# Appendix — Newpark Shipbuilding & Repair, Inc. v. Rountree > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2752%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 469 U.S. 818 ## Text S 3 -~ ] 71€ Office - Supreme Court, U.S FILED APR 19 1094 APPENDIX TO PETITION FOR] WRIT OF CERTIORARI ALEXANDER kL. STEVas. CL Supreme Court of the United States OCTOBER TERM 1983 NO. NEWPARK SHIPBUILDING & REPAIR, INC. and AMERICAN HOME ASSURANCE COMPANY, Petitioners Vv JAMES P. ROUNTREE AND DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT E. D. VICKERY RALPH F. MEYER 2200 Texas Commerce Tower Houston, Texas 77002 713/224-8380 Attorneys for Petitioners, Newpark Shipbuilding & Repair, Inc. and American Home Assurance Company Of Counsel: RoysTONn, RAYZOR, VICKERY & WILLIAMS ———— Ee Aipha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003 ft = ; ¥ 4, - 2 fete Ve» : aa! pipet Fai | —_—_ I INDEX TO APPENDIX APPENDIX A (Opinion of the Fifth Circuit, 723 F.2d 399, January 23, 1984) ....... APPENDIX B (Opinion of the Fifth Circuit, 698 F.2d 743, February 22, 1983) ...... APPENDIX C (Opinion of the Benefits Review Board, BD BM GEE) occa cs racicsssevcces APPENDIX D (Decision and Order of Administrative Law Judge DiNardi) ................. APPENDIX E (33 U.S.C. §910 and § 921[c]) .......... Page A-1 APPENDIX A NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and American Home Assurance Company, Petitioners, ¥i James P. ROUNDTREE [sic] and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents. No. 81-4308. UNITED STATES COURT OF APPEALS Fifth Circuit Jan. 23, 1984. Employer appealed order of Benefits Review Board concerning claim for workers’ compensation under Long- shoremen’s and Harbor Workers’ Compensation Act. The Court of Appeals, in a panel opinion, 698 F.2d 743, re- versed and remanded. A rehearing was granted, 706 F.2d 502. The Court of Appeals, Tate, Circuit Judge, held that order of Benefits Review Board on claim for workers’ compensation under Longshoremen’s and Harbor Work- ers’ Compensation Act, which determined employer’s compensation liability to injured worker but which re- manded case to administrative law judge for further pro- Ces iugs, was not a “final order” within contemplation of Act and was, therefore, not subject to judicial review. Petition for review dismissed. A-2 Jerre S. Williams, Circuit Judge, dissented and filed an opinion in which Clark, Chief Judge, and Brown and Garza, Circuit Judges, joined. E. D. Vickery, Houston, Tex., for petitioners. Stephen Vaughan, Houston, Tex., for Roundtree. Laurie M. Streeter, Assoc. Sol., Mark C. Walters, Marianne Demetral Smith, Joshua T. Gillelan, II, US. Dept. of Labor, Washington, D.C., for respondents. Petition for Review of an Order of the Benefits Review Board. Before CLARK, Chief Judge, BROWN, GEE, RU- BIN, GARZA, REAVLEY, POLITZ, TATE, JOHN- SON, WILLIAMS, GARWOOD, JOLLY and HIGGIN- BOTHAM, Circuit Judges.* TATE, Circuit Judge: The employer (“Newpark”) filed a petition in this court to review an order of the Benefits Review Board with regard to the claim of its disabled former employee Roundtree for benefits under the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U.S.C. §§ 901 et seq. The Board’s order determined the method by which the claimant Roundtree’s periodic compensation rate was to be calculated, but it also remanded the case to the administrative law judge for further findings and proceedings. A motion to dismiss the appeal as being * Judge Garza, now a senior judge of this circuit, is participating as a member of the panel initially deciding the appeal now subject to en banc review. 28 U.S.C. § 46(c). Judges Randall and Davis did not participate in the consideration or decision of this case. A-3 from a non-final adminstrative determination was denied by a divided panel, 698 F.2d 743 (Sth Cir. 1983), which proceeded to determine a substantive issue on its merits and likewise remanded for further proceedings. We granted en banc rehearing, 706 F.2d 502 (1983), pri- marily to determine whether the Board’s determination was a reviewable “final order”, a statutory prerequisite under the Act for judicial review of the Board’s rulings. § 921(c).? Contrary to the panel, we dismiss the present petition for review. Applying the well-settled general rule that a judgment or order is not final unless it ends the litigation on the merits and leaves nothing for the trier to do but execute the judgment, we hold that the present Board order—which determined a central issue of liability, but which nevertheless also remanded the administrative pro- ceedings to the administrative law judge for further find- ings—is not a “final order”, § 921(c), so as to be statu- torily subject to judicial review at this time. I. We will detail the facts somewhat more fully below. For present purposes, we note only that the Board’s order, which determined the method of computing compensation and remanded the proceedings for further findings, was concededly not final in any “technical” sense. The panel majority, however, found it to be reviewable at this time on a concept of pragmatic finality, since upon the court 1. 33 U.S.C. §921(c) provides: “Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred by filing. in such court within sixty days following the issuance of such Board order a written petition that the order be modified or set aside. * * *” (Emphasis added.) A-4 panel deciding a central issue (and reversing the Board as to it), the factual record as to this issue was now complete, although some unresolved collateral issues also remained for decision by the administrative proceedings upon remand. 698 F.2d at 747 & n. 2, 748 & n. 3. [1] The issue thus drawn is whether the Board’s order, under such circumstances, should be deemed a “final order” and thus subject to judicial review under § 921(c). The required finality for reviewability of an order of the Board follows, for the same reasons of policy, the contours of the finality-requirement under 28 U.S.C. § 1291 for appealability of decisions of the district courts. Simms v. Valley Line Company, 709 F.2d 409, 413 (Sth Cir. 1983); Director, Office of Workers’ Compensation Pro- grams v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981); National Steel and Shipbuilding Company v. Director, Office of Workers’ Compensation Programs, 626 F.2d 106, 107-08 (9th Cir. 1980); Newport News Shipbuild- ing and Dry Dock Company v. Director, Office of Work- ers’ Compensation Programs, 590 F.2d 1267, 1268 (4th Cir. 1978) (all four decisions dismissing petitions of re- view because of non-finality of the Board’s order). In Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 373-74, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981), the Supreme Court has recently restated the general test for finality as being a decision “that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Coopers & Ly- brand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). A-5 This finality rule is designed to avoid piecemeal trial and appellate litigation and the delays and. costs of mul- tiple appeals upon both parties and courts, as well as to provide a clear test so that needless precautionary ap- peals need not be taken lest substantive rights be lost. “Restricting appellate review to ‘final decisions’ prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical effect, a single controversy.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). “This insistence on finality and prohibition of piecemeal review discourage undue litigiousness and leaden-footed administration of justice * * *.” DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962). “Thereby is avoided the obstruc- tion to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940), quoted with approval in Firestone, supra, 449 U.S. at 174, 101 S.Ct. at 673. See also 15 Wright, Miller, and Cooper, Federal Practice and Pro- cedure, §§ 3907, 3909 (1976). Nevertheless, the Court has recognized a small number of narrow exceptions to this general rule that appealable finality is accorded only to a judgment or order that completely terminates the litigation below.” Under these 2. In Huckeby v. Frozen Food Express, 555 F.2d 542, 547-49 (Sth Cir. 1977) (Clark, J.), in dismissing an appeal on non-finality grounds, we summarized the three principal doctrinal exceptions. We observed that the three doctrines were “united by a common theme . . . [EJach applies only where there is ‘an order otherwise A-6 exceptions, the requirement of finality is “given a ‘prac- tical rather than a technical construction’ ”. Eisen, supra, 417 US. at 171, 94 S.Ct. at 2149. The exceptions arise from considering “the competing considerations under- lying all questions of finality—‘the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.’” Jd. See 15 Wright, Miller, and Cooper, supra, § 3907. Both the petitioner Newpark and the panel majority, in asserting the reviewable finality of the present Board order, es- sentially rely upon an exception of pragmatic finality that was recognized by Gillespie v. United States Steel Cor- poration, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). We will not here detail the facts nor attempt to analyze the several strands of reasoning by which Gillespie, be- cause of the competing considerations, held to be appeal- able a technically non-final order, save to observe that none of Gillespie’s exceptional reasons are apparent here. As recently summarized by the Court, In Gillespie, the Court upheld an exercise of ap- pellate jurisdiction of what it considered a margin- ally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably “implemented the same policy Con- gress sought to promote in § 1292(b) [permitting discretionary reviewing of interlocutory rulings],” id., at 154, 85 S.Ct. at 312, and the arguable finality issue had not been presented to this Court [after certiorari was granted] until argument on the merits, thereby ensuring that none of the policies of judicial non-appealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment.’” 555 F.2d at 549 (emphasis the court’s). A-7 economy served by the finality requirement would be achieved were the case sent back with the im- portant issue undecided. . . . If Gillespie were ex- tended beyond the unique facts of that case, § 1291 [the finality requirement] would be stripped of all significance. Cooper & Lybrand, supra, 437 U.S. at 477 n. 30, 98 S.Ct. at 2462. Il. Newpark contends, however, that despite this limited construction of Gillespie recently accorded by the Court itself, that decision’s continued viability for application to the present Board order is demonstrated by American Export Lines, Inc. v. Alvez, 444 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). There, citing Gillespie, the Court did not reject review of an interlocutory amend- ment ruling in a state court action as non-final. (The amendment in the state court action, affirmed by the state’s high court, had permitted a harborworker’s wife to assert a claim under general maritime law for loss of her injured husband’s society.) The issue before the Court in Alvez, however, is distinguishable from that before us now. The issue before us concerns the concept of finality under 33 U.S.C. § 921 and 28 U.S.C. § 1291, which afford an aggrieved party review in the court of appeal as of right. In Alvez, the issue arose under 28 U.S.C. § 1257(3), where a “final” judgment of a state’s highest court is reviewable by discretionary grant of certiorari where a right is claimed under federal law. In Alvez, after the court had granted certiorari, it sua sponte noted that the jurisdictional issue, observing ’ A-8 that “were the case in the posture it stood when petition for certiorari was granted, we might well determine that the judgment lacked sufficient characteristics of finality to warrant an assertion of our appellate jurdisdiction.” 446 U.S. at 277, 100 S.Ct. at 1675. However, after certiorari had been granted, the case was tried in the state trial court and the plaintiffs prevailed, with “no federal question, except that which we are now asked to resolve,” remaining in the litigation. 446 U.S. at 277- 78, 100 S.Ct. at 1675-76. The Court noted that “ ‘the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.’” 446 US. at 279, 100 S.Ct. at 1676. Alvez is not apposite to the present issue. While the concepts of finality for Supreme Court review of state court judgments under 28 U.S.C. § 1257 and for court of appeal review of district court judgments under 28 U.S.C. § 1291 are often parallel, they also diverge in some aspects because of the Supreme Court’s different and additional function in § 1257 review of state court judgments to protect federal rights. 15 Wright, Miller, and Cooper, supra, § 3909;° 16 Wright, Miller, Cooper, 3. See 14 Wright, Miller, and Cooper, supra, § 3909, p. 439: The conflicting forces that tug the Supreme Court toward and away from a strict interpretation of the finality requirement in reviewing state court decisions, in short, are quite different from the forces at wurk when it becomes a question of interpreting the finality requirement for appeals from district court decisions. Deference to state courts and the desirability of avoiding Su- preme Court determination of constitutional questions may at times suggest that finality should be denied to judgments that might appropriately be brought to a court of appeals from a district court. More importantly, however, the need to protect federal rights against erosion by interlocutory state court rulings may make it desirable to review state court decisions in situa- A-9 and Gressman, Federal Practice and Procedure, § 4010 (1977). Thus, one of the exceptions in § 1257 review according reviewable pragmatic finality to a technically interlocutory state ruling is where the federal issue has been finally determined in the state court proceeding. Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 482-83, 95 S.Ct. 1029, 1042, 43 L.Ed.2d 328 (1975).