

deputy
.

."

42

1653(b).

Congress

amended the LHWCA in 1972

review procedures

now

Lee,

804.

123

(citing

the

by

applies

DBA

LHWCA mandated

injury

amended

the

(5th Cir.

in

proceedings

made

wherein

the

orders

the

of

804

1113

district."

order

in

at

DBA,

(1970),

compensation

F.3d

for

determination
decision

to

cases."

Id^

Congress

the

the injury in DBA cases

provided

LHWCA

F.3d

administrative

"Since

provision

930 F.2d 1111,

921(b)

federal

U.S.C.

a

at

filing

by
the

a

the

claim,

ALJ,

[BRB]

the

existence
"Thus,

an

(citing

changed

in

are

procedures

initially

exactly

judicial

appeals

obtaining

and

Felkner,

for

and created the judicial

930

the
F.2d

orders.
in

the

administrative

appealing
in

the

LHWCA

1113-15).

review procedure
4

ALJ

described

an

same
at

of

for

ALJ's

and

DBA

However,

compensation

awards under

the LHWCA to provide direct

the

appellate

federal

occurred.
make

IdL_

{citing

a similar

U.S.C.

§

court

change

1653(b)

33

to

still

in

the

U.S.C.

§

the DBA.

governs

review of

circuit

where

921(c)>.
Id.

DBA

at

the

Congress

805.

cases,

BRB orders

in

injury
did

not

Accordingly,

meaning

that

in

42

this

circuit review of BRB orders under the DBA occurs at the federal
district court level.
II.

The

Lee,

123 F.3d at 805-06.

FACTS AND PROCEDURAL HISTORY

Employer

hired

Respondent

specialist/translator

in

Respondent

will"

[was]

was

an

expected to

the

Employer's

"at

last

on

4) .

Employer's

Service

Respondent,

file

December

Agreement

provided

to

are

"work

the

take

environment."

After
Respondent

13,
2006.

the

"initial

Offer

Id^ at

file

on

the

This

linguistic

ALJ

as

26

signed

(citing

Service

Ex.

by

4,

at

contains

a

signed

by

Letter}
are

2.

reflected in

Respondent

Offer

D&O

assignment

Letter

odd-numbered pages

Court.

Ex.

place

2006.

whose

2006

personnel

2006,

working."

may

14,

only

dated December 14,
you

employee

{incorporating

though

of

a

approximately one year, "

December

Respondent

The

November

as

part

Agreement

of

was

the

also

and refers to the "contract under which
4,

at

13.

in

a

It

combat

further

zone

or

states

other

that

the

dangerous

Id.

testing
went

to

and
Georgia

processing
for

further

in

Reston,

testing.

Virginia,
ALJ

D&O

2.

Respondent then traveled to Kuwait,

Arabic/English translator
who

testified

that

the U.S.

thought

he

for

he

documents,

was

immediately

translate

for

captured

January 21,
Iraq,

[2007,]

and on to Iraq to work as an

sent

Army.

would

only

"outside

insurgents.

Id^

the

Id^

Respondent,

be

translating

wire"
"On

in

to

night

the

Iraq

of

while working for the Employer in Fallujah,

the claimant injured himself walking from his tent to the

bathroom when

he

spending

night

the

slipped

in

and

fell

severe

on

pain,

a

pallet."

Respondent

injury the next morning and was seen by a nurse.
Commc'ns,

BRB No.

10-0327,

Sept.

30,

2010) .

long

mission,

"which

terrain while

wearing

After

reported

required
35-pound

Id^

from pain

back,

Schbot v. L-3

at *1

his

After

legs,

extensive
body

(Ben.

armor

walking
and

this mission,

shoulder,

return from the week-long mission,

Rev. Bd.

on

uneven

carrying

a

as

a

medical

translator,

treatment,

translating

15-

Respondent suffered

and

hip.

id_^

Upon

Respondent saw a physician in

Fallujah who prescribed pain killers and muscle relaxers.
Following this

the

The following day Respondent went on a week-

pound backpack."

in

2010 WL 4035105,

Id.

Respondent

documents

and

Id^

continued to work
assisting

in

the

questioning of captured insurgents in the Fallujah jail; he even
went

on

another

subsequently

week-long

restricted

patrol

his

mission.

participation

id^

in

A

physician

the

patrol

missions, but Respondent continued to work in the Fallujah jail.

Id.

an

Respondent

Army

physician

they

could

sent

back

do

be

later

x-rayed

nothing

United

back

to

Iraq

presumption

ALJ

improvement
return

to

established
through

an

to

910(c)

concluding
have

that

did

August

27,

his

former

duties

suitable
August

25,

not

2008,
in

labor

to

calculate

"that

there

is

Iraq.

injury."

market

Respondent

in

the

to

Id.

U.S.C.

§

920{a)

on January

presumption.
maximum

Respondent

medical

could

not

The

Petitioners

for

Respondent

survey.

average
that

id.

id.

Without

weekly

claimant

the employment

U.S.C.
wage,

would

not

contract with

The ALJ divided Respondent's

$32,730.44 by the number of weeks he

determine

amount

Id.

the DBA.

the ALJ then used 33

evidence

Id.

pain.

injury

employment

obligation under

2007 wages with Employer of
fifteen,

33

id.

Respondent's
no

should

the

that

was

Reviewing

reached

had

and

he

The ALJ determined

the

rebut

alternative
2008

back

compensation under

Respondent

on

fulfilled his

paid,

ongoing

2009.

so

Respondent

sustained a workplace

Petitioners

employer absent his

was

Id.

his

where

concluded

Iraq,

concluded that

objection from the Employer/Carrier,
§

in

treatment.

for

due

treatment,

Physicians

established invocation of

concluded

for

Id.

issued on July 2,

that he had

and

Baghdad

Respondent

States

subsequently sought

Respondent

The

for

the United States

The ALJ D&O was

2007,

more

to

back.

in

sent

22,

his

the

Respondent

that

sent

to

physicians
not

was

of

an

average

$2,182.03.

id.

weekly
Then,

wage

for

the

ALJ

determined

was

that

$576.92,

identified
awarded

based

as

benefits

on

suitable

Respondent

March 23,

2007,

§

post-injury

the

lowest

temporary

benefits

908(b),

from

moved

capacity

the

positions

id.

disability

The

benefits

ALJ
from

temporary partial disability

and ongoing permanent partial

August

(c)(21),

Petitioners

2008;

2008;

of

employment.

total

to August 24,

wage-earning

salary

alternative

from August 25-26,

disability
U.S.C.

