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                                BRB No. 98-1183

MICHELE BRATTOLI                    )
                                        )
          Claimant-Respondent           )
                                        ) 
     v.                                 )
                                        )
UNION DRY DOCK AND REPAIR               )    DATE ISSUED:   12/16/1999
                                             
COMPANY                                 )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order - Awarding Benefits of Gerald M.
     Tierney, Administrative Law Judge, United States Department of Labor.
     
     Francis M. Womack III (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for self-insured employer.

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order - Awarding Benefits (97-LHC-443) of
Administrative Law Judge Gerald M. Tierney 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 which 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).  

     Claimant, a welder burner, injured his right wrist at work on August 18, 1995,
after slipping and falling.  Employer voluntarily paid claimant temporary total
disability compensation  from August 21, 1995, to January 28, 1996, and permanent
partial disability compensation for a 10 percent impairment to his right arm.
See 33 U.S.C. §908(b), (c)(1).  Claimant sought continuing disability
benefits under the Act.



     In his Decision and Order, the administrative law judge found that claimant
is unable to resume his usual employment duties with employer, and that employer
failed to establish the availability of suitable alternate employment. 
Accordingly, the administrative law judge awarded claimant permanent total
disability benefits from January 1996, and continuing. See 33 U.S.C.
§908(a).  The administrative law judge also concluded that claimant's refusal
to undergo wrist surgery was reasonable, and that employer was accordingly not
entitled to suspend claimant's benefits pursuant to Section 7(d)(4) of the Act, 33
U.S.C. §907(d)(4).  

     On appeal, employer challenges the administrative law judge's findings that
it did not establish the availability of suitable alternate employment and that it
is not entitled to suspend claimant's benefits under Section 7(d)(4), based on
claimant's refusal to undergo wrist surgery.  Claimant has not filed a response
brief.   

     We first address employer's argument that the administrative law judge erred
in concluding that it failed to establish the availability of suitable alternate
employment.  Where, as in the instant case, a claimant has established that he is
unable to perform his usual employment duties due to a work-related injury,
claimant has established a prima facie case of total disability.  The burden
then shifts to employer to demonstrate within the geographic area where claimant
resides, the availability of specific jobs which claimant, by virtue of his age,
education, work experience, and physical restrictions is capable of performing and
which he can compete and reasonably secure.  If employer makes a showing of
suitable alternate employment, claimant nevertheless can prevail in his quest to
establish total disability if he demonstrates that he diligently tried and was
unable to secure such employment. See New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also Palombo
v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir. 1991); CNA Ins. Co. v. Legrow, 935
F.2d 430, 24 BRBS 202 (CRT)(1st Cir. 1991);  Newport News Shipbuilding & Dry Dock Co. v.
Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th Cir. 1988); Roger's Terminal &
Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT)(5th Cir.
1986), cert.  denied, 479 U.S. 826 (1986); McCabe v. Sun Shipbuilding &
Dry Dock Co., 602 F.2d 59, 10 BRBS 614 (3d Cir. 1979); Hooe v. Todd
Shipyards Corp., 21 BRBS 258 (1988).

     In support of its contention that claimant retains a residual post-injury 
wage-earning capacity, employer presented the labor market survey of Mr.
Pannapacker, a vocational expert.  Mr. Pannapacker identified three positions,
specifically those of an assembler, bus cleaner, and candy dipper, which he opined
were within claimant's physical abilities and within his community.  In addressing
this issue, the administrative law judge discussed Mr. Pannapacker's testimony as
well as the testimony of Mr. Phillips, claimant's physical therapist, Dr. Nehmer,
employer's physician, and Dr. Carmody, claimant's physician, in concluding that the
positions identified by employer were insufficient to establish the availability
of suitable alternate employment.  Specifically, the administrative law judge  found that Mr.
Pannapacker's survey was unreliable since it was based exclusively on the restrictions imposed on claimant by Dr.
Nehmer to the exclusion of Dr. Carmody's restrictions and that Mr. Pannapacker did not inform the prospective
employers of claimant's condition.[1]   See generally DM & IR Ry
Co. v. Director, OWCP, 151 F.3d 1120, 32 BRBS 188 (CRT)(8th Cir. 1998); Dupre v. Cape Romain
Contractors, Inc., 23 BRBS 86 (1989); Armand v. American Marine Corp., 21 BRBS 305 (1988);
Decision and Order at 7-8; Emp. Exs. 12-14; Mr. Pannapacker's deposition at 10, 33, 50.  Additionally, the
administrative law judge credited the testimony of Dr. Carmody, claimant's physician, that claimant is incapable of
performing the identified positions.[2]      See Perini Corp. v.
Heyde, 306 F. Supp. 1321 (D.R.I. 1969); Decision and Order at 8.  Based upon the foregoing, the
administrative law judge concluded that the identified positions of assembler,
bus cleaner, and candy dipper, did not satisfy claimant's burden.

