UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60532
Summary Calendar
INGALLS SHIPBUILDING, INC.,
Petitioner,
VERSUS
JAMES E. WOOLEY;
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
March 2, 2000
Before SMITH, BARKSDALE and PARKER, Circuit
Judges.
PER CURIAM:
Petitioner, Ingalls Shipbuilding, Inc. ("Ingalls")
seeks review of a final order of the Benefits Review Board, United States
Department of Labor on Respondent, James E. Wooley's claim for benefits
made pursuant to the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. § 901 (1994)("LHWCA"). We affirm.
Wooley was permanently disabled by an injury
sustained during his employment with Ingalls. After a hearing before an
Administrative Law Judge, Wooley received an award of benefits, based on
the calculation that Wooley's average weekly wage had been $575.43. Ingalls
appealed to the Benefits Review Board ("BRB") and prevailed to the extent
that the BRB concluded that Wooley's average weekly wage was only $551.70,
using a different method of factoring in his vacation and holiday compensation.(1)
On Motion for Reconsideration the BRB vacated its first decision and affirmed
the ALJ's original calculation. Ingalls now appeals, asking this court
to resolve the question of the appropriate treatment of vacation compensation
in LHWCA average weekly wage calculations.
Under LHWCA, compensation for an injury is
based upon an injured worker's average weekly wage at the time of his injury.
See 33 U.S.C. § 910. When a claimant worked substantially the
whole of the year immediately preceding his injury, as Wooley did, §
910(a) of the LHWCA controls the method of calculating his average weekly
wage. Section 910 provides:
Except as otherwise provided in this Act,
the average weekly wage of the injured employee at the time of the injury
shall be taken as the basis upon which to compute compensation and shall
be determined as follows:
(a) if the injured employee shall have worked
in the employment in which he was working at the time of the injury, whether
for the same or another employer, during substantially the whole of the
year immediately preceding his injury, his average annual earnings shall
consist of 300 times the average daily wage or salary for a six-day worker
and 260 times the average daily wage or salary for a five day worker, which
he shall have earned in such employment during the days when so employed.
33 U.S.C. § 910(a). Section 910(d)(1)
provides that the average weekly wage is then derived by dividing the total
annual earnings calculated under § 910(a) by 52.
Wooley was a five-day worker. Wooley's daily
work records contain work entries on 256 different days in the 52 weeks
prior to the date of injury, including four entries for vacation compensation,
with total earnings of $29,462.10. The ALJ counted the four entries for
vacation pay as four days, although it is undisputed that Wooley was paid
for a total of 120 vacation hours(2) which
Ingalls contends should be counted as 15 8-hour days. The ALJ divided the
total earnings by 256 days to arrive at a daily wage of $115.08 (3),
which he multiplied by 260, pursuant to 910(a), to arrive at an annual
wage of $29,922.44. He then divided the annual wage by 52 to arrive at
an average weekly wage of $575.43. Ingalls argues that Wooley's $29,462.10
earnings should have been divided by 267 (252 days worked plus 15 eight-hour
vacation days), to arrive at an average daily wage of $110.34.(4)
Our review of BRB decisions is limited to
determining whether the BRB correctly concluded that the ALJ's order was
supported by substantial evidence on the record as a whole and is in accordance
with the law. See Ingalls Shipbuilding, Inc. v. Director, OWCP,
991 F.2d 163, 165 (5th Cir. 1993).
The calculation mandated by § 910(a)
"aims at a theoretical approximation of what a claimant could ideally have
been expected to earn" in the year prior to his injury. Duncan v. Washington
Metro. Area Transit Auth., 24 Ben. Rev. Bd. Serv. (MB) 133 (1990).
That approximation includes what the claimant would have earned had he
worked every available work day in the year. See Duncanson-Harrelson
Co. v. Director, OWCP [Freer], 686 F.2d 1336 (9th Cir. 1982), vacated
on other grounds, 462 U.S. 1101 (1983). This case presents a res
nova question concerning how vacation days that are "sold back" to
the employer for money value instead of taking time off from work should
be considered in the calculation. An employer who chooses to offer such
payments to its employee obviously increases the amount that employee "could
ideally have been expected to earn." Section 910(a) envisions a calculation
that will allow the employee LHWCA benefits based on that expectation.
We decline Ingalls's invitation to create a bright-line rule concerning
how all vacation compensation will be treated under § 910(a). Rather,
we find it more appropriate to charge the ALJ with making fact findings
concerning whether a particular instance of vacation compensation counts
as a "day worked" or whether it was "sold back" to the employer for additional
pay. In this case, the ALJ concluded that Wooley took four vacation days,
which were treated as days worked, and "sold back" eleven more eight-hour
days, which were not treated as days worked, but rather as additional compensation
to be added to Wooley's annual wage. The BRB correctly concluded that the
ALJ's order was supported by substantial evidence on the record as a whole
and is in accordance with the law. We therefore affirm.
AFFIRMED.
1. For purposes of this
opinion, there is no meaningful distinction between vacation compensation
and holiday compensation. For the sake of simplicity, we therefore refer
to the disputed amounts as vacation compensation.
2. DATE COUNTED
AS PAID FOR
05/10/92 1 day 24 hours
12/27/92 1 day 32 hours
01/01/93 1 day 48 hours
12/20/92 1 day 16 hours
total: 4 days 120 hours
3. $29,462.10 =
$115.08
254+2
4. $29,462.10 =
$110.34
252+15 |