rabinowitz i represent scott horton the claimant and as the court knows this petition for review involves the issue of how to determine an average weekly wage for an injured worker and the purpose of an average weekly wage is to project what the injured worker would have earned had he not been hurt and then as compensation is based on two thirds of that subject a maximum a minimum limit the average weekly wage it's well established in the court that the average weekly wage depends on three factors number one the ability to work number two the willingness to work and number three and most important in this case the opportunity to work and the administrative law judge did in this case is he ignored scott horton opportunity to work at specialty finance as and determine the average weekly wage on his opportunity to work at industrial mcgrane which the on the water has referred to it as i am and i and and i am i the reason scott horton he worked for that company for thirteen years and the reason he left that company is because it didn't have the work opportunity in fact the testimony was in the last two or three months there was hardly any work at all imo i and specialty finishes was taking all of the jobs and three workers left i am i lance wilson ronnie anderson and joe riley to work a specialty finish but two of them were supervisors and one was a certified blaster and your client was neither her no that's not correct completely one of them started out as a trainee supervisor he was paid the same amount as scott horton when scott horton started the other one was ron anderson who started out as a laborer helper and became a supervisor the record shows his pay didn't increase until scott  working at specialty two dollars months later and the rd one was joe riley who started out as a blaster just as scott horton started out was hired as a blaster and it took him at least six months to become a certified sprayer at least six months and so for the st six months at least general right away was the same as scott horton ryan anderson was the same as scott horton fact both of them were paid less when they started than scott horton was paid and the rd one lance welton was hired as a supervisor but didn't get any kind of a pay increase for at least until the week that scott horton started and the record shows that the question really at least as you frame it and it seems to me an appropriate way to do it is not so much what the payment per hour would have been mr horton compared to these others but rather how much work was available because i gather what happens in this industry is looked at the other people who had left i am i in the three months in the twelve and three months before scott horton well he could've but if your evidence wasn't sufficient to make them comparable exactly comparable  for least month at least one month ronnie anderson was more than comparable in fact the record shows he didn't even get a pay raise until two dollars months after he started darrelle riley never became a certified sprayer was not blaster it was rare he never became a certified sprayer for at least six months after he started and he started in december so the a l j had a record that he that these that these be if there's substantial evidence in the record as a whole to support the findings i think your biggest problem counsel is the fact finder made a lot of findings in favor of your client on a lot of issues in the absence of a comparable workers payroll records from two thousand and thirteen at specialty the best approximation is past earnings in the industry and i don't see how that isn't supported by substantial evidence record well you have to look the lawyers you have to look for where you can take a job where he really doesn't have the work opportunity and he leaves that job because he doesn't have the work opportunity and then base the average weekly wage what he on a job where he didn't have to work opportunity when i was rehearsing for this oral argument one of the people who is not a lawyer said to me a what if he had worked for specialty finishes for two years before and was making six million seventy thousand dollars and then decided you know i want to smell the flowers and spend more time with my family and i'm going to take a job where i'm not going to be working as much so he goes to i am my where the work is a lot less gets hurt a week later with the a l j have a basis to go back and say i think your average weekly wage depends on the job that you just left because you didn't want to work as much and you didn't have the opportunity to and you had the opportunity to work a lot more i don't think so but counsel the problem here is the work is very variable if i'm remembering the record correctly even your clients wife testified well in this industry twenty seven thousand dollars is a great year no she didn't say that she said when he worked at i am i twenty seven thousand was a great year of course he gets on employment benefits too which is not part of the average weekly wage but you have to at the fact that he leaves that job to go to another job to get more work opportunities so you help me help me out on this one because i'm not particularly influenced by the fact that these other would be comparable workers aren't doing precisely the same job i understand that and they would have been paid hourly rates that might be different depending what their jobs are the question for him then is not but the question rahm is not whether he would have been paid the same amount the question is was there a work available for which he would have been employed so what do we know from these other workers as to how often they were employed was there in fact more work that they were getting and that i am specialty they were getting a lot more work at specialty they were doubling their income in fact that specialty compared with what they had in making and i am i and there was evidence that the person who was hired to take scott horton's place was working  steadily for almost three years at the time of the hearing after scott horton got hurt so the work was plentiful it was also evidence that i am i had the same number of workers in november of two thousand and fifteen that they had in january and thirteen when scott horton got hurt and they were looking for twenty five more workers at that time is that just as a general proposition