UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60754

MATTHEW HALL,

Petitioner,

VERSUS

CONSOLIDATED EMPLOYMENT SYSTEMS, INC.;

WAUSAU INSURANCE COMPANIES; DIRECTOR,

OFFICE OF WORKER’S COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the

Benefits Review Board

United States Department of Labor

April 24, 1998

Before GARWOOD, DUHÉ, and DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

Appellant, Matthew Hall (“Hall”), appeals the order of the Benefits Review Board (“Board”) affirming the

Administrative Law Judge’s (“ALJ”) award of compensation under the Longshore and Harbor Workers’

Compensation Act, 33 U.S.C. § 901, et seq. We affirm, finding that the Board’s order is supported by substantial

evidence and is in accordance with the law.

I. FACTS

In early 1991, Hall began working for Consoli dated Employ ment Sy stems, Inc. (“CESI”) as a painter and

sandblaster. CESI, now defunct, was a temporary employment agency that provided its clients with sandblasters,

painters, and other unskille d laborers. Hall’s first and only job assignment began at Equitable Shipy ard in New

Orleans, Louisiana. Trinity Marine, a client of CESI, owned the shipy ard and utilized it for cleaning and repairing

barges and other vessels.

On March 13, 1991, in hi s second month on the job, Hall fell from a scaffold that a coworker had

inadvertently bumped. He landed on the ground ten to fifteen feet below, sustaining injuries to his right knee, leg, and

hip. Hall was twenty-seven years old at the time.1 

### The ALJ found that Hall complained of back pain for the

first time while being treated by Dr. Murphy.

2 After the fall, Hall was promptly taken to a local hospital where he was treated and discharged. The next day,

Hall reported to a medical clinic for additional treatment where he was examined by Dr. Robert Segura (“Dr. Segura”).

Over the course of the next three weeks, Hall was examined at the clinic on five separate occasions by several different

physicians. Dr. Segura ultimately concluded that Hall had suffered a “soft tissue injury” resembling a sprain, which

had resulted in no permanent disability . Hall was released for regular work duty on March 26, 1991.

Hall subsequently complained that continued discomfort from his injuries prevented him from returning to

work. Dr. Segura then referred Hall to Dr. George Murphy (“Dr. Murphy ”), an orthopedist, who treated Hall on a

routine basis from April 9, 1991 through July 21, 1992. Over the next fifteen months, Hall repeatedly complained of

pain emanating from his knee, hip, and back. 1 Dr. Murphy examined Hall on nineteen separate occasions and

performed a battery of tests. He found that Hall had suffered a sprained knee and a possible bone contusion, which had

both since healed. Dr. Murphy also diagnosed Hall with a possible tear of his meniscus, although he concluded that

the tear, if any, was too slight to destabilize the knee. Although Dr. Murphy detected an asymmetrical disc in Hall’s

spine, he concluded that the condition was not degenerative and did not limit Hall’s activities. Dr. Murphy released

Hall for regular work duty on January 2, 1992. The doctor also determined that Hall had reached maximum medical

improvement as of that date.

On the advice of his attorney, Hall sought the expertise of another doctor, Dr. Harry Hoerner ("Dr. Hoerner"),

who was an orthopedist. Dr. Hoerner examined Hall on three occasions between September 24, 1992 and May 20,

1993. Dr. Hoerner concluded that Hall had suffered a “very tiny tear” in his meniscus that did not require treatment.

Dr. Hoerner also found two abnormal disks in Hall’s back. The back condition prompted the doctor to restrict Hall

from engaging in heavy work, although he did not restrict Hall from other types of work. Dr. Hoerner concluded that

Hall had reached maximum medical improvement on September 24, 1992, the date Dr. Hoerner first examined Hall.

