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                                 BRB No. 99-0366
                                         
BENEDETTO VASILE                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME SERVICE              )    DATE ISSUED:   12/16/1999
                                             1999 
CORPORATION                             )
                                        )
     and                                )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Ralph A. Romano,
     Administrative Law Judge, United States Department of Labor.

     Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
     York, for claimant.

     Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for employer/carrier.  

     Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order on Remand (97-LHC-0240) of
Administrative Law Judge Ralph A. Romano 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).
     This case is on appeal to the Board for the second time.  On July 31,
1996, claimant, a clerk/checker, alleged that he injured his head and right
shoulder when a box fell on him while working for employer.  In his initial
Decision and Order, the administrative law judge awarded claimant temporary total
disability benefits from July 31, 1996, to September 19, 1996.  On appeal, employer
challenged the administrative law judge's finding that claimant was injured in an
accident at work and his award of temporary total disability benefits.  

     In Vasile v. Universal Maritime Service Corp., BRB No. 97-1446
(July 7, 1998)(unpublished), the Board vacated the administrative law
judge's award of benefits and remanded the case to the administrative law
judge for further findings regarding whether claimant established that an
accident in fact occurred.  Before invoking the presumption pursuant to
Section 20(a) of the Act, 33 U.S.C. §920(a), the administrative law
judge was instructed to determine whether an accident in fact occurred by
weighing all evidence, pro and con, relevant to this issue and by resolving
the issue of the credibility of claimant's testimony concerning the
occurrence of the accident.  The administrative law judge also was
instructed to determine whether employer established rebuttal of the Section
20(a) presumption if he found invocation established and to reevaluate the
evidence as a whole, with claimant bearing the burden of proof, if he found
that employer established rebuttal.  The Board affirmed the administrative
law judge's award of temporary total disability benefits from July 31, 1996,
to September 19, 1996, conditioned upon the administrative law judge's
finding on remand that claimant's injury is work-related.  

     In his Decision and Order on Remand, the administrative law judge found
that claimant's testimony concerning the occurrence of the work accident was
credible.  He again awarded benefits to claimant after finding that employer
established rebuttal of the Section 20(a) presumption and that claimant
established that his injury was caused by a work accident upon a weighing
of the evidence.  Employer appeals, again challenging the findings regarding
the occurrence of a work accident.

     Employer contends that the administrative law judge violated the
Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A), by not discussing and
weighing the evidence to determine whether an accident occurred and by failing to
explain why he found claimant's testimony credible on this issue.  Employer also
contends that claimant did not establish by a preponderance of the evidence that
an accident at work in fact occurred, contrary to the decision of the Supreme Court
in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43
(CRT)(1994).

     Section 20(a) provides claimant with a presumption that the injury he
sustained is causally related to his employment if he establishes a prima
facie case by showing that he suffered a harm and that employment conditions
existed or a work accident occurred which could have caused the harm. See, e.g.,
Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59 (CRT)(5th Cir. 1998).  Once
claimant has invoked the presumption, the burden shifts to employer to rebut it
with substantial countervailing evidence. Peterson v. General Dynamics
Corp., 25 BRBS 71, 78 (1991), aff'd sub nom. Ins. Co. of North America v.
U.S. Dep't of Labor [Peterson], 969 F.2d 1400, 26 BRBS 14 (CRT)(2d Cir. 1992),
cert. denied, 507 U.S. 909 (1993); Davison v. Bender Shipbuilding &
Repair Co., Inc., 30 BRBS 45, 46-47 (1996).  If the administrative law judge
finds that the Section 20(a) presumption is rebutted, then all relevant evidence
must be weighed to determine if a causal relationship has been established with
claimant bearing the burden of persuasion. See, e.g., Meehan Service Seaway Co.
v. Director, OWCP, 125 F.3d 1163, 31 BRBS 114 (CRT)(8th Cir. 1997), cert.
denied, 118 S.Ct. 1301 (1998); Universal Maritime Corp. v. Moore,
126 F.3d 256, 31 BRBS 119 (CRT)(4th Cir. 1997); see also Greenwich
Collieries, 512 U.S. at 267, 28 BRBS at 43 (CRT).

     On remand, the administrative law judge concluded that claimant's testimony
concerning the occurrence of the work accident was credible.  We need not address
employer's allegation of error at length, as it has not established that this
credibility determination is "inherently incredible or patently unreasonable."
See Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir.
1978), cert. denied, 440 U.S. 911 (1979). It is apparent from the record and
the administrative law judge's decision that some kind of accident befell claimant at
work on July 31, 1996.  The administrative law judge noted the unrefuted evidence that
claimant was found on the ground in the location office complaining of head pain
and dizziness, and was sent to an emergency room of a local hospital by
ambulance.[1]   See Emp. Exs. 3, 11.  This
evidence is sufficient to invoke the Section 20(a) presumption. See U.S.
Industries/Federal Sheet Metal, Inc., v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982); Darnell
v. Bell Helicopter Int'l Inc., 16 BRBS 98 (1984), aff'd sub nom. Bell
Helicopter Int'l Inc. v. Jacobs, 746 F.2d 1342, 17 BRBS 13 (CRT)(8th Cir.
1984);  Tr. at 15-20.  Employer does not dispute these facts; rather, it focuses
on the inconsistencies between claimant's testimony concerning the box that
allegedly fell on him and the physical evidence at the accident scene.  These
inconsistencies are insufficient to preclude application of Section 20(a), as the
administrative law judge found that employer's evidence on this issue also is
unpersuasive.  As there is sufficient evidence of record which is not in dispute
to satisfy claimant's burden of establishing that an incident at work occurred that
could have caused the injury, the administrative law judge's finding in this regard is
affirmed. See generally Brown v. I.T.T./Continental Baking Co., 921 F.2d
289, 24 BRBS 75 (CRT)(D.C. Cir. 1990).  Employer does not challenge any other
aspect of the administrative law judge's decision; therefore, we affirm the
administrative law judge's award of benefits on remand.
     Accordingly, the administrative law judge's Decision and Order on Remand
awarding 
benefits is affirmed.  

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1) At the hospital, claimant was diagnosed with a spinal sprain and head contusion. Emp. Ex. 11. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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