what's wrong with the fact finder in this kind of circumstance faced with a decision to compute earnings based on the job that he actually has versus the job that he might have with another employer what's wrong with that if he hadn't started with specialty at all if he had gotten hurt i don't know over christmas or something before he was going to start with special day i have a tougher case but he been working for specialty for a week in fact in the one week he worked he worked ten hours every single day for six days and until he got hurt he continued working with the th day that he got hurt and went to the doctor that day so the evidence is that there was work available he was going to be on probation for ninety days and that's in the records and there's something to the effect that they re evaluate the employee after ninety days that's correct but he wasn't considered a probationary employee and he was hired his job title was blaster and he had actually signed a contract with specialty you know working take all the jobs that they had form and so on and everything you're down to a  please the court i'm robert babcock i represent specialty finishes and it's carrier signal mutual from the questions and answers i must say i share the view that this is a question of fact finder discretion and whether evidence supports that discretion the exercise of the conclusion he reached and i think that's what this case is about but here's my problem and you can sense and i guess from my questions or comments on the other side i don't think i should care much or the fact finder should have cared much as to the amount of the sort of the hourly wage that these others were making the question is whether there was work and specialty and also there's a fair amount of work that was a specialty and the fact finder looked at this case the wrong way but that was kind of mr bennett which is argument i think the st couple of sentences which he says that he was couples as to the that his contention was that the that's not just the question is not going to hurt was the work going to be there when he moved over from i am on a specialty because the work that i am i was spotty and there's some evidence in the record that there's a lot more work of specialty but horton's contention was he said judge don't look at the past thirteen years or two years don't average those that's harsh that's a section seize every structure that's harsh and unreasonable what you need to do is look forward and as part of looking forward here's my evidence that would support the contention of a little over a one thousand dollars a week wage these guys wilson riley and anderson but they not only earned more they spread was between over that period of time between about thirty million fifty thousand that they had earned during that period of the evidence of the record not only do they earn more but they had more opportunity because they were certified and that's the key why what is there to show that while they would have had more work he would not have i mean what what's the nature of the job here i mean you've got the ships the command a need refinishing and all these shipyards work that the record is very incomplete i can talk about it but the answer is not all crafts not all scales at the same degree a work some work a short period of time intensively others in a supervisory capacity twenty eight to thirty one thousand dollars a year that's what his skills his experience and the absence of an in in an intention to improve those skills keep in mind mr horton skills were awfully basic in terms of shipyard work and those have been the skills that he had maintained they apparently quite comfortably and i m i for one thousand three hundred and fourteen years earning low dollars and i think by choice the choice not mean to get additional certifications and qualifications he would have had more opportunity had he done so the judge found that without that he did not and properly under section two n c relied under the light on the past earnings ok work mr horton's basis request for average weekly wage didn't have any basis to show that he had the ability to do the work for the wages he's requesting the willingness to work for the way that he's requesting or the opportunity to work for the way to use your question mr ok mr horton was hired on as a general or a skilled labor in the tanks and voids division not withstanding the fact that his pay stub said blaster on it he never worked as a blaster for the six days correct correct he worked tending a pot which with the record shows is standing and watching a pot filling up full blast and although he was injured moving a six hundred lb pot the same pot correct he didn't have the willingness to work he had been offered opportunities to do other things at that specialty finishes and he turned it down he didn't have the ability to work he wasn't a certified blaster he wasn't a certified sprayer he joined interest in doing blasting or spraying except for a statement at the formal hearing that he was at was contradicted by mr or he said that he wasn't and the opportunity to work wasn't there and like these other employees that were doing blasting sprain or supervising mr horton was a skilled labor in the tanks and void division and mr already testif that the tanks in void division in his words wasn't very successful and that at the time of the full hearing the tanks in void division was doing something completely different and not what mr horton's mosko one of the reasons it wasn't successful because they had to keep redoing work is that right project future earnings were on workers that weren't comparable to mr horton so the alger took the only ever other evidence presented to them which was mr horton's passer earnings and calculated his average weekly wage based on that it's not required to be perfect i think there's something that the court hopefully hasn't overlooked but there's a place he owes versus campbell industries case where the a l j did use a blend of work that didn't have as much work opportunity compared with shipyard work took he got hurt five weeks into a shipyard job and the judge took a bland administratively the judge took a bland and this circuit reversed and said you have to base it on his ability to work and his willingness to work and his work opportunity at the time of the injury and they sent it back because