The Honorable Gary A. Fenner, United States District Judge 1

for the Western District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 96-3922

____________

Meehan Seaway Service Company, *

Employer, and Frank Gates/Acclaim, *

*

Petitioners, *

*

v. *

*

Director, Office of Workers’ * Review of Order of Benefits

Compensation Programs, United * Review Board

States Department of Labor, *

American Grain Trimmers, Inc., *

and Robert Hizinski, *

*

Respondents. *

__________

Submitted: June 9, 1997

 Filed: September 15, 1997 

__________

Before LOKEN and ROSS, Circuit Judges, and FENNER, District Judge. 1

__________

FENNER, District Judge.

Meehan Seaway Service Company (Meehan) petitions for review of an

order of the Benefits Review Board (BRB) of the Department of Labor

awarding benefits to Robert Hizinski on his claim arising under the

Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901

et seq.

Hizinski worked as a longshoreman in Duluth, Minnesota until October

14, 1989. On that date, Hizinski was employed by Meehan. His job on

October 14, 1989, was to carry 110 pound grain sacks 
2

across the uneven surface of other sacks as a vessel was being loaded. At

the end of his work day, Hizinski told his supervisor that his right knee

was giving him pain. Hizinski underwent knee surgery three months later

and has not worked since that time.

Hizinski sought benefits for his injured right knee under the LHWCA

pursuant to his amended claim which was filed on May 9, 1990. Hizinski

alleged two injuries to his right knee. Hizinski asserted a claim against

American Grain Trimmers (American) for injury to his right knee while

working for American on December 1, 1979, and a claim against Meehan for

injury while working for Meehan on October 14, 1989.

A hearing was held before an administrative law judge (ALJ). The ALJ

found that in 1979, Hizinski injured his left knee while working at

American and, therefore, American was not liable for the complaint of right

knee injury. The ALJ further found that Hizinski was entitled to the 33

U.S.C. § 920(a) presumption with regard to the causal nexus between his

right knee problems and his employment with Meehan. The ALJ further found

that rebuttal had not been established with regard to this condition. The

ALJ concluded that claimant was permanently totally disabled, as Meehan did

not establish the existence of suitable alternate employment, and awarded

benefits based on an average weekly wage of $186. Meehan appealed the

decision of the ALJ to the Benefits Review Board of the Department of Labor

which affirmed the decision of the ALJ.

STANDARD OF REVIEW

In LHWCA proceedings the BRB must accept the ALJ’s findings unless

they are contrary to the law or unsupported by substantial
3

evidence. Munguia v. Chevron U.S.A., Inc., 999 F.2d 808 (5th Cir.),

rehearing denied, 8 F.3d 24 (5th Cir. 1993), cert. denied, 114 S.Ct. 1839,

128 L.Ed.2d 466 (1994). On appeal from a decision of the BRB, the Court

of Appeals reviews the decision of the ALJ merely to determine that the BRB

adhered to the proper standard of review. Robinson v. Missouri Min. Co.,

955 F.2d 1181, 1183 (8th Cir. 1992). While appellate review of legal

conclusions is plenary, review of factual findings is limited. Brown v.

Director, OWCP, U.S. Dept. of Labor, 914 F.2d 156, 158 (8th Cir. 1990).

Factual findings of the ALJ are conclusive if supported by substantial

evidence in the record. Id.

SUFFICIENCY OF CLAIM AND NOTICE

On appeal Meehan argues that it was denied due process by the ALJ

awarding benefits on a theory that the claimant, Hizinski, did not assert.

Meehan argues that Hizinski was asserting a claim against it for a specific

trauma accident occurring on October 14, 1989, which the ALJ found did not

occur. Meehan argues that it was not given adequate notice to defend

against a claim of cumulative trauma or aggravation of pre-existing

condition which was the finding of the ALJ. Meehan argues further on this

point that by deciding Hizinski’s claim on a theory not presented, the ALJ

improperly failed to maintain a position of impartiality.

In conducting a hearing, the BRB is not bound by the technical or

formal rules of procedure except as provided in the LHWCA. Nothing within

the LHWCA makes the formal rules of procedure applicable. 33 U.S.C. §

923(a). However, 33 U.S.C. § 912(b) requires that the claimant timely give

the Deputy Commissioner and his employer notice of his injury, and provides

further that “[s]uch notice . . . shall contain . . . a statement of the

time, place, nature, and cause of the injury.” The claim, like the 
4

notice required by § 12 and like the pleadings required in any type of

litigation, serves the purposes of notifying the adverse party of the

allegations and of confining the issues to be tried and adjudicated. U.S.

