UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SEACO, INCORPORATED; SIGNAL
MUTUAL INDEMNITY ASSOCIATION,
Petitioners,

v.
                                                               No. 96-2685
VERNON L. RAVENELL; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-284)

Submitted: May 15, 1997

Decided: June 4, 1997

Before RUSSELL, HALL, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen E. Darling, SINKLER & BOYD, P.A., Charleston, South
Carolina, for Petitioners. Carl H. Jacobson, URICCHIO, HOWE,
KRELL, JACOBSON, TOPOREK & THEOS, P.A., Charleston,
South Carolina, for Respondents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Respondent Vernon Ravenell, a longshoreman, injured his shoulder
at work. An Administrative Law Judge ("ALJ") awarded benefits, and
Petitioners appealed to the Benefits Review Board ("the Board").
Since the Board failed to resolve the appeal (which had been pending
for over one year) before September 12, 1996, the ALJ's decision was
considered affirmed by the Board on that date for purposes of obtain-
ing judicial review. See Omnibus Appropriations for 1996, Pub. L.
No. 104-134, § 101(d), 110 Stat. 1321-219 (Apr. 26, 1996). In their
timely petition for review in this court, Petitioners challenge whether
substantial evidence supported the ALJ's determination that Ravenell
could not return to longshore work and his calculation of permanent
partial disability benefits. Because substantial evidence supported the
ALJ's decision, we affirm.

The record discloses that Ravenell's treating physician expressly
disapproved of a longshore position identified by Petitioners' voca-
tional expert. The doctor also restricted Ravenell to lifting less than
fifty pounds and from working over his head, both of which are
required for longshore work. In addition, there was evidence that
Ravenell did not feel he could perform longshore work. Petitioners
presented no evidence in rebuttal. Therefore, we find substantial evi-
dence supported the ALJ's conclusion that Ravenell could not return
to longshore work.

We further find that there was substantial evidence to support the
ALJ's calculation of permanent partial disability benefits. Earnings
statements presented by Ravenell showed that he earned approxi-
mately $7.00 per hour prior to his injury. While Petitioners are correct
in their claim that Ravenell stated that he thought he would make
more annually after the injury than he did before, this was only a
guess since he had not yet received any W-2 forms for the year in

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question. Nevertheless, we find that the ALJ properly determined that
recovery was based on capacity to earn; not actual earnings. See
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540,
543 (4th Cir. 1988). Petitioners' expert presented evidence of a vari-
ety of jobs Ravenell could perform within his doctor's restrictions.
These jobs had a wide salary range, and we find that the ALJ's deter-
mination that Ravenell's earning capacity was $5.75 per hour fell
within this range.

Accordingly, we affirm the ALJ's order and the summary affir-
mance of the Board. We dispense with oral argument because the
facts and legal contentions are adequately presented in the material
before the court and argument would not aid the decisional process.

AFFIRMED

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