of that bland in the tri state terminals case a seven circuit case that this court sided with approval in place the us that was the case where the work increased substantially after the two claimants got hurt and the st day l j days jesse's average weekly wage of what he had made in the past and didn't base it on the increased work opportunity at the port after he got hurt and that really and that really is what should have governed this case that the judge should have said let's forget we can't look at the past because he was he wasn't satisfied with that work or opportunity he was certainly willing to work and there's no evidence that he ever turned down any jobs or every day acted any jobs and his application he agreed to work at everything he was hired as a blaster and in the six and a half days he worked there he worked ten hours the st six days and till he got heard he was working continuously i don't know the person starts at six in the morning and works till four hundred and thirty in the afternoon i don't know when he's going to have time to learn not a substantial evidence question this is a legal question a one calls for review in accordance with the legal issue which is the question is to what extent should a claimants choice of defendants effect the rules for determining responsibility under the longshore act i think that's a straightforward question before a sansa has any court ever invoked the twenty a presumption other than in a case brought by an employer is there any case that is invoked that presumption in a case you know you know words one employer invoking it against another as opposed to a claimant trying to invoke it there's such a history of this longshore act litigation that perhaps there is somewhere on that you're familiar but i'm not familiar with such a case and i accept sinclair s analysis that the claimant to invoke that presumption has to make a claim i mean i think that's what sinclair says and whether i think it's reasonable or not i have to accept it but that the point is not that that's what triggers the presumption of a compensable claim the question is is that immunize that employer against whom a claim was not made  contention is that we can't trigger the presumption as another employer but we can prove injuries with that subsequent company and if we prove those injuries then that subsequent company has to join in the process of resolving responsibility and we think of it this way perhaps let's assume that sinclair says and not quarrelling with that that the absence of his claim against i am i released them from their obligations to rebut the presumption compensable it and to get around that we say we proved injuries and i am i that were disabling well i mean mr horton is what he said that none of my work and i am i aggravated the injury that it was all gone when i was at specialty it didn't do anything to aggravate it and that's a factual finding that the a l j made now whether we would have made the same factual finding or not that's a factual finding the l j made and there was evidence to support it but that was a factual finding if i reached that level and i think it can be taken that way is a factual finding that was based on the idea of a misallocation of burdens of proof a factual finding is premised on a legal improper legal structure what evidence is there that he actually suffered serious injury during that period when he came back to i am i well that that question i'm going to put in the heart of a lot of reasoning and off to one side just tell me about the evidence that the you have that say that the injury was aggravated or became genuinely serious after he left specialty there is no evidence of a medical tie saying that work at specialty cause serious physical i am i didn't bring any doctor to say it didn't we didn't bring any doctor to say it did it but that's not this court's definition for good or for ill about what an injury is this court has sa telling me are you telling me because there's no evidence of this there's no evidence of that you're telling me that he wasn't injured while he was working for specialty you know he was injured within the terms of that broad definition he had flare ups of know that's certainly a core question but i don't think it's the question presented by this appeal if one except the idea that flare ups of pain a tribute able to an earlier injury that occurred during a subsequent employment qualify as injuries that's the liberal standard that the board and this court have established if is equal harm were required or serious physical harm or some other term then the burden we couldn't have overcome it let me see if i can understand your argument but this flare up let's say that i injure myself terribly and i've got a sore back and if i'm just walking to starbucks you know i stop wait for the traffic light traffic light changes and as a start to walk with that always gives me a little twinge is that a flare up in terms of your view it's a flare up in terms of this court's view so in other words it anytime he goes back to work and i am i he's got an what the law currently says if that were the law no one in their right mind would ever hire an injured worker in the same field right because  you're going to get stuck with the whole bill as the last responsible employer if a twinge means you've got to pay no one dollar would ever hire the longshoreman right well that's why we have this section eight after nd injury to encourage people to iron but it's not just the twinge it's got to be a disabling twinge now is there a big difference but in this case it was a disabling twinge that missed when just many of them over a course of time that cost him time off from work came back finished and and that's i think as a matter of law because the fact finding was to the contrary are saying that as a matter of law qualified as that the fact finding was that there were injuries while working for i am i with in that liberal definition of injury which is disabling flare ups standard nobody i will say this fairly in the longshore industry thinks much of this set of standards but it is the ones that we have and that we've had since the price the metropolitan once those injuries were proven then there should be the analysis of the substantial or the actual cause and i think probably simultaneous given sinclair distinction between disease and injury