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

                                                                            FILED
                                                                          August 20, 2008

                                       No. 07-60541                   Charles R. Fulbruge III
                                                                              Clerk

M & M PROJECT STAFFING; GRAY INSURANCE COMPANY

                                                  Petitioners
v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; RAMIRO C. CARDENAS

                                                  Respondents



                           Petition for Review of an Order
                            of the Benefits Review Board
                                      No. 06-0778


Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
       M&M Project Staffing and Gray Insurance Company petition for review
of a final order of the Benefits Review Board (BRB) affirming an order by the
Administrative Law Judge (ALJ) awarding compensation to Ramiro Cardenas
under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”),
33 U.S.C. § 901, et seq. Because substantial evidence does not support the ALJ’s
calculation of Cardenas’s average weekly wage, we REVERSE and REMAND.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60541

                                       I.
      On April 7, 2004, Ramiro Cardenas injured his lower back while working
as a welder for M&M Project Staffing (“M&M”). Cardenas had worked for M&M
on multiple occasions before his injury.        He was never terminated for
misconduct, but was frequently laid off after finishing a project. Cardenas
received unemployment compensation in 2002, 2003, and 2004.
      Cardenas sought disability benefits under the LHWCA for his back injury,
and the parties proceeded to trial before the ALJ on multiple issues. The ALJ
entered an Order awarding Cardenas benefits based on an average weekly wage
of $1,038.70. The ALJ reached this figure by dividing the amount Cardenas
earned in the year before his injury, $34,276.98, by 33, the number of weeks
Cardenas worked during that year.
      Petitioners filed a motion for reconsideration solely on the average weekly
wage calculation, arguing that the ALJ erred by not dividing Cardenas’s
earnings by 52 weeks. The ALJ denied the motion, and the BRB affirmed the
ALJ’s decision. Petitioners timely filed this appeal.
                                       II.
      We review the BRB’s decision only for errors of law and to determine
whether it properly concluded that the ALJ’s factual findings were supported by
substantial evidence on the record as a whole. James J. Flanagan Stevedores,
Inc. v. Gallagher, 219 F.3d 426, 429 (5th Cir. 2000). Substantial evidence is
evidence that provides “a substantial basis of fact from which the fact in issue
can be reasonably inferred,” or such evidence that “a reasonable mind might
accept as adequate to support a conclusion.” New Thoughts Finishing Co. v.
Chilton, 118 F.3d 1028, 1030 (5th Cir. 1997). The substantial evidence standard
is less demanding than that of preponderance of the evidence, and the ALJ’s
decision need not constitute the sole inference that can be drawn from the facts.
Id.

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                                 No. 07-60541

      On appeal, the only dispute between the parties concerns the ALJ’s
computation of Cardenas’s average weekly wage. A claimant’s average weekly
wage is calculated in two steps: First, a claimant’s average annual earnings are
determined by utilizing one of three methods set forth in 33 U.S.C. § 910(a)-(c).
Section 910(a) applies when the claimant worked in the same or comparable
employment for substantially the whole of the year immediately preceding the
injury. It provides a specific formula for calculating annual earnings based on
the average daily wage the claimant actually earned on the days he was
employed. When a claimant’s employment is regular and continuous but the
claimant has not been employed in that employment for substantially the whole
of the year, § 910(b) may be applied. Calculations under § 910(b) are based on
the wages of comparable employees, engaged in comparable work, in a similar
locale.   Section 910(c) is used when the claimant’s work is “inherently
discontinuous or intermittent.” Empire United Stevedores v. Gatlin, 936 F.2d
819, 822 (5th Cir. 1991). Section 910(c) provides:
      If either [subsection (a) or (b)] cannot reasonably and fairly be
      applied, such 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 of the 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, including the
      reasonable value of the services of the employee if engaged in
      self-employment, shall reasonably represent the annual earning
      capacity of the injured employee.
Second, the claimant’s average annual earnings are divided by 52 pursuant to
§ 910(d)(1), which states that an employee’s average weekly wages “shall be one
fifty-second part of his average annual earnings.”
      In this case, the ALJ applied § 910(c) and determined that Cardenas’s
average annual earnings were $34,276.98. The ALJ then divided this figure by