From March 14, 1991 through January 29, 1992, CESI voluntarily paid Hall disability compensation. When

the payments ceased, Hall filed a claim with the United States Department of Labor under the Longshore and Harbor

Workers’ Compensation Act (“LHWCA”). A formal hearing was held before an administrative law judge on December

6, 1993. On January 27, 1995, the ALJ issued a decision and order awarding Hall temporary disability benefits based

on an average weekly wage of $41.09. As the ALJ found that Hall had reached maximum medical improvement on

January 2, 1992, the ALJ ordered that Hall receive compensation for the period of time between March 13, 1991, the

date of his injury, and January 2. The ALJ also ordered CESI to reimburse Hall for his medical expenses, excluding

those associated with Dr. Hoerner.

Hall appealed the ALJ’s decision to the Benefits Review Board. On September 12, 1996, in accordance with2 The Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321,

provides that the United States Department of Labor is prohibited from using appropriated funds after September 12,

1996, to review cases that have been pending for the Benefits Review Board more than a year as of that date. Those

pending for such time and not acted upon are required to be considered affirmed and final on September 12, 1996,

for purposes of judicial review.

3 the Om nibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321

(“Appropriations Act” or “Act”), the Board automatically affirmed the ALJ’s decision, without argument, as Hall’s

petition had been pending before the Board for more than one year. 2 Hall appeals to this Court pursuant to § 921(c)

of the LHWCA. 33 U.S.C. § 921(c). The Director, Office of Workers’ Compensation Programs, United States

Department of Labor (“Director”), joins in the appeal.

II. DISCUSSION

This Court must affirm the ALJ's decision if it is in accordance with the law, is rational, and is supported by

substantial evidence. S ee Mijangos v. Avondale Shipyards, Inc.

, 948 F .2d 941, 944 (5th Cir. 1991). Substantial

evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." P ierce v. Underwood

,

487 U.S. 552, 565 (1988) (quotations omitted). The requirement of substantial evidence “is less demanding than that

of preponderance of the evidence, and the ALJ’s decision need not constitute the sole inference that can be drawn from

the facts.” New Thoughts Finishing Co. v. Chilton , 118 F.3d 1028, 1030 (5th Cir. 1997).

A.

Hall contends that the provisions of the Appropriations Act that automatically affirmed the ALJ’s decision

violate his right to due process. He maintains that he acquired a vested right to Board review the moment he filed his

workers’ compensation claim, and that the retroactive application of the Act to his petition wrongfully deprived him

of that right. Hall, who points to no specific authority for this proposition, attempts to draw support from the general

principle that “retroactivity is not favored in the law.” B owen v. Georgetown Univ. Hosp.

, 488 U.S. 204, 208 (1988).

He further argues that while “Congress has the power to place the Boar d’s limited function anywhere it chooses,”

Kalaris v. Donovan

, 697 F.2d 376, 388 (D.C. Cir.), cert. denied

, 462 U.S. 1119 (1983), it lacks the authority to remove

one full level of review. Hall’s argument is foreclosed by circuit precedent.

In Shell Offshore, Inc. v. Director, OWCP

, 122 F.3d 312, 315 (5th Cir. 1997), we affirmed the

constitutionality of the Appropriations Act as it bears on a petitioner’s right to due process under the Fifth Amendment.

In that case, we explained that “the essential element of due process is the right to notice and an opportunity to be heard

at a meaningful time and in a meaningful manner.” S hell Offshore

, 122 F.3d at 315 (quoting Eldridge

, 424 U.S. 319,

333 (1976)) (internal quotation marks omitted). Due process was not violated in S hell Offshore

, and is not in jeopardy3 Section 910 provides in pertinent part:

Except as otherwise provided in this Act, the average weekly wage of the injured

employee at the time of the injury shall be taken as the basis up on 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 o f the injury , whether for the same or another

employer, during substantially the whole of the year immediat ely preceding his

injury, his a verage 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

substant ially the whole of such y ear, 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 in similar employment in the same

or a neighboring place shall have earned in such employ ment during the day s when so employed.