cases but either way both parties should have participated in that and they did not  industrial marine is not the last responsible employer mr horn did not make a claim against him just a marine mr horton say he was injured in dust from marine mr horton didn't testify that his back out worse while he was working in dust from marine mr horton fine fact that the folks in dust from marine took care of him horn's attorneys are here today to argue that industrial marine is not the last responsible employer the only reason industrial marine was a part of this action below is because specialty finish employed in dust from marine as the last responsible employer the l j and the benefits review board properly apply the law and said specialty finishes have the burden of proving it simply or case against industrial green specifically especially finishes have the burden of proving that mr horton's back was aggravated accelerated or combined with a nd injury at industrial marine and and and mr horton testified as back in get any worse it was about the same when he started some of his work exceeded the physical limitations and he tried to work beyond his capacity correct that does not establish an injury as a matter of law mr horton section c of the seven c of the administrative procedure act provides the proponent of a rule or order as the burden of proof there's no dispute that applies to this case and no speed applies to longer cases generally and always applies unless there's a statutory exception there's one such exception in the longshore act and that's that the claimant by alleging that he was injured on the job with a covered employer shifts the burden of proof to the unemployed or only  industrial marine nevertheless specialty finishes maintains that there was a simultaneous burden for industrial marine to disprove its liability this argument not supported by the law especially finishes w and likewise there's not a statute that shifted the burden of proof to disprove anything simultaneous or otherwise the a l j properly a pride apply this rule as the benefits review board and should be affirmed accordingly and i mean establish that they apply the law correctly then the question becomes was there substantial evidence in the record supporting a decision that specially finishes failed to meet that burden and there was specially finishes filled with her show factors that the l j was reasonable in considering in determining that yes the claimant had in fact suffered an aggravation course in k lyta the employee alleged he was injured at the latter employer and there was a medical level though on this record if the claimant had actually claimed against industrial marine the evidence certainly were yours to be certainly would have been sufficient to sustain a claim that industrial marine was the last responsible employer not necessarily because there still needs to be in order for the twenty a presumption to be to shift the burden of proof to nestor marine mr horton had a claim for that is filing a piece of paper yes the claim he was injured on the job and he didn't claim that he would have had to say when i suffered when i missed work periodic lee it was because this aggravated my back injury that correct in enough and he said the reverse didn't correct that's probably testify that he didn't hurt his back into shrimp you mean because he didn't he did testify that yes what the evidence does so the evidence doesn't show this aggravation of pain there's no medical evidence showing it's not like the metropolitan stevedoring case where there's doctors coming up talking about well there's mike you know microscopic damage to a need being done isn't like a lie to others three doctors saying that yes he's actually worsening because he's doing this difficult job there's none of that in this case there's just mr horton statement that he missed work if you work there's a work here and there because of his back pain but has the same back pain that he had before he started the job and that was his testimony so because the l j invent if it's review board correctly apply the law and because their decision was supported by substantial evidence especially finishes failed to meet its burden of proof and failed to show then just serene as a last responsible employer that it's below should be affirmed accordingly horton didn't feel he got hurt and i am all industrial moraine and he never went to a doctor for anything insurance company signal for specialty never sent him to a doctor for a medical evaluation  was no basis really for the judge to find any kind of an injury i am i and as this court question mr babcock you know if you hurt your back and you're not supposed to lift more than twenty pounds and you take a job well you have the fifty pounds and then your back hurts that's that's just shows that you're limited it doesn't show that you've worsened your back you would need some medical evidence that somehow the pain was worse or somehow a doctor felt that the back the  was worse but without that there's just no injury there's two ways of proving an injury one is complaints credible complaints of pain and mr horton never claimed that he hurt his back i am i  and the nd thing is medical evidence and there was no medical evidence that he hurt his back it that i am i feel for those reasons the nd injury the nd responsible employer last responsible employer role should even apply in this particular case thank you act won't permit apportionment the act you know among a series of employers last person in line picks up the whole bundle of liability and to have that occur to determine that we have that last responsible employer rule and the issue is what triggers it and does the fact that the claimant says hey i'm going to go only against the company i don't like that sound like a plausible reason and not go against the company i do like because that change the rules and we think it should not with respect to burdens our a p a burden i think is sat under section seven c where the proponent that somebody else should be liable our burden is to show those injuries that trigger the responsibility analysis we met that burden e p a had anything to do with the outcome as me thank you and i think all sides for the argument horton versus all kinds of energies somebody for decision and we'll take a ten minute break before we come back in here the last two cases