* Alvez accorded pragmatic finality to the state court ruling on the federal issue partly because of the functional purposes of review of state court judgments under § 1257 —different and distinguishable in this respect from those according “finality” to district court judgments under § 1291 or to Board decisions under 33 U.S.C. § 921(c) tions in which court of appeals review of a district court deci- sion would rest on some basis other than the final judgment rule. The only common thread running between decisions in these two contexts should be that the requirement of finality is approached pragmatically, with an eye to flexible accommodation of the quite different interests at work in each area. For this purpose, deci- sions in the two areas may properly be cited interchangeably. For purposes of more explicit comparison, however, it should be plain that decisions in one area cannot be binding precedent in the other. 4. Cox Broadcasting Corporation v. Cohn, 420 U.S. at 82-83, 95 S.Ct. at 1040: Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation. a A-10 —and also because of the exceptional posture of the pro- ceeding before it: after certiorari was (improvidently) granted, the state court judgment became (the court found) final for § 1257 purposes. It was in that context that Alvez relied upon the Gillespie exception to strict finality, quoting from that decision: “‘[NJow that the case is before us . . . the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided.’” 444 U.S. at 279, 100 S.Ct. at 1676. Alvez thus cannot be regarded as blanket authority for a court of appeal—to which review is sought of right from a “final” decision—to disregard the Congressionally mandated finality limitation upon its review powers and to ignore the powerful reasons of policy underlying the finality requirement, see I supra, in order to accord re- viewable pragrmatic finality to the trier’s decision, when- ever the reviewing court on a case-by-case basis deter- mines that it would be more efficient to review immedi- ately a central issue raised in review sought from a non- final decision.° 5. Newpark urges that the decisions of the Supreme Court in Pacific Gas and Electric Company v. State Energy Resources Con- servation & Development Commission, US. , 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) and Abbott Laboratories v. Gardner, 387 US. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) support its claim that the Board’s decision in the present case is reviewable. These decisions are not apposite to the issue before us. Neither con- cerned any issue as to “finality” of an agency decision for direct- review purposes within a statutory framework. Both concerned an attempt to challenge governmental action by actions requesting de- claratory and injunctive relief, and the primary issue was whether the controversy was “ripe” for judicial review. The issue before us concerns finality, not ripeness. While there is significant overlap between the two doctrines, the questions of ripe- A-11 Il. The issue before us arises in the following factual and procedural context: Roundtree claims disability benefits under the Long- shoremen’s and Harbor Workers Compensation Act. Roundtree, a welder, was injured on his first day of work as an employee of Newpark. Prior to this employment, he had worked for twenty years as an independent con- tractor. By the time the proceedings came before the Board, the principal (but not only) issue concerned the determination of his weekly wages, 33 U.S.C. § 910, for purposes of computing the periodic compensation pay- ments he claimed to be due to him. Newpark contended that the weekly wage basis should be determined on the basis of § 910(b) (the prior year’s wages of co-workers). The Board affirmed the administra- tive law judge’s decision that, instead, the determination of the wage basis should be based upon § 910(c) (an alternative section applicable to “arriving at the average annual earnings of the injured employee,” if the other statutory methods, § 910(a) and § 910(b) “cannot rea- sonably and fairly be applied”, which may take into con- sideration other factors, “including the reasonable value of the services if engaged in self-employment” during the ness and finality in administrative law address different issues con- cerning the preclusion of judicial review of administrative action that depend upon the nature of the agency action for which review is sought. See 4 Davis, Administrative Law Treatise, § 25.6 (discussing Abott Laboratories and the ripeness doctrine) and § 26.10 (discussing finality of agency action) (2d ed. 1983). While “ripeness” is primarily concerned with preventing judicial review of hypothetical or abstract problems that may not come to pass, see Davis, supra, § 25.1, the finality requirement seeks mainly to ensure that the parties have exhausted all avenues of administrative relief before resorting to ap- pellate judicial review. Davis, supra, § 26.10. A-12 preceding year). However, the Board disagreed with the method used by the administrative law judge to determine the annual earnings of the preceding year, vacated the award of compensation, and remanded for further pro- ceedings, including the determination of unresolved is- sues, such as attorney’s fees.° IV. The uniform jurisprudence of this and every other cir- cuit that has considered the issue is that a Board order, which determines liability but which remands to the ad- ministrative law judge to determine the award, is not a reviewable “final order” of the Board under § 921(c). Director, Office of Workers’ Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981); National Steel and Shipbuilding Company v. Director, Office of Workers’ Compensation Programs, 626 F.2d 106, 107-08 6. The remand portions of the Board’s order are as follows: Because the administrative law judge failed to fully consider the foregoing, this case must be remanded for additional findings of fact and conclusions of law. On remand, the administrative law judge must determine the reasonable value of claimant’s services when self-employed by considering the cost of hiring another welder of skill and experience, comparable to claimant or by using any other rational means. The administrative law judge may open the record to take additional evidence as is necessary. * * * * * * Employer contends that the administrative law judge’s award of temporary partial disability benefits and an attorney’s fee should be vacated if claimant receives a lower average weekly wage. Since we have concluded that the case must be remanded to the administrative law judge for redetermination of claimant’s average weekly wage, consideration of these issues at this time is not appropriate. Claimant’s attorney seeks a fee for work performed before this Board. Since this case must be remanded to the administra- tive law judge, a fee for this work is not appropriate at this time. A-13 (9th Cir. 1980); Newport News Shipbuilding and Dry Dock Company v. Director, Office of Workers’ Compen- sation Programs, 590 F.2d 1267, 1268 (4th Cir. 1978); United Fruit Company v. Director, Office of Workers’ Compensation Programs, 546 F.2d 1224 (Sth Cir. 1977); and reported and unreported decisions therein cited. As stated in the seminal reported decision of this line of cases, “[i]t is a well-established rule of appellate juris- diction, however, that where liability has been decided but the extent of damage remains undecided, there is no final order.” Sun Shipbuilding & Dry Dock Co. v. Benefits Re- view Board, 535 F.2d 758, 760 (3d Cir. 1976). There- fore, in all of these decisions, petition for review of a Board remand order under such circumstances have been dismissed for lack of reviewable finality under § 921(c). The panel opinion recognized that this principle ordin- arily applied, but it felt that, weighing the competing values, the danger of denying justice by delay outweighed the value incorporated in the finality rule of the incon- venience and costs of piecemeal litigation. 698 F.2d at 746-48. It felt that, by deciding the issues presented on the appeal, “the remaining issues will not be questions of law but merely the largely ministerial job of applying the law to the pre-existing record,” 698 F.2d at 747, and it distinguished the above precedents as, unlike the pres- ent case, having “unresolved factual determinations that appellate review could not settle.” Jd. The panel recog- nized that, hov.zver, “some unresolved collateral issues may remain in the instant case, as presented in this ap- peal”, such as determining the amount of attorney’s fees (see also note 6 supra). 698 F.2d at 748. The panel then reached the merits of Newpark’s peti- tion for review and, reversing the Board’s determination A-14 that $910(c) applied, held that § 910(b) provided the appropriate statutory methodology by which to determine Roundtree’s average weekly wage. We note, however, that if instead—after deciding the merits—the panel had af- firmed the Board’s determination that § 910(c) provided the appropriate methodology, then (as the Board heid) the record was not factually complete. The panel’s deter- mination that, on its deciding the legal principle of law, the remand would be a largely ministerial function of applying that principle to the preceding record thus de- pended on its first deciding the merits of the appellate proceeding, i.e., whether §910(b) applied (in which event, in the panel’s view, the record was factually com- plete), instead of § 910(c), as the Board had determined.‘ In essence, under this methodology, neither the court nor the parties could know whether the record was factually complete for purposes of reviewable “finality” until the court had first determined the merit-issue and thereafter decided whether the administrative record was factually complete so as to justify review at this time. The panel’s case-by-case methodology of determining pragmatic finality for purposes of reviewability is thus in fundamental conflict with the values and purposes of the finality rule to avoid the delay and system-costs of piecemeal and multiple appeals, and to provide a rela- tively clear test of appealability so that needless pre- cautionary appeals not be taken. See I supra. “Any such ad hoc decisions [ascribing reviewable finality to techni- 7. In explaining its view that the record was factually complete, the panel noted “we find the record to contain clear and ample evi- dence of Roundtree’s earnings, the earnings records of his co-workers, and all other necessary information concerning the wages of New- park’s welders. The task of applying § 910(b) to the existing records will be ministerial in nature.” 698 F.2d at 747, n. 2. A-15 cally non-final decisions] disorganize practice by encourag- ing attempts to secure or oppose appeals with a consequent waste of time and money.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 253, 99 L.Ed. 233 (1955). As we stated in Freeman v. Califano, 574 F.2d 264, 267 (Sth Cir. 1978), where under cir- cumstances somewhat similar to the present case we dis- missed an appeal and rejected Gillespie pragmatic-finality arguments, the potential evil of here establishing a precedent for other piecemeal appeals in other cases is real. Here the balance appears to be struck in favor of a find- ing of nonappealability. There is simply no signifi- cant countervailing interest here to outweigh the dominant and traditional policy of requiring a final decision to avoid piecemeal appeals.® 8. From the filings of the opposing parties we may obtain some perspective of the potential for multiplication of appellate caseload and delay should we abandon the previous settled rule that a Board order is non-final, and thus nonreviewable, where the Board order determines liability or other issues of the appeal to it, but remands to the administrative law judge for further proceedings. On February 28, 1983, there were 4,942 cases pending before the Board, with new appeals averaging 220 per month; it is estimated approximately 40% of these will result in Board orders remanding the cases for further appropriate action. Director’s Petition suggesting rehearing en banc, p. 10, filed March 22, 1983. Newpark states there were a total of 351 Board orders reported between October 30, 1980 and June 10, 1983, of which 145 resulted in remand orders; however, Newpark argues that most of the remand orders would not be subject to Gillespie pragmatic finality review and points out of that 1,409 decisions, rendered by the Board in the first thirteen volumes of the Board’s decisions, only 13 published court of appeals cases involved an issue raised as to the finality of the Board’s decision. Newpark’s letter brief of September 28, 1983, and attached exhibits. What New- park may overlook, however, is that—were the present non-finality rule of Board remand orders changed—many more appeals from such presently non-final orders might result to test their pragmatic finality, albeit most unsuccessfully, and thus many more issues as to Gillespie pragmatic finality might have been presented as a threshold issue in A-16 [2] For these reasons, we therefore find, consistent with all prior jurisprudential determinations under such cir- cumstances,” that the present Board order, which deter- mined the employer’s compensation liability to the injured worker but which remanded to the administrative law judge for further proceedings, is not a final order within the judicial review thus sought. This indeed was the experience of the Commonwealth Court of Pennsylvania, which entertains appeals from the Pennsylvania workmen’s compensation administrative agency and which experimented with, and then abandoned, allowing reviewable pragmatic finality to board remand orders on Gillespie-type reasoning, as detailed in Murhon v. Workmen’s Compensation Appeal Board, 51 Pa. Cmwlth. 214, 414 A.2d 161, 162-63 (1980): Over the last ten years this Court, following Overmiller v. D.E. Horn & Co., Inc., 191 Pa. Super. 562, 159 A.2d 245 (1960), has departed from the well established doctrine that remand orders of the Board are interlocutory and not appealable. In doing so we nave developed three exceptions as set forth in American Can Co. v. Workmen’s Compensation Appeal Board, 37 Pa. Cmwlth. 