                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   November 24, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            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 Benefits Review Board (“BRB” or

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

calculation of Melancon’s average weekly wage at $577.45 and

awarded total disability compensation of $384.97 per week based on

that average weekly wage calculation.     We have carefully reviewed

     *
       Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
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 applicable, 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 not 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 facts found and law applied by the ALJ; in the context of §

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

unreasonable —— estimates of Melancon’s earning capacity when he

was injured; and, candidly, petitioners’ contention that this

piledriver operator cum auto mechanic should have his annual

earning capacity    calculated    solely     on     the   basis   of    his   own,

                                      2
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.




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