### 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 a n order of the Benefits Review Board (BRB) of the Department of Labo r awarding benefits to Robert Hizinski on his claim arising under th e Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq . Hizinski worked as a longshoreman inDuluth, Minnesota until October 14, 1989. On that date, Hizinski was employed by Meehan. His job o n October 14, 1989, was to carry 110 pound grain sacks

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across the uneven surface of other sacks as a ve ssel was being loaded. At the end of his work d ay, 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 pursuan t to his amended claim which was filed on May 9, 1990. Hizinsk i alleged two injuries to his right knee. Hizinsk i asserted a claim against America n Grain Trimmers (American) for injury to his right knee whil e 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). T he ALJ found tha t in 1979, Hizinski injured his left knee while working a t American and, therefore, American was not liable for the complaint of righ t 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 hi s right knee problems and his employment with Meeh an. The ALJ further found that rebuttal had not been established with rega rd to this condition. The ALJ concluded that claimant was permanently totally disabled, as Meehan di d not establish the exi stence of suitable alternate employment, and awarded benefits based on an average weekly wage of $186. Meehan appealed th e decision of the ALJ to the Benefits Review Board of the Department of Labo r which affirmed the decision of the ALJ.

STANDARD OF REVIEW

In LHWCAproceedings the BRB must accept the ALJ’s findings unles s they are contrary to the law or unsupported by substantial

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evid ence. Munguia v. Chevron U.S.A., Inc. , 999 F.2d 808 (5th Cir.) , rehearing denied, 8 F.3d 24 (5th Cir. 1993), cer t. 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 BR B adhered to the proper standard of review. Robinson v. Missouri Min. Co. , 955 F.2d 1181, 1183 (8th Cir. 1992) . While appellate review of lega l 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 substantia l evidence in the record. Id .

SUFFICIENCY OF CLAIM AND NOTICE

On appeal Meehan argues that it was denied due process by the AL J awarding benefits on a theory that the claimant, Hizinski, did not assert. Meehan argues that Hizinski was asserting a claim against it for a specifi c trauma accident occurring on October 14, 1989, which the ALJ found did not
occ ur. Meehan argues that it was not given adequate notice to defen d agains t a claim of cumulative trauma or aggravation of pre-existin g condition which was the finding of the ALJ. Mee han argues further on this point that by deciding Hizinski’s claim on a the ory not presented, the ALJ improperly failed to maintain a position of impartiality.

In conduc ting a hearing, the BRB is not bound by the technical o r formal rules of proce dure 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 giv e the Deputy Commissioner and his employer notice of his injury, and provide s further that “[s]uch notice . . . shall contain . . . a statement of the time, place, nature, and cause of the injury.” The claim, like the

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notice r equired by § 12 and like the pleadings required in any type o f litigat ion, serves the purposes of notifying the adverse party of th e allegations and of confining the issues to be tr ied and adjudicated. U.S. Indust ries 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 m ore than a mere declaration that the employee has received an injury or is suffering from an illness that is re lated to his employment; it must contain enough details about th e nature and extent of the injury or disease to allow the employer to conduc t a prompt and complete investigation of the claim so that no prejudice will
ensue. Id . Citing La rson, The Law of Workmen’s Compensation, the Supreme Court in U.S. Industries Federal Metal, Inc. , noted that:
an i nformal substitute for a claim may be acceptable if i t “identif[ies] the claimant, indicate[s] that a compensabl e injuryhas occurred, and convey[s] the idea that compensation is expected.” [3A. Larso n, The Law of Workmen’s Compensation], § 78.11, p 15-9; that “considerable liberality is u sually shown in allowing amendment of pleadings to correct . . . defects,” unless the “effect is one of undue surprise or prej udice to the opp osing party,” id. , p 15-11; and that “wide latitude i s allowed” as to variance between pleading and proof, “[b]ut if the variance is so great that the defendant is prejudiced b y having to deal at the hearing with an injury entire ly different from the one pleaded, th e 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 i n regard to injury to his right knee related to his employment. Hizinsk i 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, employe e injured his knee.” Hizinski alleged in

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his c omplaint that the date of his injury was October 14, 1989. In hi s deposition and at trial, Hizinski testified that his knee was injured on October 1 4, 1989, when he stepped in a hole between bags of grain an d twisted his knee. Nonetheless, the ALJ determined that the evidence did not support a finding of a specific accident as represented but rather tha t the evidence supported a finding of cumulative trauma or aggravation o f preexisting injury. The BRB affirmed the decision of the ALJ.