Industries Federal Sheet Metal, Inc. v. Director, Office of Workers’

Compensation Programs, U.S. Dept. of Labor, 455 U.S. 608, 613 (1982).

The statement of the claim must be more than a mere declaration that

the employee has received an injury or is suffering from an illness that

is related to his employment; it must contain enough details about the

nature and extent of the injury or disease to allow the employer to conduct

a prompt and complete investigation of the claim so that no prejudice will

ensue. Id.

Citing Larson, The Law of Workmen’s Compensation, the Supreme Court

in U.S. Industries Federal Metal, Inc., noted that:

an informal substitute for a claim may be acceptable if it

“identif[ies] the claimant, indicate[s] that a compensable

injury has occurred, and convey[s] the idea that compensation

is expected.” [3A. Larson, The Law of Workmen’s Compensation],

§ 78.11, p 15-9; that “considerable liberality is usually shown

in allowing amendment of pleadings to correct . . . defects,”

unless the “effect is one of undue surprise or prejudice to the

opposing party,” id., p 15-11; and that “wide latitude is

allowed” as to variance between pleading and proof, “[b]ut if

the variance is so great that the defendant is prejudiced by

having to deal at the hearing with an injury entirely different

from the one pleaded, the variance may be held fatal,” id., at

15-13--15-14.

U.S. Industries Federal Sheet Metal, Inc., 455 U.S. at 613-14.

Hizinski’s claim notified Meehan that he was seeking benefits in

regard to injury to his right knee related to his employment. Hizinski

alleged that “[w]hile doing heavy hold work carrying wheat bags weighing

approximately 110 pounds and carrying them 5 to 20 feet at a time, employee

injured his knee.” Hizinski alleged in 
5

his complaint that the date of his injury was October 14, 1989. In his

deposition and at trial, Hizinski testified that his knee was injured on

October 14, 1989, when he stepped in a hole between bags of grain and

twisted his knee. Nonetheless, the ALJ determined that the evidence did

not support a finding of a specific accident as represented but rather that

the evidence supported a finding of cumulative trauma or aggravation of

preexisting injury. The BRB affirmed the decision of the ALJ.

Hizinski’s complaint notified Meehan that he had received an injury

to his right knee which he claimed was related to his employment.

Furthermore, Hizinski filed a Pretrial Stipulation in which he provided

notice to Meehan that he wished to reserve the right to claim that his knee

injury was in the nature of a “Gillette” injury or occupational disease.

The BRB defined a “Gillette” injury as a cumulative trauma injury under

state law. Additionally, three months prior to the hearing herein, counsel

for Hizinski sent a letter to the Department of Labor with a copy to the

claim representative for Meehan’s insurer stating that after having time

to consider the injury that the “work [Hizinski] did at Meehan (not the

accident he had) temporarily aggravated his knee condition.” At the

hearing, Hizinski testified that his knee condition became progressively

worse over the years. Hizinski notified the Department of Labor in 1985

that his knee was hurting him more and more. In 1986, Hizinski was

examined for increasing knee pain by two physicians and prescribed

medication. Hizinski’s treating physician after October 1989 reflected in

his notes that Hizinski was having continuing problems with his right knee.

The record reflects that Meehan was put on notice prior to the

hearing date that there was uncertainty as to the nature of Hizinski’s

injury with a possibility of cumulative trauma. Furthermore, there was

substantial evidence presented at the hearing to support the finding of the

ALJ. Meehan was not 
6

prejudiced by the lack of specificity as to the nature of the injury under

the circumstances presented here. The finding of the ALJ does not reflect

a lack of impartiality. Meehan’s challenge to the sufficiency of the claim

and lack of notice is denied.

SECTION 920(a) PRESUMPTION

Meehan argues on this point that Hizinski was not entitled to the

presumption that his claim was within the LHWCA as provided under 33 U.S.C.

§ 920(a) and that even if he was that the ALJ erred in finding that Meehan

failed to rebut the presumption.

Title 33 U.S.C. § 920(a) provides that in any proceeding for

enforcement of a claim for compensation under the LHWCA, it shall be

presumed that the claim comes within the provisions of the act. However,

this presumption does not apply to a claim that has never been made and is,

therefore, not properly before the ALJ. U.S. Industries Federal Sheet

Metal, Inc. v. Director, Office of Workers’ Compensation Programs, U.S.

