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                                    BRB Nos. 00-0518
                                      and 00-0518A

DANIEL R. JOHNSON                       )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
THE HARDAWAY COMPANY                    )    DATE ISSUED:   02/09/2001
                                             
                                        )
     and                                )
                                        )
CIGNA INSURANCE COMPANY                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION and ORDER

     Appeals of the Decision and Order - Awarding Benefits of Larry W. Price,
     Administrative Law Judge, United States Department of Labor.

     Phil Watkins (Phil Watkins, P.C.), Corpus Christi, Texas, for claimant.

     John R. Walker (Murphy & Walker, L.L.P.), Houston, Texas, for employer/
     carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals and employer cross-appeals the Decision and Order - Awarding
Benefits (99-LHC-0067) of Administrative Law Judge Larry W. Price 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).
     Claimant, a form setter, suffered injuries to his lower back while trying to
lift an anchor bolt during the course of his employment on November 29, 1994. 
Claimant was initially treated by Dr. Ganz, who placed claimant on light duty.  On
December 9, 1994, Dr. Ganz opined that claimant reached maximum medical
improvement, and, on December 12, 1994, claimant returned to full duty with
employer and  worked for  ten days before being fired.  Claimant subsequently
obtained and left alternate work, and is presently residing in California.

     In his decision, the administrative law judge found that claimant reached
maximum medical improvement as of December 9, 1994, that employer established the
availability of suitable alternate employment, and that the wages claimant earned
from March 6, 1995 through May 17, 1995, fairly and reasonably represented his
post-injury wage-earning capacity.   Accordingly, as claimant's post-injury wages
were greater than claimant's average weekly wage at the time of his injury, the
administrative law judge awarded claimant only temporary total disability
compensation from November 29, 1994 until December 9, 1994, and permanent total
disability compensation from December 10, 1994 through  March 5, 1995.  33 U.S.C.
§908(a), (b).  Additionally, the administrative law judge assessed a Section
14(e), 33 U.S.C. §914(e), penalty against employer on all compensation that
had not been paid within fourteen days of the date it was due.

     Claimant appeals, challenging the  administrative law judge's findings
regarding the nature and extent of his disability.  Employer responds, urging the
Board to affirm the administrative law judge's findings on these issues.  In a
cross-appeal, employer argues that the administrative law judge erred in finding
it to be liable for a penalty pursuant to Section 14(e) of the Act.

     Claimant initially  contends that the administrative law judge erred in
determining that his condition became permanent on December 9, 1994.  Specifically,
claimant contends  that the administrative law judge erred in relying upon the
opinion of Dr. Ganz in reaching  this conclusion.  A disability is considered
permanent as of the date claimant's condition reaches maximum medical improvement
or if the condition has continued for a lengthy period of time and appears to be
of lasting or indefinite duration, as distinguished from one in which recovery
merely awaits a normal healing period. See Watson v. Gulf Stevedore
Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969);
McCaskie v. Aalborg Ciserv Norfolk, Inc., 34 BRBS 9 (2000). The
determination of when maximum medical improvement is reached is primarily a
question of fact based on the medical evidence. Ezell v. Direct Labor, Inc.,
33 BRBS 19 (1999); Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988). 


     In addressing this issue, the administrative law judge discussed the relevant
medical opinions of Drs. Ganz, McIvor, McKeever, and Masciale regarding claimant's
condition, and determined that claimant reached maximum medical improvement on
December 9, 1994, as that is the date Dr. Ganz opined that maximum medical
improvement was achieved and he released claimant to return to work. See
Emp. Ex. 18.  In rendering this finding, the administrative law judge
acknowledged that Dr. Ganz may have incorrectly diagnosed claimant's injury and
prematurely released claimant to full duty.   The administrative law judge,
however, concluded after reviewing the medical evidence that claimant's condition
did not further improve subsequent to December 9, 1994.  Claimant, in challenging
this conclusion, cites to no evidence supportive of a finding that his condition
improved subsequent to December 9, 1994.   See generally SGS Control Serv. v.
Director, OWCP, 86 F.3d 438, 30 BRBS 57(CRT) (5th  Cir. 1996).   Dr. McIvor
stated that claimant had reached maximum medical improvement prior to his
examination of claimant on May 27, 1997, Clt. Ex.11, and the fact that Dr. Masciale
recommended chiropractic treatment does not indicate that claimant's condition was
not permanent.  Accordingly, as the administrative law judge's finding that
claimant reached maximum medical improvement on December 9, 1994, is rational and
supported by substantial evidence, it is affirmed. See Carlisle v. Bunge
Corp., 33 BRBS 133 (1999), aff'd, 227 F.3d 934, 34 BRBS 79(CRT) (7th
Cir. 2000); Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS 70
(1997).

