UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN LARRY DODGE,
Petitioner,

v.

ABACUS SERVICES; DIRECTOR, OFFICE
                                                               No. 96-2561
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR; TRAVELERS
INSURANCE COMPANY,
Respondents.

ABACUS SERVICES; TRAVELERS
INSURANCE COMPANY,
Petitioners,

v.
                                                               No. 96-2591
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.

On Petitions for Review of an Order
of the Benefits Review Board.
(BRB No. 95-569)

Argued: July 9, 1997

Decided: August 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,
and BOYLE, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioners. Robert Alan Rapaport, KNIGHT,
DUDLEY, CLARKE & DOLPH, P.L.C., Norfolk, Virginia, for
Respondents. ON BRIEF: Matthew H. Kraft, RUTTER & MON-
TAGNA, L.L.P., Norfolk, Virginia, for Petitioner Dodge. Lynne M.
Ferris, KNIGHT, DUDLEY, CLARKE & DOLPH, P.L.C., Norfolk,
Virginia, for Respondent Abacus.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

This worker's compensation case arises under the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq.
("LHWCA" or "Act"). Brian L. Dodge ("Dodge"), and his former
employer, Abacus Temporary Services ("Abacus"), both seek review
of a final decision of the Benefits Review Board ("BRB") ordering
Abacus to pay Dodge compensation for permanent partial disability.
Dodge argues that the Administrative Law Judge ("ALJ"), whose
Decision and Order was affirmed by the BRB, (i) improperly denied
Dodge's claim for permanent total disability benefits, (ii) improperly
calculated Dodge's average weekly wage, and (iii) improperly deter-
mined Dodge's award for his permanent partial disability. Abacus
argues that the ALJ (i) improperly denied Abacus's motion to reopen
the record to address the existence of an employee/employer relation-
ship, and (ii) improperly calculated Dodge's average weekly wage.

We conclude that the ALJ's findings are supported by substantial
evidence in the Record, and in accordance with the law, and that the

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ALJ properly denied Abacus's motion to reopen the record to address
the existence of an employee/employer relationship. Accordingly, we
affirm the decision of the BRB.

I.

On October 14, 1988, Dodge injured his right arm and right shoul-
der while working as a rigger for Metro Machine Shipyard ("Metro").
At the time of the accident, Dodge was a temporary employee of Aba-
cus, and it was Abacus who had sent Dodge to work for Metro.

As a result of his injury, Dodge was temporarily totally disabled
from October 20, 1988, through May 1, 1989, and again from May
22, 1989, through March 3, 1992. Abacus paid Dodge benefits for the
duration of his temporary total disability, and those benefits are not
at issue.

On March 4, 1992, Dr. Pat Aulicino, who had performed two oper-
ations on Dodge, one to his elbow and the other to his shoulder, deter-
mined that Dodge had reached maximum medical improvement. Dr.
Aulicino assigned Dodge permanent work restrictions, which
included no climbing of vertical ladders, no lifting over 30 pounds
with the right arm, and no overhead work. Dr. Aulicino also assigned
Dodge an 11% impairment of his right upper extremity, 10% of which
was attributable to his arm, and 1% of which was attributable to his
shoulder.

After being discharged from Dr. Aulicino's care, Dodge partici-
pated in vocational rehabilitation with the Department of Labor's
Office of Workers' Compensation Programs ("OWCP"). Mark Willis
("Willis"), a vocational counselor at the OWCP, arranged for Dodge
to participate in an on-the-job training program at W.C. Billings
("Billings"), a lawn mower repair business, where Dodge was to learn
how to fix lawn mower engines. Dodge started working at Billings in
August of 1992, but then had to quit after about 40 days, because the
work was too strenuous.