Respondent's

27,

2008.

Id^

(citing

33

(e)).

for

the

ALJ

to

reconsider

his

opinion,

contending that the ALJ should not have used Respondent's post-

injury wages in the calculation of average weekly wage, but the
ALJ

denied

this

doing so,

motion on December

the ALJ noted that

30,

2009.

Id.

at

*3.

in

the Respondent received a higher

salary in Iraq than he would have in the United States because

he was working in a "dangerous environment" while in Iraq,

and

that his prior stateside work history and wage history were not
comparable

to

his

Petitioners

subsequently appealed the ALJ's

again arguing

that

work

and

the ALJ

wages

in

Iraq.

erred by using

Id.

order

at

to

*2-3.

the BRB,

Respondent's

post-

injury wages in his calculation of Respondent's average weekly
wage.
wages

Id^
for

Petitioners

the

16

days

contended

prior

weekly wage of

$1,671.89."

the

in

ALJ

erred

his

to

the

Id^

calculation
8

that

Respondent's

accident

yield

"overseas
an

average

Petitioners also alleged that

of

Respondent's

post-injury

earning

capacity

by

disqualifying

an

interpreter

position

as

suitable alternative employment and by using only the salary of

the

lowest-paying position

employment

decision of

in

his

identified

calculation.

the ALJ,

as

id^

concluding that

suitable
The

BRB

the ALJ's

were reasonable and based on substantial

alternative

affirmed

the

determinations

evidence.

See id.

at

*3-5.

Petitioners have appealed the BRB's decision to this Court,
contending that the BRB erred in affirming the ALJ.

raise

the same arguments

in this Court as

Petitioners

those considered by

the BRB.
III.

In

the

reviewing

same

the

standard of

decision of the ALJ:
'conclusive

if

decision

v.

Parker,

of

review as

the BRB,

the

BRB

supported by substantial

935

this

uses

Court

F.2d

applies

in reviewing the

«[T]he ALJ's findings of fact

considered as a whole.'"1
Co.

STANDARD OF REVIEW

evidence in

[are] deemed
the record

Newport News Shipbuilding & Dry Dock
20,

22

(4th

Cir.

1991)

{quoting

33

'Nothing in the DBA alters or modifies the standard of review in

a judicial proceeding for review of a LHWCA compensation award.
Thus, the standard of review in DBA cases is the same as the

standard in a LHWCA case.
in fact,
the Supreme Court has
explained that judicial review of all "record-based factual
conclusion[s]" of an agency is under the substantial evidence
standard.
Dickinson v. Zurko, 527 U.S. 150, 164 (1999) (citing

SEC v.

Chenery Corp.,

318 U.S.

80,

89-93

(1943)).

U.S.C.

Dir.,

§

921{b)(3);

OWCP,

evidence is

681

Newport

F.2d 938,

News

941

Shipbuilding

(4th Cir.

1982)).

22

(quoting

(1938)).

Dry

Dock

"Substantial

Consol.

Edison

v.

NLRB,

Parker,

305

U.S.

935 F.2d

197,

the

administrative

law

judge's

supported

by

substantial

Lunsford,

733

F.2d

1141

in

1139,

Parker,

935

F.2d

(5th
at

findings

of

Marathon

evidence."

approval

Oil

Cir.

23).

(citing Dir.,

(6th Cir.

OWCP v.

Consol.

Coal

1984)

This

plenary authority to correct errors of law.

23

229

This Court reviews the decision of the BRB to "assure

that the Board adhered to its statutory standard of review,
whether

v.

'such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.'"

at

&

Co..

Parker,

884

fact

are

Co.

v.

{cited

Court

i.e.

also

with
has

935 F.2d at

F.2d 926,

929

1989)).2

In this circuit, «[t]he Board's adjudicatory interpretation of
the LHWCA is entitled to no special deference, and is subject to
[the
Court's]
independent
review."
Pittman
Mechanical

Contractors v. Dir., OWCP. 35 F.3d
"However, absent clear congressional

122, 125 (4th Cir. 1994)
intent to the contrary, we

do afford deference to a reasonable construction of the LHWCA by
the
Director,
Office
of
Workers'
Compensation
Programs
(Director), because he has policymaking authority with regard to
the Act."
Id^ The Director filed no substantive brief in this

case,

and therefore

this

should arguably defer.

Court has no

10

construction to which it

IV.

DISCUSSION

A. Calculating Respondent's Average Weekly Wage

The

LHWCA,

and

different methods
weekly wage.

by

extension

the

DBA,

provides

three

for calculating an injured employee's average

See 33 U.S.C.

§

910(a)-{c).

In this case the ALJ

applied section 910(c),3 and «[t]he parties

do not contest

[ALJ]'s finding that subsections

are inapplicable in

the instant case."
Proffitt

v.

Serv.

2604890

(Aug.

14,

Schbot,
Emp'rs

(a)

(b)

2010 WL 4035105,
Int'l,

2006)).

and

Inc.,

Rather,

40

at *2 n.l
BRBS

41,

solely

on

Respondent's

{citing
2006

WL

Petitioners find fault in the

ALJ's calculation of Respondent's average weekly wage,

based

the

pre

and

post-injury

which was

wages

with

Employer in Iraq, because the ALJ took into account Respondent's

post-injury wages.
the

Pet'rs'

"prime objective

of

Mem.

7-8.

Section 910 (c)

Petitioners assert that
is

to arrive at

a sum

3Section 910(c) provides:
If either of the foregoing methods of arriving at the
average annual

earnings of the injured employee cannot

reasonably and fairly be applied, such average annual
earnings shall be such sum as, having regard to the

previous

employment

earnings
in

of

which

he

the

was

injured

working

employee
at

the

in

time

the
of

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).

