UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SEACO, INCORPORATED; SIGNAL

MUTUAL INDEMNITY ASSOCIATION,

Petitioners,

v.

No. 96-2685

VERNON L. RAVENELL; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(94-284)

Submitted: May 15, 1997

Decided: June 4, 1997

Before RUSSELL, HALL, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stephen E. Darling, SINKLER & BOYD, P.A., Charleston, South

Carolina, for Petitioners. Carl H. Jacobson, URICCHIO, HOWE,

KRELL, JACOBSON, TOPOREK & THEOS, P.A., Charleston,

South Carolina, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Respondent Vernon Ravenell, a longshoreman, injured his shoulder

at work. An Administrative Law Judge ("ALJ") awarded benefits, and

Petitioners appealed to the Benefits Review Board ("the Board").

Since the Board failed to resolve the appeal (which had been pending

for over one year) before September 12, 1996, the ALJ's decision was

considered affirmed by the Board on that date for purposes of obtaining judicial review. See Omnibus Appropriations for 1996, Pub. L.

No. 104-134, § 101(d), 110 Stat. 1321-219 (Apr. 26, 1996). In their

timely petition for review in this court, Petitioners challenge whether

substantial evidence supported the ALJ's determination that Ravenell

could not return to longshore work and his calculation of permanent

partial disability benefits. Because substantial evidence supported the

ALJ's decision, we affirm.

The record discloses that Ravenell's treating physician expressly

disapproved of a longshore position identified by Petitioners' vocational expert. The doctor also restricted Ravenell to lifting less than

fifty pounds and from working over his head, both of which are

required for longshore work. In addition, there was evidence that

Ravenell did not feel he could perform longshore work. Petitioners

presented no evidence in rebuttal. Therefore, we find substantial evidence supported the ALJ's conclusion that Ravenell could not return

to longshore work.

We further find that there was substantial evidence to support the

ALJ's calculation of permanent partial disability benefits. Earnings

statements presented by Ravenell showed that he earned approximately $7.00 per hour prior to his injury. While Petitioners are correct

in their claim that Ravenell stated that he thought he would make

more annually after the injury than he did before, this was only a

guess since he had not yet received any W-2 forms for the year in

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question. Nevertheless, we find that the ALJ properly determined that

recovery was based on capacity to earn; not actual earnings. See

Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540,

543 (4th Cir. 1988). Petitioners' expert presented evidence of a variety of jobs Ravenell could perform within his doctor's restrictions.

These jobs had a wide salary range, and we find that the ALJ's determination that Ravenell's earning capacity was $5.75 per hour fell

within this range.

Accordingly, we affirm the ALJ's order and the summary affirmance of the Board. We dispense with oral argument because the

facts and legal contentions are adequately presented in the material

before the court and argument would not aid the decisional process.

AFFIRMED

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