169, 389 A.2d 263 (1978): the appeal to the Board resulting in remand was untimely; the remand, based on the record, could not produce a different result; or the Board’s action in granting the remand was based on a clear error of law. As explained in the decisions which developed the exceptions, it was felt there would be a saving of litigants’ time and money if these exceptions were allowed. Our experience has been that the existence of the exceptions has been counterproductive. Ap- parently the party suffering the remand now files an appeal hoping he can convince this Court that his case fits into one of the exceptions or that he can develop still a further exception. Indeed it has gotten to the point, as here, that there are cross- appeals from a remand order! In view of this, our Court now returns to the time tested doctrine that a remand order of the Board is interlocutory and unappealable as a matter of right, without exception. 9. So far as we can ascertain, the only Board remand order that has been held to have reviewable pragmatic finality was in Jngalls Shipbuilding Division v. White, 681 F.2d 275 (Sth Cir. 1982). The petition for judicial review in that case, see discussion in V infra, raised issues of central importance in the administration of the Act, with unique reasons for allowing exceptional pragmatic finality. It is not of controlling significance, if only because its holding should be limited to its exceptional facts. See V infra. A-17 the contemplation of § 921(c) and is, thus, not subject to judicial review at this time, since it did not end the litigation on the merits and leave nothing for the trier to do but execute the judgment. ¥; The panel relied not only upon Gillespie, but also upon the decision of this circuit in Ingalls Shipbuilding Division, Litton Systems, Inc. v. White, 681 F.2d 275 (Sth Cir. 1982), which itself had relied upon Gillespie, in accord- ing reviewable pragmatic finality to a Board’s remand order. The issue there involved an extremely important general question in the administration of the Longshore- men’s Compensation Act whether an administrative law judge had the power to approve settlements by an injured worker (as the administrative law judge and the Board held), or instead whether this power was vested in the Deputy Commissioner and the Secretary (as the Director of the Office of Workmen’s Compensation Programs urged). The Board, affirming the power of the adminis- trative law judge to approve a settlement, nevertheless remanded the settlement to t’.e judge for him to approve or disapprove it under Board-specified guidelines. The Director filed a petition for review in this court.*® The Ingalls panel accorded pragmatic finality to the Board’s remand order and entertained review of it under § 921(c), based upon Gillespie and Gillespie-type reason- ing. The panel pointed out the delay inherent in remand- 10. The petition also raised an important question of first im- pression as to whether the Director had standing to petition to review a Board order with which both employer and employee were satisfied, as well as the then unsettled important issue of whether the Director had standing to petition the Board for review of the administrative law judge’s ruling as a statutory “party in interest.” A-18 ing and the ease of deciding the issues then so as to expedite earlier termination of the proceedings—on rea- soning similar to that of the panel in the present case, albeit here on issues applicable to benefits due a single claimant rather than, as in /ngalls, on central issues of the administration of compensation scheme. /ngalls is, however, the only judicial decision that has held that a Board remand order is reviewable under § 921(c), in- sofar as we can ascertain, and in /ngalls the issue de- cided on that appeal could ultimately have been brought to the court for review after a final order of the Board (although admittedly the somewhat exceptional circum- stances (both employer and employee were satisfied with the Board ruling) made that course somewhat unattrac- tive and cumbersome). A dismissal of the present petition for review for lack of jurisdiction because the remand order is not final, § 921(c), could possibly rest on leaving Ingalls undis- turbed, distinguishable and limited to its facts in its pragmatic-finality ruling because of its exceptional cir- cumstances and the central importance of the issues re- quiring decision. We have decided, however, that Ingalls should be overruled, for its value in occasionally per- mitting reviewable pragmatic finality to Board remand orders is outweighed by its erosion of the values of the finality rule mandated by Congress as a prerequisite for our appellate jurisdiction, considering also the necessary uncertainty (as is illustrated by the present case) that must exist in the administration of a judicially created pragmatic-finaiity exception, where definable standards for allowing this extra-statutory appeal of right are virtu- ally impossible to formulate. A-19 Conclusion Since the remand order of the Board is not a final order as required by 33 U.S.C. § 921(c), we lack juris- diction to review it, and the Newpark’s petition for review is DISMISSED. PETITION FOR REVIEW DISMISSED. JERRE S. WILLIAMS, Circuit Judge, with whom CLARK, Chief Judge, BROWN and GARZA, Circuit Judges, join, dissenting: In this case, the Court regrettably retreats from a justifiable flexibility in the law to a rigid rule which disserves the interests of justice in the judicial review of the actions of an administrative agency. We recog- nized the importance of such flexibility in /ngalls Ship- building Division, Litton Systems, Inc. v. White, 681 F.2d 275 (1982), and the panel opinion in this case followed Ingalls in turning its back on absolutism in such review. The Court overrules /ngalls and refuses to recog- nize that in the proper case the saving of time and cost to the litigants in judicial review should prevail over an unduly and unnecessary stringent application of the final- ity rule. In this dissenting opinion I do not undertake to repeat in full detail the reasoning which led the majority of the panel to hold that there was a “final order” in this case. See Newpark Shipbuilding & Repair, Inc. v. Roundtree, 698 F.2d 743, 746 (Sth Cir. 1983). Instead, I emphasize briefly the actual factual situation in this case and relate it to the admittedly controlling concept of “finality”. Under § 10 of the Longshoremen’s and Harborworkers’ — A-20 Compensation Act, 33 U.S.C. $910 there is provision for alternative determination of the average weekly wages as a basis of calculating benefits for injured workers. Section 10(a) provides for calculation of benefits based upon the injured worker’s own earnings if he has been employed in the same job for a year. Only if 10(a) can- not be applied is 10(b) applied. It provides for calcula- tion of benefits based upon the wages of workers in com- parable jobs for the past year. Only if 10(b) cannot be applied is 10(c) applied. Its method of calculation is based upon earnings potential of the employee rather than actual prior wages of the employee or of employees in comparable work. In this case the Benefits Review Board found that 10(c) was applicable because it would not be “fair and equitable” for 10(b) to apply even though there were a number of welders in comparable employment whose average wages for the past year were readily available and were in evidence. The sole ground which the Benefits Review Board gave for the abandonment of the progression from 10(a) to 10(b) to 10(c) was that the comparable employees had received a substantial wage increase during the preceding year. The panel decision found on the merits that this was not an adequate justification in the law for moving from the 10(b) calculation to the 10(c) calculation simply because it is almost universal for employees to receive a wage increase during the year, and the progres- sion contemplated by Congress would be totally destroyed by the holding of the Benefits Review Board. Why this brief description of the merits of the dispute in view of the fact that the issue before us is whether A-21 the decision of the Benefits Review Board is appealable or not? The answer is to be found simply in the fact that without an understanding of the completeness of the deci- sion by the panel of this Court on review from the Bene- fits Review Board can the justification for treating the decision of the Benefits Review Board as a final order be seen. The critical point in this case is that the fundamental legal decision controlling the case has been made by the Benefits Review Board and is now on appeal to this Court. If we do not consider this issue as being pre- sented to us in a “final order” the case will go back to the administrative law judge for further extensive pro- ceedings based upon an interpretation of the statute which the panel of this Court found to be in clear contravention of the congressional policy. It is difficult to accept under these circumstances the “judicial economy” in the rigid rule which the majority here establishes. The Supreme Court cases upon which the opinion for the Court relies most heavily are cases which are easily distinguishable and require the evaluation of wholly dif- ferent considerations. They involve attempts to obtain judicial review of preliminary matters in administrative proceedings before the final decision on the merits is made. It is beyond cavil that allowing appeals in those kinds of cases promotes constant appeals to the Court, and would fail completely a test of judicial economy. Thus, in Firestone Tire & Rubber Co. v. Risjord, 440 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Court was asked to review a ruling on a motion to dis- qualify plaintiff’s counsel in advance of trial. The case of Coopers & Lybrand v. Livesay, 437 US. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) is cited as A-22 limiting the sweep of the seminal case of Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). We relied strongly upon Gil- lespie both in Ingalls and in the panel opinion in this case. But Coopers v. Lybrand involved another prelimi- nary matter—whether a class action should or should not be certified before trial on the merits. Both of these cases involved attempts to apply the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 US. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). That doctrine is not here involved. Further, both Firestone and Coopers & Lybrand are federal cases so they do not involve the distinction properly and painstakingly drawn by the ma- jority of the Court in American Export Lines, Inc. v. Alvez, 444 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) recognizing a broader concept of non-finality as nevertheless subject to federal judicial review in appeals from state courts. This issue, too, is not here involved. The Supreme Court has not abandoned the key state- ment it made in Gillespie v. United States Steel Corpora- tion, 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). There the Court said that the question of finality deserves a “practical rather than a technical con- struction” because it would be “impossible to devise a formula to resolve all marginal cases coming within what might well be called the ‘twilight zone’ of finality.” While Gil- lespie itself involved a district court decision resolving an issue in advance of trial, the issue to be resolved was fundamental in that it sought to review the decision by the district court that the administratrix of decedent’s estate could not bring suit on an unseaworthiness claim against a shipowner but could only bring suit under the A-23 Jones Act. The Supreme Court held that the issue was properly reviewable, as the decision was a “final order.” Contrary to the conclusion in the opinion of the Court, our earlier decision in /ngalls is distinguishable from the case sub judice only in that /ngalls went further in recog- nizing an exception to a strict finality rule. What /ngalls decided was an interpretation of the law as to what agency within the administrative processes of the Long- shoremen’s and Harborworkers’ Compensation Act had the authority to approve a compromise settlement. That decision clearly was not final in the sense that after it was made it was then left to that agency to decide whether or not to approve the compromise settlement in the case, a discretionary decision which would clearly be subject to additional review. In the case before us, in contrast, the core legal issue is over once the decision is made. As the panel opinion pointed out, all that was left was the ministerial act of taking the figures already in the record and calculating the average weekly wages based upon them. While the majority of the Court mentions the possible additional issue of attorneys’ fees, it properly does not draw any specific conclusions with respect to that issue once it is mentioned. Attorneys’ fees can be part of the core of the case, requiring that they be set before a judgment is final. Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143 (Sth Cir. 1982). The award of at- torneys’ fees, on the other hand, can be a collateral mat- ter independent of the merits of the case and uniquely separable from a cause of action. White v. New Hamp- shire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 1166, 1167 n. 14, 71 L.Ed.2d 325 (1982); A-24 Obin v. Dist. No. 9, Int'l Ass'n of Machinists & Aero- space Workers, 651 F.2d 574, 584 (8th Cir. 1981) (“[A] judgment on the merits of an action, otherwise final, is final for purposes of appeal notwithstanding that a claim for attorney’s fees may remain to be decided.”) Attorneys’ fees clearly are collateral in the case before us. Finally, it is not amiss to point out that the rules con- cerning finality and judicial review of administrative rule- making make no fetish whatsoever of a principle that nothing more must remain to be done to have finality. FCC v. WNCN Listeners Guild, 450 U.S. 582, 593, 101 S.Ct. 1266, 1273, 67 L.Ed.2d 521 (1981) (reviewing a “policy statement” of an agency without even discussing the issue of finality); Harrison v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980); Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (“the cases dealing with judicial review of administrative action have interpreted the ‘finality’ element in a pragmatic way.”) Of course, I recognize the difference between administra- tive rulemaking and adjudication. But what is critical is that the rulemaking review cases accept a pragmatic ap- proach to finality because the agency is declaring a funda- mental governing legal rule. That is exactly the situation we have in the case which is before us, even though that principle or “rule” is being declared through adjudication. Cf. Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). This is not a case then in which a preliminary matter is being submitted to the Court for judicial review as in Firestone and Coopers & Lybrand. In this case a con- A-25 trolling legal principle is submitted to the Court for ju- dicial review leaving nothing but a routine application of that principle to be carried out on a record which is com- plete, as the panel decided the case. Even if the deci- sion on the legal question were the other way, the record may be complete, and in any event is virtually so. Cer- tainly, even under the BRB decision, less remains to be resolved than was the circumstance in Ingalls Shipbuild- ing where a serious decision on the merits concerning the approval of an agreed settlement remained to be decided. It is my view that Gillespie is the law. Ingalls Ship- building was a proper application of Gillespie as a recog- nized narrow exception to a requirement that there must remain absolutely nothing to be done after the order is issued in the review of orders of administrative agencies. Ingalls Shipbuilding should not be overruled. It follows then that in the case before us we have a proper situation for application of the exception. Instead, we are com- pelled by the Court in its decision to force the parties to go back through the administrative process in ignorance of what this Court will decide is the controlling law of the case. This case does not call for nor open the door to “piecemeal” judicial review of administrative action. It calls for straightforward controlling judicial review of or- ders which are for all reasonable purposes final orders within the meaning of 33 U.S.C. § 921 and 28 U.S.C. § 1291. The opinion for the Court sacrifices control by this Court over the concept of finality. It will substantially in- crease the expenditure of administrative and judicial services needlessly in that narrow class of cases such as Gillespie, Ingalls, and this case in which the Court can A-26 readily perceive that its decision will resolve the funda- mental legal issue about which the entire administrative appeal revolves. There is no reason to fear misuse of such expeditious resolution of core issues. We should not fear a “case by case” approach, recognized and accepted by the United States Supreme Court, when it is narrowly con- fined as here set out. We should not abdicate our judi- cial responsibility to dispose of pragmatically final orders in an expeditious fashion and with saving to all persons and agencies involved. For these reasons I am compelled to dissent from the opinion of the Court. A-27 APPENDIX B NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and American Home Assurance Company, Petitioners, Va James P. ROUNDTREE [sic] and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents. No. 81-4308. United States Court of Appeals, Fifth Circuit. Feb. 22, 1983. Employer appealed order of the benefits review board concerning claim for workers’ compensation under Long- shoremen’s and Harbor Workers’ Compensation Act. The Court of Appeals, Jerre S. Williams, Circuit Judge, held that: (1) order was “final” even though administrative body had directed remand; (2) section of statute pro- viding that compensation be determined by previous year’s wages of employee was not applicable; and (3) sec- tion of statute which called for comparison to employee of same or most similar employment for determination of compensation was applicable. Reversed and remanded. Tate, Circuit Judge, filed a dissenting opinion. A-28 Petition for Review of an Order of the Benefits Review Board. Before GARZA, TATE and WILLIAMS, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge. This appeal arises from a claim for workers’ compen- sation under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The employer urges that we find jurisdiction to lie in this appeal and that we rule on the proper statutory basis for computing compensation benefits under the facts pre- sented. We find that jurisdiction does lie, and that § 10 (b) of the Act, 33 U.S.C. § 910(b), is the proper statu- tory basis by which to compute benefits in this case. I. Background James Roundtree has been a welder in the shipyards since 1941, and he worked as an independent contractor between 1954 and 1975. During the last days he worked as an independent contractor, he charged a rate of $12.50 per hour for his services. For a variety of personal and career-related reasons, Roundtree abandoned his work as an independent contractor and began working as an hourly employee for the firm now known as Newpark Shipbuilding. Roundtree’s wage as a welder was $5.50 per hour, with available overtime and a ten cent per hour shift differential. Other welders in the shipyard were paid as much as $5.95 per hour at the time. Roundtree’s first day on the job, April 22, 1975, was an unfortunate one for him. He was working on a barge. While welding a hole that had been fitted and tacked, A-29 Roundtree fell off his scaffold and injured his back, re- sulting in his disability. His claim for workers’ compensa- tion under LHWCA came before an Administrative Law Judge (ALJ) with the Office of Workers’ Compensation Programs. The ALJ determined that Roundtree was en- titled to compensation, and then considered the possible methods for computing Roundtree’s average weekly wage pursuant to § 10 of the Act. The ALJ first considered § 10(a), which looks to the employee’s wages during the prior year, and found that subsection inapplicable be- cause of the change in Roundtree’s employment from in- dependent contractor to hourly employee. He then con- sidered § 10(b), which looks to the prior year’s wages of coworkers performing the same or similar work. The ALJ rejected that theory, in part because the shipyard workers had recently received a wage hike that would not be reflected fully in a $10(b) calculation based on twelve prior months. He therefore concluded that it would not be reflected fully in a § 10(b) calculation based on looked to § 10(c) for guidance. Section 10(c) points toward the earnings potential of the employee at the time of injury, rather than actual prior wages. Applying $10 (c), the ALJ looked at Roundtree’s earnings capacity as an independent contractor and determined his weekly wage to be $360.41, approximately $10.29 per hour, based on Roundtree’s earnings of $18,741.20 in the pre- ceeding year. He then ordered compensation accordingly as provided in § 8(b). Both Roundtree and his employer appealed to the Benefits Review Board (BRB). The employer argued that § 10(b) rather than § 10(c) should control. Roundtree cross-appealed to call for application of § 10(a), but apparently switched his view during the BRB proceed- A-30 ings and agreed with the ALJ’s application of § 10(c). The BRB affirmed the use of § 10(c) for determining the weekly wage, but ruled that the ALJ had erred in using the gross earnings of an independent contractor for determining the amount of Roundtree’s weekly wage. The BRB suggested that the net earnings of an independent contractor, after business expense deductions, might be an appropriate wage determination. In any event the BRB remanded for a redetermination of Roundtree’s weekly wage under § 10(c). The employer appeals the BRB’s ruling to this Court, pursuant to § 21(c) of the Act, 33 U.S.C. § 921(c). It argues that § 10(b) rather than § 10(c) should control this determination of average weekly wage. Further, it argues that the appeal is ripe for review as a “final order” because the record in this case is sufficiently com- plete. It urges that an appellate determination of this question will effectively terminate the litigation. Since our authority to review an administrative ruling under LHWCA is limited to “final orders”, 33 U.S.C. § 921 (c), we must begin by examining our jurisdiction over the subject matter of this case. II. Examination of Subject Matter Jurisdiction Appellate review of BRB orders is restricted under 33 U.S.C. § 921(c) to “final orders”.’ The “final order” re- quirement follows the contours of the finality rule ex- 1. 33 U.S.C. § 921(c) provides in part: Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury oc- curred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. A-31 pressed in 28 U.S.C. § 1291. Director, Office of Workers’ Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981); National Steel and Shipbuilding Co. v. Director, Office of Workers’ Compensation Programs, 626 F.2d 106, 107-08 (9th Cir. 1980). The requirement sometimes, but not always, excludes from appellate re- view a remand order to an administrative agency. 7d. at 108; United Fruit Co. v. Director, Office of Workers’ Compensation Programs, 546 F.2d 1224, 1225 (Sth Cir. 1977). We believe, however, that the case before us is properly reviewable at this time even though the ad- ministrative body directed a remand. Our determination of whether jurisdiction lies does not depend on a single formula or a simple rule. “The inquiry requires some evaluation of the competing con- siderations underlying all questions of finality—‘the in- convenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.’ ” Eisen v. Carlisle & Jacquelin, 417 US. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), quoting Dickinson y. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950). This Circuit recently faced the question of what con- stitutes a final administrative order in a LHWCA case. In Ingalls Shipbuilding Division, Litton Systems, Inc. v. White, 681 F.2d 275 (Sth Cir. 1982), White and his employer entered into a compromise settlement of his LHWCA workers’ compensation claim resulting from White’s employment-based injury. An ALJ approved the settlement agreement after a cursory examination. The Director of the Office of Workers’ Compensation Pro- grams appealed the order of the ALJ to the Benefits Re- A-32 view Board, which held that the Director had standing to challenge the settlement, and that the ALJ’s approval of the settlement must be set aside. The BRB remanded the claim to the ALJ, and the employer appealed to this Circuit. We noted first that considering the appeal would not raise the specter of piecemeal review before the court, id. at 279, because the record was complete, the legal conclusions had been made, and the issue on appeal was only whether the power of the ALJ had been exercised properly. Reaching the merits effectively eliminated the need for later review, while dismissal would only have caused the same legal issue to come before us after the agency held additional hearings based on its tentative interpretation of its role. We therefore recognized juris- diction. [1] Similarly in the case before us today, the issue presented challenges the proper legal standard, rather than constitutes a factual dispute. The record itself is factually complete, and application of § 10(b) can be accomplished on the record. The only question presented is that of ruling on the proper formula. If we were to dismiss for lack of jurisdiction, the next proceeding would be the ALJ’s application of § 10(c) to the record and a pronouncement of a definite monetary award. If applying § 10(c) is not supported in the law, that proceeding would be a wasted one. If, however, we were to defer our review and determine at a later date that there is no error, we would have little effect on the risk of piecemeal review but merely would delay the resolution of the dispositive issue in the case. No party has raised any other issues on appeal, and there is little A A-33 risk of a new appellate issue developing in the proceedings to come. With our decision today, the remaining issues will not be questions of law but merely the largely ministerial job of applying the law to the preexisting record. This task is properly left to the sound discretion of the ad- ministrative body. Obviously our decision would be de- finitive guidance to the agency. Hence, we believe that the order of the BRB is ripe for review. We recognize that cases in this and other Circuits have denied appellate review of pending actions from the BRB. But these cases involved incomplete determinations or administrative records, thus placing them in a less “final” posture than /ngalls or the immediate case. In United Fruit Co. v. Director, Office of Workers’ Compensation Programs, supra, we dismissed the appeal as untimely. The unresolved issues were more than a simple calcula- tion of disability benefits; the ALJ had not properly ruled on the nature and extent of the employee’s disability, or the “possible liability of the special second injury fund.” In Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, United States Dep’t of Labor, 535 F.2d 758 (3d Cir. 1976), (per curiam) the court dismissed the appeal, because, even though liability had been decided, the extent of disability due to the worker’s loss of hearing remained undetermined. In Newport News Shipbuilding and Dry Dock Co. v. Director, Office of Workers’ Compensation Programs, 590 F.2d 1267 (4th Cir. 1978) (per curiam), the ALJ had not made complete findings as to “the nature of the injury, the degree of physical impairment. . . and any other factor . . . including the effect of disability as it may naturally extend into the future.” Jd. at 1269, A-34 quoting 33 U.S.C. § 908(h). All these cases, unlike the case before us, had unresolved factual determinations that appellate review could not settle. The Director of the Office of Workers’ Compensation Programs (Director), respondent in this case, offers a different argument in urging a narrow construction of the term “final order”. He presses an analogy to attorneys’ fees cases, where courts have held that an order is not final, hence not appealable, until the amount of awarded attorneys’ fees is determined. Since, in the case before us, the determination of disability is known but the dollar amount of the award must still be set, the Director urges that the same principles of lack of finality apply in this case as in the attorneys’ fees cases. In Director, Office of Workers’ Compensation Programs v. Brodka, 643 F.2d 159 (3d Cir. 1981), the Third Circuit held that a LHWCA case is not yet final when the substantive claim and the availability of attorneys’ fees are both settled but the amount of the attorneys’ fees award is undetermined. Similarly, in Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981) (en banc), the court determined that a district court order is not final for purposes of 28 U.S.C.A. § 1291 until the amount of attorneys’ fees has been settled. This Court has held similarly. E.g. Williams v. Ezell, 531 F.2d 1261, 1263 (Sth Cir. 1976). We acknowledge that an order is not “final” under 28 U.S.C. § 1291 until the amount of awarded attorneys’ fees has been determined. However, we find those cases distinguishable. In the attorneys’ fees cases, the appli- cable legal standard is already established when the dis- trict court rules on the award. There need be no appeal A-35 at that time regarding what the law ought to be for the determination. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974) (Title VII case, 42 U.S.C. § 2000e et seq., establishing a twelve-pronged test in awarding attorneys’ fees). But at that point, the record would not yet contain the factual material needed to rule on the amount of the award. The case before us, by contrast, already contains uncontested full factual findings.” Furthermore, these cases usually come before an ap- pellate court with challenges to both the merits and the award of attorneys’ fees. To hold an order to be final before the final award of attorneys’ fees would only lead to two appeals, one on the merits and one on the at- torneys’ fees, with no corresponding increase in the funda- mental fairness to the parties. Such is not the case here.* 2. Judge Tate, in his dissent, expresses his belief that the factual findings in the record may not be complete. Yet we find the record to contain clear and ample evidence of Rountree’s earnings history, the earnings records of his co-workers, and all other necessary in- formation concerning the wages of Newpark’s welders. The task of applying § 10(b) to the existing record will be ministerial in nature. The case before us does not require us to determine whether the application of § 10(c) would also be ministerial in nature, hence we need not speculate as to whether the BRB’s order would be final, hence reviewable, if § 10(c) rather than § 10(b) were the proper formula. 3. We recognize that some unresolved collateral issues may remain in the instant case as presented in this appeal. Rountree, for example, has requested attorneys’ fees stemming from the prior hearing before the ALJ. However, these issues are substantially unrelated to the heart of this appeal and therefore do not bar our jurisdiction to con- sider the central issue. ““‘When attorney’s fees are similar to costs or collateral to an action, a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits.” Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143, 1146 (Sth Cir. 1982) (citations omitted). A-36 The Supreme Court has stated that the question of finality deserves a “practical rather than a technical con- struction” because it would be “impossible to devise a formula to resolve all marginal cases coming within what “might well be called the ‘twilight zone’ of finality.” Gil- lespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964) (exceptions to finality rule under 28 U.S.C. § 1291). In the case before us, the question on appeal is to determine the proper legal standard to be applied. Our decision will settle this question and minimize the risk of a wasted agency hearing and a later appeal. We find that an appeal at this stage in this case will be more efficient and will not prejudice the parties, especially since the employee’s workers’ compensation checks will not reflect the proper award until the conclusion of this litigation. Accordingly, we recognize appellate jurisdiction in this case where the substantive legal issue is clearly posed and all that will remain after it is decided is use of the record already completed to calculate the wage base for the recovery. III. Determination of the Proper Legal Standard A. General Considerations The substantive dispute before us is not a complex one. We must decide which of three statutory formulas is to be used in computing Roundtree’s weekly wage base for pur- poses of workers’ compensation benefits under LHWCA. Roundtree’s somewhat unusual situation, having changed on the very day of his injury from independent con- tractor at $12.50 per hour to hourly employee at $5.50 per hour makes the method of computation an issue of intense concern to the parties. A-37 {2] Our standard of review is necessarily limited, Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (Sth Cir. 1976), to whether the administrative find- ings are supported by substantial evidence, Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968), in accord with the law, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), and not arbitrary, O’Keeffe v. Smith, Hinchman & Grylls As- sociates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965) (per curiam). The nature of our review is also restricted by the statu- tory scheme of § 10. The statuie assumes that most work- ers will fall into subsection (a), which looks to the actual wages of the injured worker in the year prior to the injury as the monetary base for determination of the amount of compensation. Subsection (b) operates only where sub- section (a) cannot be applied due to a fundamental change in the nature of the injured worker’s employment. Method (b) looks to the actual wages of other workers in the same employment situation. The statute presumes that either (a) or (b) will fit the circumstances of the injured employee in most cases, but adds the “earnings capacity” formula of subsection (c) as a general, “catch- all” provision in case the other methods cannot be used as, for example, where the employee has worked for sub- stantially less than a year and there are no other em- ployees in the particular business whose jobs are com- parable. Our task, then, is not to choose the most attrac- tive method, but to determine which of the formulas is called for by the step-by-step statutory scheme. A-38 B. Specific Determination [3] Roundtree urges on appeal, as he has in the pro- ceedings below, that § 10(a) of the Act controls. Basic- ally, § 10(a) relies on the actual wages of the injured employee during the previous year.* Roundtree was earning between $10.50 and $12.50 per hour during the previous year as an independent contractor. However, we agree with both the ALJ and the BRB that § 10(a) is not a proper formula to be applied in this case. Roundtree had a complete change in the nature of his employment when he voluntarily relinquished his self-employment as independent contractor and accepted an hourly job in the shipyard. This change was not a simple change in employer or place of business. Job- hoppers performing substantially the same work for dif- ferent employers are covered by the 10(a) formula just as are their less peripatetic coworkers. But Roundtree’s situation is much further removed from 10(a) applica- bility. First of all, his prior work as an independent contractor was not “covered employment” under workers’ compensa- tion, since he was self-employed. Under § 10(a) he had no employer. Further, Roundtree’s new position required only the skills of a welder, while his work as a contractor, 4. Section 10(a) of the Act, 3: U.S.C. § 910(a), provides: If the injured employee shall .ave worked in the employment in which he was working at the .ime of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding hi: injury, his average annual earnings shall consist of three hunclred times the average daily wage or salary for a six-day worker and two hundred and sixty 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. ——— ey —_ A-39 as the ALJ found, entailed “a considerable amount of expenses involved in operating his own business such as purchasing oxygen, welding rods, hand tools, acetylene, a welding rig mounted to his truck, insurance coverage, as well as various utility expenses.” Self-employment also requires a knowledge of bookkeeping, contracts, and gov- ernment regulations that an hourly job does not demand. Finally, an independent contractor works on a job basis and may well not be working a full 40 hour week every week. These critical distinctions explain, at least in part, why workers like Roundtree would trade a $12.50 an hour contractor’s life for a $5.50 guaranteed wage. Since Roundtree was not “employed” for the year prior to the accident, he was not working in the same employment on the day of the accident, and $ 10(a) is not applicable. The employer contends that § 10(b) is the proper formula. Subsection (b) determines a weekly wage by counting the last year’s wages of coworkers performing substantially the same work at the same place of employ- ment as the injured worker.*® This subsection applies. to claims in which the injured worker has had too little time on the job to permit an accurate and fair computation of average daily wage: for example, the subsection would apply if a worker had been 5. Section 10(b) provides: If the injured employee shall not have worked in such employ- ment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five- day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working sub- stantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed. A-40 recently hired after having been unemployed, or out of the work force, or in a lower paying position. See O’Hearne v. Maryland Casualty, 177 F.2d [979] at 982; California Ship Service Co. v. Pillsbury, 175 F.2d [873] at 876. Duncanson-Harrelson Co. v. Director, Office of Workers’ Compensation Programs, 686 F.2d 1336, 1341-42 (9th Cir. 1982). [4] The record shows that the employer presented pay records of three welders who performed comparable work at the same site. This is an adequate statistical base for § 10(b) purposes, even though there were over 100 weld- ers in the shipyard at the time. There was no attempt to introduce any evidence that these three were not doing comparable work and instead were picked as the lowest- earning welders. Absent such an intent to distort the comparable wages, even one worker’s pay record could fulfill the statutory requirement.° The Director counters the claim of § 10(b) applica- bility by pointing out that § 10(b) should not be pe when the result would fail “reasonably and fairly” represent the worker’s earnings. The Director urges us to uphold the application of § 10(c)." 6. The statute calls for comparison to “an employee of the same or most similar employment.” See id. See also Andrew F. Mahony Co. v. Marshall, 56 F.2d 74 (9th Cir. 1932). 7. Section 10(c) states: If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shali 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 A-41 The Director points out that the welders in this ship- yard received a 50 cent per hour wage increase just two months before Roundtree’s accident. Examining ten months of older, lower wages with only two months of the then-current wages would diminish Roundtree’s com- pensation base. Since the purpose of the overall statute is to compensate the injured worker, the Director argues, the government should take all possible steps to provide the employee with the maximum recovery allowable under the statute. Hence, he urges us to affirm the BRB’s use of § 10(c). [5] We are sympathetic to the Director’s view that claimants should receive the maximum compensation allowable under the statute. However, we find that an award under § 10(c) is not allowable under the statute in the case before us, and we hold that § 10(b) is the applicable formula. First, we point out that the statutory hierarchy of compensation formulas will allow the use of § 10(c) only when neither § 10(a) or § 10(b) can be applied “fairly and reasonably”. The Director argues that any substantial wage increase within the year preceding injury would make § 10(a) or § 10(b) unfair, and that the larger the raise and the closer to the date of injury, the more unfair the other methods become. He believes that any worker whose employer gave a substantial raise before the date of injury should be able to claim a § 10(c) “catch-all” computation, whether or not that worker has been em- ployed there for the entire previous year. 