                        REVISED, July 25, 2000

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit

                   ___________________________

                           No. 99-60587
                   ___________________________

     STAFTEX STAFFING and HOUSTON GENERAL INSURANCE COMPANY


                                                       Petitioners,

                                VERSUS


DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, UNITED STATES
             DEPARTMENT OF LABOR, and RAMIRO LOREDO

                                                       Respondents.

       ___________________________________________________

              Petition for Review of an Order of the
                       Benefits Review Board
     ___________________________________________________
                           July 18, 2000


Before REAVLEY, DAVIS and BARKSDALE, Circuit Judges.

DAVIS, Circuit Judge:


     In this appeal, Petitioner, Staftex Staffing, challenges an

order of the United States Department of Labor Benefits Review

Board, which affirmed an Administrative Law Judge’s (“ALJ”) order

awarding attorney’s fees and compensation payments to Claimant,

Ramiro Loredo, pursuant to the Longshore and Harbor Worker’s

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950.   Staftex argues

                                  -1-
that the ALJ erred in calculating Claimant’s average weekly wage

and   thereby   awarded     Claimant   an     excessive   compensation            rate.

Staftex also challenges the Board’s award of attorney’s fees to

Claimant.     For the reasons that follow, we affirm the ALJ’s wage

calculation     and    compensation    rate    but     reverse      his    award     of

attorney’s fees.

                                       I.

      Ramiro Loredo injured his back on October 11, 1990, while

working as a welder for Staftex Staffing.               Within thirty days of

receiving notice of Loredo’s injury, Staftex began to pay voluntary

benefits to Loredo based upon an average weekly wage of $438.47.

Several months later, Staftex reduced its payments to Loredo,

explaining that it had previously overcalculated Loredo’s wages by

$12,934.14.     In response, Loredo filed an “Employee’s Claim for

Compensation”      with    the   United      States    Department         of     Labor,

requesting that Staftex compensate him based upon an average weekly

wage of $490.24.      Staftex acceded to this demand without requiring

an informal compensation conference.

      Despite Staftex’s agreement with Loredo on the appropriate

compensation rate, the parties could not agree as to the nature,

extent, or permanency of Loredo’s injury.                The parties referred

these   disputes      to   the   Department    of     Labor   for    an        informal

conference. The Department issued a written recommendation on these

issues and referred the case to an ALJ for a formal hearing and


                                       -2-
resolution.   Neither party requested, either before or during the

informal conference, that the Department address the issue of

average weekly wage.

     At the formal hearing, however, the parties agreed that Loredo

was temporarily and totally disabled but could not agree upon the

average weekly wage for which Loredo would be compensated. Staftex

contended that it should compensate Loredo based upon his actual

earnings for the five years prior to his injury.              Loredo contended

that he was entitled to an average weekly wage based upon his

earnings in the year immediately prior to his injury, excluding the

twenty-five weeks during which he was out of the labor market due

to a different on-the-job injury and for which he was compensated

under the LHWCA.

     The ALJ accepted Loredo’s method of calculating his average

weekly wage and concluded that Loredo was entitled to compensation

based upon a weekly wage of $504.32.             Furthermore, the ALJ held

that Loredo’s counsel was entitled to $7,239.28 in attorney’s fees

plus expenses.

     Staftex appealed to the United States Department of Labor’s

Benefits   Review    Board,   arguing     that    the   ALJ    erred   both   in

calculating   Loredo’s    average   weekly       wage   and   in   awarding   an

attorney’s fee.     The Board affirmed the judgment of the ALJ and its

decision to award attorney’s fees.         This appeal followed.

                                    II.


                                    -3-
     This Court gives “broad discretion to ALJs in determining

appropriate wage awards.”            Louisiana Ins. Guaranty Assoc. v.

Director, Office of Worker’s Compensation Programs, U.S. Dept. of

Labor, 211 F.3d 294, 297 (5th Cir. 2000).        We review the decisions

of the Benefits Review Board using the same standard that the Board

applies to review a decision of the ALJ:        whether the decision is

supported by substantial evidence and is in accordance with law.

New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030 (5th Cir.

1997).    We may neither substitute our judgment for that of the ALJ

nor “reweigh or reappraise the evidence.”            SGS Control Serv. v.

Director, Office of Worker’s Compensations Programs, US Dept. of

Labor, 86 F.3d 438, 440 (5th Cir. 1996).        The ALJ’s decision need

not “constitute the sole inference that can be drawn from the

facts.”     Avondale Industries v. Director, Office of Worker’s

Compensations Programs, U.S. Dept. of Labor, 977 F.2d 186, 189 (5th

Cir. 1992). Moreover, we must resolve all doubts “in favor of the

employee in accordance with the remedial purposes of the LHWCA.”

Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th Cir.

1991).

