BRB No. 99-0788
EMANUEL BROWN )
)
Claimant-Petitioner )
)
v. )
)
DELAWARE RIVER STEVEDORES ) DATE ISSUED: 04/19/2000
)
and )
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LIBERTY MUTUAL INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order Denying Benefits and the Order Denying
Claimant's Petition for Reconsideration of Ainsworth H. Brown,
Administrative Law Judge, United States Department of Labor.
Aloysius J. Staud (Fine & Staud), Philadelphia, Pennsylvania, for
claimant.
John E. Kawczynski (Weber, Goldstein, Greenberg & Gallagher),
Philadelphia, Pennsylvania, for employer/carrier.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits and Order Denying
Claimant's Petition for Reconsideration (98-LHC-2201) of Administrative Law Judge
Ainsworth H. Brown rendered on a claim filed pursuant to the provisions of the
Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901
et seq. (the Act). We must affirm the findings of fact and conclusions of
law of the administrative law judge if they are rational, supported by substantial
evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
On October 12, 1996, claimant suffered an injury during the course of his
employment as a longshoreman with employer when he was struck by a container lock
and knocked down. Claimant was initially diagnosed with lumbosacral, left hip and
left knee contusions. Employer provided claimant with medical treatment by Dr.
Frieman for his knee injury and voluntarily paid claimant temporary total
disability compensation from October 13, 1996 to February 18, 1997, and from April
10, 1997 to July 31, 1997. 33 U.S.C. §§907, 908(b). Although conceding
that claimant sustained a work-related left knee injury, employer disputed that
claimant sustained injuries to his back or left hip as a result of the October 12,
1996, work accident. Claimant returned to his regular employment duties on March
21, 1998. He sought temporary total disability compensation for the periods of
February 19, 1997 to April 9, 1997 and August 1, 1997 to March 21, 1998, as well
as additional medical benefits.
In his Decision and Order Denying Benefits issued February 24, 1999, the
administrative law judge found, first, that claimant's work-related knee injury had
resolved, causing no disability after February 19, 1997. Next, the administrative law
judge found that claimant failed to provide medical evidence to support a causal
link between his work accident and his back and left hip conditions. The
administrative law judge further determined that claimant provided no evidence that he
sought approval for Dr. Lefkoe's services and, thus, he determined that employer
was not liable for the services rendered by that physician. Lastly, the
administrative law judge found that because claimant was not disabled after February 19,
1997, he was not entitled to the compensation voluntarily paid by employer for the
period of April 10, 1997 to July 31, 1997, and that employer is entitled to a
credit for the compensation paid for that period. The administrative law judge summarily
denied claimant's motion for reconsideration on March 24, 1999.
On appeal, claimant contends that the administrative law judge erred in failing to
consider evidence regarding the casual relationship between his back and hip
conditions and his work accident, and his medical treatment by Dr. Lefkoe.
Employer responds, urging affirmance.[1]
In considering claimant's entitlement to additional temporary total disability
benefits, the administrative law judge first addressed the evidence regarding claimant's
left knee condition, and concluded that claimant's knee condition no longer
resulted in a disability after February 19, 1997, when Dr. Frieman released
claimant to return to work. Claimant, whose arguments on appeal focus on his back
and left hip conditions rather than his knee injury, identifies no specific error
with respect to the administrative law judge's conclusion that, as of February 19, 1997,
claimant's knee condition did not preclude his return to work. As the administrative
law judge's evaluation of the record evidence concerning claimant's knee condition
is reasonable, and his ultimate finding that claimant's knee condition was not
disabling after February 19, 1997 is supported by substantial evidence, we affirm
that finding. See generally Todd Shipyards Corp. v. Donovan, 300 F.2d 741
(5th Cir. 1962).
We are unable to affirm, however, the administrative law judge's subsequent
determination that claimant failed to establish a causal relationship between his
back and hip conditions and his October 12, 1996, work accident, as the
administrative law judge erroneously imposed upon claimant the initial burden of
coming forth with medical evidence that these conditions are work-related. See
Hargrove v. Strachan Shipping Co., 32 BRBS 11, 15, aff'd on recon., 32
BRBS 224, 227 (1998). It is well-established that, in establishing that an injury
arises out of his employment, a claimant is aided by the Section 20(a), 33 U.S.C.
§920(a), presumption linking his condition to his employment. See Perry v.
Carolina Shipping Co., 20 BRBS 90 (1987). In the instant case, however, the
administrative law judge did not consider whether claimant was entitled to invocation of
the Section 20(a) presumption of causation. In order to be entitled to the Section
20(a) presumption, claimant must establish a prima facie case by showing
that he suffered a harm and that either a work-related accident occurred or that
working conditions existed which could have caused or aggravated the harm. See
Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990); Perry, 20 BRBS
at 90. In order to establish his prima facie case, claimant is not required
to prove that his working conditions in fact caused the harm; under Section 20(a),
it is presumed in the absence of substantial evidence to the contrary that the harm
demonstrated is related to the proven work events. See Sinclair v. United Food
and Commercial Workers, 23 BRBS 148 (1989). Once the Section 20(a) presumption
is invoked, the burden shifts to employer to rebut it with substantial evidence
that claimant's condition is not caused or aggravated by his employment. See
Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995); Sam v. Loffland Bros., 19 BRBS
288 (1987). It is employer's burden on rebuttal to present substantial evidence sufficient to sever the causal connection
between the injury and the employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C.