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. A-42 Yet such an interpretation is not in keeping with the intent of the statute, for it would effectively eradicate virtually all applications of methods (a) or (b). Most employers now offer some sort of annual wage boost. Congress, in creating this statutory scheme, did not in- tend for § 10(a) and § 10(b) to be wiped off the books. The “catch-all” provision of § 10(c) is properly to be applied only in cases where it would be unrealistic to apply the normal formulas. As legislative history de- scribes § 10(c): This subsection in the present law is used where the employment itself, in which the injured employee was engaged when injured, does not afford a full year of work. . . . Thus, subsection (c) applies to seasonal, intermittent, discontinuous, and like em- ployment which affords less than a full workyear or workweek. Senate Rep. No. 1315, 80th Cong., 2d Sess., reprinted in [1948] U.S. Code Cong. Serv. 1979, 1982, quoted in Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 575 (7th Cir. 1980). Case law clarifies the limited nature of § 10(c). In Todd Shipyards Corp. v. Director, Office of Workers’ Compensation Programs, 545 F.2d 1176 (9th Cir. 1976), the court upheld the use of § 10(c) when “no evidence was introduced which could clearly determine the claim- ant’s average daily wage” under § 10(a) or § 10(b). Id. at 1179 (emphasis added). The Ninth Circuit also stated in Palacios v. Campbell Industries, 633 F.2d 840, 842 (9th Cir. 1980) that “[s]ection 10(c) applies to inter- mittent and irregular employment, when application of the mathematical formulas provided in section 10(a) or 10(b) would be unreasonable or unfair, or when insuf- 4 4 < 3 a 2 3 4 a > A-43 ficient evidence is presented at the hearing to permit proper application of section 10(a) or (b).” On occasion, some courts have recognized a general unfairness in using §10(a) or §10(b) when those formulas would not reflect a claimant’s earning capacity at the time of injury. These cases usuaily involve a worker who had been off the job for much of the preceding year, so that a § 10(a) determination of wages while working would lead to a significantly larger computed wage base than the worker’s actual earnings during the prior year. In Strand v. Hansen Seaway Service, Ltd., supra, the Seventh Circuit found that where a cold water port is normally closed for fixed times of year, the use of § 10 (a) or § 10(b) to determine an average weekly wage would be unreasonable and unfair. In Duncanson-Harrel- son Co. v. Director, Office of Workers’ Compensation Programs, 686 F.2d 1336 (9th Cir. 1982), the Ninth Circuit upheld the use of § 10(c). The court admitted that use of §$ 10(c) might be error, but refused to re- verse because the use of § 19(a) would have inflated the worker’s wage base unfairly. See also Johnson v. Britton, 290 F.2d 355 (D.C. Cir.), cert. denied, 368 U.S. 859, 82 S.Ct. 99, 7 L.Ed.2d 56 (1961) (§ 10(a) would result in a “highly distorted earnings figure” when the worker worked only 180 days of the prior 52 weeks). In Andrew F. Mahony Co. v. Marshall, 56 F.2d 74 (9th Cir. 1932), the court sanctioned the use of § 10(c) to an intermittent employee. Winkler, the employee, had earned $1,266.20 in the year prior to his injury, and was awarded the maximum $25.00 weekly compensation, based on the higher wages of a coworker. Recognizing that $ 10(b) would provide greater compensation to Winkler than he had earned through his prior, :atermit- A-44 tent employment, the court allowed the use of § 10(c). The court stated that § 10 “does not provide that every case must be measured by subdivisions (a) or (b) if it is possible to force the transaction into the formula which those subdivisions prescribe and that subdivision (c) is to be applied only to cases which cannot be measured by (a) or (b).” Jd. at 78. However, the use of subsection (b) in the case before us does not require forcing or even a gentle push. It is method (c) that calls for the push—a push that would give Roundtree the benefit of the recent raise in the shipyard. It is the clear intent of the statute that if one of Round- tree’s co-workers was injured and he had worked for the whole of the preceding year, § 10(a) would apply. When this was pointed out to government counsel during oral argument, counsel was forced to take the position that any welder in the shipyard who was injured should be able to claim a wage base calculated under § 10(c). We cannot accept such a departure from the manifest statutory scheme. We hold that § 10(b) is the applicable formula by which to compute Roundiree’s wage base. IV. Conclusion We find that this Court has jurisdiction over the sub- ject matter of this appeal. Further, we hold that § 10(b) of the Longshoremen’s and Harbor Workers’ Compensa- tion Act (LHWCA), 33 U.S.C. § 910(b), sets out the proper formula by which to determine Roundtree’s work- ers compensation benefits. We therefore reverse the Bene- fits Review Board and remand for proceedings consistent with this opinion. REVERSED AND REMANDED. A-45 TATE, Circuit Judge, dissenting: With respect for my brethren of the majority, I never- theless dissent from their holding that the present order of remand by the Benefits Board of Review is a “final order” and, thus, subject to judicial review at this time. 33 U.S.C. § 921(c). In a commendable effort to ex- pedite judicial review in the present case, the majority has adopted a principle of case-by-case determination of “finality” that will, however, unsettle the relative certainty that was previously attached to that concept. While the benefits of expeditious review in the present case may be apparent, the general rule enunciated will require, as its consequence, many premature appeals in the future and much additional resultant delay before the final award or rejection of compensation claims. In the present case, the principal (but not the only) issue before the Administrative Law Judge and the Board was whether the injured employees should be awarded compensation based upon § 10(a) (the employee’s wages during the prior year), or upon §$10(b) (prior years’ wages of coworkers), or upon § 10(c) (an alternative, when either of the former methods “cannot reasonably be applied” to arrive at the annual earnings of the injured employee) of the Act, 33 U.S.C. § 910(a), (b), or (c). Affirming the ALJ, the Board held that § 10(c) applied to the facts of this case, but it remanded for additional findings of fact, with leave to reopen the record to take additional evidence, for a redetermination of the claim- ant’s weekly wage, as well as for consideration of other issues, such as attorney’s fees. Independent of whether we ultimately decide whether the Board was correct in finding § 10(c) to provide the proper method: for com- A-46 puting the award of compensation,’ we must first decide whether this order was “final” so as to permit us to exer- cise appellate jurisdiction to review it. 1. Here, for instance, the majority decides that instead, § 10(b) is the proper formula, so that more efficient non-piecemeal review is appropriate. However, had the majority decided that the Board correctly applied § 10(c), the result of the majority rationale would permit (or require, see text below) two judicial reviews of the same award—the first (the present) as to the method of calculating the compensation benefits, and the second, if one of the parties disagreed as to the actval dollar rate of the actual award or as to the attorney’s fees or other remaining issues in the case. I may add that I entertain very serious reservations as to the correctness of the majority’s conclusion that the Board improperly used § 10(c) under the Board’s determination that neither § 10(a) nor § 10(b) provided a reasonable and fair method of determining the “annual earning capacity’, § 10(c), of this particular employee, injured on the first day of his new employment after having left much more highly remunerative work of the same nature. Cf. also §$ 8(h), defining “wage-earning capacity” and providing that “actual earnings” measure if they “fairly and reasonably represent his earn- ing capacity.” I read § 10(c) as a Congressional grant of administrative discre- tion, subject to review only as an abuse, to determine the annual earning capacity of an injured employee where § 10(a) and § 10(b) do not reasonably and fairly result in a calculation of the annual earning capacity of the particular employee injured. See, to same effect, 1A Benedict on Admiralty, § 74 at pp. 4-41 through 44 (7th ed. 1982). Thus, § 10(a) and § 10(b) were not legislatively intended to be a statutory straight jacket mechanically applied. In the present case, had the claimant Roundtree worked for the present employer (instead of for himself, doing the same type of work) for the pre- ceding year, it would be obvious that his previous year’s earning capacity and annual wages were greater than those of his present co- employees who had worked “in the same or in similar employment in the same or a neighboring place’, § 10(b), during the preceding year (upon which compensation is based, rather than on the increased pay such employees were now paid during the year of Roundtree’s injury). In terms, § 10(b) seems addressed to an injured employee who had not worked for the employer defendant “during substantially the whole of such [preceding] year,” in which event his average annual wage is calculated as if he had worked the whole rather than only part of the year for that employer. However, since I do not believe we have jurisdiction to review this interlocutory order of the Board, I will comment no further as to the majority’s ruling on the merits. DR Det Teesside Oe A-47 The majority notes, correctly, the settled jurisprudence to the effect that the “final order” appealability-require- ment of 33 U.S.C. § 921(c), with regard to Board deci- sions, is essentially determined by the same criteria that apply to the “final judgments” appealability-requirement of 28 U.S.C. § 1291 with regard to district court deci- sions.” As to the latter, the Supreme Court recently re- iterated the test of finality as being “‘a decision by the District Court that “ends the litigation on the merits and leaves nothing for the court to do but execute the judg- ment.”’” Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (198)}). The Court emphasized several of the important purposes served by the requirement of finality: the avoid- ance of piecemeal appeals and of the obstruction to just claims by permitting a succession of separate appeals from the various rulings to which litigation may give rise, as well as the promotion of efficient judicial ad- ministration. 7d. As this court itself has reiterated, [The finality] requirement has the support of con- siderations generally applicable to good judicial ad- ministration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a de- 2. Particular requirements of an administrative review scheme may sometimes impose “special considerations” on the determination of finality that vary from the “classical jurisdictional requirements” applied to appeals from district courts. Sun Shipbuilding and Dry Dock Company v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir. 1976), see Weinberger v. Salfi, 426 U.S. 749, 764-67, 95 S.Ct. 2457, 2566-67, 45 L.Ed.2d 522 (1975). No such particular require- ments or special considerations are relied upon or appear with regard to the present clearly delineated administrative and judicial review scheme. A-48 parture from this requirement of finality for federal appellate jurisdiction. In re Corrugated Container Antitrust Litigation, 611 F.2d 86, 89 (Sth Cir. 1980). The present Board order, although determining a cen- tral issue of the claim—the method of calculating weekly compensation due—, remanded the proceedings to the Administrative Law Judge for further findings as to the actual weekly rate to be awarded and as to attorney’s fees. It did not end the litigation on the merits, and no final administrative order awarding weekly compensation and attorney’s fees would be entered until after the re- mand. Under such circumstances, where in effect a central issue of liability has been determined to administrative finality by the Board but remand is ordered to calculate and make a specific monetary award, the decisions until the present have uniformly refused to consider the Board order of liability as “final” for purposes of judicial re- viewability at that time, both in this circuit, United Fruit Company v. Director, Office of Workers’ Compensation Programs, 546 F.2d 1224 (Sth Cir. 1977), and in other circuits, Director, Office of Workers’ Compensation Pro- grams v. Brodka, 643 F.2d 159 (3d Cir. 1981); National Steel and Shipbuilding Company v. Director, Office of Workers’ Compensation Programs, 626 F.2d 106 (9th Cir. 1980); Newport News Shipbuilding Corporation v. Director, Office of Workers’ Compensation Programs, 590 F.2d 1267 (4th Cir. 1978). As stated in one of the lead decisions applying this rule, “[i]t is a well-established rule of appellate jurisdiction . . . that where liability has been decided but the extent of damages remains undetermined, A-49 there is no final order.” Sun Shipbuilding & Dry Dock Company v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir. 1976). The virtues of this rule are apparent. It avoids dual appeals on both liability and award, with the consequent doubled judicial appellate delays, in favor of a single re- view of the final administrative award. An injured worker, whose award is vacated by the Board for recalculation as to the properly exact amount of weekly compensation due, does not suffer the prolonged denial of compensation that will occur as his employer seeks judicial review of the singled issue of liability (which, moreover, in the pre- ponderant number of cases will be affirmed) decided by a Board opinion that affirms liability but vacates and remands for exact calculation. The certainty of the rule of nonfinality in such instances permits all parties to rely on judicial review only after administrative remand and final calculation of the actual award, without being forced to take a precautionary appeal to the courts lest a failure to do so result in the loss of judicial review of the liability issue as determined by the Board's remand order, if it is subsequently characterized as “final” as to the liability decision. In failing to follow this (until now) well-settled juris- prudential rule, the majority analyzes the facts and issues of this particular case, and decides that because in this particular case the appellate court decision now will determine the proper legal standard to be applied on the remand, and minimize the risk of a wasted agency hear- ing and later appeal, an appeal at this stage of the pro- ceedings in this case will be more efficient and will not prejudice the parties (because the proper award of com- A-50 pensation cannot be made until the conclusion of the litigation). The majority concludes that we will “recog- nize appellate jurisdiction in this case where [1] the sub- stantive legal issue is clearly posed and [2] all that will remain after it is decided is use of the record already completed to calculate the wage base for recovery.” Before noting some of the practical consequences to this newly created exception from the “finality” require- ment for reviewability of administrative orders, I point out the tenuous authority upon which creation of this exception is based. Unlike all of the previously cited deci- sions, the majority does not advert to the traditional and quite limited exceptions to the finality rule rarely per- mitted. See, e.g., Brodka, supra, 643 F.2d at 163 & n. 9 (collatcral order final in nature and severable from merits; irreparable injury; unresolved issues purely ministerial in nature); 16 Wright, Miller, Cooper and Gressman, Fed- eral Practice and Procedure, § 3942, see esp. at p. 314 (1977); 15 Wright, Miller and Cooper, Federal Practice and Procedure, § 1910-13 (1976). Rather, the majority purports to find in Ingalls Shipbuilding Division v. White, 681 F.2d 275 (1982), a rather free-wheeling authority to dispense with the finality requirement in any individual case where the spectre of piecemeal review is not raised because in a given case the record is complete, the issue presented is a legal standard rather than a factual dispute, and the same legal issue (perhaps incorrectly decided initially by the Board) would recur on the subsequent resort to judicial review after the remand. Ingalls, however, is a case presenting exceptional and distinguishable facts. The sole issue there concerned whether an administrative law judge had the power to A-51 approve a settlement, with an important collateral ques- tion as to the reviewability or not of a settlement so approved, as against contentions (ultimately upheld by us) that the judge was without authority to do so and that the Director, Office of Workers’ Compensation Pro- grams, did have standing to appeal the ALJ’s order ap- proving the compromise. The Board had upheld such power in the ALJ, but had remanded for his reconsidera- tion of certain factors. Balancing competing considera- tions of piecemeal review and the danger of denying justice by delay in the decision of this crucial issue in the administration of the compensation act, Ingalls con- cluded that “the facts here fall within the unique situation that is established as an exception to technical finality in Gillespie [v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).]” 