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                                 BRB No. 99-0380

ROSEMARY MITCHELL                       )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
RANDOLPH AIR FORCE BASE                 )    DATE ISSUED:   12/23/1999 

                                        )
     and                                )
                                        )
AIR FORCE INSURANCE FUND                )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order James W. Kerr, Jr., Administrative Law
     Judge, United States Department of Labor.

     William Dale Gilliam, Universal City, Texas, for claimant.

     Charles L. Brower (Air Force Services Agency, Office of Legal Counsel),
     San Antonio, Texas, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order (97-LHC-2840) of Administrative Law
Judge James W. Kerr, Jr., awarding benefits on a claim filed pursuant to the
provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33
U.S.C. §901, as extended by the Nonappropriated Fund Instrumentalities Act,
5 U.S.C. §8171 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, while employed as a food service worker at employer's Non-Commissioned Officers' (NCO) Club on October 11, 1988, sustained injuries to the
back of her head, neck, low back, left leg and left arm when she slipped on a
liquid substance and fell down some stairs.  Dr. Holmes, who treated claimant from
October 21, 1988, through January 12, 1989, diagnosed at first a lumbar
strain/sprain and then a herniated disc at L4-5, prescribed continued physical
therapy and epidural steroid injections, ostensibly placed claimant on "no duty"
status,[1]  and ultimately referred her to Dr.
Pontius.  Dr. Pontius diagnosed a herniated disc at L4-5, placed claimant on "non-duty" status as of January 12, 1989, and subsequently performed a laminectomy and
discectomy, bilateral with posterior fusion at L4-5 on August 29, 1989.  He cleared
claimant to return to her old job, modified to light duty, effective June 1, 1990. 
He saw claimant again in 1994, and reiterated that she should be kept on light duty
status.[2]  

   Employer voluntarily paid temporary total disability benefits during the
periods of October 21, 1988 through December 11, 1988, January 12, 1989 through
April 16, 1992, October 21, 1993 through January 17, 1996, and from April 25, 1997,
and continuing.  Claimant filed a claim seeking benefits for the periods not paid
by employer, as well as for ongoing permanent total disability and additional work-related medical expenses. 

   In his decision, the administrative law judge determined that claimant is
entitled to temporary total disability benefits from October 11, 1988, until March
30, 1997,[3]  permanent total disability benefits
continuing from March 31, 1997, and all future reasonable medical expenses incurred
due to the October 11, 1988, work-related injury.  Employer appeals the
administrative law judge's award of benefits.  Claimant responds, urging
affirmance. 

                       Suitable Alternate Employment

   On appeal, employer initially asserts that the administrative law judge erred
in finding that claimant was totally disabled for the period from December 12,
1988, through January 11, 1989, since claimant was in light duty status during that
period of time.  Employer maintains that the medical reports of Dr. Holmes dated
December 9 and 20, 1988, and of Dr. Pontius dated January 12, 1989, as well as the
testimony of claimant and a co-worker, Ms. Torres, affirmatively establish that
claimant was performing light duty work folding napkins during the time period in
question.

   In addressing the issue of claimant's work status between December 12, 1988, through
January 11, 1989, the administrative law judge noted that Dr. Holmes was the only
treating physician at that time and therefore limited his discussion to Dr.
Holmes's statements.  The administrative law judge found that Dr. Holmes's letter
dated December 9, 1988, wherein he opined that claimant is able to resume limited
work as of December 12, 1988, is inconsistent with his other medical reports. 
First, the administrative law judge noted that in his December 9, 1988, report, Dr.
Holmes erroneously listed the last day of treatment as November 25, 1988, when in
fact, he last saw claimant on December 2, 1988.  Additionally, the administrative
law judge noted that on December 2, 1988, Dr. Holmes explicitly stated that
claimant "is to stay off duty," which he found was further supported by his notes
on January 12, 1989, that claimant "has been unable to work 2 hours a day due to
sitting," and which is consistent with Dr. Holmes's statement as of November 22,
1988, that claimant should not return to work for four weeks.  CX 19.  The
administrative law judge determined that Dr. Holmes' report dated December 2, 1988,
is dispositive on the issue of claimant's work status for the period in question,
and therefore discredited the December 9, 1988, report as it was based on
inaccurate data.[4]   Bolden v. G.A.T.X. Terminals
Corp., 30 BRBS 71, 73 (1996); see also Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962).

