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

Filing 36

AMENDED 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 th e interpreter 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. Signed by District Judge Mark S. Davis on 12/7/12. (mwin, )

UNITED

STATES

DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

L-3

FILED

COMMUNICATIONS

and

FEB -7 2012

INSURANCE COMPANY OF THE

STATE

CLERK, US D^STRiCT COURT

OF PENNSYLVANIA,

Petitioners,
Civil Action No.

v.

DIRECTOR,

2:10cv592

OFFICE OF WORKERS'

COMPENSATION PROGRAMS

and
MICHAEL SCHBOT,

Respondents.

AMENDED OPINION AND ORDER

This matter
Communications
State

of

is

currently before

("Employer")
Pennsylvania

"Employer/Carrier").
and

Order

Benefits
("ALJ

and

These
of

Review

Board

("BRB")

Solomon.

The

United

ALJ

D&O

benefits

occurring

January

awarded

2007,

from
in

the

Iraq.

("ALJ")

or

of

Labor

Order

Daniel

F.

("Respondent"

or

work-related
The

the

and

Decision

Schbot
a

of

from the Decision

Department

Judge

Michael

stemming
22,

States

Law

Company

by L-3

"Petitioners"

appeal

affirming

Administrative

"Employee")
on

the

on appeal

Insurance

Petitioners

D&O")

of

the

(collectively

("BRB

D&O")

the Court

award

of

injury
benefits

was

made

seq.,

under

which

the

is

the

issue

court

or

decisions
court

Compare
1997);
595

("LHWCA"),

there
whether

a

circuit

under

district,
Docket No.

appeal

ALJ's

assert

use

of

that

is

be

§

1651

efc

et seq..

be

Inc.

heard

circuit

circuits

by

in

801,

filed

district

located.

(4th

Cir.

[Barrios],
the

this

here.

BRB

is

OWCP

in

of

district

Because

originated

on

the

803-06

Director,

2010).

a

appeals

office

F.3d

v.

order

across

initiated

123

properly

the

BRB

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

this

Cir.

Respondent's

weekly

Respondent's

award

appeal

Petitioners

average

U.S.C.

Ex.

B,

1.

Petitioners'
First,

should

Inc.,

(2nd

was

901

commissioner's

compensation

the

§

uniformity

in

Int'l,

42

Longshore and Harbor Workers'

of

should

Co.,

451-55

("DBA"),

U.S.C.

appeals

DBA

Emps.

the

lack

deputy

with Serv.

commissioner's

33

court,

Boeing

447,

a

BRB

the

the

Lee v.

F.3d

is

of

where

Base Act

an extension of

Compensation Act

Although

Defense

in

purposes

Mem.

contentions:

interpreter
of

2.

affirming

earning

Pet'rs'
two

Mem.

1)

position

calculating

the

the

ALJ's

as

the
an

Petitioners

calculation

arguing

ALJ

D&O.

calculate

Petitioners
the

BRB

affirming

Second,

capacity,

2.

to

that

base

should not

of

the

their
have

suitable

alternative

Respondent's

post-injury

earning

capacity;

of positions
at

and

2)

identified as

Congress
workers'

outside
other

enacted

the

national

U.S.C.

§

to

average

the

salaries

Id.

workers'

cost

of

overseas

its

identified

tort

classes

of

and War Hazard's

(Matthew Bender)

Supp.

472

cert,

(S.D.N.Y.

denied,

provisions

333

of

installations

U.S.

the

845
to

42

the provisions
to

[covered]

the

the

insurance

164

F.2d

The

employees

U.S.C.
of

the

employment.").

the

state

United
the

ch.
v.

States

substantial
for

Defense
10,

Lowe,

DBA

the

Base

§

(2nd Cir.

10.01
69

of

extended

1651(a)

("Except

the

employee

provisions

the

federal

as amended,

any

F.

1947),

on

[LHWCA]

Thus,

of

working

§

injury or death

(citing

numerous

Levy,

18

on

compensation

coverage

Handbook,

or

request

the

avoid

working

804

in

by

enable

(1948).

apply in respect

at

to

"provide[]

bases

at

Aviation Corp.

aff'd,

See

F.3d

employees."

Republic

herein modified,

any

to

liability

LHWCA

abroad.

123

contractors

1946),

military

presented

and

to

employees

conflicts

Compensation Act

(citing

at

adopted

the

overseas

order

certain

Lee,

"was

laws

in

States

employees

defense

obtaining

for

prevent

compensation
and

DBA

DBA

1941

projects."

to

for

in

United

The

War

DBA

coverage

defense

1651).

of

government

HISTORY OF THE

continental

coverage

in

failed

suitable alternative employment.

the

compensation

Secretary

Act

ALJ

19-20.
I.

42

the

as

shall

engaged
of

the

LHWCA

govern

DBA

otherwise.

See

Worldwide v.
When

Congress

of

LHWCA

courts

of

the

U.S.C.

§

(1972)).

any

123

district

where

the

judicial

that

DBA

order

instituted

the United

district

wherein

commissioner
§

located

compensation

judicial

federal

district

occurred.

33

only

Id.

U.S.C.

(citing

921(c)

overseas

to

§

sites,

could not possibly occur within

Id.

pursuant

States

1991)).

mandated

the

by

applies

AFIA/CIGNA

Congress,
...

to

order

respect

[the

DBA]

court

district
the

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

F.3d

for

determination
decision

to

cases."

Id^

Congress

amended

DBA provides

{citing

LHWCA

injury

the

(5th Cir.

in

proceedings

made

is

whose

the

orders

the

of

804

1113

district."