Hizinski’ s complaint notified Meehan that he had received an injury to his r ight knee which he claimed was related to his employment
. Furthe rmore, Hizinski filed a Pretrial Stipulation in which he provide d notice to Meehan that he wished to reserve the right to claim that his kne e injurywas in the nature of a “Gillette” injury or occupational disease. The BRB defined a “Gillette” injury as a cumulative trauma injury unde r state law. Additionally, three months prior to the hearing herein, counse l for Hizinski sent a letter to the Department of Labor with a copy to the claimrepresentative for Meehan’s insurer stating that after having time to consid er the injury that the “work [Hizinski] did at Meehan (not th e acci dent he had) temporarily aggravated his knee condition.” At th e hearing, Hizinski testified that his knee condition became progressively
worse over the years. Hizinski notified the Department of Labor in 1985 that his kn ee was hurting him more and more. In 1986, Hizinski wa s examin ed for increasing knee pain by two physicians and prescribe d medication. Hizinski’s treating physician after October 1989 reflected in his notes that Hizinski was having continuing problems with his right knee
. The r ecord reflects that Meehan was put on notice prior to th e heari ng date that there was uncertainty as to the nature of Hizinski’ s inj urywith a possibility of cumulative trauma. Furthermore, there wa s substantial evidence presented at the hearing to support the finding of th e ALJ. Meehan was not

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prejudiced by the lack of specificity as to the nature of the injury under the circumstances presented here. The finding o f the ALJ does not reflect
a lack of impartiality. Meehan’s challenge to the sufficiency of the clai m and lack of notice is denied.
SECTION 920(a) PRESUMPTION

Meehan argues on this point that Hizinski was not entitled to th e 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 er red in finding that Meehan failed to rebut the presumption.

Title 33 U.S.C. § 920(a) provides that in any proceeding fo r enfo rcement of a claim for compensation under the LHWCA, it shall b e presumed that the cla im 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 Shee t 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 claim ant must state a prima facie claim for compensation which must a t 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 inj ury have been caused by the employment, it also must have arisen during the employment. Id
.
Meeha nargues that Hizinski is not entitled to the Section 920(a ) presumpt ionbecause he did not elect to proceed under a theory o f
cumu lative trauma and he did not present testimony of a degenerativ e condition. As addressed above under Meehan’s

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challenge to the suff iciency of the claim, Hizinski did make a sufficient claimf or a degenerative condition or cumulative trauma and there wa s substantial evidence to support the finding of the ALJ. Meehan’s clai m that Hizinski was not entitled to the § 920(a) presumption is denied.

Meehan argues further in regard to the Section 920(a) presumptio n that the ALJ erred in finding that the presumption was not rebutted
. Meehan a rgues that once it presented evidence in opposition to th e pre sumptionthat the presumption vanished. Meehan cites Del Vecchio v . Bowers , 296 U.S. 280 (1935) in support of its position. Del Vecchiodoes not so hold.