11

that

reasonably represents

a

claimant's

annual

earning capacity

at the time of injury," and that post-injury wages should not be

considered.

Pet'rs'

12

283,

285

(1980);

F.3d 311,

329

(4th Cir.

BRBS

155

In
true

affirming

that

Mem.

9

Universal

v.

Todd Shipyards,

Mar.

Serv.

Corp.

BRB

first

noted

10 (c)

is

v.

Wright,

1998)).

the ALJ

n[t]he object

(citing Cummins

D&O,

of

the

Section

to

that

it

arrive at

a

is
sum

that reasonably represents claimant's annual earning capacity at
the time of his injury."
Bath Iron Works Corp.

Empire

United

1991)).

v.

BRB

went

consideration

2010 WL 4035105,

Preston,

Stevedores

The

includes

Schbot,

v.

Gatlin,

on

of

380 F.3d 597

to

936

observe

claimant's

at *2

(citing

(1st Cir.

F.2d
that

819

2004);

(5th

"[t]his

ability,

Cir.

inquiry

willingness

and

opportunity to work and the earnings claimant had the potential
to

earn

had

Terminals,
v.

he

not

Inc. v.

been

Jesse,

Potomac Temporaries,

injured."

Id.

596 F.2d 752

12 BRBS 410

(citing

(7th Cir.

(1980))

Tri-State

1979); Jackson

(emphasis added).

Petitioners assert that § 10(c)'s use of the phrase "at the

time

of

injury"

irrelevant.'"

means

that

Pet'rs'

Mem.

Shipbuilding Inc.,
that
sense:

10

(quoting

events

73,

79

(1994)).

Wl[t]he plain meaning

of

the

statute

injury.'"

time of

Pet'rs'

injury means

Mem.

12

the

They
accords

time of

generally

v.

Ingalls

further note
with

the event

(quoting LeBlanc v.
12

are

Hawthorne

BRBS

the

28

tt'post-injury

common
causing

Cooper/T.

Smith

Stevedoring,
on

to

the

Inc.,

assert

time

of

130

that

F.3d 157,

MX[t]his

injury]

is

Gen.

Dynamics Corp.,

citations

Though

exception"

circumstances,"

Pet'rs'

to

they

claim
Pet'rs'

contend

Respondent

the ALJ

the

Respondent,

Mem.

past

on

considered

calculation
Respondent

of

reflect

Respondent

his

first

Resp't's Mem.

9

Mem.

taking

22,

2007

be

1985)

that

a

in

"exceptional

such

exceptional

Accordingly,
account

date

OWCP

(internal

recognize

no

into

at

amended by

(quoting Dir.,

applies

are

calculation

not

(2d Cir.

12.

earn

(emphasis

other

of

Petitioners
the wages

injury.

of

Pet'rs'

that

potential

the
of

adopts

the

added).

the

ALJ

wages

in

the

wage.

of

claimant's

ability

13

to

is

earn.'"

the potential

that

thus

to mean

further points

910(c)

position

10(c)

Terminals,

8-14.

2006 WL 2604890).

Circuit's

[Section]

Mem.

Section

40 BRBS 41,

Tri-State

Respondent

Resp't's

purpose

injured workman

the claimant would have
injury."

that

Seventh

interpretation of
the

asserts

post-injury

weekly

(quoting Proffitt,

also

absent

hand,

Respondent's
average

earning capacity of

earnings

the

notes

the

"[t]he Board's

to

16

They go

11-17.

properly

"vto

January

68

rule

erred by

that

Mem.

there

circumstances here.

should

Petitioners

this

1997)).

[mandating

it

769 F.2d 66,

omitted)).

"limited

(5th Cir.

provision

mandatory;

administrative decision.'"
v.

161

construes

the

amount

of

and opportunity
596

out

F.2d

that

at

757

the ALJ

"has

the

discretion,

circumstances
earnings

do

potential."

in

appropriate

existing after
not

Cir.

1986);

0591 & 07-0710,

S.K.

rely

General Dynamics,

for

the

worker's

that

employees

158.
at

ladder

the

ALJ

from

158-59.

should

April

disease,
also

32 BRBS

cannot

consider

an

limited

injured

exceptional

However,

these

for

disability years

cases

after

a

For example, in LeBlanc, claimant fell from

in 1987,

In

LeBlanc,

and claim that they stand

11-17.

applied

06-

(Sept. 28, 2007)).

holdings

absent

Mem.

BRB Nos.

Carolina Shipping Co.,

1998),

596

793 F.2d 319

Emp'rs Int' 1 Inc.,

wages,

that

wage-earning

injuring his

lower back.

Claimant returned to work a couple of months

degenerative
It

claimant's

Transit Auth.,

upon

the

Pet'rs'

workplace accident.4
a ship

Serv.

heavily

post-injury

circumstances.

involved

Metro.

(July 10,

proposition

consider

(citing Tri-State Terminals,

and McKnight v.

1998 WL 461479

to

injury where previous

41 BRBS 123, 2007 WL 4282166

Petitioners

165,

v.

reflect

13

F.2d at 752; Walker v. Wash.
(D.C.

the date of

realistically

Resp't's Mem.

cases,

1992

and

be

claimant

the

noted

was

treating
that

130

F.3d at

later.

diagnosed

physician

these

cases

disease

which

Id.

with

a

identified
involved

interpretations of 33 U.S.C. § 910<i), which specifically states
that for compensation claims under the LHWCA (or, by extension
the

DBA),

"due

to

an

occupational

does

not

immediately result in death or disability, the time of injury
shall be deemed to be the date on which the employee or claimant
becomes aware ... of the relationship between the employment,
the disease, and the death or disability."
33 U.S.C. § 910(i).
14

claimant's

workplace

longshoreman,
average

wage

as

weekly

in

1992

disability,

the

wage

was

but

cause

in

of

1987

the

meaning

Id.

at

The

that

United

continued

disease.

