UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-60136 Summary Calendar

SEAN MCCARTHY,

Petitioner,

VERSUS

PETROLEUM CENTER, INC.; LOUISIANA WORKERS’ COMPENSATION CORPORATION; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,

Respondents.

Petition for Review of an Order of the Benefits Review Board (BRB Nos. 00-773 and 01-534) February 13, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM.*

Sean McCarthy pro se appeals the decision of the Benefits

Review Board upholding his benefits determination under the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Longshore and Harbor Workers Compensation Act (“LHWCA”),

et seq. Given our narrow scope of review, and considering

the substantial evidence supporting the Board’s decision, we

AFFIRM.

McCarthy was injured while working on an oil rig on January

25, 1994. He was treated by Dr. Cobb, who performed multiple

surgeries on him over the course of several years. On August 11,

1997, three months after performing an operation on McCarthy’s

elbow, Dr. Cobb opined that “At this point in time, I think he is

capable of light to medium work, somewhere in that category.” Two

vocational rehabilitation specialists identified various jobs that

McCarthy could perform, given his physical limitations, educational

background, and past work history. These jobs provided

compensation roughly comparable to McCarthy’s weekly wage at the

time of the accident. Although he contacted various employers,

McCarthy applied for none of the identified jobs and instead sought

to further his education.

The Louisiana Workers’ Compensation Corporation voluntarily

paid McCarthy temporary total disability benefits from January 25,

1994, to February 10, 1998, at which point it paid him permanent

partial disability benefits. McCarthy contested the reduction. An

administrative law judge (“ALJ”) determined that McCarthy was

entitled to a temporary total disability benefits from January 25,

1994, to February 10, 1998, and temporary partial disability

benefits from February 11, 1998. The ALJ explained that the

2 disability award was temporary because McCarthy had not yet reached

maximum medical improvement. He further explained that the award

was partial because McCarthy had been released to light-to-medium

work by Dr. Cobb and because a vocational expert had identified

available jobs that were within McCarthy’s limitations and

capacities. After further proceedings, including a remand to the

ALJ for consideration of additional evidence and an additional

claim, the Benefit Review Board (“Board”) affirmed the ALJ’s

decision.

We review to determine whether the Board’s decision is

supported by substantial evidence, is rational, and is in

accordance with the law. See SGS Control Servs. v. Director,

Office of Worker’s Compensation Programs, U.S. Dep’t of Labor,

(5th Cir. 1996) (citations omitted). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Avondale Indus., Inc.

v. Director, Office of Workers’ Compensation Programs,

(5th Cir. 1992) (internal quotation omitted). “As fact

finder, the ALJ determines questions of credibility of witnesses

and of conflicting evidence. He is not required to accept the

opinion or theory of a medical expert that contradicts the ALJ’s

findings based on common sense.”

The parties agree that McCarthy could not perform his former

job due to the accident. Hence, the dispositive issue was whether

Respondents established that McCarthy was “(1) capable of

3 performing (2) other realistically available jobs.” SGS Control

Servs.,

. The ALJ found that the Respondents met

this burden. Substantial evidence supports this finding. First,

Dr. Cobb’s opinion can reasonably be interpreted to show that

McCarthy had been cleared to perform light-to-medium work. Second,

two vocational experts identified several comparably paying,

available jobs that McCarthy could perform given his physical

limitations, his educational background, and his prior experience

as a car salesman and an insurance salesman. McCarthy failed to

rebut this evidence with proof that he diligently tried but failed

to secure employment. See New Orleans (Gulfwide) Stevedores v.

Turner,

(5th Cir. Unit A 1981). McCarthy’s

admirable decision to seek further education instead of taking one

of the identified jobs is irrelevant to our analysis, for

substantial evidence supports the ALJ’s conclusion that McCarthy

did not need additional training in order to obtain a wage

commensurate with his pre-injury earnings. See Louisiana Ins.

Guar. Ass’n v. Abbott,

(5th Cir. 1994)

(construing LHWCA to entitle total disability benefits during time

claimant pursued training necessary to enable return as productive

member of workforce).

Substantial evidence also supports the ALJ’s determination

that McCarthy was entitled to a temporary partial disability

payment based on his pre-injury wage of $514.35 reduced by his

inflation-adjusted, post-injury weekly earning capacity of $428.12.

4 See Avondale Indus., Inc. v. Pulliam,

(5th Cir.

1998) (holding that averaging the range of salaries identified as

suitable alternate employment “is a reasonable method for

determining a claimant’s post-injury earning capacity”).

McCarthy also disputes the ALJ’s finding that his knee injury,

which he first reported in December 1998, was unrelated to his

January 1994 work accident. McCarthy is entitled to the

presumption that his knee injury was caused by his work accident.

(a). The ALJ found, however, that Respondents had

rebutted the presumption through evidence showing that the injury

was not work-related. See Conoco, Inc. v. Director, Office,

Worker’s Compensation Programs,

(5th Cir.

1999). The testimony of Dr. Gidman, who opined that radicular pain

from a back injury and knee pain of the sort reported by McCarthy

were incompatible and that in any event such radicular pain would

have manifest itself within a year of the accident, constitutes

substantial evidence supporting the ALJ’s finding.

AFFIRMED.

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