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33, the number of weeks Cardenas worked in the year before his injury, to reach
an average weekly wage of $1,038.70.
      The parties agree that the ALJ correctly utilized § 910(c), as opposed to
subsections (a) or (b), in calculating Cardenas’s average annual earnings.
However, Petitioners contend that the ALJ violated § 910(d)(1) by dividing
Cardenas’s average annual earning by 33 instead of 52.
      Despite the plain language of § 910(d)(1), the ALJ’s failure to divide by 52
does not necessarily require reversal.         In Gallagher, an ALJ divided the
claimant’s annual earning by 48, to account for four weeks that the claimant was
unable to work due to a previous injury. 219 F.3d at 433-434. The employer
argued that using the number 48 as a divisor violated the clear mandate of
§ 910(d)(1). This court found, however, that “the ALJ’s decision to carve out the
four-week period of lost work facilitated the goal of ‘mak[ing] a fair and accurate
assessment’ of the amount that [the claimant] ‘would have the potential and
opportunity of earning absent the injury.’” Id. at 434. This court has likewise
affirmed an ALJ’s use of 27 weeks as a divisor, when the ALJ did so to account
for time the plaintiff was out of work due to a previous injury. See Staftex
Staffing v. Director, OWCP, 237 F.3d 404, 407-08 (5th Cir. 2000). In Staftex, this
court explained:
      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. Thus, although the ALJ should
      have increased its estimation of [the claimant’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.
Id. at 408 (internal citations omitted).
      Cardenas argues that, as in Staftex and Gallagher, the ALJ’s decision to
divide by fewer than 52 weeks is harmless. Cardenas maintains that the ALJ


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                                     No. 07-60541

could have reached the same average weekly wage of $1,038.70 by increasing his
average annual earnings to $54,012.40 to reflect the amount he could have made
had work been available year-round, and then dividing by 52.1
      However, in order to credit an intermittent worker with the earning
capacity of a full-time worker, the record must contain evidence that the
claimant would have the opportunity to be employed year-round. See New
Thoughts, 118 F.3d at 1031. To hold otherwise would defeat one of the central
purposes of having three different methods of calculating a claimant’s average
weekly wage. Id. at 1031 n.3. As this court has explained, “one of the primary
reasons for the differentiation in § [910(c)] is that it would be unfair to the
employer to calculate an intermittent employee’s wage under §§ [910(a) or (b)],
since to do so would treat the claimant as a full-time worker and thereby
exaggerate his loss.” Id. (quoting Tri-State Terminals, Inc. v. Jesse, 596 F.2d
752, 756 n.3 (7th Cir. 1979)).
      In New Thoughts, the claimant testified that his work in the construction
industry during the previous three years had been intermittent. Id. at 1030. He
worked when work was available, but had been laid off frequently. Id. The ALJ
awarded an average weekly wage based solely on the claimant’s earnings in the
last full year the claimant worked, which was four years before his injury. Id.
at 1030-31. This court reversed, stating “[c]ontrary to the ALJ’s decision, the
record is devoid of evidence that [claimant] at the time of his injury, unlike in
the immediately preceding three years, would have had the opportunity to be
employed year-round.” Id. at 1031.
      As in New Thoughts, the record in this case contains no evidence that
Cardenas would have the opportunity to work year-round. Cardenas testified
that he had worked for M&M on “many” different occasions before his injury,

      1
        In denying Petitioners’ motion for reconsideration, the ALJ likewise stated that it
would have reached the same result on rehearing by performing this alternative calculation.