Cir.), cert. denied, 429 U.S. 820 (1976); Devine v. Atlantic Container Lines, G.I.E., 23 BRBS 279 (1990).
If the administrative law judge finds that the Section 20(a) presumption is rebutted, he
must weigh all of the evidence and resolve the causation issue based on the record
as a whole. See Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28
BRBS 43 (CRT) (1994); Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985).
As the administrative law judge did not consider Section 20(a) in addressing this
issue, we vacate the administrative law judge's summary conclusion that claimant's
back and left hip conditions are not causally related to his employment. The case
is remanded for the administrative law judge to consider whether the Section 20(a)
presumption is invoked with regard to these conditions,[2] and if so, whether employer produced evidence rebutting it. If the
administrative law judge finds a causal relationship between claimant's back and left hip conditions and his employment,
he must then consider the nature and extent of claimant's disability.
Lastly, claimant on appeal challenges the administrative law judge's finding that employer is not liable for the
medical treatment provided by Dr. Lefkoe. Section 7(a) of the Act, 33 U.S.C. §907(a), states that "[t]he employer
shall furnish medical, surgical, and other attendance or treatment for such period as the nature of the injury or the process
of recovery may require." Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth the prerequisites for an employer's
liability for payment or reimbursement of medical expenses incurred by claimant. The Board has held that Section 7(d)
requires that a claimant request his employer's authorization for medical services performed by any physician, including
the claimant's initial choice. See Maguire v. Todd Shipyards Corp., 25 BRBS 299 (1992); Shahady v. Atlas
Tile & Marble, 13 BRBS 1007 (1981)(Miller, J., dissenting), rev'd on other grounds, 682 F.2d 968 (D.C. Cir.
1982), cert. denied, 459 U.S. 1146 (1983). Where a claimant's request for authorization is refused by the employer,
claimant is released from the obligation of continuing to seek approval for his subsequent treatment and thereafter need only
establish that the treatment he subsequently procured on his own initiative was necessary for his injury in order to be
entitled to such treatment at employer's expense. See Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996);
Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989). The Board has held that a treating physician's discharge
of a claimant from his care or a physician's release of a claimant to return to work with no indication that further medical
services would be provided may be construed as a refusal by the employer to provide treatment. See Ezell v. Direct
Labor, Inc., 33 BRBS 19, 28-29 (1999); James v. Pate Stevedoring Co., 22 BRBS 271, 275 (1989).
The administrative law judge in the instant case did not make complete findings as required by Section 7(d).
Rather, the administrative law judge summarily denied Section 7 medical benefits on the basis
of his determination that claimant provided no evidence that he sought approval
from employer or the district director for Dr. Lefkoe's medical care. The
administrative law judge, in basing the denial of medical benefits on this finding, did
not consider the evidence relevant to the requisite determination as to whether
employer refused to continue to provide claimant with necessary medical treatment.
We must, therefore, vacate the administrative law judge's denial of additional medical
benefits and remand the case for the administrative law judge to make complete findings
with regard to this issue. Specifically, on remand, the administrative law judge must
consider whether Dr. Frieman's release of claimant to return to work constitutes
a constructive refusal by employer to provide treatment. See Ezell, 33 BRBS
at 28-29; James, 22 BRBS at 275.[3] If,
on remand, the administrative law judge finds that employer refused further treatment to claimant, he must then
determine whether the medical care that claimant procured on his own initiative was reasonable and necessary. See
Schoen, 30 BRBS at 113-115; Anderson, 22 BRBS at 23-24.
Accordingly, the administrative law judge's finding that claimant's knee condition caused no disability after
February 19, 1997, is affirmed. The administrative law judge's findings with respect to a causal relationship between
claimant's back and left hip conditions and his employment, and to claimant's entitlement to self-procured medical care
are vacated, and the case is remanded to the administrative law judge for further consideration
consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)We reject employer's threshold contention that claimant's
appeal should be rejected on the ground that it was inadequately briefed. The
arguments made in claimant's Petition for Review and brief are sufficient for the
Board's consideration. See 20 C.F.R. §802.211.
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2)We note, in this regard, that Dr. Yankelevich's October 14,
1996 office note setting forth claimant's account of his October 12, 1996 work
injury and diagnosing lumbosacral, left hip and left knee contusions, CX 14, is
relevant evidence that must be considered on remand in addressing the issue of
whether claimant has established a prima facia case.
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3)Claimant's testimony that his release by Dr. Frieman was
prompted by employer's medical nurse manager who oversaw claimant's treatment, if
credited by the administrative law judge on remand, is relevant to the inquiry as to
whether employer constructively refused to provide treatment. See Ezell,
33 BRBS at 28-29; James, 22 BRBS at 275; Anderson, 22 BRBS at 23.
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NOTE: This is an UNPUBLISHED LHCA Document.
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