(c) If eith er of the foregoing methods of arriving at the average annual

earnings of the injured empl oyee can not reasonably and fairly be applied, such

average annual earnings shall

be such sum as, having regard to the previous 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 s a me or neighboring locality, or other employment of such

employee, including the reasonable value of the services of t h e employee if

engaged in

self-employme nt, shall reasonably represent the annual earning capacity of the

injured employee.

33 U.S.C. § 910(a)-(c).

4 here, because a claimant who loses board review under the Act is nonetheless afforded “not only . . . a full predeprivation, trial -type hearing before the ALJ, [but] also . . . a post-deprivation hearing in the Circuit Courts of

Appeals.” Id. Accordingly, we reject Hall’s due process challenge.

B.

Hall next argues that the ALJ erred by calculating his disability award based on an average weekly wage of

$41.09. According to Hall, the error resulted from the ALJ’s decision to calculate his award under § 910(c) of the

LHWCA, instead of § 910(b). The Director likewise contends that the ALJ erred in determining Hall’s average weekly

wage.

Under the LHWCA, disability compensation is based on the injured worker’s average weekly wage. 33 U.S.C.

§ 910. Section 910 of the Act provides three different methods for calculating an average weekly wage: Sections

910(a), (b), and (c). 3 Id. ; see SGS Control Servs. v. Director, OWCP , 86 F.3d 438, 441 (5th Cir. 1996).

Section 910(a) applies in cases where the injured claimant “worked in the employ ment in which he was5

working at the time of the injury

. . . during substantially the whole of the year immediately preceding his injury .” I d.

§ 910(a). Section 910(a) computes an average weekly wage based on the claimant’s actual employment history. I d.

The parties correctly agree that § 910(a) is not applicable to our facts.

Section 910(b) provides that if th e employee has not worked substantially all of the preceding year in the

employment in which he was working at the time of injury, his average weekly wage is based on the empl oyment

history of a typical worker in similar employment and in the same locality. I d. § 910(b). Section 910(b) is generally

used when the injured worker has had too little time on the job to allow an accurate determination of his wages.

Section 910(c) governs when the first two methods cannot “reasonably and fairly be applied.” I d. § 910(c);

Empire United Stevedores v. Gatlin , 936 F.2d 819, 822 (5th Cir. 1991). This ty pically occurs when the claimant’s

work is “inherently discontinuous or inter mittent, . . . and when ‘otherwise harsh results’ would follow were an

employee’s wages invariably calculated simply by looking at the previous year’s earnings.” E mpire United Stevedores

,

936 F.2d at 822. In contrast to §§ 910(a) and (b), § 910(c) does not impose a time limitation on the weekly wage

determination. S ee 33 U.S.C. § 910(c); Empire United Stevedores

, 936 F.2d at 822. Thus, the time period used to

assess the claimant’s weekly wage “is not limited to the 52 weeks immediately preceding the injury, but includes all

of the employee’s relevant work experience.” Empire United Stevedores , 936 F.2d at 823.

In challenging the ALJ’s application of § 910(c), Hall and the Director allege that § 910(b) is the governing

provision because Hall’s employ ment was not intermittent or discontinuous. Hall and the Director point to evidence

that Hall’s foreman at the shipy ard, Haroun Kahn (“Kahn”), told Hall that he would be hired on a permanent basis by

Trinity Marine. We are not persuaded.

It is true that at the administrative hearing Kahn admitted to promising Hall permanent employ ment. But

there is some question as to whether that promise would have in fact come to fruition. Evidence was presented that

Kahn did not have the authority to hire Hall. The record reflects that Hall would not have been hired until he had been

evaluated for a longe r period of time. Kahn’s promise, standing alone, falls far short from establishing that Hall’s

employment with CESI would have lead to permanent employment with Trinity Marine.