$92.87,

at

but

his

that

his

in

the

States

case because

manifestation'

not

Court

of

knee,

in

based

on

claimant
as

a

refused

claimant

F.2d at

67.

the

1970

employer

.

average

."

on

weekly

time of

compensation.
for

id.

the

the

Fifth

'time

of

at 161.

icy

deck

of

twisted his

The

made

the

"read a

Claimant
Id.

earning

1987 average weekly
to

.

slipped

torn meniscus.
and

.

for

a

left

torn meniscus was

a

lump-sum

wage.

payment

id.

In

1979

filed for disability because he had developed arthritis

result

after

Appeals

since

769

claimant's

of

that

claimant's

years

of

1970.

removed,

determined
on

Dynamics,

resulting in a

surgically

court

to

Appeals

a

weekly

filed

residual

entitled

exception into the LHWCA

In General

submarine

the

average

average weekly wage at

he was

as

Claimant's

Claimant

Circuit affirmed the ALJ's use of claimant's
wage

work

Id.

158-59.

determined

than his

accident,

the

Id.

ALJ

the

and

was

$439.65.

capacity was greater

159.

accident,

the

claimant's

1979

the

for

claimant's

slip

wages

original

the

the

average
because

weekly

Id.

The

15

in

id.

wage

injury

Circuit

occurred

surgery.

the

injury.

Second

injury

and

should be

manifested

United

disagreed,

1970,

The

the

based
itself

States

determining

ALJ

ALJ

should

Court

that

have

used claimant's
Id.

at

loading bales
claimant

for

1987

in

to

calculate

McKnight,

in 1984.
a

MCL

claimant

day

with

of

a

an

average weekly wage.

and

knee

work."

wages.

Id.

follows:

on

The

"Although

became manifest

claimant's

in

is

thus

must

be determined

contend

that

adopted

the

traumatic

the

date

at

The

extent

of

as

the

the

1984

concluding

as

disability

affirmed,

work

that

injury.

As

average weekly wage

*9

Petitioners
that

and

the

from

proposition

the

at

a

diagnosed

than

claimant's

1984

LeBlanc

such

decision,

of his

Id.

Id.

awarded disability

and we

time."

treated

after

stemming

rather

claimant's

knee

work.

swell

found,

for

to

physician

ALJ

of

left

A doctor

and
a

wages,

[ALJ]

stands

cases,

1989

ALJ's

injury,

that

reasoning

the

his

returned

ache

*2

the result

of

McKnight

injury

the

*1.

condition,

1989

full

1989,

disability is

1984

at

vacated

the

In

knee

claimant's

BRB

to

Id.

Id.

at

claimant

began

degenerative

based

injured

1998 WL 461479,

workplace accident.

benefits,

claimant

strain,

claimant's

"strenuous

1984

wages

67-68.

Finally,

In

1970

General

one

at

bar.

also

the

BRB

Dynamics

Pet'rs'

for

Mem.

10-11.

The
different
LeBlanc,
filed

for

proposition
from

the

General

for

issue

which
before

Dynamics,

disability

based

and
on
16

Petitioners'
this

Court.

McKnight,
a

cases

stand

is

Here,

unlike

in

Respondent

manifestation

of

has

not

disability

stemming

from

Rather,

the

injury

a

workplace

ALJ

wages

merely

(which

accident

took

were

into

short

in

years

before

account

his

claim.

Respondent's

duration)

in

post-

determining

his

earning capacity and resulting average weekly wage.

Respondent
752

for

position.

a

longshoreman

December,

Claimant
in

the

heavily

his

worked as

to

relies

due

to

In

ice

at

Tri-State

Tri-State
a port

closing

suffered a workplace

ice-free portion

on

of

but

the

BRB

year.

only

should

consider

not

during

the

reversed,

season,

1973

would have

earned

Id.

(quoting George Barber,

8

at 754

(Feb.

25,

in

1974

1976)).

were

it

the

year.

from working
The

ALJ

to determine an average
that:

amount

">[T]he

actual

which

for

the

BRB Nos.

The United States

F.2d

claimant

753-54.

previous

not

of

him

at

holding

[t]he

one

rest

kept

Id.

claimant's

but

the

that

did not use claimant's post-injury wages
weekly wage,

596

only operated from April

port

injury

the

Terminals,

that

the

Terminals,

earnings

reasonably

injury

75-177

Court

he

[ALJ]

.

.

.

& 75-177A,

of Appeals

for

.'"
at
the

Seventh Circuit affirmed the BRB's use of claimant's post-injury
wages
"The

in

a

Board's

earning

calculation

earnings

the

to

absent

concluded

average

interpretation

capacity

earn

of

of

the

claimant

that

[Section]

injured

would

injury."
"the

of

Board

workman

have
Id.

did

weekly

the

at
not
17

10(c)
to

The

beyond

noting
thus

mean

potential

757.
go

wage,

the

and

construes
amount

of

opportunity

Seventh
the

that:

scope

Circuit
of

its

statutory

authority

earning capacity."

Respondent
v.

Serv.

in
Id.

also

Emp'rs.

at

28,

2007) .

worker

in

Baghdad,

relies

the

Inc.,

41

Iraq.

of

Id.

miss

a box in the road.

a vehicle

determination

at

decision

in

BRBS

123,

2007

WL

4282166

laundry

service

injured

in

worked

*1.

as

She

a

was

she was

The car rolled several

from mid-chest

down.

previous

teacher

in

year,

Houston,

compensation
have

earned

object

of

Cir.

Id.

1991)).

id.

reflect

at

*3

BRB

claimant's
the

Claimant

is

to

based

BRB

The

be

the

a

irrelevant

wage,

.

appropriate

936

sum

.

the

.

wage-earning
18

do

not

potential."

her

would
w[t]he

time of her

{1st

(5th

819

597

Cir.

post-injury

calculation

to

school

she

F.3d

while

from

reasonably

consideration

pursuant

earnings

the

and

that

that

that

380

F.2d

"Thus,
to

a

wages

to

employer

wages

as

noting

Iron Works,

Stevedores,

previous

claimant's

at

time

earning capacity at

concluded:

weekly

on

2004

times,

asserted

agreed,

arrive

{citing Bath

are

may

The

annual

then

average

factors
a

Id.

United

claimant's

Id.

calculated

10 (c)

generally

claimant's

where

Iraq.

