San Francisco Drydock v. Camilo Zapanta , 624 F. App'x 523 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 07 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN FRANCISCO DRYDOCK and No. 13-73130
SIGNAL MUTUAL INDEMNITY
ASSOCIATION, LTD., BRB No. 13-0215
Petitioners,
MEMORANDUM*
v.
CAMILO E. ZAPANTA and DIRECTOR,
OFFICE OF WORKERS’
COMPENSATION PROGRAM,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted November 18, 2015
San Francisco, California
Before: O’SCANNLAIN, FERNANDEZ, and M. SMITH, Circuit Judges.
Petitioner San Francisco Drydock (“Drydock”) seeks review of an award of
disability benefits to Camilo Zapanta under the Longshore and Harbor Workers’
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Compensation Act (“LHWCA”), 33 U.S.C. §§ 901–950. We have jurisdiction
under 33 U.S.C. § 921(c), and we affirm.
I
The ALJ’s finding that Zapanta intended to work two jobs is clearly
supported by substantial evidence. The ALJ credited Zapanta’s testimony that he
intended to keep both jobs—a determination to which we give “great weight.” See
Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d
1095, 1103 (9th Cir. 2006) (citation omitted). Moreover, Zapanta continued to
work at both jobs for at least eight days following his injury, and he worked two
jobs on previous occasions. Likewise, Zapanta’s Drydock supervisor testified that
Zapanta “was not normally a swing shift person and worked the swing shift to
accommodate his Berlex job”—a fact that the ALJ reasonably interpreted as
supporting Zapanta’s testimony that he intended to continue working at both jobs.
The fact that the ALJ placed less weight on written documentation and more
weight on Zapanta’s testimony, his post-injury conduct, and the testimony of his
supervisor “is no basis for [this Court] to disturb [the ALJ’s] ruling.” See id. at
1103.
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II
Likewise, contrary to Drydock’s assertions, the ALJ did not fail to consider
the shrinking nature of the Bay Area ship repair industry when determining
Zapanta’s average weekly wage. On the contrary, the ALJ recognized that
calculation of Zapanta’s average weekly wage “should take into consideration the
sporadic nature of the work that was available.” As such, the ALJ rejected
Zapanta’s argument that his average weekly wage should be calculated based on
full-time shipyard earnings, and instead determined that wage by calculating
Zapanta’s actual earnings from his shipyard jobs during the fifty-two weeks
preceding his injury. That method of calculation is surely
one that a “reasonable mind might accept as adequate to support [the ALJ’s]
conclusion.” Rhine v. Stevedoring Servs. of Am., 596 F.3d 1161, 1165 (9th Cir.
2010) (quoting Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997)).
III
Because Drydock has conceded at oral argument that its additional claims
are waived, we do not address them.
AFFIRMED.
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