   Absent from the administrative law judge's analysis is any discussion of
claimant's testimony that she briefly returned to sedentary work folding napkins,
which is corroborated by the testimony of Ms. Torres, or of the medical report of
Dr. Pontius dated January 12, 1989.  However, neither claimant's nor Ms. Torres's
testimony establishes a specific date for this employment or that this light duty
continued over the particular time period in question,[5]  and Dr. Pontius's statement on January 12, 1989, that "if [claimant]
continues to get better, we can try her again at light duty . . . ," CX 20, is not
sufficient to establish that claimant did, in fact, work in a light duty capacity
during the disputed period.  Consequently, this evidence is insufficient to
establish that claimant was not entitled to total disability benefits between
December 12, 1988, and January 11, 1989.  This is particularly true, in light of
definitive medical opinion stating "no duty" rendered by Dr. Holmes on December 2,
1988, which was credited by the administrative law judge.  We therefore affirm the
administrative law judge's finding that claimant was temporarily totally disabled
for the period in dispute, i.e., December 12, 1988, to January 11, 1989. 

   Employer next argues that the administrative law judge's finding that claimant
has been totally disabled continuously since October 11, 1988, is erroneous because
employer provided suitable alternate employment by offering claimant a light duty
job, which was approved by her primary treating physician, Dr. Pontius, effective
June 1, 1990.  Additionally, employer asserts that claimant failed to respond to
its offer, and therefore exhibited a complete unwillingness to work.

   In discussing the issue of suitable alternate employment, the administrative
law judge focused on, and found unsuitable, the sedentary light duty position
checking identifications and folding napkins (checker and folder) offered by
employer as of December 12, 1988, and the seven positions identified in a labor
market survey dated  July 3, 1990.[6]   Although
the administrative law judge did not explicitly consider the position offered by
employer at its NCO club effective June 1, 1990, the record as a whole supports the
administrative law judge's determination that claimant is totally disabled and
therefore is not capable of performing that work.  Specifically, Dr. Pontius's
opinion dated April 11, 1990, wherein he stated that claimant should be able to go
back to the light duty position of checker and folder probably in June 1990, is,
at best, speculative regarding the issue of whether claimant was actually capable
of the light duty employment as of June 1, 1990, particularly, given his office
note dated January 31, 1990, in which he explicitly stated, with regard to
claimant's work status, "no duty for six months," CX 20, and Dr. Swan's opinion,
following his examination of claimant on July 13, 1990, that claimant is
unemployable.[7]   Accordingly, we reject
employer's contention that it established suitable alternate employment from June
1, 1990, and thus, that claimant is not entitled to total disability benefits from
that time forward.[8] 

                              Section 7(d)(4)

   Employer argues that the administrative law judge's rejection of its argument
that claimant is not entitled to benefits because she unreasonably refused to
follow the advice of her doctors to lose weight and to exercise is contrary to law. 
Specifically, employer avers that since July 26, 1989, and continuing, claimant has
unreasonably refused to submit to the medical treatment recommended by every doctor
who has treated her, i.e., to lose weight, and thus, that by operation of
Section 7(d)(4),  33 U.S.C. §907(d)(4), employer could and should have
suspended compensation payments continuing into the present.  

   Section 7(d)(4) sets forth a dual test for determining whether benefits may
be suspended as a result of a claimant's failure to undergo medical or surgical
treatment. See Malone v. International Terminal Operating Co., Inc., 29 BRBS
109 (1995); Hrycyk v. Bath Iron Works Corp., 11 BRBS 238 (1979).  In
Hrycyk, the Board held that employer must make an initial showing that the
claimant's refusal to undergo medical or surgical treatment is unreasonable; the
reasonableness of a claimant's actions must be appraised in objective terms.
Hrycyk, 11 BRBS at 238.  If employer meets this burden, the burden shifts
to claimant to show that the circumstances justify her refusal; appraisal of the
justification of the claimant's actions is a subjective inquiry. Id., 11
BRBS at 241-243. 