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                                      No. 07-60541

and that he was often laid off once a specific job was completed. Cardenas
collected unemployment compensation in 2002, 2003, and 2004.2 Moreover, an
average weekly wage of over $54,000 far exceeds Cardenas’s actual earnings in
previous years.3 There is also no evidence that Cardenas enjoyed consistent
employment in the years before he began working as welder for M&M, or that
his employment situation had changed such that his future employment would
have been more constant than in past years.
       This lack of evidence distinguishes Cardenas’s case from those relied upon
by the ALJ and BRB. This court and the BRB have held that an ALJ may
increase a claimant’s average annual earnings to account for periods where the
claimant did not work due to circumstances such as previous injury, a labor
strike, a death in the family, or incarceration. See Gallagher, 219 F.3d at 434
(previous injury); Staftex, 237 F.3d at 408 (previous injury); Browder v.
Dillingham Ship Repair, 24 BRBS 216 (1991) (death of family member);
Daugherty v. Los Angeles Container Terminal, 8 BRBS 363 (1978)
(incarceration); Le Batard v. Ingalls Shipbuilding Division, Litton Systems, Inc.,
10 BRBS 317, 324 (1979) (labor strike). In these cases, year-round employment
was available to the claimants, but the claimants were unable to take the
opportunity due to a non-recurrent event. In contrast, employment that is itself
intermittent is likely to remain so, absent some evidence of changed
circumstances.
       Cardenas also cites this court’s decision in Gatlin to support the
proposition that an ALJ may increase an intermittent worker’s average weekly


       2
          Petitioners repeatedly assert that Cardenas would return to Mexico to visit family
while collecting unemployment benefits. However, substantial evidence supports that
Cardenas was willing to work year round; the issue is whether he would have the opportunity
to do so.
       3
        In the 52 weeks before his injury in April 2004, Cardenas earned $34,276.98.
Cardenas earned $40,062.50 in 2003 and $42,362.00 in 2002.

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                                  No. 07-60541

wage to reflect the amount the worker could have made had work been available
year-round.    936 F.2d at 822.    In Gatlin, the ALJ based an intermittent
longshore worker’s average annual earnings, in part, on the wage the worker
earned in a previous job as a salesman. Id. However, evidence of the claimant’s
consistent employment as a salesman two years before his injury provided some
basis for the ALJ in Gatlin to conclude that the claimant would have a similar
opportunity for continuous employment in the future. Here, the record contains
no evidence that Cardenas had been consistently employed in any field during
any previous year. Nor is there any evidence Cardenas’s employment situation
had changed such that his future employment would have been more consistent
than in past years. Compare Miranda v. Excavation Constr., Inc., 13 BRBS 882
(1981) (claimant started new, more lucrative work seven weeks before his
injury).
      Finally, Cardenas notes that income from unemployment is not included
in a claimant’s average weekly wage. Strand v. Hansen Seaway Serv., Ltd.,
614 F.2d 572, 576 (7th Cir. 1980); Blakney v. Del. Operating Co., 25 BRBS 273
(1992).    He argues that “it is simply unjust” to exclude the income from
unemployment while including the time spent on unemployment in the divisor
because doing so would artificially reduce the claimant’s average weekly wage.
As explained, infra, however, the propriety of excluding time spent on
unemployment from the divisor depends upon the circumstances of the case. If
there is no evidence that the claimant had the opportunity to work continuously
at the time of the injury, it is unfair to the employer “to treat the claimant as a
full-time worker and thereby exaggerate his loss.” See New Thoughts, 118 F.3d
at 1031 n.3; see also Strand,614 F.2d at 576-77 (excluding unemployment
benefits from average annual earnings and approving a divisor of 52).
      Because no substantial evidence supports an assumption that Cardenas
would have had the opportunity to work continuously in future years, we cannot

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                              No. 07-60541

say that the ALJ’s decision to use 33 weeks as a divisor was harmless.
Accordingly, we REVERSE and REMAND to the ALJ for a redetermination of
Cardenas’s average weekly wage.




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