In April of 1993, Dodge met with Charles DeMark, Jr.
("DeMark"), a "rehabilitation counselor" who had been hired by

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Dodge's attorney, and who had no affiliation with the OWCP. After
assessing Dodge's physical and mental capabilities, DeMark looked
in the classified ads of a local newspaper and told Dodge that there
were a number of jobs for which Dodge was qualified, such as a cou-
rier, a driver for an airport shuttle, a dry cleaning clerk, a greenhouse
attendant, and a service station attendant, all of which DeMark
assumed paid about minimum wage or a little bit higher. DeMark told
Dodge that he should look in the classified ads for the above-named
jobs, or for jobs that required similar qualifications. But rather than
following DeMark's advice, Dodge continued to look for work in the
same haphazard fashion that he had been looking for work since he
was first injured in 1988, by simply inquiring at"places that I picked
out, rode around, stopped at, and seen if they needed any help," with-
out first determining if these places were actually hiring. (JA at 102).

On October 4, 1993, a hearing was held before the ALJ on Dodge's
claim, under the LHWCA, for permanent total disability benefits, or,
alternatively, permanent partial disability benefits. A supplementary
hearing was held before the ALJ on November 12, 1993, for the hear-
ing of additional evidence.

In July of 1994, before the ALJ issued his Decision and Order,
Abacus filed a Motion to Reopen Record and Add an Additional
Issue, in which Abacus sought to withdraw its prior stipulation that
it was Dodge's employer under the LHWCA, and to reopen the
Record to address the existence of an employee/employer relation-
ship. On September 27, 1994, the ALJ issued an Order denying Aba-
cus's motion, on the grounds that Abacus's stipulation that it was
Dodge's employer was dispositive, and not retractable.

On October 3, 1994, the ALJ issued his Decision and Order, in
which he determined (i) that Dodge was not entitled to permanent
total disability benefits, (ii) that Dodge's pre-injury average weekly
wage was $613.68, based on Dodge's total earnings during the 52
weeks prior to his injury, divided by 52 and (iii) that Dodge was enti-
tled to permanent partial disability benefits, for the unscheduled
injury to his shoulder, amounting to 9% of his wage earning capacity
loss, or $39.93 per week.

Dodge filed a timely notice of appeal to the BRB, and Abacus filed
a Cross-Petition for Review. On September 12, 1996, the ALJ's Deci-

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sion and Order was affirmed by the BRB under the provisions of Pub-
lic Law 104-134 (Omnibus Appropriations of Fiscal Year 1996),
which provides that appeals from decisions under the LHWCA which
have been pending before the BRB for more than one year shall, if
not acted upon before September 12, 1996, be considered affirmed by
the BRB and shall be considered the final order of the BRB for pur-
poses of obtaining review in the United States courts of appeal. This
appeal followed.

II.

The ALJ's decision must be upheld so long as it is supported by
substantial evidence in the Record and is in accordance with the law.
P & M Crane Co. v. Hayes, 930 F.2d 424, 428 (5th Cir. 1991).

A.

Dodge's first argument, that the ALJ improperly denied Dodge's
claim for permanent total disability benefits, is meritless. Dodge's
own witness at the hearing, Mr. DeMark, testified that there were
many available jobs that Dodge could perform, such as courier, air-
port shuttle driver, dry cleaning clerk, greenhouse attendant, service
station attendant, parts clerk, and security guard. Since Dodge failed
to prove that his inability to obtain employment was the product of
a diligent -- and not desultory -- effort to find a job, the ALJ had
no reason to discredit Mr. DeMark's testimony.

B.

Both Dodge and Abacus argue that the ALJ improperly calculated
Dodge's average weekly wage, despite the fact that both Dodge and
Abacus, when they appeared before the ALJ, agreed that the ALJ's
method of calculation was not improper. We agree with Dodge's and
Abacus's initial stance. The ALJ, under the broad guidance of 33
U.S.C. § 910(C), which provides, in relevant part, that the average
weekly wage of the injured employee at the time of the injury "shall
reasonably represent the annual earning capacity of the injured
employee," determined that Dodge's average weekly wage at the time
of his injury was the amount of money that Dodge had made during

                    5
the 52 weeks prior to his injury, divided by 52. This was certainly a
reasonable method of calculation, and there is no reason to tamper
with it.