   In rejecting employer's contention, the administrative law judge found that,
as noted by her original treating physician, Dr. Holmes, claimant was "corpulent"
at the time of injury and thus the administrative law judge concluded that it would
be "unreasonable to expect her to maintain a regimen that she did not embrace prior
to her injury."  Decision and Order at 19.  Although the administrative law judge's
decision lacks a specific discussion of Section 7(d)(4), his finding nevertheless
falls within the relevant dual test, i.e., if not the objective factor then
most certainly the subjective factor, discussed in Hrycyk.  We therefore
affirm the administrative law judge's finding that claimant was unable to lose
weight is reasonable given her background, particularly since, as the
administrative law judge observed, claimant testified that she tried without
success such diet programs as Jenny Craig, Slim Fast, and a banana diet, and the
record further reflects that she unsuccessfully participated in an 18 week Weight
Watchers program, post-hearing. Hrycyk, 11 BRBS at 238.

   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



                                                                    

                       REGINA C. McGRANERY
                       Administrative Appeals Judge

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Footnotes.


1)Dr. Holmes made various statements over the course of his treatment regarding claimant's ability to work. On October 21, 1988, he put claimant on "no duty" status; on November 7, 1988, he opined that claimant should not work more than five hours a day upon her return to work and that in three weeks he would increase her hours; on November 11, 1988, he disallowed claimant to return to work; on November 22, 1988, he stated that claimant should not return to work for four weeks; on December 2, 1988, he ordered no duty; on December 9, 1988, he opined that claimant could resume limited work, specifying folding napkins at short intervals, effective December 12, 1988; on December 20, 1988, he stated that claimant remains on light duty, and on January 12, 1989, he recommended no light duty for another month. Back to Text
2)Claimant also received treatment at various times from Drs. Garcia, Growney, Hardy, Swan, Harsha, Zanetti, Snook, and Wilk, as well as a chiropractor, Dr. Edwards. Back to Text
3)The administrative law judge determined, based upon the opinions of Drs. Harsha, Pontius, and Garcia, that claimant's condition reached maximum medical improvement as of March 31, 1997. Back to Text
4)As the administrative law judge discussed and resolved the discrepancy in Dr. Holmes's opinions regarding claimant's work status, and as it is within his discretion to accord greatest weight to Dr. Holmes's opinion dated December 2, 1988, his failure to specifically address the notation made by Dr. Holmes in his December 20, 1988, that claimant remains in light duty status, is harmless error. Perini Corp. v. Heyde, 306 F. Supp. 1321 (D.R.I. 1969) Back to Text
5)The record contains employer's supplementary report of accident dated December 13, 1988, wherein it lists the date claimant returned to work as December 12, 1988; however, there are no other records in evidence, e.g., payroll stubs, to confirm this. Also, at her deposition dated January 16, 1988, claimant stated that she did come back to work in December 1988, and that she worked "off and on," but she could not give any additional details as to how long she did this light duty work. EX at 52-3. Back to Text
6)Employer does not challenge the administrative law judge's finding as to the unsuitability of the positions identified in the labor market survey. Back to Text
7)Additionally, we note that the record establishes that claimant moved from San Antonio, Texas, to Oklahoma City, Oklahoma, in 1989, and remained there until moving to Corpus Christi, Texas in 1991, EX 37, and the light duty job offered claimant in employer's NCO club in San Antonio therefore may not meet employer's burden of offering suitable alternate employment within the geographical area where the employee resides. See generally Wood v. U.S. Dept. of Labor, 112 F.3d 592, 31 BRBS 43 (CRT)(1st Cir. 1997); See v. Washington Metropolitan Area Transit Authority, 36 F.3d 375, 28 BRBS 96 (CRT) (4th Cir. 1994); Wilson v. Crowley Maritime, 30 BRBS 199 (1996). Back to Text
8)Employer further argues that the administrative law judge erred in crediting claimant's testimony regarding her physical condition over that provided by her former co-worker, Ms. Torres. In addressing employer's contention, the administrative law judge found that the testimony offered by Ms. Torres of four alleged encounters with claimant was at best vague and therefore did not rebut claimant's contention that she was not able to do the light duty work offered. The administrative law judge specifically noted that Ms. Torres could not ascribe dates to the alleged encounters with claimant, but "felt" they were after claimant's accident. The administrative law judge therefore acted within his discretion by not giving great weight to the testimony of Ms. Torres. Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996). In addition, contrary to employer's contention, the administrative law judge rationally found that claimant's complaints of pain are credible as there is a wealth of medical testing over the ten-year period that demonstrates the physiological genesis of her pain and disability. Moreover, as employer did not establish the availability of suitable alternate employment in this case, the claimant's lack of willingness to secure post-injury employment is not at issue and therefore the credibility of her testimony regarding her post-injury job search is moot. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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