"[j]udicial

in

at

DBA,

(1970),

compensation

LHWCA

the

the injury in DBA cases

provided

provision

F.3d

administrative

921(b)

federal

U.S.C.

a

930 F.2d 1111,

enacted

"Since

however,

unless

Lee,

Felkner,

review

33

cases,

at

filing

by
the

a

the

claim,

ALJ,

[BRB]

the

existence
"Thus,

an

(citing

changed

in

are

and

judicial

appeals

procedures

obtaining

initially

exactly

Felkner,

for

and created the judicial

930

the
F.2d

ALJ

in

the

administrative

appealing
in

the

LHWCA

1113-15).

review procedure

orders.

described

an

same
at

of

for

ALJ's

and

DBA

However,

compensation

awards

the

under

the

federal

occurred.
make

a

appellate
Id.

§

court

(citing

similar

U.S.C.

LHWCA to provide direct

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

specialist/translator

in

Respondent

Respondent

will"

the

an

"at

expected

[was]

was

to

last

Employer's
on

4).

Employer's

Service

Respondent,

file

December

Agreement

provided

are

"work

to

the

take

environment."
After
Respondent

2006.

"initial

year,"

Offer

file

at

on

the

This

and refers

Offer

13.

in

a

It

combat

in

signed

(citing

Ex.

by

4,

at

contains

Letter)
are

2.

reflected

Respondent

to the

at

as

D&O

assignment

Letter

26

Service

4,

linguistic

ALJ

odd-numbered pages

Court.

Ex.
place

the

one

Id^

a

2006.

whose

2006

personnel

2006,

working."

may

13,

14,

only

dated December 14,
you

employee

(incorporating

though

of

approximately

December

Respondent

The

November

as

signed
part

Agreement

of

was

a
by

the

also

"contract under which

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

that

testified

documents,

was

translate
January
Iraq,

for

21,

the

captured

when

spending

he

the

Sept.

30,

long

mission,

terrain

2010) .

while

in

and

10-0327,

"which

required

Id.

from

back,

Following

After

as

a

medical

translator,

body

pallet."

at

armor

tent

(Ben.

Rev.

on

hip.

subsequently
missions,

restricted

but Respondent

his

participation

a

id.

15-

Upon

saw a physician in

relaxers.

continued
assisting

mission.

patrol

uneven

suffered

went

week-long

Bd.

week-

carrying

in the Fallujah jail;

another

a

on

questioning of captured insurgents
on

After

L-3

went

and muscle

and

the

the

Respondent

Respondent

of

Schbot v.

and

and

to

id.

walking

Respondent

documents

night

to

reported

*1

Respondent

Iraq

in Fallujah,

from his

mission,

killers

in

the

Respondent

shoulder,

translating

wire"

Employer

extensive

treatment,

translating

a

be

"On

4035105,

this

legs,

prescribed pain

this

the

the

on

day

return from the week-long mission,

Fallujah who

only

an

Respondent,

seen by a nurse.

following

his

for

2010 WL

35-pound

Id.

Id.

pain,

The

wearing

in

would

fell

severe

Iraq to work as

Army.

"outside

working

slipped

pound backpack."
pain

to

injured himself walking

night

BRB No.

he

sent

injury the next morning and was
Commc'ns,

U.S.

insurgents.

while

claimant

the

thought

immediately

[2007,]

bathroom

he

for

and on

Id.

in

A

to
in

id.
work
the

he even

physician

the

patrol

continued to work in the Fallujah jail.

Id.

an

Respondent

Army

physician

they

could

sent

back

do

to

physicians
not

was

be

later

x-rayed

nothing

the

sent

his

more

United

to

back.

for

back

to

Iraq

for

Id.

in

Id.

concluded that
to

his

where

concluded

Iraq,

treatment.

for

due

treatment,

Physicians

Respondent

States

in the United States

sent

Baghdad

so

he

Reviewing

Respondent

ongoing

back

should

pain.

Id.

Respondent subsequently sought compensation under the DBA.
The ALJ D&O was
that Respondent

presumption
22,

2007,

The

ALJ

return

Petitioners

to

established
through

an

that

did

August

27,

his

former

duties

August

2008,

and

in

25,

2008

labor

910(c)

to

concluding

calculate

"that

there

have fulfilled his
employer

absent his

is

injury."

market

maximum

Respondent

could

not

The

Petitioners

for

survey.

average
that

id.

medical

Respondent

id.

Without

the ALJ then used 33

evidence

Id.

presumption.

employment

obligation under

920(a)

injury on January

Id.

Respondent's
no

§

the

that

Iraq.

alternative

U.S.C.

reached

had

objection from the Employer/Carrier,
§

the 33

rebut

Respondent

on

suitable

not

Id.

The ALJ determined

he had sustained a workplace

concluded

improvement

2009.

established invocation of

that

and

issued on July 2,

was

weekly

claimant

U.S.C.
wage,

would

not

the employment contract with
The ALJ divided Respondent's

2007 wages with Employer of $32,730.44 by the number of weeks he

was

paid,

Respondent

fifteen,
in

the

to

determine

amount

of

an

average

$2,182.03.

id.

weekly
Then,

wage

for

the

ALJ

determined

was

that

$576.92,

identified
awarded

based

as

2007,

benefits

§

benefits

that

injury wages
ALJ

denied

doing

he was

the

capacity

positions

Id.

disability

The

benefits

temporary partial

and ongoing permanent

August

27,

2008.

from

Id.

partial

(citing

33

(e)).

for

the

ALJ

to

reconsider

his

opinion,

the ALJ should not have used Respondent's post-

motion

ALJ

on

noted

December

that

the

in

a

"dangerous

30,

2009.

Id.

Respondent

Iraq than he would have

working

ALJ

disability

in the calculation of average weekly wage,

the

salary in

from

of

employment.