681 F.2d at 279 (emphasis added). Ingalls did not explicitly specify the unique and ex- ceptional facts. However, its reference to Gillespie— where, as in Jngalls, there was a close or at least un- resolved issue as to the appealability itself of the basic order (in Jngalls, on whether any order of an ALJ ap- proving a settlement was reviewable at the instance of the Director)—would indicate to me that no blanket exception to finality was intended whenever, in a panel’s view, the spectre of piecemeal review was not raised by deciding the initial appeal. That the “pragmatic finality” exception to finality recognized by Gillespie applies only in extremely limited and extraordinary circumstances may be recognized by the Supreme Court’s recent characteri- zation of that decision’s holding: In Gillespie, the Court upheld an exercise of ap- pellate jurisdiction of what it considered a margin- A-52 ally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably ‘implemented the same policy Con- gress sought to promote in § 1292(b),’ id., at 154, 85 S.Ct. at 312, and the arguable finality issue had not been presented to this Court until argument on the merits, thereby ensuring that none of the policies of judicial economy served by the finality require- ment would be achieved were the case sent back with the important issue undecided. Cooper & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462 n. 30, 57 L.Ed.2d 351 (1978). The present petition for judicial review of a Board order presents no unusual or unique circumstances such as are implicated in Gillespie or in the quite limited ex- ceptions to finality previously recognized. Absent the present decision by the majority, there was no issue of marginal appealability that justified this court’s immediate determination of the appealability issue and of the cor- rectness of the underlying order. The issue decided, al- though important, is not of such national significance to the administration of the Act as to require its decision on this (premature) appeal rather than by the appeal from the final order that awards compensation and re- solves all unsettled issues. Nor, for reasons to be set forth, does the new general exception to finality created by the majority avoid thwarting the purposes of the finality rule. Rather, by importing into the finality concept a case- by-case measure of exception, in general application the newly created judicial exception substantially impedes these purposes of the finality concept and must inevitably result in multiple appeals, additional delays before final decision, and new issues of appellate jurisdiction that ee A-53 will impede the decision by judicial review of the merits of administrative orders. This may be illustrated by ref- erence to the present proceedings. The majority’s exception permits immediate review- ability, despite technical non-finality, where the record is complete as to factual matters and where only a legal standard is at issue, immediate decision of which will facilitate the ultimate decision after remand. With regard to the present case, I note: 1. The majority assumes the record is complete, prob- ably subconsciously influenced by its ultimate determina- tion that § 10(c) does not apply and that the record now contains all facts needed to decide under § 10(b). Ab- sent that determination, the record is not complete, as the Board recognized in vacating and remanding for ad- ditional findings of fact, including the taking of evidence if necessary, to make a proper weekly award under § 10(c). If we had affirmed (instead of reversed) the Board’s determination that § 10(c) furnishes the proper measure of weekly disability compensation, the effect of our decision retaining appellate jurisdiction would be to remand (as the Board ordered on June 10, 1981, some eighteen months ago) to the Administrative Law Judge to calculate the weekly award, following which the em- ployer (or the claimant) would be entitled once again to appeal this now-final order. Whether the majority had affirmed or reversed the Board’s non-final order, however, in either event the majority’s new exception rule builds into the administrative compensation-awarding processes an additional delay, in this case extending more than a year and a half (so far), by allowing an initial appeal as to the liability-standard, to be followed (quite pos- A-54 sibly) by yet a second resort to the review process after, on remand, the ALJ fixes the rate of compensation and decides the subsidiary undecided issues, such as attorney’s fees. 2. The employer sought judicial review of the Board’s remand order, until now considered a non-reviewable non- final order. Assume that instead the parties had followed the previously accepted methodology, applying for judicial review only after a final order, and thus had complied with the remand and secured an expeditious administra- tive determination of unresolved issues, including the compensation, to be incorporated in a technically as well as actually final order. Upon judicial review from the true final order, the parties are faced with the possibility that, under the majority’s new “pragmatic finality” ex- ception, their failure to appeal the initial “final” order (determining only the standard of liability) forecloses subsequent review of the initial liability decision.* What 3. This type of problem is illustrated by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc). The district court entered judgment on the merits against the defendant in October 1979, leaving for determination only the amount of attorney’s fees. In March 1980, the district court set the amount of attorney’s fees, and the employees timely appealed within thirty days of the latter order. The defendant moved to dismiss the appeal by the plaintiffs as to certain merit-rulings in the October 1979 judgment. The de- fendant contended that the 1979 judgment was final, since it had decided all issues in the appeal. The court of appeals rejected this contention, holding that the 1979 judgment was not “final” under the general test that it did not terminate the litigation and leave nothing to be done to enforce the judgment. The majority, rather unsuccessfully in my view, distinguishes this decision and numerous others to same effect by noting that the record at the time of the initial order did not contain all the factual matter necessary for the final determination of the amount of attorney’s fees, so the initial order was not ‘final” and was not reviewable at that time. I am unable to see how the present record differs—even aside from the lack of complete evidence to decide the § 10(c) issue. In A-55 must the parties do to avoid this possibility? Obviously, to avoid this possibility, a party must seek initial review of the initial Board remand-order, although it involves considerable additional appellate delays (here, eighteen months so far), and although the court may decide that, after all, the appeal is premature because the order is not “final” under the flexible finality rule envisioned by the majority’s new exception. 3. If the previously accepted concept of “finality” for purposes of judicial review had been followed in this case, then on the single judicial review the courts would be concerned only with the merits of the litigation. (If a party appealed despite the accepted rule, the usual practice in this court would probably result in a dismissal by summary order of an administrative panel, since the rule of finality previously followed was certain and was easily administerable.) Under the new rule of appeal- ability sanctioned by the majority, a new adjective issue of appealability is injected into every appeal from a Board remand-order or from an order by the Board following an unappealed Board remand-order.* Is or was the initial the present case also, there was not a complete factual record neces- sary to fix the amount of attorney’s fees due, an issue that the Board had remanded to the ALJ. This circumstance may indicate some of the difficulty and uncertainty in determining whether there is a “complete record” so as to permit a reviewing court to considei the order under review as “final”’. Perhaps some of the obvious possibilities of injustice and the necessity for precautionary appeal could be avoided by holding that, when an appeal is perfected, the order may be pragmatically “final” enough to be reviewable, but that a failure to appeal at that time will not preclude subsequent review of the technically (and actually) “final” order. However, such flexible interpretation would thwart the purposes of the finality concept, aside from raising fundamental issues of judicial disregard of the legislative final-order basis of appellate jurisdiction. 4. See note 3 supra. A-56 order “pragmatically” final? This will involve individual analysis in each case to determine whether where what the Board decided was a “legal standard” (instead of the factual application of a legal standard, a mixed law-fact question, for example) and whether the initial record was “complete” such that immediate judicial review of the initial order would add to the efficiency of disposition and would theoretically avoid the spectre of piecemeal judicial review. To replace the former certain definition of administrative finality, the majority substitutes a rule that requires case-by-case analysis in each individual ap- peal, that in many instances will result in the prolongation of judicial review by the frequent necessity of oral argu- ment and collegiate interchange as to the variables now injected into this adjective issue of appealability per se— and one as to the application of which, I predict, reason- able appellate minds will differ. For the previously cer- tain rule of “technical” as well as actual finality, the majority substitutes a flexible “pragmatic” finality rule of uncertain case-by-case application that must inevitably encourage precautionary interlocutory appeals, and their consequent delay, and that may in an appreciable num- ber of cases delay the decision of the merits by injecting a complicated threshold adjective issue of appealability. 4. And what about the claimant (such as poor Round- tree, here), as the reviewing court entertains the initial appeal as to the Jegal standard of liability, despite a re- mand by the Board to calculate the weekly compensa- tion. Here, back in June 1981, the Board vacated the provision of the order of the Administrative Law Judge awarding Roundtree a weekly compensation award, see Record Excerpts, p. 43, and remanded to that judge for him to make further findings and to take further evidence, A-57 if necessary, in order to calculate the proper weekly amount. We are informed that here the employer has continued to pay the claimant weekly compensation. However, when the Board vacates the only order that requires an employer to pay weekly compensation, then —in the absence of a subsequent order by the administra- tive judge on the remand renewing the employer’s obli- gation to pay weekly compensation—I would suppose that, as the Director in brief suggests, it is at least argu- able whether the employer was obliged to continue to make compensation payments to its disabled employee before there was an administrative order fixing their actual amount. Should in such circumstances an employer termi- nate weekly compensation until an order as to its weekly amount is finally issued, the availability of interlocutory review of the Board’s remand order (deciding the measure of liability, but remanding for calculation of the amount due) will add a considerable period of delay during which the disabled employee will receive no weekly compensa- tion (here, more than eighteen months, so far), solely for the purpose of judicial review of the Board’s interlocu- tory order. Only following conclusion of that interim lengthy judicial review of the measure-of-liability portion of the Board’s remand-order, will the proceedings finally be remanded to the Administrative Law Judge to issue an order awarding weekly compensation in calculated amount—as would have occurred, absent interim judicial review, many months earlier. I cannot believe that either the purposes or intent of the compensation act are served by an interpretation of the judicially-reviewable “finality” provision of 33 U.S.C. § 921(c), that will insert such additional interlocutory-review delays that may disrupt for an appreciable time the continued payment of weekly A-58 compensation to an admittedly disabled employee solely for the purpose of affording interlocutory judicial review. I sympathize with my brothers of the majority in their commendable desire to decide now a central issue of this proceeding, since the appeal is already here, because in this case they view it to be more efficient to do so, under the