Empire

The

events

be

claimant's

2004);

injury

in

included

Texas.

should

Section

represents

injury."

which

S.K.

riding swerved

voluntarily paid her compensation based on claimant's

the

of

2007

in which

Id.

paralyzed

factual

BRB's

claimant

the

was

on

There,

when

claimant

its

758.

Int'l,

(Sept.

driver

making

of

a

of

post-

Section

10 (c)

realistically
id.

(internal

citations

omitted);

BRBS

2009

136,

denial

held

of

WL 3308377,

reconsideration

that

enticed

see also K.S.

where,

to work

wages,

it

should

not

earnings

is

as

in

at

be

*1

of

(Sept.

Int'1,

2009)

to

is

suggest

based

that:

his

the

to

the

BRB's

similar

factoring

in post-injury overseas

in

DBA

every

case.

reconsideration,
that

in

the

Id.
BRB

In
noted

every DBA case

2009

to

explain:

presented

wages

will

in

"Rather,

this

in which he was
that

claimant's

(citing

explaining
in

the

K.S.

its

that

claimant's

case

the

Board held

required

that

injured in

"Section

wages

Gatlin,

in

936

Iraq."

[ALJ]

being

capacity
of

10 (c)

does

not

the

year

prior

the

F.2d

819).

The

have

'regard

to

the
19

appropriate

denying

Board did not

Id.
the

The BRB went
circumstances

average

earned in

weekly
the

job

The BRB also noted in
the

use

injury."

BRB's

previous

of

all

of

id.

at

*2

decision
follows:

subsection is written in the disjunctive,
should

K.S.,

average weekly wage

that

mandate

to

in

decision

claimant's

Id.

be

"the

reconsideration explained this distinction as

this

its

higher

amount

not

wage be based exclusively on the higher wages

K.S.

for

decision

must be derived solely from overseas earnings."
on

after

earning

full

in

43

"The Board

in return

that

upon

{noting

injured

environment

Inc.,

lost due to the injury.").

According

hold

Emps.

25,

claimant

a dangerous

calculated

Serv.

its prior decision

here,

disingenuous

v.

denying
"Rather,

stating that

the

earnings

the

of

injured
the

employee

time

of

employee."
Board

in

in

the

the

Id.

K.S.

injury,'

(quoting

concluded

post-injury,

overseas

wage-earning

capacity

Walker,
600

793

F.2d

F.2d 1288
One

used.

this

Levy,

overseas

33

§

of

other

§

time

Steel

&

he

was

may

of

in

a

reflects

Id.

Shipbuilding

Co.

the

claimant's

his

injury."5

at
the

Ultimately,

factor

best

of

working

employment

910(c)).

"it

attempted

issue,

earnings

when

which

annual

(citing

v.

Bonner,

the

various

1979)).

has

supra

of

the ALJ

the

Nat'l

in

U.S.C.

that

at

(9th Cir.

on

or

wages

319;

commentary

positions

employment

to

organizing

synthesize

the

cases

9.03.

Some

cases

workers,

such

as

by

the

consider

Respondent,

approach
only

who

the

have

essentially gone to work at a higher wage in a war zone pursuant
to

a

time-limited

permanent

job.

Inc.,

39

See,

BRBS

166

(unpublished).

sIndeed,

contract

(ALJ)

The

in K.S.,

e.g.,

for

what

Zimmerman

(2005),

commentary

is
v.

aff'd,

calls

Serv.
BRB

these

the BRB determined that

likely

less

than

Emp'rs.

Int'l,

05-580

(2006)

"contract

wage"

No.

the

a

"the use of overseas

wages". . . "provides the legal framework within which the [ALJ]
may
exercise
his
discretion
in
determining
the
amount
of
claimant's average weekly wage."
K.S., 2009 WL 3308377, at *2;
see also id.
at *2 n.l
("The Act must be construed so that
employees
injured under
the same circumstances receive equal
treatment.

same

To

contract

allow

and

two

employees

conditions,

and

who

injured

are

at

working

the

same

under

time,

the

to

receive different
amounts
of
compensation because one
[ALJ]
relied on Iraq wages while another reduced claimant's rate by
combining lower, stateside earnings, would be arbitrary.").

20

cases.

Levy,
weekly

average

supra
wage

projected

than

overseas

prior

889

approach"

earnings

from

BRB

e.g.,

to

The

Levy,

grounded

in the

{generally

§

this

one)

injury

Fourth

in
.

of

at

being

this

time
to

.,

shall

injured
has

prior

Int'1,

21

recent

employees

cases

who

are

than stateside,

dangerous

working

to

Emps.
43

BRBS

average

this

.

earnings

"l[t]he

following

wage
shall

of

working
the

U.S.C.

(2009).

the

.

the

at

annual

§

prime

is

43

case appears

of

.

it

Inc.,

the

weekly

represent

33

136

for

injury

when

Int'l,

language

previous

that

"blended

contract

in

employee."

40

employment

the BRB

reasonably

the

most

and

the

Inc.,

time

in which he was

recognized

higher

these

The

Court,

of

of

approach

Serv.

"the

ratio

wage

full

plain

the

employment

the

Circuit

the

the

are

Emps.

exposed

v.

that

the

regard

the
.

with

provides

having

capacity

before

consistent

employee
of

a

at

claimant's

involving

contract

K.S.

(which

calls

denying reconsideration,

employee

as,

and

Serv.

some

to work overseas

having

e.g.,

facts

10{c)

injured

the

of

the

9.03[l].

the approach adopted by

most

Section

sum

See,

the

reasons,

be

year)

(2009),

On

on

employee

one

conditions.
BRBS 18

settled

and
v.

arrived

workers

commentary

supra

{including

have

such

D.C.

cases

average

earnings)

paid substantially higher wages
appear

an

for

See,

cases.

Other

taking

(2006) .

(ALJ)

the

by

stateside

stateside wages.
BRBS

§9.03[l].

to

statute.

of
be

the
such

injured

the

time

earning

910(c).
objective

The
of

[this

subsection

based

on

Works,

380

F.3d

weekly

wage

capacity

a

Circuit

case,

the

the

times

to

of

to

a

Id.
F.2d

319,

at

the

salary

Iron

average

claimant's

annual

(citations

Serv.

