Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB No. 99-0325

MICHAEL T. BREMBY                       )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   12/16/1999
                                                                         
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order and Order Denying Claimant's Motion for
     Reconsideration of Fletcher E. Campbell, Jr., Administrative Law Judge,
     United States Department of Labor.

     Robert J. Macbeth, Jr. and Chanda L. Wilson (Rutter, Walsh, Mills &
     Rutter, L.L.P.), Norfolk, Virginia, for self-insured employer. 

     Jonathan H. Walker (Mason & Mason, P.C. ), Newport News, Virginia, for
     self-insured employer.

     Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.
     
     PER CURIAM:

     Claimant appeals the Decision and Order and Order Denying Claimant's Motion
for Reconsideration (97-LHC-2640) of Administrative Law Judge Fletcher E. Campbell,
Jr., 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 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 allegedly injured his left wrist on April 5, 1995 while grinding
welds. Claimant went to employer's clinic the next day complaining of wrist pain,
and was given work restrictions which remained in place until July 6, 1995.
Claimant then began to undertake treatment by Dr. Freund on July 14, 1995. 
Claimant was on and off restricted duty over the next several months, and had
surgery for a non work-related ganglion cyst on October 31, 1995.  During this
surgery, Dr. Freund found two additional abnormalities, which he removed. Claimant
returned to work on  restricted duty on November 16, 1995.  Claimant's 
restrictions were discontinued on February 16, 1996.

     On May 29, 1996, claimant returned to Dr. Freund, complaining of pain in his
left wrist after pulling line and climbing ladders.  Dr. Freund found dorsal
tenderness, and again reinstituted and discontinued work restrictions on several
occasions.  The last set of restrictions was placed on November 1, 1996, with an
expiration date of February 20, 1998.  On December 6, 1996, employer laid off
claimant from his light duty job at employer's facility for economic reasons.
Claimant began full-time employment with Norfolk Naval Shipyard on February 24,
1997.  Claimant filed a claim for temporary total disability benefits from December
6, 1996 through February 24, 1997.

     The administrative law judge found that claimant failed to present sufficient
evidence to establish invocation of the presumption of  Section 20(a) of the Act,
33 U.S.C. §920(a), and thus found that claimant's wrist injury is not work-related.  He alternatively found that if Section 20(a) was invoked, employer
presented insufficient evidence to establish rebuttal. The administrative law judge
also  found alternatively that claimant failed to establish that his disability is
due to his work injury.  Consequently, the administrative law judge denied
benefits.  The  administrative law judge denied claimant's motion for reconsideration.

     On appeal, claimant contends that the administrative law judge erred in
finding that his wrist injury is not work-related, and contests his alternative
finding that claimant is not entitled to temporary total disability benefits from
December 6, 1996 through February  24, 1997.  Employer responds, urging affirmance.

     Claimant first contends that the administrative law judge erred in finding
that the Section 20(a) presumption is not invoked.  Claimant has the burden of
proving the existence of a harm and that a work-related accident occurred or that
working conditions existed which could have caused the harm, in order to establish
a prima facie case. Kelaita v. Triple A Machine Shop, 13 BRBS 326
(1981).  Once claimant establishes his prima facie case, Section 20(a) of
the Act provides claimant with a presumption that his condition is causally related
to his employment. The burden then shifts to employer to rebut it with substantial
countervailing evidence. See Universal Maritime Corp. v. Moore, 126 F.3d
256, 31 BRBS 119(CRT)(4th Cir. 1999).  

     In the instant case, the administrative law judge found that claimant
established the first element of his prima facie case, i.e., the
existence of a physical harm, based predominantly on  the records of  Dr. Freund,
who diagnosed claimant as suffering from  tendinitis, possible ligament damage, an
enlarged area in the dorsal capsule, and a thickened area in the extensor. 
The administrative law  judge also noted that Dr. Reid originally diagnosed
synovitis which, the administrative law judge found, is consistent with Dr.
Freund's diagnosis.  The administrative law judge, however, found that claimant
failed to establish the "working conditions" element of his prima facie case
because he presented no medical evidence to link his injuries to his work
environment, and because no physician of record discusses claimant's job
requirements and how his condition might relate to his employment.[1]   