Dept. of Labor, 455 U.S. at 612-13. Before the presumption will attach a

claimant must state a prima facie claim for compensation which must at

least allege an injury that arose in the course of employment as well as

out of employment. Id. at 615. Arising “out of” and “in the course of”

employment are separate elements: the former refers to injury causation;

the latter refers to the time, place, and circumstances of the injury. Id.

Not only must the injury have been caused by the employment, it also must

have arisen during the employment. Id. 

Meehan argues that Hizinski is not entitled to the Section 920(a)

presumption because he did not elect to proceed under a theory of

cumulative trauma and he did not present testimony of a degenerative

condition. As addressed above under Meehan’s 
7

challenge to the sufficiency of the claim, Hizinski did make a sufficient

claim for a degenerative condition or cumulative trauma and there was

substantial evidence to support the finding of the ALJ. Meehan’s claim

that Hizinski was not entitled to the § 920(a) presumption is denied.

Meehan argues further in regard to the Section 920(a) presumption

that the ALJ erred in finding that the presumption was not rebutted.

Meehan argues that once it presented evidence in opposition to the

presumption that the presumption vanished. Meehan cites Del Vecchio v.

Bowers, 296 U.S. 280 (1935) in support of its position. Del Vecchio does

not so hold.

Del Vecchio holds that if the only evidence presented is by the

employer and the evidence is contrary to the claim made, that the case must

be decided upon that evidence. Id. at 193. However, where the claimant

and the employer each offer substantial but conflicting evidence in support

of their respective positions, the determination of the ALJ as to the

weight of the evidence will not be disturbed. Id. at 193.

Meehan argues that there is substantial evidence in the record to

rebut the presumption. However, as previously addressed herein, Hizinski

also presented substantial evidence in support of his claim. The

credibility determinations and considerations of the ALJ as to the weight

of the evidence are not for our review. This court may not substitute its

judgment for that of the ALJ, see O’Keeffe v. Smith, Hinchman & Grylls

Assoc., Inc., 380 U.S. 359, 363 (1965).

Meehan’s argument that the ALJ erred in finding that it did not rebut

the Section 920(a) presumption is denied.
8

WAGE CALCULATION

Meehan argues that the ALJ erred in calculating Hizinski’s average

weekly wage pursuant to 33 U.S.C. § 910. Meehan argues that since

Hizinski’s 1989 tax return showed gross earnings of $5,287.05 that this

amount should have been divided by 52 in accordance with 33 U.S.C. § 910(d)

to arrive at an average weekly wage of $101.67.

Title 33 U.S.C. § 910 provides, in pertinent part, as follows:

Except as otherwise provided in this chapter, 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 year immediately preceding his injury, his average

annual earnings shall consist of three hundred times the

average daily wage or salary for a six-day worker and two

hundred and sixty 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.

(b) If the injured employee shall not have worked in such

employment during substantially the whole of such year, his

average annual earnings, if a six-day worker, shall consist of

three hundred times the average daily wage or salary, and, if

a five-day worker, two hundred and sixty times the average

daily wage or salary, which an employee of the same class

working substantially the (c) If either of the foregoing

methods of arriving at the average annual earnings of the

injured employee cannot reasonably and fairly be applied, such

average annual earnings of the injured employee in the

employment in which he was working at the time of the injury,

and of other employees of the same or most similar class

working in the same or most similar employment in the same or

neighboring locality, or other employment of such employee,

including the reasonable value of the services of the employee

if engaged in self-employment, shall reasonably represent the

annual earning capacity of the 
9

injured employee. whole of such immediately preceding year in

the same or in similar employment in the same or a neighboring

place shall have earned in such employment during the days when

so employed.

(d)(1) The average weekly wages of an employee shall be

one fifty-second part of his average annual earnings.

. . . .

Title 33 U.S.C. § 910(c) applies to intermittent and irregular

employment, when application of mathematical formulas provided in other

subsections of Section 910 would be unreasonable or unfair, or when

insufficient evidence is presented at hearing to permit proper application

of the other sections. Palacios v. Campbell Industries, 633 F.2d 840 (9th

Cir. 1980). The objective of § 910(c) is to arrive at a sum that

reasonably represents a claimant’s annual earning capacity at the time of

his injury. Empire United Stevedores v. Gatlin, 936 F.2d 819, 823 (5th

Cir. 1991). In determining earning capacity under Section 910(c), the

actual wages earned by the employee are not controlling. National Steel

& Shipbuilding Co. v. Bonner, 600 F.2d 1288, 1292 (9th Cir. 1979).