Corp.,

the

"explicitly

benefit

computation

the

formula would distort
155

in

F.3d

order

at
to

capacity,

321

v.

327.

both

it

may

be

to accurately

Wash.

Met.

inquiry,

before

In

accurately

Area

on

the

{"Depending

910(c)

rates

the

injury.")

Walker

§

Bath

for

that

328;

327

§10(c)

earning

at

at

that

capacity."

necessitate

look

see
of

[are]

earning

F.3d

look at post-injury earnings

793

that

756);

Maritime

formula

actual

155

purpose

the

commented

recognized

capacity.

circumstances

at

reflect

Universal

earning

Court

Auth.,

appropriate

time

awards

claimants'

Corp.,

F.2d

to

mechanical

employees

such

Transit

the

actual

necessary at
reflect

in

Serv.

essential

is

the

the

must be disregarded where

claimant's

reflect

at

compensation

of

596

("The

specifically

that

10(a)]

that

610

Moreover,

recognizes
[in §

Terminals,

at

that

Maritime

determination

omitted).
Fourth

assure

assessments

Universal

Tri-State

earning

to

accurate

capacity.'"

(quoting

is]

it

and

may

after

be
the

injury.").

While

the

recognizes

that

§10(c)

to

requires

determine

Universal
there
a

an

court

Maritime

may
to

be

instances

consider

employee's

Serv.
where

post-injury

average
22

Corp.

weekly

decision

invocation
income

wage

in

before

of

order

the

injury,
is

application

most

easily

of

seen

that
in

principle

the

to

Tri-State

the

facts

this

case

decision

Terminals

of

upon

which the Fourth Circuit relied.
The
on

the

Seventh Circuit

statutory

language.

argued

that

"having

regard

to

the

in

employment

in

the

when

of

does

not

earnings
Seventh

its

incongruous
of

assessments

went

on

year

approximation

is

the

employee's

of

annual

the

in

id.

and

a

Id.
to

at

to

After

awards

earning

are

foreclose

Seventh

Circuit

'having regard to'

the

liberally
way

756.

insure

post-injury

Id.
LHWCA

The
"is

construed

avoid

claimant's

are

not

harsh

and

observing

that

based

"accurate

on

capacity,"

earning

would
23

have

a

a

to

the

the

Seventh

that where an employee's earnings

injury

earnings

in

the

applying

circumstances.

be

of

After

the

that

employee

time

therefore

recognize

claimant's

the

some

the

had

language--

injured

at

focused

employer

explicitly

and

should

purposes

preceding

10(c)

earnings."

to

Circuit went on to conclude
the

§

construction,

which

10(c)

of

of

working

exclusivity,"

results."
§

of

The

statutory

"ordinary understanding of

statute

effectuate

terms

Terminals

755.

10(c)

was

he

considered

Circuit

remedial

purpose

be

§

at

earnings

statutory

connote

can

the

post-injury

the

F.2d

which

consideration

concluded that

in Tri-State

previous

literal

of

596

applying

injury"--"the

principles

analysis

fair

capacity

and

reasonable

because

substantially

in

such

increased

but

for

the disabling

injury earnings.
Here,

was

Id.

than

year

he

at

a

had

contract

war

injury,

zone.

the Respondent

the

United

the

evidence

contract
return

earning
all

of

for

Respondent's

is

purposes,

to

and

for

and

to

look at post-

to

as

a

be

was

he

was

he

and

sent

back

his

to

the

relying

on

language

accurately

of

his

Respondent's

his

annual

consideration

pre-injury

reflects

one year

time

reflect

of

§

his

to

injury,

fulfilled his

the

was

his

for

circumstances,

a

on missions

But

both

higher

Despite

finally

realistically

what

Respondent

out

had up

Iraq,

in

employed under

few weeks.

sent

Solely

in

overseas

substantially

treatment.

these

with

work

he

he would have

earnings

most

to

arrangement.

before

work

Under

to

paid

only

States.

consistent

was

this

medical

fails

capacity.

injury,

Iraq

that

United

appropriate

stateside,

months

continued

wages

He

continued

suggests

the

pre-injury

in

several

States

and

to

being

is

employed

reflecting

after

for

was

earned

injured

utilized

it

757.

Respondent

essentially

wages
one

the

injury,

10 (c)
annual

of

and post-

and

its

earning

capacity at the time of injury.
For
the

the reasons

ALJ

acted

exceptional
employment
worked,

stated above,

within

the Court

his

discretion

circumstances

involving

contract

and factored

and

the

dangerous

in Respondent's
24

when

concludes here
he

considered

Respondent's
environment

higher

than

that

in

the

one-year
which

he

stateside post-

injury wages
v.

Serv.

23,

in

Emps.

the

Int'l,

2011);

Proffitt,

the

has

that

weekly
Dir.,

ALJ

wage

237

decision

of

average

B.

Section

BRBS

BRB

Nos.

41,

10(c))

(5th

is

the

Petitioners

disqualifying
alternative
the

two

assert

potential

*4

(noting

calculating

an

average

Staftex
Harrison

calculation
because

Staffing
v.

v.

Todd

Pac.

Therefore,

(1988)).

employment.
ALJ

should

Pet'rs'
have

the

of

it

Pet'rs'

19.

Petitioners

any evidence

or

that

that

he

took

Respondent's
is

based

United

established

regarding
"First,

the

States
a

suitable
employee

aver

Court
series

these

actions

of
of

the
25

Mem.

for

earning

on

those

a

suitable
contend
into

a

is

devoid

or

any other

person

genuinely

19.

the

employment
of

in

capacity.

record

Fourth

burden-shifting

burden

as

positions

" [t]he

that

Appeals

erred

Petitioners

applied for

alternative
bears

19.

that

Pet'rs'

ALJ

positions

post-injury

other

seeking work would undertake."

The

Mem.

[Respondent]

any

the

factored

Respondent's

Mem.

that

interpreter

of

has

{Aug.

in accordance with the law.

calculation

jobs

11-0326A

The ALJ'b Disqualification of the interpreter Position

Next,

of

Smith

at

2000);

AFFIRMED

evidence and is

and

See

2604890,

when

344-45

regarding

wage

WL

(citing

Cir.