     Claimant next challenges the administrative law judge's denial of ongoing
disability compensation.  Specifically, claimant avers that, although he worked 
post-injury from March 5, 1995 through May 17, 1995 for Staff Pro, and from March
6, 1996 through March 15, 1996 for Ivan Halaj Rentals, he was unable to continue
in these positions due to his work-related injury; claimant thus contends that the
administrative law judge erred in failing to award ongoing total disability
benefits. 

     Where, as in the instant case, claimant is unable to perform his usual
employment duties, claimant has established a prima facie case of total
disability, thus shifting the burden to employer to demonstrate the availability
of suitable alternate employment that claimant is capable of performing. See
Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039, 26 BRBS 36(CRT) (5th Cir.
1992); P & M Crane Co. v. Hayes, 930 F. 2d 424, 24 BRBS 116(CRT) (5th  Cir.
1991).  In order to satisfy this burden, employer must demonstrate that there are
jobs reasonably available in the geographic area where claimant resides which
claimant is capable of performing based upon his age, education, work experience
and physical restrictions and could realistically secure if he diligently tried.
See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156
(5th Cir. 1981); Southern v. Farmers Export Co., 17 BRBS 64 (1985). 
Additionally, employer can satisfy its burden of establishing the availability of
suitable alternate employment if claimant successfully performs a job he procured
on his own.   See generally Darby v. Ingalls  Shipbuilding, Inc., 99
F.3d 685, 30 BRBS 93(CRT) (5th Cir. 1996); Shiver v. United States Marine Corps,
Marine Base Exchange, 23 BRBS 246 (1990); Darden v. Newport News
Shipbuilding & Dry Dock Co., 18 BRBS 224 (1986).  

     In determining whether employer has met its burden of establishing the
availability of suitable alternate employment, the administrative law judge must
compare the requirements of the jobs identified with claimant's physical
restrictions and other vocational factors. See Hernandez v. National Steel &
Shipbuilding Co., 32 BRBS 109 (1998); Bryant v. Carolina Shipping Co.,
25 BRBS 294 (1992).  In the instant case, claimant testified that he was unable
to continue working for Staff Pro in 1995 due to the nature of the work offered to
him by that employment company. See Tr. at 52.   In August 1996,  Dr.
Masciale opined that while he did not recommend that claimant return to heavy type
work, claimant could perform lighter activities that do not require repetitive
bending, stooping, and lifting or carrying over 40-50 pounds.  Clt. Exs.1, 2.   In
September 1996, Dr. Masciale stated that, due to claimant's diagnosis of chronic
right sacroiliac joint strain/sprain, he had no reason to doubt claimant's
statements that his back pain in 1995 precluded him from participating in work. 
Clt.  Ex. 2 at 14.  Dr. Snook subsequently agreed with the conclusions  of Dr.
Masciale.  Clt. Ex. 9.   In June 1997, Dr. McIvor examined claimant, found his back
to be quite flexible, and concluded, based upon a lack of positive evidence on
physical examination, that he had nothing to suggest from an orthopedic standpoint;
Dr. McIvor opined that claimant has the capacity to lift 50 to 60 pounds
occasionally  during the course of an eight-hour work day.  Clt. Ex. 11. 

     In addressing the extent of claimant's disability, the administrative
initially found questionable claimant's testimony regarding his inability to work
post-injury, noting that claimant did not file tax returns from 1992 to 1997
although he performed work during this time. See Decision and Order at 9;
Tr. at 52, 106.   Contrary to claimant's contention, the administrative law judge
is not required to credit claimant's uncontradicted testimony that he was unable
to perform the post-injury jobs.  Rather, the administrative law judge is entitled
to determine the credibility of a witness's testimony, and the weight to be
accorded to such testimony.   See generally Cordero v. Triple A Machine Shop,
580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979).  Next, after stating that
he had reviewed the opinions expressed and job restrictions imposed on claimant by
Drs. Masciale, Snook and McIvor, the administrative law judge summarily concluded
that claimant was fully capable of performing the duties at Staff Pro, Ivan Halaj
Rentals, and as a painter, and thus, that employer established the availability of
suitable alternate employment.  The administrative law judge further found that
claimant's actual post-injury wages with Staff Pro represent claimant's wage-earning capacity.    As the administrative law judge, however, did not compare
claimant's physical restrictions with the requirements of the post-injury positions
performed by claimant, we cannot affirm the administrative law judge's denial of
additional disability benefits. See Hernandez, 32 BRBS 109; see also
Bunge Corp. v. Carlisle, 227 F.3d 934, 34 BRBS 79(CRT) (7th Cir. 2000); Ledet v. Phillips Petroleum Co.,
163 F.3d 901, 32 BRBS 212(CRT) (5th Cir. 1998).    We, therefore, vacate the administrative law
judge's finding that employer established the availability of suitable alternate
employment, and we remand the case to the administrative law judge for
reconsideration of the evidence of record regarding this issue.[1]    Should the administrative law judge determine
on remand that employer met its burden of establishing the availability of suitable
alternate employment, he must, pursuant to Section 8(h) of the Act, 33 U.S.C.
§908(h), fully  analyze whether claimant's actual post-injury wages fairly and
reasonably represent his post-injury wage-earning capacity. See generally
Avondale Industries, Inc. v. Pulliam, 137 F.3d 326, 32 BRBS 65(CRT) (5th Cir. 1998); Randall v. Comfort
Control, Inc., 725 F.2d 791, 16 BRBS 56(CRT) (D.C. Cir. 1984); Cooper v.
Offshore Pipelines Int'l, Inc., 33 BRBS 46 (1999).