C.

Dodge next argues that the ALJ improperly limited Dodge's award
for permanent partial disability benefits to an amount "well below the
actual loss he clearly suffered." We disagree.

Dodge's loss in earning capacity resulted from one accident, com-
prising two discrete injuries: 1) an injury to his arm, for which Dodge
has already been compensated under the schedule set forth in 33
U.S.C. § 908(c)(1)-(20), and which is not at issue in this case, and 2)
an unscheduled injury to his shoulder, for which Dodge is entitled to
compensation under 33 U.S.C. § 908(c)(21), which provides that "[i]n
all other cases in the class of disability [i.e., those that do not involve
scheduled injuries], the compensation shall be 66[and two-thirds] per
centum of the difference between the average weekly wages of the
employee and the employee's wage-earning capacity thereafter in the
same employment or otherwise, payable during the continuance of
partial disability."

According to Dodge, even though his loss in earning capacity is
only partially attributable to his shoulder injury, he is still entitled,
under § 908(c)(21), to receive two-thirds of his entire loss in earning
capacity, which would seem to ignore the fact that he has already
been compensated for his loss in earning capacity due to his arm
injury under the provisions of § 908(c)(1)-(20). The ALJ, appropri-
ately, rejected Dodge's method of calculation, and adopted Abacus's
proposal, which is that Dodge should receive permanent partial dis-
ability benefits under § 908 (c)(21) for the loss in earning capacity
attributable to Dodge's shoulder injury, and nothing more. See, e.g.,
Frye v. Potomac Electric Power Co., 21 BRBS 194, 198 (1988)
(when a claimant suffers two distinct injuries as a result of a single
accident, one of which is compensable under the schedule set forth in
§ 908(c)(1)-(20), and one of which is compensable under
§ 908(c)(21), "since the scheduled injury is being compensated sepa-
rately, any loss in wage earning capacity due to the scheduled injury
must be factored out of the § [908](c)(21) award").

                     6
In an effort to determine the loss in earning capacity attributable to
Dodge's shoulder injury alone, the ALJ reasoned that because
Dodge's 1% impairment of his shoulder amounted to only one-
eleventh, or 9%, of his total impairment of 11% (1% impairment to
shoulder + 10% impairment to upper arm), therefore, the shoulder
injury amounted to only one-eleventh, or 9%, of Dodge's loss in earn-
ing capacity.*

The ALJ's decision to "factor out" the loss in earning capacity
attributable to Dodge's scheduled injury was perfectly rational, and in
accordance with the purpose of 33 U.S.C. § 908(c)(21), which, by its
clear terms, is to provide disability benefits for a loss in earning
capacity due to an unscheduled injury, not due to an unscheduled
injury and a scheduled injury for which the claimant has already been
compensated.

D.

Finally, Abacus argues that the ALJ improperly denied Abacus's
motion to reopen the record to address the existence of an employ-
ee/employer relationship. We disagree. As this Court recently held in
Abacus Temporary Services, Inc. v. Hicks, 1997 WL 346061 (4th
Cir.), "[h]aving voluntarily entered into a stipulation agreeing that the
company was [the claimant's] employer . . . Abacus must live with
its terms."

III.

For the foregoing reasons, the decision of the BRB is affirmed.

AFFIRMED
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*The ALJ, for reasons that are not entirely clear, decided to award
Dodge 9% of his entire loss in earning capacity , rather than 9% of two-
thirds of his entire loss in earning capacity, which is required under
§ 908(c)(21), and which would have resulted in an award to Dodge of
approximately $26.75 a week, as opposed to the $39.93 a week that he
received. In his Decision and Order, the ALJ referred to a "reasonable
concession" on the part of Abacus, and perhaps the concession to which
he refers is Abacus's willingness to forego the initial, one-third reduction
in earning capacity. Regardless, suffice it to say that neither Dodge, nor
Abacus, have appealed this aspect of the ALJ's method of calculation.

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