     It is well-established that the administrative law judge is entitled to weigh
the evidence and draw his own inferences from it, see Wheeler v. Interocean
Stevedoring, Inc., 21 BRBS 33 (1988), and is not bound to accept the opinion
or theory of any particular  witness. See Todd Shipyards v. Donovan, 300
F.2d 741 (5th Cir. 1962).   Thus, in the case at bar, the administrative law
judge's decision to rely upon the testimony of Dr. Carmody and Mr. Phillips, and
his subsequent determination that Mr. Pannapacker's labor market survey is
insufficient to establish the availability of suitable alternate employment is
rational. Accordingly, as his findings are supported by the record, we affirm the
administrative law judge's finding that employer failed to establish the
availability of suitable alternate employment, and his consequent award of
permanent total disability compensation to claimant.

     Lastly, employer argues that the administrative law judge erred in finding
that it is not entitled to suspend claimant's benefits pursuant to Section 7(d)(4);
specifically, employer avers that the administrative law judge imposed too
stringent a standard in requiring that claimant's proposed wrist surgery guarantee
an improvement in his condition.  We disagree.  Section 7(d)(4) provides:

     If at any time the employee unreasonably refuses to submit to medical or
     surgical treatment, or to an examination by a physician selected by the
     employer, the Secretary or administrative law judge may, by order, suspend
     the payment of further compensation during such time as such refusal
     continues, and no compensation shall be paid at any time during the period of
     such suspension, unless the circumstances justified the refusal.

33 U.S.C. §907(d)(4).

     The Board has held that Section 7(d)(4) sets forth a dual test for determining
whether benefits may be suspended as a result of claimant's failure to undergo
surgical treatment. See Hrycyk v. Bath Iron Works Corp., 11 BBS 238
(1979)(Smith, S. dissenting).  In Hrycyk, the Board held that employer must
make an initial showing that claimant's refusal to undergo surgical treatment is
unreasonable; the reasonableness of claimant's actions must be appraised in
objective terms.  If employer meets this burden, the burden shifts to claimant to
show that the circumstances justify his refusal; appraisal of the justification of
claimant's actions is a subjective inquiry. Id., 11 BRBS at 241-243.  See
also Malone v. International Terminal Operating Co., 29 BRBS 109, 110 (1995);
Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 245, 249 (1989).

     In the instant case, the administrative law judge, citing Hrycyk,
determined that employer was not entitled to suspend claimant's benefits since
employer did not establish that claimant's refusal to undergo wrist surgery was
objectively unreasonable, and that if it did, claimant established sufficient
justification to refuse the surgery.  Specifically, the administrative law judge
found that employer did not establish that claimant's refusal to undergo wrist
surgery was objectively unreasonable based on the opinions of Drs. Nehmer and
Carmody, who both recognized that while the proposed surgery might help claimant,
it could also cause loss of strength and may not alleviate his pain.[3]   See Dr. Carmody's deposition at 14, 16-17, 22; Dr. Nehmer's deposition at 15, 21; Cl. Ex. 1; Emp. Exs. 2, 4.  Contrary to
employer's argument, the administrative law judge's statement that "[n]either
doctor could guarantee that surgery would definitely improve the Claimant's
situation," did not require that  these physicians  guarantee claimant a successful
surgical result; rather, this comment represents a statement of fact by the
administrative law judge, which employer has not shown affected his determination
regarding the claimant's reasonableness in declining to undergo the surgical
procedure in question.  Decision and Order at 10.   Rather, in addressing this
issue, the administrative law judge rationally concluded that claimant's   fear of
surgery, the fact that he never had surgery before, and the risks involved in this
specific procedure provided sufficient justification for claimant to  refuse the
surgery.[4]   See Malone, 29 BRBS at
109; Dodd, 22 BRBS at 245; Hrycyk, 11 BRBS at 238; Decision and Order
at 10; Tr. at 25, 27, 41-43.  We, thus, affirm the administrative law judge's
finding that employer did not establish the reasonableness prong of the
Hrycyk test, and his consequent determination that employer is accordingly
not entitled to suspend claimant's benefits under Section 7(d)(4), as that finding
is supported by substantial evidence, is rational, and is in accordance with law.

     Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is affirmed. 

     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) Dr. Nehmer restricted claimant from lifting more than 20 pounds and performing repetitive motions. Dr. Nehmer's deposition at 24; Emp. Ex. 4. Dr. Carmody restricted claimant from performing multiple repetitive activities, heavy physical work, and lifting, pushing, or pulling with the right hand. Dr. Carmody's deposition at 18. Back to Text
2) 2The administrative law judge additionally noted his disagreement with Mr. Phillips opinion that claimant could perform the bus cleaner job by only using his left hand or by using both hands without repetitive use of the right wrist; the administrative law judge did, however, agree with Mr. Phillips that claimant cannot perform the two assembler positions. Back to Text
3) 3The administrative law judge additionally acknowledged Dr. Nehmer's admission that a radial osteotomy is more complicated and carries the risk that claimant's bone might not heal. See Decision and Order at 10. Back to Text
4) Dr. Nehmer identified the risks of wrist surgery to include the possibility that claimant's wrist pain will not get better, that an infection would arise at the surgical site, and of the risks associated with anesthesia. Dr. Nehmer's deposition at 21-22. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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