2008;

2008;

wage-earning

salary

total

24,

25-26,

moved

this

so,

lowest

alternative

(c)(21),

Petitioners

contending

the

to August

908(b),

post-injury

temporary

from August

disability

on

suitable

Respondent

March 23,

U.S.C.

Respondent's

in

but the

at

*3.

received a

higher

the United States

environment"

while

in

In

because

Iraq,

and

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

to

Petitioners
again

his

work

subsequently

arguing

that

the

in his

wage.

Petitioners

wages

for

the

weekly wage

the

ALJ

of

erred

16

days

his

in

to

at

order

by

using

Respondent's

of

Respondent's
that

the

ld_;_

calculation
8

id.

ALJ's

contended

prior

Iraq.

the

erred

calculation

$1,671.89."

in

wages

appealed
ALJ

injury wages
Id.

and

accident

the

BRB,
post-

average weekly

Respondent's

Petitioners

of

to

*2-3.

yield
also

Respondent's

"overseas
an

average

alleged

that

post-injury

earning

capacity

suitable
the

by

alternative

lowest-paying

employment

decision
were

disqualifying

in

of

reasonable

position

his

the

employment

and

identified

on

as

Id.

concluding

based

interpreter

and by using

calculation.

ALJ,

an

that

only

the

suitable
The

the

substantial

position

BRB

ALJ's

as

salary of

alternative

affirmed

the

determinations

evidence.

See

id.

at

*3-5.

Petitioners have appealed the BRB's

decision to

contending that

the BRB erred in affirming the ALJ.

raise

arguments

the

same

in

this

Court

as

this Court,
Petitioners

those

considered

by

the BRB.
III.

In
the

reviewing

same

standard

the
of

decision of

the ALJ:

'conclusive

if

decision
review

v.

Parker,

supported

935

of

as

F.2d

by

REVIEW

the

the

"[T]he ALJ's

considered as a whole."'1
Co.

STANDARD OF

BRB

Newport News
22

{4th

this

uses

findings

substantial

20,

BRB,

of

in

Court

reviewing

fact

evidence

applies

in

the

[are]

deemed

the

record

Shipbuilding & Dry Dock
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
accept

at

is

as

22

F.2d

'such

(quoting

This

to

Consol.

Court

the
by

Lunsford,

733

approval

in

(6th Cir.

2In

this

evidence

reviews

F.2d

Dir.,

935

a

v.

Dry

1982)).

as

reasonable

a

conclusion.'"

v.

NLRB,

law

judge's

"Substantial
mind might
935

F.2d

U.S.

197,

229

the BRB

to

1141
F.2d

(5th
at

Consol.

findings

of

Marathon

evidence."

Oil

Cir.

23).
of

Coal

1984)

This

law.

"assure

Court

884

i.e.

fact

are

Co.

v.

(cited

Parker,

Co.,

v.

Parker,

305

of

Dock

statutory standard of review,

correct errors

OWCP

&

Cir.

the decision

its

1139,

Parker,

Shipbuilding

(4th

Edison

substantial

plenary authority to

(citing

941

administrative

supported

News

support

the Board adhered to

whether

23

938,

relevant

adequate

(1938)).
that

681

Newport

with

also

has

935 F.2d at

F.2d

926,

929

1989)).2

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 122,
125
(4th Cir.
1994).
"However, absent clear congressional 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

Court

has

should arguably defer.

10

no

construction

to

which

it

IV.

DISCUSSION

A. Calculating Respondent's Average Weekly Wage

The

LHWCA,

different

and

methods

weekly wage.

by

for

See 33

calculating
U.S.C.

applied section 910(c),3
[ALJ]'s
the

Proffitt

case."

v.

2604890

Serv.

(Aug.

solely

Employer

14,

Emp'rs
2006)).

on

in Iraq,

"prime

the

an

DBA,

injured

910(a)-(c).

provides

employee's

In

this

"[t]he parties do not
(a)

2010

(b)

are

4035105,

Inc.,

Rather,

Respondent's

and

WL

Int'l,

Respondent's

*2

BRBS

Petitioners

case

and

the ALJ

contest

n.l
41,

2006

post-injury

Pet'rs'

objective

either

which was

wages

with

of

Mem.

Section

7-8.

Petitioners

910 (c)

is

foregoing methods

of

to

assert

arrive

at

that
a

of

the

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
earnings
of
the
injured
employee
in
the
employment in which he was working at the time of

injury,
and of other employees of the
similar class working in the same or
employment in the same or neighboring
other

employment

reasonable

value

of

of

such

the

employee,

services

of

same or most
most similar
locality,
or
including

the

employee

the

if

engaged in self-employment, shall reasonably represent
the annual earning capacity of the injured employee.
33 U.S.C.

§

WL

in the

3Section 910(c) provides:
If

the

(citing

find fault

average weekly wage,

pre

average

inapplicable in

at

40

three

because the ALJ took into account Respondent's

post-injury wages.
the

and

Schbot,

calculation of

based

§

finding that subsections

instant

ALJ's

extension

910{c).

11

sum

that

reasonably

represents

at the time of injury,"

a

Pet'rs'

12

283,

285

(1980);

155 F.3d 311,

329

(4th Cir.

In

affirming
"[t]he

Mem.

the

9

object

that

D&O,

reasonably represents

of

the time of his injury."

Empire

United

1991)).

Corp.

includes

BRB

consideration

to

earn

had

Terminals,
v.

he

Inc.

not

v.

v.

to

of

injury"

Jesse,

irrelevant."'
Shipbuilding

Inc.,

that

plain

sense:

"*[t]he

the

injury.'"

time

28

of

Pet'rs'

Mem.
BRBS

meaning

is

12

to

annual

380

F.3d

v.

Wright,

that

arrive

it

at

a

is
sum

earning capacity at

597

936

observe

at

*2

(citing

(1st Cir.