339,

calculation.

11-0326

2006

discretion"

21

the

BRB

BRBS

404

weekly

substantial

40

F.3d

Corp.,

weekly wage

Inc.,

"wide

under

OWCP,

Shipyards

that

average

Circuit

obligations

determinations.

showing

that

he

is

unable

to

return

to

his

former

Shipbuilding & Dry Dock Co.
1988) .

the

This

parties

former

the

would be

the

agree

is

case,

availability

claimant

of

three

portrait

clerk/cashier

at

met

2010

this

showing
but

WL

that

has

he

been

592
of

Newport

F.2d 762,
suitable

*4.

2009)

(5th Cir.

With
Respondent

to

the

an

burden

of

that
it."

office

interpreter
the

his

alternative

Penney,

if

as

established

suitable

"Finally,

to

sought

Employer

J.C.

case,

employment

diligently

as

News

(4th Cir.

return

bears

the

and

pay

position.

employer has

the claimant may still

establish disability by

has

sought

appropriate

it."

Tann,

diligently

unable

to

secure

News

765

(4th Cir.

alternate

(citing

BRB,

Shipbuilding

&

Dir.,

Dry Dock

is

OWCP,

P&M

Crane

Co.

to

this

final

841

731 F.2d 199,

1979)).

employment

Del Monte Fresh Produce v.

Cir.

that

at

at

able

he

positions

(citing Trans-State Dredging v.
1984) ;

if

542

the present

alternative

dealership,

car

in

not

photographer

4035105,

burden,

found

Newport

F.2d 540,

employer

the

employment:

Schbot,

the

suitable

the ALJ

a

is

of

to

841

contention

Respondent

existence

this

in

Tann,

"Second,

available

In

not

that

employment.

showing

Id.

issue

v.

employment."

v.

Co.

Moreover,
a

F.2d

200
v.

542

(4th Cir.

Dir.,

OWCP,

determination."

F.3d 1216,

Hayes,

at

«[t]he existence

factual

563

employment,

1221

930

F.2d

of

the

424,

(11th

431

1991)).

respect
testified

that

he

burden

diligently
26

sought

the

employee,
interpreter

positions.
however,

that

required
only
for

Schbot,

a

the

one

$1,400

one-half

to

for

an

was

seeking

4035105,

possible

one hour
Id.

a

finding

n[t]he

that

every

position

not

available

job

identified

by

the

thus,

identified

alternative

the

could

position

as

substantial
of

the

determination

suitable
evidence

BRB

the

concerning

translating

sought

a

this

affirms

second

employer

the

concluded

labor

market

and

that

not

be

the

Board's
that

the

survey was

wages

used

eliminating

to

the

employment

record.

this

Respondent

of

the

calculate

Id.

alternative
in

have

Arabic-Respondent's

rationally

claimant's wage-earning capacity."
ALJ's

not

Court

in

given

that

stated,

would

few months,

learned

employment

[Employer]

employer

therefore,

interpreter,

Therefore,

Respondent

and would have

Respondent,

[ALJ],

*4.

interpreter

of work

Spanish

Id.

The

at

interpreter position but

specialty.

interpreter

WL

certification

courts.

lead

2010

interpreter

is

supported

Accordingly,

aspect

of

the

the

by

decision

calculation

of

Respondent's post-injury earning capacity is AFFIRMED.

C. The Remaining Suitable Alternative Employment Positions

Finally,
calculation
basing this

as

suitable

Pet'rs'

Mem.

Petitioners
of

assert

Respondent's

calculation on the

alternative
20.

that

the

post-injury

erred

earning

in

his

capacity

by

lowest-paying position identified

employment—the

Petitioners

ALJ

contend
27

that

cashier's
the

ALJ

position.
should

have

averaged

the

salaries

of

alternative

employment.

capacity

$30,000

the

of

cashier

injury

position,

earning

minimum"

ALJ

identified

considered
(cashier)

I

identified

of

a

believe

should

be

into

salary

account

and

the

ALJ's

See
of

.

the

.

."

BRB

in this

The

has

BRB

"calculation

reasonable

and

is

Schbot,

earning

salary

of

Respondent's

$842.10/week6

the

fact

that

photographer
ALJ

the

calculation,

the

suitable

or,

the

post-

"at

a

Id.

cashier

appeal,

the

that

D&O

26.

Yet,

lowest-paying

concluding

affirmed

that:

of

claimant's

based
2010

explained why

WL

on

at

the

to

suitable
ALJ

only

positions

the Claimant,

$30,000 per year."

wage-earning

*5.

had

"Considering the

calculation,

substantial

4035105,

as
the

of

available

this

Petitioners

positions

find his post-injury earning capacity to be
On

as

post-injury

$576.92/week,

[suitable alternative employment]

Id.

.

capacity

in his

or

Petitioners

employment.
the

Instead

annually

took

the

alternative

SAE

Id.

$724.69/week.

The

positions

evidence
Neither

the photographer position

was

noting

that

capacity
of
the

is

record
ALJ

nor

disregarded

calculation.

United

recognized

employee's

States

that

Court

the

post-injury

of

Appeals

reasonable

wage

earning

for

method
capacity

the

for
is

Fifth

Circuit

calculating
to

average

an
the

6This calculation factors in the interpreter position's salary.
28

salaries

of

the

employment.

{5th Cir.
of

positions

See

Avondale

1998);

Labor,

122

remanding

Shell
F.3d

because

the average,

and

and

no

...

decision not
that

is

employers

available

and

use

obtain.

Inc.

"Averaging

ensures
all

Terminals,
2009)
to

the

[was]

v.

v.

the

have

to

have

no

record

the

The

way

that

of

137

OWCP,

309

a

1039

Id.;

Appx.

post-injury

wage-earning

of

and

than

ALJ's

reasoned

job

opening

employment,
job

Cir.

earning
also

666

the

1992)).
capacity
Greenwich

n.8

(3d

Cir.

suitable positions

capacity

and within the administrative law judge's

the

which

(5th

see

658,

Dep't

(citing Avondale

wage

(noting that averaging salary ranges

calculate

328

326

decision

Circuit

alternative

post-injury

Fed.

this

support

determining

F.2d

U.S.

rather

specific

F.3d at

available."

for

Fifth

F.3d

{vacating

salary,

to

suitable

967

1997)

lowest

137

OWCP,

explanation

show

Pulliam,

that

Dir.,

Cir.

average").