     Both parties agree that 33 U.S.C. § 910(c) provides the basic

formula    for   determining   the    compensation   to   which   Loredo   is

entitled.    Section 910(c), in relevant part, states that:

          average annual earnings shall be such sum as, having
          regard to the previous earnings of the injured
          employee in the employment in which he was working at
          the time of the injury, and of other employees in the

                                        -4-
         same or most similar class working in the same or most
         similar employment in the same or neighboring
         locality, or other employment of such employee . . .,
         shall reasonably represent the annual earning capacity
         of the injured employee.

33 U.S.C. § 910(c) (1999).       Once a court has determined the

claimant’s average annual wage, it must determine the average

weekly wage by dividing the average annual wage by fifty-two.     33

U.S.C. § 910(d)(1). The average weekly wage provides the basis for

the compensation rate.   See 33 U.S.C. § 908.

     In this case, the ALJ calculated Claimant’s compensation

solely by considering his earnings in the year immediately prior to

his injury. The undisputed evidence established that Loredo earned

$13,616.53 in the year preceding his back injury.      The evidence

further established that Loredo worked during only 27 weeks of that

year due to a knee injury for which he was compensated under the

LHWCA.    On this basis, the ALJ concluded that section 910(c)

entitled Loredo to compensation based upon a weekly wage of $504.32

–- $13,616.53 divided by 27.

     Staftex argues that the one-year period considered by the ALJ

misrepresented Claimant’s earning capacity and that the ALJ should

have looked instead to a five year period preceding the injury.

Staftex notes that during the five years preceding Loredo’s back

injury he never made more than $9896.56 in a single calendar year1


     1
      Although Loredo earned $13,616.53 in the fifty-two-week
period leading up to his injury, he never made that much in any
single calendar year.

                                 -5-
and that Loredo’s average yearly earnings during that period

amounted to only $5617.          Finally, Staftex explains that because it

is a temporary staffing company the duration of Loredo’s employment

is uncertain.

      Based upon our review of the record, we conclude that the ALJ

acted well within his discretion in estimating Claimant’s average

weekly wage. First, no case law supports Staftex’s contention that

an   ALJ    cannot    rely    exclusively       on    the      most    recent    year    of

employment.      While we have held that an ALJ should not randomly

pick and choose certain years from a period simply because the

judge      believes    that    the    other    years      in    that    period    under-

represented the claimant’s earning capacity, see Chilton, 118 F.3d

at   1031,      we    have    never   held     that   a     court     cannot    base    its

calculation on the claimant’s most recent year of employment.                           In

Chilton, we simply reaffirmed that if “the ALJ looks beyond the 52

weeks immediately preceding the injury, ‘he must take into account

the earnings of all the years within that period.’” Id., (quoting

Gatlin, 936 F.2d at 823); accord Meehan Seaway Service Co. v.

Director, Office of Workers’ Compensation Programs, U.S. Dept. of

Labor, 125 F.3d 1163, 1170(8th Cir. 1997)(explaining that an ALJ may

“calculate average annual earnings under section 910(c) based on a

claimant’s earning pattern over a period of years . . . where . .

. all of the years within that period are taken into account”).

Indeed, “the prime objective of section 910(c) is to arrive at a


                                         -6-
sum that reasonably represents a claimant’s annual earning capacity

at the time of the injury.”     SGS Control Serv., 86 F.3d at 441

(emphasis in original)(citations omitted).    And as we explained in

Hall v. Consolidated Employment Systems, 139 F.3d 1025 (5th Cir.

1998), “[t]ypically, a claimant’s wages at the time of injury will

best reflect the claimant’s earning capacity at that time. It will

be an exceedingly rare case where the claimant’s earnings at the

time of injury are wholly disregarded as irrelevant, unhelpful, or

unreliable.”   Id. at 1031.

     Second, Staftex has failed to present any evidence that

Loredo’s most recent year of employment does not accurately reflect

his current earning capacity.   In calculating average weekly wage,

the ALJ must consider not simply the future of a claimant’s

employment with a particular employer, but rather the future of his

employment in his chosen field.     Hall, 139 F.3d at 1030.   In this

respect, the record supports the ALJ’s conclusion that the most

recent year most accurately reflected Loredo’s current earning

capacity.2

     Staftex further argues that the district court erred in giving



     2
      Loredo presented evidence to the ALJ suggesting that his
current employment with Staftex was likely to be more permanent
than his past employment. Both he and his wife testified that, but
for the injury, Mr. Loredo would have continued his work as a
marine welder.    Loredo explained that his previous low wages
resulted from a downturn in the ship-building industry, which
forced him to find work in other, less lucrative, fields. The ALJ
was entitled to credit this testimony.

                                  -7-
Loredo credit for twenty-five weeks during which, due to another

on-the-job injury, Loredo did not work.                 Staftex argues that by

dividing Loredo’s earnings by twenty-seven, which the district

court did to account for Loredo’s twenty-five weeks on disability,

the ALJ violated 33 U.S.C. § 910(d).                This argument is without

merit.