F.2d
that

819

2004);

(5th

w[t]his

ability,

Cir.

inquiry

willingness

and

claimant had the potential

F.2d 752

id.

(citing

(7th Cir.

(1980))

Tri-State

1979);

Jackson

{emphasis added).

10(c)'s use of the phrase "at the

"'post-injury

10

(quoting

events

79

(1994)).

of

the

statute

the

(quoting
12

time

are

Hawthorne

73,

injury means

Mem.

10 (c)

injured."

596

that

Pet'rs'

noted

2010 WL 4035105,

12 BRBS 410

means

first

the earnings

Petitioners assert that §
time

capacity

Shipyards,

Corp.

claimant's

been

Potomac Temporaries,

Serv.

Gatlin,

on

of

opportunity to work and

Todd

BRB

Section

Preston,

went

v.

Mar.

the

Schbot,

v.

Cummins

claimant's

Stevedores

The

earning

1998)).

ALJ

that

Iron Works

(citing

Universal

true

Bath

annual

and that post-injury wages should not be

considered.
BRBS

claimant's

They

LeBlanc

the

v.

v.

Ingalls

further

accords

of

generally

with

event

note

common

causing

Cooper/T.

Smith

Stevedoring,
on

to

the

Inc.,

assert

time

of

130

that

F.3d 157,

wx[t]his

injury]

is

Gen.

Dynamics Corp.,

citations

Though

exception"

circumstances,"

Pet'rs'

to

they

claim

Pet'rs'

contend

erred by

that

Respondent

the ALJ
the

Respondent,

Mem.

past

on

Respondent

of

22,

be

amended

(quoting Dir.,

(2d Cir.

are

taking

calculation

not

1985)

no

in

2007

such

of

OWCP

that

a

exceptional

account

date

by

"exceptional

Accordingly,
into

at

(internal

recognize

applies

12.

9

earning

earn

(emphasis

the

average

Petitioners
the wages

injury.

potential

of

the

interpretation

of

the

claimant

absent

the

added).

injured

would have

injury."

wage.

of

Pet'rs'

40 BRBS

ALJ

wages

in

the

Mem.

Section

41,

to

910(c)

thus

mean

potential

points

to

is

earn.'"

position

10{c)

Terminals,

8-14.

2006 WL 2604890).

Circuit's

workman
the

the

ability

[Section]

further
13

of

claimant's

Tri-State

Respondent

that

Resp't's

purpose

Seventh

of

asserts

post-injury

weekly

that

adopts

capacity

earnings

hand,

(quoting Proffitt,

also

Board's

other

Respondent's

notes

the

Resp't's Mem.

Respondent

his

first

reflect

"[t]he

the

considered

calculation

to

68

rule

Mem.

January

16

They go

11-17.

properly

wxto

Mem.

there

circumstances here.

should

Petitioners

this

1997)).

[mandating

it

769 F.2d 66,

omitted)).

"limited

(5th Cir.

provision

mandatory;

administrative decision.'"
v.

161

the

and
596

out

that

construes

amount

of

opportunity
F.2d

that

at

757

the

ALJ

"has

the

discretion,

circumstances
earnings

do

in

existing
not

after

Resp't's

F.2d at

Walker v.

{D.C.

Cir.

1986);

0591 & 07-0710,

for

1998

the

WL

rely

461479

involved

(July

employees

that

ship

158.
at

ladder

Claimant
158-59.

degenerative

4It

in

should

returned
In

April

disease,

also

ALJ

be

Inc.,

and

claim

F.2d 319

28,

LeBlanc,

However,

his

lower

couple

claimant

treating

that

an

BRBS
stand

injured

exceptional

these
years

cases

after

a

claimant fell from

back.

of months
was

32

they

limited

06-

2007)).

from

that

disability

596

BRB Nos.

consider

in LeBlanc,

to work a

noted

793

{Sept.

cannot

for

injuring

the

wage-earning

Terminals,

holdings

11-17.

applied

and

Int' 1

absent

1992

previous

Carolina Shipping Co.,

For example,

1987,

Tri-State

the

1998),

Mem.

where

Transit Auth.,

upon

wages,

Pet'rs'

consider

claimant's

Emp' rs

the

to

injury

2007 WL 4282166

10,

that

workplace accident.4
a

Serv.

heavily

post-injury

circumstances.

Metro.

cases,

of

(citing

and McKnight v.

proposition

worker's

v.

date

reflect

13

Wash.

S. K.

General Dynamics,
165,

Mem.

41 BRBS 123,

Petitioners

the

realistically

potential."
752;

appropriate

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,

as

the

average weekly wage

wage

in

1992

disability,

was

but

accident,
cause

in

of

1987

Id^

ALJ

the

was

$439.65.

the

and

continued

disease.

$92.87,

at

Id.

but

his

158-59.

determined

work

his

average

meaning

Id.

The

at

159.

weekly-

filed

residual

capacity was greater than his average weekly wage at

the accident,

a

Claimant's

Claimant

that

as

for

earning

the time of

that he was not entitled to compensation.

United

States

Court

of

Appeals

for

the

Fifth

Circuit affirmed the ALJ's use of claimant's 1987 average weekly
wage

in

the case because

manifestation'

knee,

in

refused

Dynamics,

1970.

769

claimant

F.2d at

on

removed,

and

claimant's

the

1970

.

to
.

67.

Id.

weekly

'time

of

at 161.

icy deck of

twisted his

The

made

id.

the

Claimant

employer

average

"read a

."

slipped on

resulting in a torn meniscus.

surgically
based

court

exception into the LHWCA .

In General

submarine

the

a

left

torn meniscus was

a

lump-sum

wage.

payment

id.

