* Pursuant to 5 TH C IR

. R. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 24, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60443

Summary Calendar

VOLKS CONSTRUCTORS, INC.; GRAY INSURANCE CO.,

Petitioners,

versus

CURLIS P. MELANCON; DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

--------------------

Petition for Review of an Order

of the Benefits Review Board

(03-0528)

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Petitioner Volks Constructors, Inc., and its insurer

Petitioner Gray Insurance Co. (collectively “petitioners”), seek

review of the final order of the Benefit s Review Board (“BRB” or

“Board”) that affirmed the Administrative Law Judge’s (“ALJ”)

calculation of Melancon’s average weekly wage at $57 7.45 and

awarded total disability compensation of $384.97 per week based on

that average weekly wage calculation. We have carefully reviewed2

the record, paying particular attention to the opinion of the ALJ

and the BRB, and have duly considered the factual analyses and

legal arguments advanced by counsel for petitioners and respondents

as set forth in their respective briefs to this court. When

reviewed in the deferential framework that is applicabl e, viz.,

upholding the factual findings and legal conclusions of the ALJ if

they are grounded in substantial evidence (more than a modicum and

not necessarily a preponderance), and are rational and in

accordance with law, we are convinced that review should be denied.

As the Board noted, the parties agree that the ALJ employed

the appropriate subsection of the LHWCA, 33 U.S.C. § 910(c), to

determine Melancon’s average weekly wage. Petitioners’

dissatisfaction is n ot with the standard applied but with the

particular historical earnings figures and sectors of the economy

that the ALJ chose to use in his calculation. When viewed in the

perspective of the policy of the LHWCA and the plethora of discrete

facts in evidence here, we agree with the BRB’s characterization of

the ALJ’s handling of this case. We cannot credit respondents’

charge of bias; there is more than substantial evidence to support

the fac ts found and law applied by the ALJ; in the context of §

910(c), the weekly wage calculati ons are reasonable —— not

unreasonable

—— estimates of Melancon’s earning c apacity when he

was injured; and, candidly, petitioners’ co n tention that this

piledriver operat or cum auto mechanic should have his annual

earning capacity calculated solely on the basis of his own,3

subjective profit during a two-season entrepreneurial deviation

into crawfish farming, with all of its variables, vicissitudes, and

vagaries, borders on the ludicrous.

In sum, we conclude that the determination of the ALJ, and the

affirmance thereof by the BRB in its final order, are supported by

substantial evidence and are rational and reasonable dispositions

of the matter. The petition for review of the final order of the

Board is, therefore,

DENIED.