     We agree with claimant that the administrative law judge erroneously placed
the burden on claimant to establish affirmatively that his injury is in fact
related to his working conditions. Claimant need only show, in order to establish
the second element of his prima facie case, that working conditions existed
which could have caused the harm.  Claimant's theory as to how the injury
occurred must go beyond mere fancy, see Champion v. S & M Traylor Bros., 690
F.2d 285, 15 BRBS 33(CRT) (D.C. Cir. 1982); see also U.S. Industries/ Federal
Sheet Metal v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982), but a
claimant is not required to introduce expert evidence, medical or otherwise,
linking, in fact, his ailment to the conditions of his employment. See, e.g.,
Stevens v.  Tacoma Boatbuilding Co., 23 BRBS 191 (1990); Sinclair v.  United
Food & Commercial Workers, 23 BRBS 148 (1989).

     In this case, claimant testified his left hand began to hurt while he was
working and that he reported this pain to employer's clinic the next day.  Tr. at
26-28.  The clinic notes bear this out.  EX 3.  This evidence, the credibility of
which was not called into question by the administrative law judge, is sufficient
to establish that working conditions existed that could have caused claimant's hand
and wrist pain. Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT) (9th Cir.
1998) (holding that the claimant's uncontradicted testimony concerning
exposure to loud noise is sufficient to establish the existence of working
conditions that could have caused the claimant's hearing loss).  We, therefore,
reverse the  administrative law judge's finding that the Section 20(a) presumption
is not invoked.

     The  administrative law judge also found, assuming, arguendo, the
invocation of the Section 20(a) presumption, that employer did not rebut it. 
Employer alleges in its response brief that the opinion of Dr.  Collier is
sufficient to establish that any disability claimant may have had after July 6,
1995, when he released claimant to work without restrictions, was not related to
the work accident due to the absence of any physiological condition at that time. 
We affirm the finding that employer's evidence is insufficient to rebut the Section
20(a) presumption.  Dr.  Collier's opinion is not sufficient to sever the
connection between the injury and the employment as he assumes that, because
claimant had a non work-related ganglion cyst, any pain claimant had thereafter was
due to this condition alone.  He does not address the other conditions diagnosed
by Dr.  Freund, and  indeed, stated he did not have Dr.  Freund's reports for
review.  Thus, this opinion does not state that all of the conditions diagnosed by
Dr.  Freund are not work-related. See generally Hampton v.  Bethlehem Steel
Corp., 24 BRBS 141 (1990).  Claimant's condition therefore is work-related as
a matter of law. See generally American Grain Trimmers v. Director, OWCP,
181 F.3d 810, 33 BRBS 71(CRT) (7th Cir.  1999).

     We also must vacate the administrative law judge's denial of disability
compensation, and remand this case for further findings.  Claimant was laid off
from his job with employer on December 6, 1996, at a time when he was working under
restrictions.  This layoff was solely for economic reasons.  Nonetheless, claimant
is entitled to total disability compensation for the period of the layoff from the
light duty job, unless employer shows the availability of other suitable alternate
employment. Norfolk Shipbuilding & Dry Dock Co.  v.  Hord, 193 F.3d 797 
(4th Cir. 1999); Mendez v.  Nat'l Steel & Shipbuilding Co., 21 BRBS 22
(1988).  In Hord, the United States Court of Appeals for the Fourth Circuit
recently held that an employer may not satisfy its burden of demonstrating suitable
alternate employment based solely on the post-injury internal light duty employment
subjected to the layoff.  In this case, claimant obtained a job with Norfolk Naval
Shipyard on February 24, 1997, and employer introduced into evidence a labor market
survey and the testimony of a vocational counselor regarding the availability of
alternate work during the layoff period. See EX 22; Tr.  at 84.  Therefore,
we remand the case for the administrative law judge to reconsider claimant's
entitlement to disability benefits under Hord as claimant was employed in
a light duty job in employer's facility at the time of his layoff.[2]   

     Accordingly, the administrative law judge's finding that claimant's condition
is not work-related is reversed.  The case is remanded for further consideration
consistent with this opinion.

     SO ORDERED. 




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)The administrative law judge stated that he, as a lay person, could not find that claimant's work activities could be responsible for claimant's condition without the aid of expert opinion. Decision and Order at 7-8. Back to Text
2)We note that the administrative law judge did not credit claimant's testimony regarding his alleged recall by employer prior to his obtaining alternate work, as unsupported by the documentary evidence of record. Order on Recon. at 1-2. The administrative law judge's determination is rational and supported by substantial evidence. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document