In

1979

claimant filed for disability because he had developed arthritis
as

a

result

determined
on

that

claimant's

years
of

of

since

for

claimant's

slip

claimant's

1979

after the

Appeals

the

wages

original
the

the

average
because

15

id.

weekly wage

Id.

Circuit

occurred

surgery.

the

injury.

Second

injury

and

in

injury

manifested

disagreed,

the

ALJ

should be based

The United

1970,

The

itself

States

determining

ALJ

should

Court
that

have

used
Id.

claimant's
at

in

loading bales

claimant

for

1987

to

calculate

claimant

in 1984.

a

MCL

day

with

of

a

workplace

benefits,
wages.

McKnight,

follows:

an

average

on

The

became manifest

in

is

thus

must

be

the

contend

that

adopted

the

the date
at

weekly

wage.

left

knee

injury

1989

The

ALJ's

extent

decision,

of

for

such

as

the

1984

concluding

at

as

disability

affirmed,

that
As

average weekly wage
*9

Petitioners
that

and

the

the

disability

proposition

the

LeBlanc

from

1984 work injury.

claimant's

a

diagnosed

than

claimant's

and we

Id.

after

stemming
awarded

treated

work.

swell

rather

of

Id.

to

physician

ALJ

found,

time."

A doctor

and
a

wages,

[ALJ]

stands

cases,

the

injury,

that

reasoning

ache

*2

his

returned

the result of his

of

McKnight

*1.

condition,

1989

full

1989,

determined

at

vacated

disability is

1984

traumatic

Id.

the

In

knee

claimant's

BRB

to

Id.

accident.

at

claimant

began

work."

injured

461479,

and

knee

"Although

claimant's

1998 WL

degenerative

based
Id.

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

portion

Tri-State

Tri-State
a port

closing

suffered a workplace

ice-free

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

for

"The

in

a

Board's

earning

calculation

earnings

the

to

absent

concluded

average

interpretation

capacity

earn

of

of

the

claimant

that

would

Board

have
Id.

did

the
at

not
17

go

he

The

ALJ

75-177
of

&

[ALJ]

earnings

reasonably

injury

.

.

.

75-177A,

Appeals

for

.'"

at
the

claimant's post-injury
wage,
10(c)

to

noting
thus

mean

potential

757.

from working

actual

the

weekly

workman

year.

"x[T]he

which

Court

[Section]

injured

injury."
"the

of

that:

BRB Nos.

Seventh Circuit affirmed the BRB's use of
wages

the

to determine an average

amount

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,

The

beyond

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.

28,

2007).

worker

in

Baghdad,

the

driver

miss

a box in

claimant

was

relies

teacher

in

of

have

earned

the

object

of

injury."
Cir.

2004);

1991)).

where

reflect

average

factors
a

123,

2007

4282166

worked

as

She

mid-chest

a

she was

down.

WL

service

injured

in

riding

times,

The

The

is

to

annual

based

BRB

are

arrive

be

the

a

noting
sum

Iron Works,

Stevedores,

irrelevant

wage,

.

appropriate

936

.

the

.

wage-earning
18

do

not

potential."

her

would

"[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

earning capacity at

previous

claimant's

at

as

to

employer

wages

asserted

agreed,

concluded:

weekly

on

time

2004

swerved

several
Id.

Claimant

S.K.

laundry

was

claimant's

Id.

Id.

then

claimant's

the

BRBS

included

United

may

in

car rolled

(citing Bath

BRB

generally

claimant's
injury

*3

decision

*1.

calculated

10 (c)

Empire

The

events

Iraq.

at

from

at

The

Texas.
be

of

2007

in which

Id.

which

claimant's
Id^

determination

compensation based on claimant's

should

Section

represents

41

vehicle

road.

year,

in

Inc.,

Id.

a

factual

BRB's

Iraq.

Houston,

compensation

the

claimant

paralyzed

previous

on

There,

voluntarily paid her
the

its

at 758.

Int'l,

(Sept.

when

making

of

a

of

post-

Section

10 (c)

realistically

Id.

(internal

citations
18

omitted) ;

(2009),

recently
rely

Cf.

denying

relying

solely

v.

Serv.

Emps.

reconsideration,

on

on

K.S♦

similar

employees

43

Int'1,

BRBS

136

to

find

it

wages

-

rationale
overseas

Inc.,

43

(2009)

BRBS
{more

appropriate

though

using

to

pre-

injury wages).

On

the

facts

before

this

Court,

reasons,

the approach adopted by

be

consistent

most

Section

10(c)

provides

injured employee
sum

as,

having

employee

of

in

injury

capacity

.

Fourth
[this

of

the

.

on

(quoting

.,

the

has

weekly

wage

at

omitted).

the

Maritime

Terminals,
610

("The

at

in

time

F.2d

Universal

specifically

at

a

that

time

earning
The

objective
awards

of

§10 (c)

[are]

at

Bath

the

claimant's

Serv.

of

earning

F.3d

see

injury.")

Maritime

commented
19

756);

such

910(c).

155

purpose

the

the

annual
§

the

injured

claimants'

Corp.,

reflect

of

at

compensation

Serv.

to

the

be

the

prime

the

of

shall
of

to

statute.

wage

working

U.S.C.

essential

is

the

was

n>[t]he

of

596

the

.

earnings

33

that

of

.

represent

that

assure

.

following

case appears

weekly

injury

he

the

this

language

previous

assessments

Moreover,

Circuit

the

in which

determination

capacity

of

for

average

employee."

to

Universal

F.3d

plain

recognized

is]

in

reasonably

injured

Tri-State

380

to

the BRB

"the

time

shall

accurate

Works,

earning

the

employment

subsection

capacity.'"