Guidry,

jobs

LLC

in

no

establishing

courts

Shipyards,

reflects

chose

the

not

when

employee will

ALJ

alternative

Pulliam,

v.

{5th

suitable

v.

Inc.

318

tt[t]here

as

Inc.

312,

the

do

therefore,

Indus.,

Offshore,

evidence

to

identified

was

"reasonable

substantial discretion

on the issue").

The BRB has
v.

Elec.

Boat

(Ben.

Rev.

Sys.,

Inc.,

embraced this

Corp.,

Bd.
BRB

Sept.
Nos.

BRB

3,

logic

No.

10-0287,

2010);

09-0198

in other cases.

&

B.H.

2010

v.

09-0291,
29

WL

4035103,

Northrop
2009

WL

See Harris

Grumman

3159148,

at

*3

Ship
at

*4

(Ben.

Rev.

BRBS

Bd.

1384,

Jan.

Sept.

2008

9,

WL

2008)

16,

2009);

510093,

at

suitable

alternative

the ALJ's

using

average

of

in accordance with
BRB

remanded

because

highest-paying

2009

calculation,
average

WL

the

alternative

the

decision

provided

current

affirmed

earning

capacity

as

as

"is

of

and

In B.H.,

the

the

suitable

*4.

suitable

rational

*3.

average

at

a

lowest

and

alternative

Instead

case,

identified

"reflect

capacity,

and

in

reasonable

find such
the

to

explanation was

rational

is

in

an

positions

photographer

earning

evidence

took

BRB

identified

at

earning

identified as

the

post-injury

4035103,

Judges

of

such

a

true

as

suitable

average

of

the

BRB

for

id.

post-injury

would

Harris,

identified

eight

since no

disregarding

Court

ALJ

WL

Law

post-injury

such method

3159148,

employment

potential wages."

ALJ

In

that

2010

Admin.

41

the BRB concluded that the ALJ should have taken an

of

Here,

the

of

Operations,

of positions

positions

noting

positions

employment.

salaries

claimant's

law."

KBR Gov't

employee's

three

alternative employment,

v.

(Office

employment).

calculation of

the

*32

(calculating

capacity based on average of

L.N.

record
unless

position
it

is

rationale

considered
was
30

the

with

for

to be
as

in

the ALJ

difficult

accordance

conclusion

there

given by

the

calculation

to

the

find

the

Had

the

law.

supported by

unstated

of

that

calculation,

a whole.

some

or

the

substantial

However,

in

rationale

the
for

relying

on

the

lower-paying

position,

it

appears

that

the

best

way to determine Respondent's post-injury earning capacity is
average

the

salaries

Accordingly,

of

the

cashier

and photographer

to

positions.

the BRB D&O calculation is VACATED AND REMANDED for

proceedings not inconsistent with this opinion.
V.

Respondent
Resp't's

has

Mem.

ATTORNEY'S

made

14.

a

request

Attorney's

219,
an

News

Shipbuilding

226-27

(4th Cir.

attorney

shall

against

the

be

employer

commissioner,

U.S.C.

§

928 (a).

statutory

point

or

The

determining

number of hours

carrier

Supreme

fee-shifting

for

{citing

or

Resp't's

fees.7

awarded

to

a

Co.

33
a

a

v.

U.S.C.

§

claimant

an

amount

court,

as

Court

has

in

of

a

a

When

LHWCA

approved

case,

fee

by

the

may be."

case

most

F.3d

attorney's

33

determined

tt[t]he

the

the

591

928(a)).

reasonable

in

amount

Holiday,

that

useful

reasonable

fee

for

a

starting

is

the

reasonably expended on the litigation multiplied

seeks

Mem.

be

provision,

by a reasonable hourly rate."

Respondent

may

Dock

...

Board,

attorney's

{and by extension DBA cases).8

represents

awarded

deputy

Dry

2009)

successfully

"there

&

for

fees

successful claimant in LHWCA cases
Newport

FEES

14.

attorney's
It

Hensley v.

fees

appears

under

that

seeking attorney's fees is 33 U.S.C.

Eckhart,

the

33

461 U.S.

U.S.C.

proper

§

section

424,

908.
for

§ 928.

8Nothing in the DBA alters the provisions of the LHWCA concerning
attorney's

fees.

31

433

(1983);

(4th

Cir.

submit

see

2008) .

evidence

Hensley,

Grissom

"The

v.

party

supporting

461 U.S.

Respondent

The

requests

that

seek

his

fees

separately

file

his

fee

within thirty

(30)

an

award

F.3d

of

313,

fees

320

should

claimed."

the

petition

Court

allow

him

each

for

level

work

of

the

v.

performed

Director,

(citing 20 C.F.R.

For the reasons

set

(30)

proceedings,

in

days of this Opinion and Order.

VI.

thirty

Because Respondent's attorney must

at

Shipbuilding & Dry Dock Co.
1979)

seeking

549

at 433.

to file a fee petition.

(4th Cir.

Corp.,

the hours worked and rates

days

may

Mills

OWCP,

this

he

Court

Newport News

594 F.2d 986,

988

§ 702.132).

CONCLUSION

forth above,

the Court:

(1)

AFFIRMS the

decision of the BRB concerning Respondent's average weekly wage,
(2)

AFFIRMS the BRB's decision regarding the disqualification of

the interpreter position as suitable alternative employment,

(3)
wage

VACATES

the

earning

BRB's

capacity

calculation
and

of

REMANDS

Respondent's

and

post-injury

for

further

proceedings

copy

of

Opinion

consistent with this Opinion and Order.

The

Clerk

is

DIRECTED

to

send

Order to all counsel of record.

32

a

this

and

IT IS

SO ORDERED.

/s

Mark S.
Norfolk,

Virginia

December 5L

,

Davis

United States District Judge

2011

33