     Although section 910(d) states that the ALJ should divide

annual earnings by fifty-two, the Board has frequently held that,

when calculating annual earnings, an ALJ may account for time lost

due to a claimant’s job-related               injury.      See, e.g., Brien v.

Precision   Valve,    23   BRBS   209     (1990);    see    also    Hawthorne    v.

Director, Office of Worker’s Compensation Programs, U.S. Dept of

Labor, 844 F.2d 318, 320 (8th Cir. 1988)(holding that ALJs should

account for time lost due to a strike or an injury caused by a

strike).      Thus,   although    the     ALJ   should     have    increased    its

estimation of Loredo’s annual wage, rather than increased his

weekly wage, in order to account for his knee injury, this error

was harmless. Either approach yields the same mathematical result.

As such, the Board did not err in affirming the wage calculations

of the ALJ.

                                    III.

     Staftex argues that 33 U.S.C. § 928(b), which exclusively

governs the award of attorney’s fees in LHWCA cases, did not

authorize the ALJ to award attorney’s fees in this case. According



                                        -8-
to Staftex, section 928(b) authorizes the award of attorney’s fees

only where the employer refuses to accept a written recommendation

of compensation that the Department of Labor issues following an

informal conference.          As Staftex notes, although the parties

brought    other   elements    of   their   dispute    before   an     informal

conference,    they   never    submitted    their     wage   dispute    to   the

conference and thus never received a written recommendation.

     Section 928(b), in relevant part, provides that:

               If the employer or carrier pays or tenders
          payment of compensation without an award . . . and
          thereafter a controversy develops over the amount of
          additional compensation, if any, to which the employee
          may be entitled, the deputy commissioner or Board
          shall set the matter for an informal conference and
          following the conference the deputy commissioner or
          Board shall recommend in writing a disposition of the
          controversy.   If the employer or carrier refuse to
          accept such written recommendation . . . they shall
          pay or tender to the employee in writing the
          additional compensation, if any, they believe the
          employee is entitled.     If the employee refuses to
          accept such payment or tender of compensation, and
          thereafter utilizes the services of an attorney at
          law, and if the compensation thereafter awarded is
          greater than the amount paid or tendered by the
          employer or carrier, a reasonable attorney’s fee based
          solely upon the difference between the amount awarded
          and the amount tendered or paid shall be awarded in
          addition to the amount of compensation. If a claimant
          is successful in review proceedings before the Board
          or court in any such case an award may be made in
          favor of the claimant and against the employer or
          carrier for a reasonable attorney’s fees for
          claimant’s   counsel   in   accord  with   the   above
          provisions. In all other cases any claim for legal
          services shall not be assessed against the employer or
          carrier.

33 U.S.C. § 928(b)(1999).



                                      -9-
     The plain wording of this section precludes Loredo from

obtaining attorney’s fees in this case.                  Section 928(b) permits

claimants to obtain attorney’s fees only where: (1) the board has

held an informal conference on the disputed issue; (2) the board

issues a written recommendation on that issue; and (3) the employer

refuses to accept the recommendation.              Loredo failed to submit the

average weekly wage dispute to informal conference and thus did not

obtain a recommendation for Staftex to accept or reject.3                    As we

explained in FMC Corp. v. Perez, 128 F.3d 908, 910 (5th Cir. 1997),

“[a]n award of attorney’s fees under section 928(b) is appropriate

only if the dispute has been the subject of an informal conference

with the Department of Labor.”                 Accord Todd Shipyards Corp. v.

Director,   Office       of   Worker’s    Compensation     Programs,   950    F.2d

607,610 (9th Cir. 1991)(“Section 928(b) authorizes a payment of

attorney’s fees only if the employer refuses to pay the amount of

compensation     recommended      by     the    claims   examiner   following   an

informal conference.”).           Because Loredo failed to submit the

question of average weekly wages to informal conference, the ALJ

could    not,   as   a   matter   of     law,    award   him   attorney’s    fees.

Accordingly, we reverse the Board’s award of attorney’s fees.


     3
      Apparently, the dispute regarding Loredo’s average weekly
wage did not develop until after the Board had completed its
informal conference. Loredo does not allege that Staftex waited to
challenge Loredo’s average weekly wage until after the conference
in a strategic attempt to avoid liability for attorney’s fees or
that he attempted, without success, to obtain another conference
after the dispute arose.

                                         -10-
                               IV.

     For the reasons stated above, the Benefits Review Board’s

affirmance of the ALJ’s award of compensation under section 910(c)

of the LHWCA is AFFIRMED and the ALJ’s award of attorney’s fees

under section 928(b) of the Act is REVERSED.

AFFIRMED in Part.

REVERSED in Part.




                               -11-