Fourth

at

the

that

regard

Circuit

based

with

and

327
Iron

average
annual

(citations

Corp.,

the

"explicitly

recognizes

[in
a

§

that

10(a)]

case,

reflect

the

Court

times

such

Transit

to

circumstances

actual

to

that

Id.

at

F.2d

at

328;

in

F.3d

at

order

to

capacity,

Walker

319,

321

the

salary

§

v.

327.

both

it

to

may

be

accurately

Wash.

Met.

inquiry,

before

In

accurately

Area

on

the

("Depending

910 (c)

rates

computation

formula would distort
155

earning

necessitate

look

the

benefit

look at post-injury earnings

793

that

for

capacity."

recognized

capacity.

Auth.,

appropriate

earning

employees

necessary at

formula

disregarded where

actual

the

reflect

mechanical

must be

claimant's

that

the

it

and

may

after

be
the

injury.").

While

the

recognizes

that

§10(c)
to

injury,
is

there

to

an

easily

be

seen

instances

average

that principle
in

Serv.

Corp.

where

consider post-injury

employee's

application of

most

Maritime

may

a court

requires

determine

Universal

the

weekly

to

Tri-State

the

decision

invocation

income

wage

facts

Terminals

in

order

before

of

of

the

this

case

decision

upon

which the Fourth Circuit relied.

The
on

the

Seventh Circuit

statutory

language.

argued

that

"having

regard

to

the

in

employment

in

the

injury"—"the

when

analysis

applying

literal

596

in Tri-State Terminals
F.2d

the

§

at

10(c)

previous

earnings

which

was

terms

he

of
20

§

755.

of

working
10(c)

The

employer

statutory
the
at

focused
had

language--

injured employee
the

time

explicitly

of

the

foreclose

consideration
principles

of

concluded
does

not

the

be

its

incongruous
purpose

went

of

§

to

Here,
was

one

the

than

year

he

contract

injured

after

injury,

the

utilized

had

earnings

for

way

the

to

are

are

post-injury

Id.
LHWCA

earning

avoid

"is

a
to

harsh

and

that

the

based

"accurate

fair

on

the

because

to

in

reasonable

substantially

appropriate

Seventh

earnings

and

capacity

have

is

a

The

construed

capacity,"

not

to'

observing

After

earning

it

regard

such

increased

look at post-

at 757.
was

zone.

earned

in

Respondent

employed
He

was

stateside,

reflecting

several

that

awards

would

injury,

war

being

'having

that where an employee's

claimant's

Id.

a

insure

Circuit

liberally

756.

injury

Respondent

essentially

wages

the

the disabling

injury earnings.

to

conclude

of

annual

a

claimant's

preceding

employee's
for

the

on

approximation

and
at

Seventh

therefore

recognize

in

of

applying

circumstances.

be

Id.

is

some

After

the

and

should

purposes

of

in

to

which

10(c)

Circuit went

year

on

results."

assessments

but

exclusivity,"

statute

effectuate

Id.

construction,

considered

Circuit

remedial

earnings."

"ordinary understanding

connote

can

Seventh

post-injury
statutory

that

earnings

the

of

Iraq

this
for

continued

months

before
21

work

paid

and he

a

be

he

overseas

substantially
was

arrangement.

only
to

to

was

out

higher

employed under

Respondent

few weeks.
sent

in what

on

finally

a

was

Despite

his

missions

and

sent

back

to

the

United

the

evidence

contract
return

States

earning
all

of

wages

purposes,

to

to

Under

But

would have
as

States.

he

had up

Solely

these

to

Iraq,

one year

reflect

language

of

reflects

of

his

Respondent's

his

annual

consideration

both pre-injury

the

injury,

time

on

circumstances,

in

his

the

relying

accurately

most

with

for

fulfilled his

realistically

earnings

consistent
and

treatment.

work

fails

Respondent's

is

he

United

capacity.

injury,

that

continued

the

pre-injury

medical

suggests

and

to

for

§

and post-

10 (c)

his

of

and

annual

its

earning

capacity at the time of injury.

For
ALJ

the

the reasons
acted

employment

discretion

involving

and

in the

Emps.

Int'l,

Proffitt,

the

has

weekly

Dir.,

dangerous

ALJ

wage

OWCP,

Shipyards
decision

Corp.,
of

the

40

"wide

under

237

Inc.,

BRBS

F.3d 404

BRB

Nos.

41,

BRBS

10(c))

(5th Cir.
339,

regarding

when

344-45
the

22

which

he

than stateside post-

and

See Smith

11-0326A

2604890,

(Aug.

at

*4

(noting

calculating

an

average

{citing

2000);

the

one-year

in

calculation.

WL

that

considered

environment

11-0326

2006

discretion"

Section

21

BRB

he

Respondent's

average weekly wage

2011);

that

the

concludes here

when

and factored in Respondent's higher

Serv.

23,

his

contract

injury wages
v.

within

the Court

circumstances

exceptional

worked,

stated above,

Staftex

Staffing

Harrison v.

(1988)).

calculation

Todd Pac.

Therefore,
of

v.

the

Respondent's

average

weekly

wage

is

AFFIRMED

because

it

is

based

on

substantial evidence and is in accordance with the law.
B.

The ALJ's Disqualification of the Interpreter Position

Next,

Petitioners

disqualifying
alternative
that

the

two

assert

potential

employment.
ALJ

should

Pet'rs'
have

Respondent's

Pet'rs'

19.

Petitioners

jobs

or

that he

has

took any other

States

Court

a

series

established

regarding
"First,
unable

suitable

the
to

employee
return

bears

to

his

This

the parties

former

showing

issue is not
agree

employment.

the

In

this

case,

Pet'rs'

to

contend
into

record is

devoid

that a person genuinely
Mem.