     In its cross-appeal, employer challenges the administrative law judge's
determination that it is liable for a penalty pursuant to Section 14(e) of the Act,
33 U.S.C. §914(e).  Specifically, employer contends that, on the facts of this
case, it is not liable for a Section 14(e) penalty until it had notice of a claim
under the Act, because prior to claimant's filing his claim, employer did not know
there was a controversy between the parties.

     Section 14(e) provides that employer must either pay compensation within 28
days after such compensation becomes due or, pursuant to Section 14(d),  controvert
claimant's entitlement to such compensation within 14 days of its knowledge of
claimant's injury. See 33 U.S.C. §§912(d)(1), 914(b), (d), (e). 
 Contrary to employer's contention, its knowledge of claimant's injury, rather than
its knowledge that a claim has been filed under the Act, generally commences the
time in which employer must pay or controvert in order to avoid liability for a
Section 14(e) penalty. See Spear v. General Dynamics Corp., 25 BRBS 132
(1991).  Failure to pay or controvert in a timely manner results in employer's
liability for an additional 10 percent of the amount of compensation untimely paid. 
33 U.S.C. §914(e).

     In the instant case, the parties stipulated that claimant informed employer
of his injury on November 29, 1994, and that employer did not file a notice of
controversion under the Act until March 19, 1996.[2]   Employer, however, contends that it had no reason to believe a
controversy existed between the parties despite its knowledge of claimant's injury,
as claimant returned to work within  several days of his injury, and was
subsequently fired for cause.  Inasmuch as the administrative law judge summarily
found employer liable for a Section 14(e) penalty, and did not make any findings
of fact on this issue, we must remand this case for findings as to when a
controversy arose between the parties. See Universal Terminal & Stevedoring Corp. v.
Parker, 587 F.2d 608, 9 BRBS 326 (3d Cir. 1978);  Rucker v. Lawrence Mangum & Sons, Inc.,
18 BRBS 74 (1986), rev'd on other grounds, No. 86-1199 (D.C. Cir. Oct.
26, 1987); White v. Rock Creek Ginger Ale Co., 17 BRBS 75 (1985); Paul
v. General Dynamics Corp., 13 BRBS 1073 (1981); Devillier v. National Steel
& Shipbuilding Co., 10 BRBS 649 (1979).      

     Accordingly, the administrative law judge's findings that employer established
the availability of suitable alternate employment and is liable for a Section 14(e)
penalty are vacated, and the case remanded for further consideration consistent
with this opinion.  In all other respects, the administrative law judge's Decision
and Order is affirmed.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1) 1Claimant, in January 1997, moved to California. Citing See v. Washington Metropolitan Transit Authority, 36 F.3d 375, 28 BRBS 96(CRT) (4th Cir. 1994), wherein the court held that where claimant relocates following an injury, the administrative law judge should determine the relevant labor market after considering such factors as claimant's residence, the length of time he has resided in the new community, his ties to the community, the availability of suitable jobs in the new community, and the degree of undue prejudice to employer in proving suitable alternate employment in a new location, claimant avers that the administrative law judge erred in failing to find that southern California constitutes the relevant labor market for suitable alternate employment purposes. On remand, the administrative law judge must consider claimant's arguments in this regard. See also Wood v. U.S. Dept of Labor, 112 F.3d 592, 31 BRBS 43(CRT) (1st Cir. 1997); Wilson v. Crowley Maritime, 30 BRBS 199 (1996). Back to Text
2) 2The filing of a notice of controversion terminates an employer's liability for a Section 14(e) penalty. Scott v. Tug Mate, Inc., 22 BRBS 164 (1989). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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