particular issue and record presented to us. I share their general view that formal procedural rules should be applied in the light of their function, and that a prac- tical rather than a technical construction is often suitable to advance the end purpose of a procedural rule. Here. however, the very purpose of the finality rule is thwarted by the practical construction accorded it; although it may advance the efficient decision of this particular case, the flexible rule of pragmatic finality adopted by the majority will impede the efficient and expeditious decisions of many, many appeals from administrative remand-orders in the future. At the same time, the newly created excep- tion to finality replaces with large elements of uncertain administration the previously certain and efficient rule of finality as accorded to Board orders. The need for clear and easily administered rules as to the threshold adjective issue of reviewability overrides any values of flexible case- by-case administration. As has been stated in a related context: Although well-established rules of appealability might at times cause an action to be determined unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling the delay, harassment, expense, and duplication that could result from multiple or ill-tinied appeals. The great value of the final judgment rule may well be that it combines generally effective review with guides sufficiently A-59 clear to prevent most of the great waste that could result from protective appeals and litigation over appellate jurisdiction. Earnest pursuit of a “practical approach” could quickly destroy this accomplish- ment. 15 Wright, Miller, and Cooper, supra, § 3913 at p. 523. I therefore must respectfully dissent from the majority’s opinion. A-60 APPENDIX C BENEFITS REVIEW BOARD U. S. DEPARTMENT OF LABOR No. 80-158 & 80-158A JAMES P. ROUNTREE, Claimant-Respondent Cross Petitioner V. NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and AMERICAN HOME ASSURANCE COMPANY Employer/Carrier-Petitioners Cross-Respondents (Filed June 10, 1981) DECISION and ORDER Appeal from the Decision and Order of David W. Di Nardi, Administrative Law Judge, United States Department of Labor. Stephen M. Vaughan and Sidney Ravkind (Mandell & Wright), Houston, Texas, for the claimant. E. D. Vickery and Thomas C. Fitzhugh, III (Roys- ton, Rayzor, Vickery & Williams), Houston, Texas, for the employer/carrier. Before: SMITH, Chief Administrative Appeals Judge, MILLER and KALARIS, Administrative Appeals Judges. A-61 KALARIS, Administrative Appeals Judge: This is an appeal by Newpark Shipbuilding and Repair, Incorporated and American Home Assurance Company (hereinafter, employer) from the Decision and Order (79-LHCA-973N) of Administrative Law Judge David W. DiNardi pursuant to the provisions of the Longshore- men’s and Harbor Workers’ Compensation Act, as amend- ed, 33 U.S.C. § 901 et seq. (hereinafter, the Act). Claim- ant has filed a cross-appeal. The principal issue raised in these appeals is whether the administrative law judge correctly calcuiated claimant’s average weekly wage. The administrative law judge found that neither Sec- tion 10(a), 33 U.S.C. §910(a), nor Section 10(b), 33 U.S.C. § 910(b), could be fairly or reasonably ap- plied in calculating claimant’s average weekly wage. Therefore, he held that claimant’s average weekly wage should be calculated under Section 10(c), 33 U.S.C. §$910(c). The administrative law judge found that claimant’s gross earnings while self-employed in the year prior to injury constituted his average annual earnings under Section 10(c). Applying Section 10(d), 33 U.S.C. § 910(d), the administrative law judge divided this figure by 52, and held that claimant’s average weekly wage equalled $360.41. He awarded claimant temporary total and temporary partial disability benefits based on this figure. He also awarded claimant’s attorney an attorney’s fee since the award of compensation was greater than amounts voluntarily paid by employer at an average weekly wage of $254.59." 1. Employer originally paid benefits based on an average weekly wage of $224. On October 31, 1978, the compensation rate was retroactively adjusted to $254.59. A-62 Employer appeals, asserting that it complied with all the requirements for application of Section 10(b) of the Act and that, therefore, Section 10(b) must be applied in calculating claimant’s average weekly wage. Employer also contends that, if claimant’s average weekly wage is calculated pursuant to Section 10(b), then claimant is not entitled to any temporary partial disability benefits because his post-injury wage-earning capacity would be higher than his pre-injury average weekly wage. Employer also asserts that an attorney’s fee is not properly award- able if claimant’s average weekly wage is calculated pur- suant to Section 10(b). Claimant filed a cross-appeal, arguing that the admin- istartive law judge erred in calculating claimant’s average weekly wage. Claimant argues that, on the facts of this case, the methodology of Section 10(a) should have been used in the application of Section 10(c). In the alterna- tive, claimant argues that it is appropriate to use 43 weeks as the divisor indicated in Section 10(d), rather than the 52 weeks used by the administrative law judge.’ Oral argument was held in this case in Houston, Texas, on August 9, 1980. Claimant appeared to change his position at oral argument. There, he argued that Section 10(c) was properly applicable, that use of a 52-week divisor was proper, and that the administrative law judge’s calculation of claimant’s average weekly wage should not be overturned.* We nevertheless address all of claimant’s contentions on appeal. 2. Claimant also argues on appeal that the administrative law judge’s order awarding claimant temporary total disability benefits should be modified to provide that these benefits continue “until further order.” 3. Claimant contended that Section 10(c) was applicable at the hearing below. é 3 - a a a j A-63 Upon its review of the case, the Board is required to affirm the decision of the administrative law judge if it is supported by substantial evidence in the record con- sidered as a whole, is rational, and is in accordance with law. 33 U.S.C. § 921(b)(3); O’Keeffe v. Smith, Hinch- man & Grylls Associates, Inc., 380 U.S. 359 (1965). Claimant began working for employer as a _ welder- fitter in employer’s shipyard on April 22, 1975. On his first day of work, claimant was injured when he tripped and fell while working on a scaffold in the hold of a barge. As a result, claimant injured his neck and lacerated his head, requiring 30 stitches. Prior to his employment with employer, claimant was self-employed as a welder. Claimant began his inde- pendent welding business in 1954 and continued it until March 1975 when he sold his equipment. Claimant pri- marily worked as an independent contractor repairing boats and barges and performing pipe work in an oilfield for Amoco Production Company. Claimant’s hourly rate was $10.50 from April 23, 1974, through November 1974. In December 1974, his hourly rate increased to $12.50. When employed by employer, claimant was paid $5.50 per hour with a $.10 shift differential. Claimant testified that he accepted the lower pay in return for steady employment with available overtime. Following his April 22, 1975, injury, claimant re- turned to work for employer at the end of August 1975. He received a $.25 per hour raise in December 1975, and was earning $6.40 per hour when he left employer in August 1976. From August 1976 to March 1978, claimant worked for a variety of other employers with pay rates ranging from $8.50 to $10.50 per hour. Claim- A-64 ant has not returned to work since March 29, 1978. Although employer was paying compensation benefits for temporary total disability voluntarily, claimant filea a claim under the Act for temporary total and temporary partial benefits because a dispute arose as to his average weckly wage. Both claimant and employer in the instant case raise a variety of arguments involving the determination of claimant’s average weekly wage pursuant to Section 10." 4. Section 10 provides, in pertinent part: Except as otherwise provided in this Act, the average weekiy wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows: (a) If the injured employee shall have worked in the employ- ment 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 three hundred times the average daily wage or salary for and two hundred and sixty 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. (b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings if a six-day worker, shall consist of three hundred times the average daily wage or daily wage or salary and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employ- ment during the days when so employed. (c) If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reason- ably 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 iniury, and of other employees of the same or most similar class working in the same or most similar em- ployment in the same or neighboring locality, or other employ- ment of such employee, including the reasonable value of the A-65 Section 10 sets forth three alternative methods for de- termining a claimant’s average weekly wage. The intent is to determine claimant’s earning power at the time of the injury. Orkney v. General Dynamics Corp., 8 BRBS 543, BRB Nos. 77-877/A (1978); Barber v. Tri-State Terminals, Inc., 3 BRBS 244, BRB Nos. 75-177/A (1976), aff'd sub nom. Tri-State Terminals v. Jesse, 596 F.2d 752, 10 BRBS 700 (7th Cir. 1979).° All three methods are keyed to a determination of claimant’s aver- age annual earnings, which are then divided by 52 pur- suant to Section 10(d) to arrive at an average weekly wage. Sections 10(a) and 10(b) apply to an employee working full-time in the employment in which he was injured. Section 10(a) is used when the employee worked “substantially the whole of the year” preceding the injury and Section 10(b) is used when he did not work sub- stantially the whole of the year. Section 10(c) is a “catch-all” to be used in instances when neither of the above two methods are reasonably and fairly applicable. We turn first to employer’s argument that claimant’s average weekly wage must be determined pursuant to Section 10(b).° Employer introduced the wages of three services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee. (d) The average weekly wages of an employee shall be one fifth-second part of his average annual earnings. 5. Although claimant’s work injury occurred in April 1975, the full effects of this injury did not become apparent for some time. Claimant finally left work in March 1978. The parties focus on claimant’s average weekly wage at the time of the April 1975 injury. 6. Since claimant withdrew his arguments concerning applicability of Section 10(a) at oral argument, we need not consider that section. We note, however, that Section 10(a) is not properly applicable in this case. The administrative law judge held that Section 10(a) was A-66 employees who worked for employer in the same classi- fication and who performed the same work as claimant during his employment with employer. This evidence of the wages of substitute employees complied with the re- quirements for invoking Section 10(b). See Eckstein v. General Dynamics Corp., 11 BRBS 781, BRB No. 78- 428 (1980); Lozupone v. Stephano Lozupone & Sons, not applicable in this case because claimant did not work substantially the whole of the year prior to injury in covered employment. His rationale indicates that, in determining whether Section 10(a) was applicable, the administrative law judge focused on whether claimant was engaged in employment within the jurisdiction of the Act for substantially the whole of the year prior to his injury. We do not agree that claimant must be engaged in employment within the coverage of the Act insofar as that implies that the employment must be maritime or that the employee must work for a covered employer during the year prior to injury. The clear language of the statute provides a formula for computing average weekly wage where a claimant works substantially the whole of the year for the same or another employer. Wages earned by a claimant in employment out- side the coverage of the Act may therefore fall within Section 10(a) if they are earned in the same employment as at the time of injury regardless of whether it is covered by the Act. Nonetheless, Section 10(a) is not applicable where claimant was self-employed in the year prior to injury. Employment as an inde- pendent contractor necessarily involves different duties from those of a regular employee. Section 10(a) is meant to apply to a regular five- or six-day worker and is intended to compensate full-time employees who work a regular working week at regular hours. The number of hours claimant worked each day and the number of days worked each week varied with each particular job. Moreover, Section 10(a) does not provide a formula which ap- proximates the earning capacity of a self-employed claimant. Indeed, use of 10(a) would inflate claimant’s earning capacity in an arbitrary manner without regard to the true value of his services. The rate for hiring a person who is operating an independent business does not necessarily reflect the value of his services. Even though claim- ant’s time was billed at an hourly rate while he was working as an independent contractor, this hourly rate is not indicative of the value of his services as is the rate paid by an employer to a regular hourly employee in circumstances contemplated by Section 10(a). Section 10(a) cannot be fairly and reasonably applied in this case. A-67 12 BRBS 148, BRB Nos. 79-158/A (1979); Daugherty v. Los Angeles Container Terminals, Inc., 8 BRBS 363, BRB No. 77-616 (1978). The administrative law judge rejected application of Section 10(b) because (1) the Statistical sample of three out of 100 welder-fitters at employer’s business was not adequate; and (2) the em- ployees of employer whose wage records were entered into evidence received a wage increase two months before claimant’s injury. See Decision [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2752%3A2. Public record. Not legal advice.