19.

for

the

Fourth Circuit

employment
burden

former

of

determinations.

showing

employment."

Tann,

obligations

that

he

Newport

841 F.2d 540,

542

the

suitable

the claimant

is

not

employer

to

bears

alternative

(4th Cir.

return

the

as

to his

burden

of

employment

that

if he diligently sought

it."

found that
23

able

is

News

in contention in the present case,

the ALJ

a

capacity.

burden-shifting

Respondent

of

earning

in

suitable

positions

*[t]he

Appeals

of

v.

as

Petitioners

these

actions

of

erred

applied for those or any other

the

"Second,

existence

would be available

Id.

that

19.

that

alternative

Shipbuilding & Dry Dock Co.
1988) .

aver

ALJ

positions

post-injury

[Respondent]

seeking work would undertake."

The United

Mem.

factored

of

of any evidence that

the

interpreter

calculation
Mem.

that

the Employer

established

the

availability

of

three

employment:

portrait

clerk/cashier

at

Schbot,

met

2010

this

showing
but

a

WL

that

has

car

at

*4.

claimant

has

to

1984) ;

592

Newport

F.2d

762,

News

765

of

suitable

Del

Monte Fresh

Cir.

alternate

2009)

(5th Cir.

(citing

BRB,
&

731
Dry

1979)).

Dir.,

a

OWCP,

Co.

to

this

F.2d 199,
Dock

Co.

v.

final

563

F.3d

Hayes,

employment,
F.2d

200
v.

at

542

(4th Cir.

Dir.,

H[t]he

factual

has

disability by

841

Moreover,

is

Crane

respect
testified

positions.

Schbot,

however,

that

required a

one

$1,400

one-half
the

establish

position.

employer

Tann,

P&M

Respondent

for

the

pay

OWCP,

existence

determination."
1216,

1221

930

F.2d

of

the

(11th

424,

431

1991)) .

With

only

if

appropriate

employment

Produce v.

office

interpreter

it."

secure

Cir.

still

alternative

Penney,

sought

Shipbuilding

(4th

J.C.

and an

may

(citing Trans-State Dredging v.

suitable

"Finally,

diligently

unable

as

at

dealership,

the

he

been

photographer

4035105,

burden,

positions

to

courts.

lead

for

an

was

seeking

specialty.

that

Id.

diligently

2010 WL 4035105,
possible

one hour
Id.

Spanish

at

*4.

every

Respondent,

the
24

not

Court

have

Respondent
translating

sought

that

stated,

would

given

few months,

learned

interpreter,

interpreter

employer

therefore,

position but

the

employee,

Respondent

and would have

of work

Therefore,

sought

interpreter

certification

interpreter

a

he

burden

this

a

second

employer

Arabic-Respondent's

affirms

the

Board's

finding

that

interpreter

"[t]he

[ALJ],

position

not

available

job

identified

rationally

identified

alternative
by

thus,

in

employment

[Employer]

could

claimant's wage-earning capacity."
The

position

ALJ's

as

substantial
of

the

determination

suitable
evidence

BRB

the

the

concerning

labor

and

that

not

be

the

was

wages

used

eliminating

to

the

employment

record.

this

the

survey

market

that

of

the

calculate

Id.

alternative
in

concluded

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

Petitioners

of

assert

Respondent's

that

the

post-injury

ALJ

erred

earning

in

his

capacity

by

basing this calculation on the lowest-paying position identified
as

suitable

Pet'rs'
averaged

alternative

Mem.

20.

the

Petitioners

salaries

alternative

capacity of

$30,000

of

employment.

cashier

injury
minimum"

position,

earning

employment-the

the

Id.

contend

annually or
Petitioners

capacity

$724.69/week.

that

positions

Instead

cashier's
the

identified

of

a

should

be

that

should
as

post-injury

$576.92/week,
believe

ALJ

position.

the

have

suitable

earning

salary of

Respondent's

$842.10/week5

or,

the

post-

"at

Id.

'This calculation factors

in the interpreter position's salary.

25

a

The

ALJ

identified

the

alternative

SAE
I

account

cashier

the

and

of

ALJ

the

calculation,

[suitable alternative

the

fact

that

photographer

See

salary

in his

D&O

26.

employment]

On

appeal,

the

ALJ's

the

.

."

BRB

in this

and

that:

of

2010

on

WL

the

to

at

photographer

positions
the

$30,000 per year."
noting

that

capacity

evidence

*5.

only-

the Claimant,

wage-earning

substantial

4035105,

the

calculation,

claimant's

ALJ

"Considering

available

this

suitable

the

of

had

Neither

of
the

position was

is

record
ALJ

nor

disregarded

calculation.

United

recognized

salaries

of

{5th Cir.

that

the
See

122

the

Shell
F.3d

and

and

no

...

not

to

Appeals

wage

earning

Indus.,

Offshore,

Inc.
(5th

ALJ

chose

the

"[t]here

evidence

the

[was]

in

no

the

for

as
v.

v.

Pulliam,

Dir.,

to

for

an
the

alternative
137

F.3d

U.S.

rather
this

support

and
than

decision

the

Circuit

326

Dep't

(vacating

salary,

Fifth

Circuit

average

OWCP,

1997)

lowest

The

to

suitable

Cir.

record

Fifth

calculating

is

explanation

average").
26

the

capacity

Inc.

318

for

method

identified

312,

the

use

of

reasonable

Avondale

because

the average,

Court

positions

1998);

Labor,

remanding

States

post-injury

employment.

decision

affirmed

based

explained why

employee's

of

is

Schbot,

The
has

BRB

"calculation

reasonable
.

the

as

Yet,

lowest-paying

concluding

Petitioners

positions

find his post-injury earning capacity to be

Id.