Another flaw in Hall’s argument is that the evidentiary significance of Kahn’s promise is substantially

outweighed by other evidence that Hall’s employment was inherently unpredictable. The parties do not dispute that

CESI was an employment agency which, by nature, provided temporary labor to its employees. The record reflects that

CESI’s employees were employed on a contract-by-contract basis. Once a particular job ended, their employment with

CESI ceased. There is evidence that the turnover rate at CESI was extreme; over the course of just one year, CESI was

required to issue between 5,000 and 6,000 W-2 tax forms even though its weekly work force consisted of only 350 to

400 employees.

Of course, this evidence speaks on ly to employ ment with CESI generally , and not to Hall’s particular6

circumstances of employment. As such, we reviewed the record for evidence regarding Hall’s employmen t as a

sandblaster. We found no evidence regarding how long sandblasters usually worked at the shipyard on one job, or what

percentage of sandblasters were eventually retained by Trinity Marine. The only evidence on this point showed there

was no typical time frame for sandblasting jobs; some lasted weeks, some lasted months. Similarly , there was no

evidence regarding how long Hall’s particular job at the shipyard was scheduled to last.

In short, while there is some evidence that Hall’s position would have potentially lead to permanent

employment, there is countervailing evidence of a greater quantum that his employment was intermittent and

discontinuous. Hence, we cannot say that the ALJ’s finding is not supported by sufficien t evidence. “The ALJ is

entitled to deference and his selection of reaso nable conflicting factual inferences is conclusive on the Board if

supported by the evidence and not inconsistent with the law.” New Orleans (Gulfwide) Stevedores v. Turner , 661 F.2d

1031, 1037 (5th Cir. Unit A Nov. 1981).

A final reason for rejecting Hall’s argument is that Hall failed to present the ALJ with any evidence regarding

the wages of other similarly situated sandblasters. That failure is fatal to Hall’s claim because § 910(b) expressly

requires evidence regarding the earnings “of an employee of the same class working in similar employment in the same

or a neighboring place.” 33 U.S.C. § 910(b). Accordingly, without evidence of what other sandblasters were earning

at the time of Hall’s injury, the ALJ could not reasonably use § 910(b) to calculate Hall’s average weekly wage.

Hall and the Director also argue that even if § 910(c) is the appropriate provision, the ALJ erred by basing

Hall’s average weekly wage solely on Hall’s earnings during the eight years prior to his employment with CESI. They

allege that the ALJ was required to calculate his average weekly wage in accordance with his earnings at the time he

was injured, roughly $305 a week. Although this claim carries some force, it does not carry the day.

We have he l d that when an ALJ determines a claimant’s average weekly wage by considering his earning

history over a period of y ears, the ALJ “must take into account the earnings of all the y ears within that period.”

Empire United Stevedores

, 936 F.2d at 822. Thus, the judge must consider the claimant’s actual wages at the time

he was injured. I

d. However, “the amount actually earned by the employee at the time of the injury is a factor, but not

the overriding concern under Section [9]10(c).” Id. As such, it stands to reason that an ALJ, when evaluating a

claimant’s earning capacity at the time of injury , may exclude current earnings from his calculations if those earnings

are not helpful in gauging the claimant’s true earning capacity

.

In this case, the ALJ determined that Hall’s wages at the time of injury did not adequately reflect his earning

capacity. The ALJ based his conclusion on the temporary and unpredictable nature of Hall’s employment. The judge

then averaged Hall’s yearly income from 1983 to 1990, to the exclusion of his earnings with CESI in 1991. Having

reviewed the facts of this case in light of the applicable law, we cannot conclude that the ALJ’s decision to exclude

Hall’s earnings in 1991 is erroneous. We must note, however, that our affirmance of the ALJ on this point is based7

more our standard of review, than on our belief that the ALJ acted wisely by excluding those earnings.

