                                                                           FILED
                             NOT FOR PUBLICATION
                                                                           DEC 07 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


SAN FRANCISCO DRYDOCK and                        No. 13-73130
SIGNAL MUTUAL INDEMNITY
ASSOCIATION, LTD.,                               BRB No. 13-0215

              Petitioners,
                                                 MEMORANDUM*
 v.

CAMILO E. ZAPANTA and DIRECTOR,
OFFICE OF WORKERS’
COMPENSATION PROGRAM,

              Respondents.


                     On Petition for Review of an Order of the
                              Benefits Review Board

                    Argued and Submitted November 18, 2015
                            San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and M. SMITH, Circuit Judges.

      Petitioner San Francisco Drydock (“Drydock”) seeks review of an award of

disability benefits to Camilo Zapanta under the Longshore and Harbor Workers’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Compensation Act (“LHWCA”), 33 U.S.C. §§ 901–950. We have jurisdiction

under 33 U.S.C. § 921(c), and we affirm.

                                            I

        The ALJ’s finding that Zapanta intended to work two jobs is clearly

supported by substantial evidence. The ALJ credited Zapanta’s testimony that he

intended to keep both jobs—a determination to which we give “great weight.” See

Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d

1095, 1103 (9th Cir. 2006) (citation omitted). Moreover, Zapanta continued to

work at both jobs for at least eight days following his injury, and he worked two

jobs on previous occasions. Likewise, Zapanta’s Drydock supervisor testified that

Zapanta “was not normally a swing shift person and worked the swing shift to

accommodate his Berlex job”—a fact that the ALJ reasonably interpreted as

supporting Zapanta’s testimony that he intended to continue working at both jobs.

The fact that the ALJ placed less weight on written documentation and more

weight on Zapanta’s testimony, his post-injury conduct, and the testimony of his

supervisor “is no basis for [this Court] to disturb [the ALJ’s] ruling.” See id. at

1103.




                                           2
                                         II

      Likewise, contrary to Drydock’s assertions, the ALJ did not fail to consider

the shrinking nature of the Bay Area ship repair industry when determining

Zapanta’s average weekly wage. On the contrary, the ALJ recognized that

calculation of Zapanta’s average weekly wage “should take into consideration the

sporadic nature of the work that was available.” As such, the ALJ rejected

Zapanta’s argument that his average weekly wage should be calculated based on

full-time shipyard earnings, and instead determined that wage by calculating

Zapanta’s actual earnings from his shipyard jobs during the fifty-two weeks

preceding his injury. That method of calculation is surely

one that a “reasonable mind might accept as adequate to support [the ALJ’s]

conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165 (9th Cir.

2010) (quoting Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997)).

                                        III

      Because Drydock has conceded at oral argument that its additional claims

are waived, we do not address them.

      AFFIRMED.




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