.

into

employment.

considered
(cashier)

took

ALJ's

reasoned

that

is

employers

available

and

do

not

when

therefore,

Shipyards,

Inc.

"Averaging

ensures

Terminals,
2009)
to

have

obtain.

all

show

v.

v.

no

Guidry,
that

way

of

137

967

the

that

determining

F.2d

post-injury

and within the

wage-earning

administrative

also

666

the

1992)).
capacity
Greenwich

n.8

(3d

Cir.

suitable positions

capacity

law judge's

job

Cir.

earning

658,
of

employment,

which

(5th

see

Appx.

opening

(citing Avondale

wage

(noting that averaging salary ranges

calculate

328

1039

Id.;

Fed.

job

alternative

post-injury

309

specific

F.3d at

available."

OWCP,

a

suitable

Pulliam,

jobs

LLC

to

establishing

courts

employee will

reflects

have

was

"reasonable

substantial

discretion

on the issue").
The BRB has

v.

Elec.

Boat

(Ben.

Rev.

Sys. ,

Inc.,

(Ben.

Rev.

BRBS
Jan.

1384,
9,

Corp.,

Bd.

2008

3,

Nos.

Sept.
WL

2008)

this

BRB

Sept.

BRB

Bd.

embraced

No.

at

(calculating

capacity based on average of

suitable

alternative

the ALJ's

using

the

B.H.

of

alternative employment,

2010
v.

09-0291,

L.N.
*32

v.

2009

WL

4035103,

at

Grumman

3159148,

*3

Ship
*4

KBR Gov't Operations,

41

of

WL

Admin.

Law Judges

post-injury

of positions

In

See Harris

at

(Office

salaries

cases.

Northrop

employee's

employment).

calculation of

average

&

2009);

510093,

in other

10-0287,

2010);

09-0198

16,

logic

Harris,

the

earning

identified as

BRB

affirmed

claimant's post-injury earning capacity

three

positions

noting that
27

identified

such method

"is

as

suitable

rational

and

in accordance with
BRB

remanded

because

highest-paying

the

alternative

WL

the

decision

provided

a

in

current

case,

on

the

the

of

In B.H.,
the

suitable

*4.

a

true

and

alternative

Instead

identified

the

lowest

of

the ALJ should have

"reflect

capacity,
and

in

reasonable

find such

evidence

as

at

explanation was

rational

is

to

*3.

average

positions

photographer

earning

relying

an

at

such

taken an

as

suitable

average

of

the

BRB

for

Id.

post-injury

would

took

identified

eight

since no

disregarding

Court

4035103,

3159148,

employment

potential wages."

ALJ

ALJ

WL

the BRB concluded that

of

Here,

the

2009

calculation,

2010

positions

employment.

average

law."

given by

position
it

is

rationale
to

be

record considered as
unless

there

was

with

for

the

the

lower-paying position,

find

the

Had

the

calculation,

appears

the

substantial

However,

unstated

in

the

rationale

that

the

for

best

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

the

Accordingly,

salaries

of

the BRB D&O

the

cashier

and photographer

of

that

law.

supported by

it

or

calculation

to

a whole.

some

ALJ

the

difficult

accordance

conclusion

in

the

to

positions.

calculation is VACATED AND REMANDED for

proceedings not inconsistent with this opinion.

28

V.

Respondent
Resp't's

has

Mem.

ATTORNEY'S

made

14.

a

request

Attorney's

219,
an

News

Shipbuilding

226-27

(4th

attorney

Cir.

shall

against

the

be

employer

commissioner,

U.S.C.

§

928(a).

statutory

point

or

The

(4th

(1983);

Cir.

submit

see

Resp't's

461 U.S.

"The

at

seeks

Mem.

a

a

v.

an

party

14.

seeking attorney's

in

amount

court,

as

Court

has

the

a

Mills

the hours

591

a

F.3d
When

LHWCA

case,

attorney's
approved

case

most

may

fee

by

the

be."

33

that

useful

reasonable

for

a

starting

fee

is

the

litigation multiplied
Eckhart,

Corp.,

seeking

a

determined

Hensley v.

The

to

928(a)).

reasonable

in

amount

§

claimant

of

Grissom

fees.6

awarded

Holiday,

U.S.C.

reasonably expended on the

2008) .

Respondent

33

v.

tt[t]he

evidence supporting

Hensley,

Co.

provision,

by a reasonable hourly rate."
433

be

the

determining

number of hours

carrier

Supreme

fee-shifting

for

(citing

or

may

Dock

...

Board,

attorney's

(and by extension DBA cases).7

represents

awarded

deputy

Dry

2009)

successfully

"there

&

for

fees

successful claimant in LHWCA cases
Newport

FEES

an

549

award

461 U.S.
F.3d

of

313,

fees

worked and rates

424,
320

should

claimed."

433.

attorney's
It

fees

is

fees

appears

under

that

33 U.S.C.

§

the

33

U.S.C.

proper

§

section

908.
for

928.

7Nothing in the DBA alters the provisions of the LHWCA concerning
attorney's

fees.

29

Respondent

days

to

seek

his

fees

file

his

fee

within thirty

(30)

may

file a

requests

that

fee petition.

separately

petition

1979)

allow

him

each
for

level
work

of

the

v.

(citing 20 C.F.R.

the reasons

set

§

OWCP,

(30)

proceedings,

performed

Director,

thirty

attorney must

in

days of this Opinion and Order.

VI.

For

Court

Because Respondent's

at

Shipbuilding & Dry Dock Co.
(4th Cir.

the

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

Order to all
IT

IS

is

DIRECTED

to

send

a

this

and

counsel of record.

SO ORDERED.

/S/

Mark S.
Norfolk,

February

Virginia

7

,

Davis

United States District Judge

2012

30