           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 10, 2008

                                     No. 07-60775                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MAR-CON/THUNDER CRANE, INC.; ZURICH NORTH AMERICA
INSURANCE COMPANY

                                                  Petitioners
v.

BRYAN NELSON; DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, U.S. DEPARTMENT OF LABOR

                                                  Respondents



                         On Petition for Review of an Order
                           of the Benefits Review Board
                                  BRB No. 06-0903


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Brian Nelson pursued a claim for benefits under the Longshore and
Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., after
being injured two days into his employment as a rigger for Petitioner Mar-Con,
Inc./Thunder Crane, Inc. The sole issue before the Administrative Law Judge
(ALJ) was the proper calculation of Nelson’s average weekly wage (AWW) and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60775

the resulting compensation rate. The ALJ determined, pursuant to 33 U.S.C. §
910(c), Nelson’s AWW to be $424.00; the Benefits Review Board (BRB) affirmed.
Petitioner contends: the ALJ erred in its AWW calculation because it was based
solely on Nelson’s salary earned during his brief employment with Petitioner.
      Under the LHWCA, the BRB is required to accept the ALJ’s findings of
fact and conclusions of law supported by substantial evidence and in accordance
with the law. 33 U.S.C. § 921(b)(3). BRB decisions are reviewed “to determine
whether it has adhered to its proper scope of review”. Gulf Best Elec., Inc. v.
Methe, 396 F.3d 601, 603 (5th Cir. 2004) (citing H.B. Zachry Co. v. Quinones, 206
F.3d 474, 477 (5th Cir. 2000)).
      The LHWCA provides three alternative methods of calculating AWW. See
33 U.S.C. § 910(a)-(c).   Neither party disputes the ALJ correctly applied
subsection 10(c), the third method. That section applies “when the first two
methods cannot reasonably and fairly be applied”. Hall v. Consol. Employment
Sys., Inc., 139 F.3d 1025, 1030 (5th Cir. 1998) (citations and internal quotation
marks omitted).
      Unlike subsections 10(a) and (b), there is no time limit imposed for
determining AWW under section 10(c). Id. “The essential purpose of the
average weekly wage determination is to reflect ‘a claimant’s annual earning
capacity at the time of the injury.’”       Id. at 1031 (quoting Empire United
Stevedores v. Gatlin, 936 F.2d 819, 823 (5th Cir. 1991)) (emphasis in original).
In so deciding, the ALJ has broad discretion in deciding what reflects the
earning capacity of the injured worker. Gatlin, 936 F.2d at 823. For example,
our court has upheld an AWW determination where the ALJ excluded all of the
claimant’s wages at the time of his injury. See Hall, 139 F.3d at 1030.
      Here, the opposite situation exists. The ALJ relied exclusively upon
Nelson’s employment at the time of his injury, concluding that an AWW based
on Nelson’s previous year’s earnings would lead to a harsh result. Under the

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substantial evidence standard, “we may not substitute our judgment for that of
the ALJ, nor may we reweigh or reappraise the evidence”. Hall, 139 F.3d at
1031 (internal citation and quotation marks omitted). “Our focus is strictly
confined to whether there exists evidence that ‘a reasonable mind might accept
as adequate to support a conclusion.’” Id. at 1032 (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988)).
         The ALJ reasonably concluded that Nelson’s salary at the time of the
incident, regardless of the extremely short duration of his employment, best
indicated his earning capacity. Therefore, the ALJ’s decision is supported by
substantial evidence and is in accordance with the plain language of section
10(c).
         DENIED.




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