The essential purpose of the average weekly wage determination is to reflect “a claimant’s annual earning

capacity at the time of the injury .” E mpire United Stevedores v. Gatlin

, 936 F.2d 819, 823 (5th Cir. 1991) (emphasis

added). Ty pically , a claimant’s wages at the time of injury will best reflect the claimant’s earning capacity at that time.

It will be an exceedingly rare case where the claimant’s earni ngs at the time of injury are wholly disregarded as

irrelevant, unhelpful, or unreliable.

In this case, the ALJ’s decision to exclude Hall’s earnings comes dangerously close to reversible error.

However, we do not reverse the ALJ because we are required to review the ALJ’s decision under the substantial

evidence standard. Under that standard, “we may not substitute our judgment for that of the ALJ, nor may we reweigh

or reappraise the evidence.” L ouis Dreyfus Corp. v. Director, OWCP

, 125 F.3d 884, 886 (5th Cir. 1997). Our focus

is strictly confined to whether there exists evidence that “a reasonable mind might accept as adequate to support a

conclusion." Pierce , 487 U.S. at 565.

Having performed that precise inquiry

, we find there is sufficient evidence to support the ALJ’s determination

that Hall’s employment wit h CESI was unpredictable, and that the exclusion of those earnings was required.

Admittedly, had we stood in the shoes of the ALJ, we very well may have done things differently . But such musings

cannot form the basis of our decision. We affirm the ALJ’s exclusion of Hall’s 1991 earnings from the weekly wage

determination because there is substantial evidence supporting that decision.

C.

Hall’s remaining claims challenge various findings by the ALJ. He contends that the ALJ erred in finding:

(1) that Hall was not entitled to the medical expenses he incurred while under the supervision of Dr. Hoerner; (2) that

Hall reached maximum medical improvement on January 2, 1992; and (3) that Hall had not sustained a permanent

disability. We disagree.

The ALJ’s findings are supported by substantial evidence. Indeed, given the nature and extent of Hall’s injury,

we are somewhat amazed by the quantity of evidence that was produced in this case. Hall, who ostensibly suffered a

minor knee injury, commanded more than two dozen examinations, countless studies and tests, and an extraordinary

number of medical man-hours. Nearly all of the evidence generated from the examinations, tests, and studies pointed

to one conclusion: Hall had not suffered a disabling injury that prevented him from returning to work.

Additionally , we must note that the ALJ’s findings were influenced, in large part, by serious questions

regarding Hall’s credibility. In his written order, the ALJ observed that “[Hall] testified at length during the trial. Due

to his demeanor in Court, the inconsistencies in some of his statements, his evasiveness during questions by the Court

and his exceptionally sporadic employment history, the Court doubts that he desires to return to any type of work.”8

Clearly, Hall’s testimony’s left the ALJ firmly convinced that Hall was a chronic malingerer. As we find no reason

to doubt that credibility determination, we are bound by it. Meadows v. Securities & Exchange Comm’n

, 119 F.3d

1219, 1227 (5th Cir. 1997).

III.

Because the ALJ’s findings are supported by substantial evidence, and because there is no clear error of law,

the Board’s order affirming the ALJ’s decision is AFFIRMED

.



### Garwood, Circuit Judge, concurring in part and dissenting in part:

I concur in all the able majority opinion (including but not

limited to its holding that the A LJ was not obligated to apply

section 910(b)) except only the holding that the ALJ did not

reversibly err by basing his computation of Hall’s earning capacity

solely on his average yearly income from 1983 to 1990 without

including any of his earnings d uring the some ten weeks in 1991

when he worked as a painter and sandblaster for CESI prior to his

injury. While the 1991 earnings may indeed have been atypical,

that, it seems to me, is taken care of by averaging back to 1983.

Moreover, the 1991 earnings not only represented Hall ’s longest

continuous employment during the period since 1983, but were also

the most closely related to the injury in time and type of

employment. In my view, the ALJ’s decision in this one respect is

properly characterized as being an abuse of discretion, unsupported

by substantial evidence, and arbitrary and capricious.