Del Vecchioholds that if the only evidence presented is by th e employer and the evidence is contrary to the claim made, that the case mus t be decided upon that evidence. Id . at 193. However, where the claimant and the employer each offer substantial but conflicting evidence in suppor t of their r espective positions, the determination of the ALJ as to th e weight of the evidence will not be disturbed. Id . at 193
.
Meeha nargues that there is substantial evidence in the record t o rebut the presumption . However, as previously addressed herein, Hizinski also presented substantial evidence in support of his claim. Th e credibility determina tions and considerations of the ALJ as to the weight of the evidence are not for our review. This co urt may not substitute its judgment for that of the ALJ, see O’Keeffe v. Smith, Hinchman & Gryll s 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 averag e weeklywage pursuant to 33 U.S.C. § 910. Meehan argues that sinc e Hiz inski’s 1989 tax return showed gross earnings of $5,287.05 that thi s 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 ch apter, the average weeklywage of the injured employee at the time of the injury shall be taken as the ba sis upon which to compute compensation and shall be determined as follows: (a) If the injured employee shall have worked in th e 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 an nual earnings shall consist of three hundred times th e average daily wage or salary for a six-day worker and tw o hundred and sixty times the average daily wage or salary for a five-day worker, which h e shall have earned in such employment during the days when so employed. (b) If the injured employee shall not h ave worked in such employment during substantially the whole of such year, hi s average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a f ive-day worker, two hundred and sixty times the averag e daily wage or salary, which an employee of the same clas s wo rking substantially the (c) If either of the foregoin g met hods of arriving at the average annual earnings of th e injured employee cannot reasonably and fairly be applied, such average annual earnings of the injured employee in th e employment in which he was working at the time of the injury, and of o ther employees of the same or most similar clas s 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 e mployment in the same or a neighboring place shall have earned in such employment during t he days when so employed.

(d)(1) The average weekly wages of an employee shall b e one fifty-second part of his average annual earnings.

. . . .
Title 33 U.S.C. § 910(c) applies to intermittent and irregula r employment, when application of mathematical formulas provided in othe r subsections of Section 910 would be unreasonable or unfair, or whe n 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 tha t reasonably represents a claimant’s annual earning capacity at the time of his injur y. Empire United Stevedores v. Gatlin , 936 F.2d 819, 823 (5t h Cir. 1991) . In determining earning capacity under Section 910(c), th e 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, wh ich affirmed the ALJ here, this court generally must defer to the Board in its fact-finding c apacity, 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 calcul ating 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 the n noted that Hizinski’s tax return for 1989 reflects that he earned $5,287.05, which when divided by 43 days worked, would yiel d a $122.95 daily wage. The

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ALJ then multiplied the $122.95 daily wage figure by the number of day s claimant worked durin g each of the preceding 5 years, and determined that claimant had average annual earnings for 1984 th rough 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 accoun t. See Empire United Stevedores v. Gatlin , 936 F.2d 819, 823 (5th Cir. 1991) . The calculation by the ALJ of claimant’s averag e weeklywage was reasonable, supported by substantial evidence, an d consistent with the g oal of arriving at a sum which reasonably represents claim ant’s annual earnings at the time of his injury. The calculatio n reason ablytook into consideration the number of days that Hizinsk i averaged per year as a longshoreman and determined an average weekly wage based upon his current daily wage. This method of calculation was no t unreasonab le. The ALJ did not err in calculating Hizinski’s averag e weekly wage.

PERMANENT TOTAL DISABILITY

Me ehanargues under this point that Hizinski was not entitled t o perman ent total disability because it established that there were job s available for Hizinski. A claimant for disability benefits under the LHWC A establishes a prima facie case for total disability by demonstrating his inability to return t o his former employ. See v. Washington Metropolitan Area Transit Authority , 36 F.3d 375, 380 (4th Ci r. 1994) . The burden then shifts to the employer to rebut disability by pr oving suitable alternative employment available upon a reasonably diligent search by the

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claiman t. Id . An employer may satisfy this burden by proving that th e injured employee retains the capacity to earn wa ges in regular, continuous employment. Id . Rel evant factors in this inquiry include the claimant’s age, background, employment history and experience, and intellectual and physic al capabilities, and the reasonable availability of jobs in th e communityfor which the claimant is able to compete and which he coul d realistically and likely secure. Id
. “[I]n order to defeat a claim for be nefits as a result of an alleged perma nent total disability, the burden is on the employer to prove th e exist ence of a suitable job presently available to the claimant in th e community

in which he lives.” Haughton Elevator Co. v. Lewis , 572 F.2 d 447, 451 (4th Cir. 19 78) 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 longs horeman. The parties then presented conflicting evidence fro m vocational experts. Hizinski’s vocational exper t opined that there was no work in t he local economy that Hizinski could perform and the ALJ foun d this evidence to be m ost credible. Meehan has not shown reversible error bythe 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 o f 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 wa s unreasonable and a denial of due process.

At some p oint a delay in the opportunity for administrative an d judicial review can amount to a denial of due process. See

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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 th e delayof 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.