* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60651

(Summary Calendar)

 

JACK R. BAGGETT,

Petitioner, 

versus

AVONDALE SHIPYARDS, INC.,

Respondents,

AND

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR

 __________________________________________________

Appeal from the United States Department of Labor 

Benefits Review Board

(95-1381)

___________________________________________________

April 23, 1997

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

The 18th of October of this year will mark the fifteenth

anniversary of the injury to the little finger on the left hand of
2

Petitioner-Appellant Jack R. Baggett from which this litigation

arose. He is before us today seeking review of the most recent

act——more accurately, failure to act——of the Benefits Review Board

(BRB) in his Longshore and Harbor Workers Compensation Act (LHWCA)

proceedings, which have been bouncing around the administrative

fora, back and forth between the administrative law judge (ALJ) and

the BRB, for well over a decade. The last actual hearing in this

case was the Formal Hearing on Remand before the ALJ in June 1994,

which resulted in the ALJ’s issuing his Decision and Order Remand

in March 1995. Although Baggett appealed that ruling to the BRB,

no determination was forthcoming within a year. As a result,

Baggett’s case became ripe for the filing of a Petition for Review

in this court, the passage of a year without a BRB decision being

deemed an affirmance and final order for purposes of seeking review

in the proper court of appeals.

We have carefully reviewed the record before us, consisting of

the briefs of the parties and their record excerpts, and have

considered the facts, the myriad rulings of the ALJ and the BRB,

the law as presented to us in the briefs of the parties, and the

arguments by their able counsel. This review satisfies us that the

rulings of which Baggett seeks review are supported by substantial

evidence and were rendered in accordance with law, and therefore

must be affirmed.

We can best summarize this case as it now stands by

paraphrasing the description penned by counsel for Respondent-
3

Appellee Avondale Shipyards, Inc. in the Conclusion section of

Avondale’s appellate brief, as follows:

Avondale established suitable alternative employment for

Baggett with the job offer it made to him, which was both

necessary and within his capabilities. As such, Baggett,

is not permanently totally disabled. The BRB’s remand

for consideration of the medical testimony and gate guard

salaries was proper under the appropriate powers.

Baggett’s loss of earning capacity for his arm or

“scheduled” injury cannot be factored out of his

“unscheduled” award, so Dual Benefits are not allowed.

Baggett’s failure to raise the issue of disfigurement

before the ALJ prevents his entitlement to compensation

for it and thus cannot be considered on appeal. And, as

Baggett has received no economic benefit since the ALJ’s

Order on Reconsideration, his counsel is not entitled to

attorney’s fees.

Concluding that Baggett has not met his burden regarding the

issues he would have us consider on appeal, we are constrained to

affirm the decisions of the ALJ and the BRB. Consequently,

Baggett’s Petition for Review is

DENIED.