Furthermore, in reviewing rulings of the BRB, which affirmed the ALJ here,

this court generally must defer to the Board 

in its fact-finding capacity, id., citing O’Leary v. Brown-Pacific-Maxon,

Inc., 340 U.S. 50 (1951), as well as in its role as interpreter of the Act.

Id. 

In calculating Hizinski’s average weekly wage under section 910(c),

the ALJ credited Hizinski’s deposition testimony that he worked 116 days

in 1984, 57 days in 1985, 129 days in 1986, 39 days in 1987, and 88 days

in 1988. The ALJ then noted that Hizinski’s tax return for 1989 reflects

that he earned $5,287.05, which when divided by 43 days worked, would yield

a $122.95 daily wage. The 
10

ALJ then multiplied the $122.95 daily wage figure by the number of days

claimant worked during each of the preceding 5 years, and determined that

claimant had average annual earnings for 1984 through 1989 of $9,675. The

ALJ then divided this figure by 52 under section 910(d)(1), to obtain an

average weekly wage of $186. 

An ALJ may calculate average annual earnings under section 910(c)

based on a claimant’s earning pattern over a period of years prior to the

injury, where, as in the case at bar, all of the years within that period

are taken into account. See Empire United Stevedores v. Gatlin, 936 F.2d

819, 823 (5th Cir. 1991). The calculation by the ALJ of claimant’s average

weekly wage was reasonable, supported by substantial evidence, and

consistent with the goal of arriving at a sum which reasonably represents

claimant’s annual earnings at the time of his injury. The calculation

reasonably took into consideration the number of days that Hizinski

averaged per year as a longshoreman and determined an average weekly wage

based upon his current daily wage. This method of calculation was not

unreasonable. The ALJ did not err in calculating Hizinski’s average

weekly wage.

PERMANENT TOTAL DISABILITY

Meehan argues under this point that Hizinski was not entitled to

permanent total disability because it established that there were jobs

available for Hizinski. A claimant for disability benefits under the LHWCA

establishes a prima facie case for total disability by demonstrating his

inability to return to his former employ. See v. Washington Metropolitan

Area Transit Authority, 36 F.3d 375, 380 (4th Cir. 1994). The burden then

shifts to the employer to rebut disability by proving suitable alternative

employment available upon a reasonably diligent search by the 
11

claimant. Id. An employer may satisfy this burden by proving that the

injured employee retains the capacity to earn wages in regular, continuous

employment. Id. Relevant factors in this inquiry include the claimant’s

age, background, employment history and experience, and intellectual and

physical capabilities, and the reasonable availability of jobs in the

community for which the claimant is able to compete and which he could

realistically and likely secure. Id. 

“[I]n order to defeat a claim for benefits as a result of an alleged

permanent total disability, the burden is on the employer to prove the

existence of a suitable job presently available to the claimant in the

community in which he lives.” Haughton Elevator Co. v. Lewis, 572 F.2d

447, 451 (4th Cir. 1978) and Godfrey v. Henderson, 222 F.2d 845, 849 (5th

Cir. 1955). 

Hizinski established that he was not able to return to his job as a

longshoreman. The parties then presented conflicting evidence from

vocational experts. Hizinski’s vocational expert opined that there was no

work in the local economy that Hizinski could perform and the ALJ found

this evidence to be most credible. Meehan has not shown reversible error

by the ALJ in evaluating the conflicting evidence and making credibility

determinations.

DELAY IN APPEAL PROCESS

As its final allegation of error, Meehan argues that the delay of

over four years from the filing of its notice of appeal from the decision

of the ALJ to the issuance of the decision and order of the BRB was

unreasonable and a denial of due process.

At some point a delay in the opportunity for administrative and

judicial review can amount to a denial of due process. See 
12

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985). However,

a reasonable delay does not amount to a denial of due process. See, id.

In the case at bar, the delay was not unreasonable. Part of the

delay of which Meehan complains was as a result of Meehan’s prior appeal

to this court of the BRB’s denial of a Motion for Stay. Additionally,

records were lost in transmission by the BRB which caused the records to

have to be reconstructed thereby slowing the process. Meehan’s argument

of denial of due process by the delay before the BRB is without merit.

The judgment of the BRB is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.