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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60532
Summary Calendar
INGALLS SHIPBUILDING, INC.,
Petitioner,
VERSUS
JAMES E. WOOLEY;
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board

March 2, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:
Petitioner, Ingalls Shipbuilding, Inc. ("Ingalls") seeks
review of a final order of the Benefits Review Board, United States
Department of Labor on Respondent, James E. Wooley's claim for
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benefits made pursuant to the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. § 901 (1994)("LHWCA"). We affirm.
Wooley was permanently disabled by an injury sustained during
his employment with Ingalls. After a hearing before an
Administrative Law Judge, Wooley received an award of benefits,
based on the calculation that Wooley's average weekly wage had been
$575.43. Ingalls appealed to the Benefits Review Board ("BRB") and
prevailed to the extent that the BRB concluded that Wooley's
average weekly wage was only $551.70, using a different method of
factoring in his vacation and holiday compensation.1 On Motion for
Reconsideration the BRB vacated its first decision and affirmed the
ALJ's original calculation. Ingalls now appeals, asking this court
to resolve the question of the appropriate treatment of vacation
compensation in LHWCA average weekly wage calculations.
Under LHWCA, compensation for an injury is based upon an
injured worker's average weekly wage at the time of his injury.
See 33 U.S.C. § 910. When a claimant worked substantially the
whole of the year immediately preceding his injury, as Wooley did,
§ 910(a) of the LHWCA controls the method of calculating his
average weekly wage. Section 910 provides:
Except as otherwise provided in this Act, the average
weekly wage of the injured employee at the time of the
injury shall be taken as the basis upon which to compute
1For purposes of this opinion, there is no meaningful distinction
between vacation compensation and holiday compensation. For the
sake of simplicity, we therefore refer to the disputed amounts as
vacation compensation.
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compensation and shall be determined as follows:
(a) if the injured employee shall have worked in the
employment in which he was working at the time of the
injury, whether for the same or another employer, during
substantially the whole of the year immediately preceding
his injury, his average annual earnings shall consist of
300 times the average daily wage or salary for a six-day
worker and 260 times the average daily wage or salary for
a five day worker, which he shall have earned in such
employment during the days when so employed.
33 U.S.C. § 910(a). Section 910(d)(1) provides that the average
weekly wage is then derived by dividing the total annual earnings
calculated under § 910(a) by 52.
Wooley was a five-day worker. Wooley's daily work records
contain work entries on 256 different days in the 52 weeks prior to
the date of injury, including four entries for vacation
compensation, with total earnings of $29,462.10. The ALJ counted
the four entries for vacation pay as four days, although it is
undisputed that Wooley was paid for a total of 120 vacation hours2
which Ingalls contends should be counted as 15 8-hour days. The
ALJ divided the total earnings by 256 days to arrive at a daily
wage of $115.08 3, which he multiplied by 260, pursuant to 910(a),
2DATE COUNTED AS PAID FOR
05/10/92
1 day
24 hours
12/27/92
1 day
32 hours
01/01/93
1 day
48 hours
12/20/92
1 day
16 hours
total: 4 days
120 hours
3 $29,462.10 = $115.08
254+2
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to arrive at an annual wage of $29,922.44. He then divided the
annual wage by 52 to arrive at an average weekly wage of $575.43.
Ingalls argues that Wooley's $29,462.10 earnings should have been
divided by 267 (252 days worked plus 15 eight-hour vacation days),
to arrive at an average daily wage of $110.34.4
Our review of BRB decisions is limited to determining whether
the BRB correctly concluded that the ALJ's order was supported by
substantial evidence on the record as a whole and is in accordance
with the law. See Ingalls Shipbuilding, Inc. v. Director, OWCP,
991 F.2d 163, 165 (5th Cir. 1993).
The calculation mandated by § 910(a) "aims at a theoretical
approximation of what a claimant could ideally have been expected
to earn" in the year prior to his injury. Duncan v. Washington
Metro. Area Transit Auth., 24 Ben. Rev. Bd. Serv. (MB) 133 (1990).
That approximation includes what the claimant would have earned had
he worked every available work day in the year. See Duncanson-
Harrelson Co. v. Director, OWCP [Freer], 686 F.2d 1336 (9th Cir.
1982), vacated on other grounds, 462 U.S. 1101 (1983). This case
presents a res nova question concerning how vacation days that are
"sold back" to the employer for money value instead of taking time
off from work should be considered in the calculation. An employer
who chooses to offer such payments to its employee obviously
4 $29,462.10 = $110.34
252+15
4

increases the amount that employee "could ideally have been
expected to earn." Section 910(a) envisions a calculation that
will allow the employee LHWCA benefits based on that expectation.
We decline Ingalls's invitation to create a bright-line rule
concerning how all vacation compensation will be treated under §
910(a). Rather, we find it more appropriate to charge the ALJ with
making fact findings concerning whether a particular instance of
vacation compensation counts as a "day worked" or whether it was
"sold back" to the employer for additional pay. In this case, the
ALJ concluded that Wooley took four vacation days, which were
treated as days worked, and "sold back" eleven more eight-hour
days, which were not treated as days worked, but rather as
additional compensation to be added to Wooley's annual wage. The
BRB correctly concluded that the ALJ's order was supported by
substantial evidence on the record as a whole and is in accordance
with the law. We therefore affirm.
AFFIRMED.

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