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                                    BRB No. 00-0574


MILLIE MAE JOHNSON                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
ARMY & AIR FORCE EXCHANGE               )    DATE ISSUED:   02/07/2001
                                             
SERVICE                                 )
                                        )
     and                                )
                                        )
CONTRACT CLAIMS SERVICES                )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Order Denying Request for Modification of Clement J.
     Kennington, Administrative Law Judge, United States Department of Labor.

     Millie Mae Johnson, Columbus, Georgia, pro se.

     William F. Sayegh (Army & Air Force Exchange Service), Dallas, Texas,
     for employer/carrier.

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

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Order Denying Request for
Modification (97-LHC-2120) of Administrative Law Judge Clement J. Kennington (the
administrative law judge) 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., as extended by the Nonappropriated Fund Instrumentalities Act, 5
U.S.C. §8171 et seq. (the Act).    In an appeal by a claimant without representation
by counsel, the Board will review the administrative law judge's findings of fact and conclusions of law to
determine if they are rational, supported by substantial evidence, and in accordance with law.  33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).  If they
are, they must be affirmed. 

     This case is before the Board for the second time.  Claimant sustained work-related injuries to her back and neck on October 18, 1985, for which she obtained
immediate medical treatment.  She subsequently received treatment for psychiatric
problems related to her back pain.  On April 7, 1986, claimant underwent a lumbar
laminectomy.  While being transported home from the hospital by ambulance on May
8, 1986, claimant sustained a cervical contusion when she was dropped from a
stretcher by the ambulance attendants.  Claimant subsequently filed a third-party
suit against the ambulance service for the injuries sustained on May 8, 1986, which
she settled, on December 28, 1987, for $15,000, without the prior written approval
of employer.  On March 22, 1988, employer suspended its voluntary payment of 
temporary total disability benefits under Section 8(b) of the Act, 33 U.S.C.
§908(b), on the basis of claimant's failure to obtain employer's prior written
approval of this settlement under Section 33(g) of the Act, 33 U.S.C. §933(g). 
Following referral of the case to the Office of Administrative Law Judges, employer
moved for summary decision on the ground that further compensation was barred by
Section 33(g) because claimant entered into a third-party settlement for an amount
less than the amount to which she would have been entitled under the Act, without
obtaining the prior written approval of employer.

     In a Decision and Order on Motion for Summary Decision-Denial of Benefits
issued on February 27, 1990, Administrative Law Judge Joel R. Williams granted
employer's motion for summary decision, ruling that further entitlement to
compensation and medical benefits for claimant's October 18, 1985 work-related
injury is barred by Section 33(g).  Claimant did not timely appeal Judge Williams's
Decision and Order.  

     Claimant, who never returned to work following the October 1985 work incident,
averred that she continued to report to employer's personnel office on a semiannual
basis in order to update her employment status.  Claimant asserted that when she
visited employer's office on April 1, 1994, she was advised that computer records
listed her as having been on administrative leave without pay (LWOP), but that
effective April 1, 1994, she would be  terminated.  According to claimant, before
leaving employer's building on April 1, 1994, she suffered chest pains, which were
later diagnosed as symptoms of a panic attack.[1] 
 Subsequent to this incident, claimant underwent psychiatric treatment for a panic
disorder.  On May 5, 1997, claimant filed a claim for compensation under the Act
for depression, post-traumatic stress, and chest pain related to the April 1, 1994,
incident in employer's personnel office.  Before the administrative law judge,
employer moved for summary decision on the basis that claimant was not an employee
at the time of the alleged April 1, 1994 injury, and, thus, her claim is not
cognizable under the Act.  In support of its motion, employer produced personnel
records and the affidavit of employer's human resources manager indicating that
claimant was placed on LWOP status on October 19, 1985 because of her workers'
compensation injury and was separated from LWOP on June 19, 1987, in accordance
with Army regulations restricting LWOP to a period of one year.

     In an Order Granting Employer's Motion for Summary Decision, the
administrative law judge ruled that the injury allegedly sustained by claimant did
not arise out of and in the course of employment pursuant to Section 2(2) of the
Act, 33 U.S.C. §902(2), inasmuch as there was no employer-employee
relationship between employer and claimant at the time of the alleged April 1,
1994, incident which resulted in claimant's present psychological condition.  The
administrative law judge found, in this regard, that there was no evidence to
indicate a continued employer-employee relationship after June 19, 1987, even
assuming that claimant was not notified of the termination of her employment prior
to April 1, 1994.[2]   In an Order Denying Motion
for Reconsideration issued November 16, 1996, the administrative law judge ruled
that the initial Decision and Order issued by Judge Williams on February 27, 1990
is final and, thus, is not subject to attack in the proceeding before him.  In
addition, the administrative law judge rejected claimant's contention that she
remained an employee as of April 1, 1994, that contention having been considered
and found to be without merit in his previous October 21, 1998, Order.  

     Claimant, without the assistance of counsel, appealed the administrative law
judge's denial of her claim.  In its decision dated December 3, 1999, the Board
affirmed the administrative law judge's finding that claimant was not an employee at the time of her alleged injury
on April 1, 1994, and thus affirmed the administrative law judge's determination that her claim, based upon an incident
occurring on April 1, 1994, is not compensable under the Act.[3]   Johnson v.
AAFES, BRB No. 99-0297 (Dec. 3, 1999)(unpub.).
     Claimant thereafter requested modification of the administrative law judge's
decision, pursuant to Section 22 of the Act, 33 U.S.C. §922, alleging that she
had new evidence showing a permanent job-related post-traumatic stress disorder
(PTSD).  In his Order, the administrative law judge initially determined that
claimant submitted no new evidence of PTSD.  Alternatively, the administrative law
judge found that even if claimant suffered from PTSD, as a result of the either the
original October 18, 1985, injury or subsequent April 1, 1994, incident, she would
not be entitled to any additional benefits.  Specifically, the administrative law
judge determined that a compensation claim for any disability arising out of the
October 18, 1985, work-related injury is barred by Section 33(g) of the Act, in
accordance with Judge Williams's 1990 decision.  Similarly, the administrative law
judge found that claimant would not be entitled to any compensation for disability
arising from the April 1, 1994, incident, as claimant was not an employee at that
time and thus any injury occurring on that date did not arise out of and in the
course of employment covered by the Act.

     On appeal, claimant, appearing pro se, challenges the administrative
law judge's denial of her request for modification.  Employer responds, urging
affirmance.

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based upon a mistake of fact in the initial decision or a change in
claimant's physical or economic condition.  Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291, 30 BRBS 1 (CRT)(1995).  Under Section 22, the
administrative law judge has broad discretion to correct mistakes of fact "whether
demonstrated by wholly new evidence, cumulative evidence, or  merely further
reflection on the evidence submitted." O'Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254, 256 (1971), reh'g denied, 404 U.S. 1053 (1972);
see also Banks v. Chicago Grain Trimmers Association, Inc., 390 U.S. 459,
reh'g denied, 391 U.S. 929 (1968).  On modification claimant alleged that
employer deliberately withheld medical evidence from her regarding her condition. 
As the administrative law judge determined, claimant submitted no new evidence of
PTSD.  Moreover, he rationally determined that there is no basis, or for that
matter any evidence evincing any change in conditions or mistake in fact to warrant
modification.[4]   We therefore affirm the
administrative law judge's denial of modification.

     Additionally, we affirm the administrative law judge's alternative determination that claimant is not entitled
to any additional benefits for injuries arising out of either the October 18, 1985, work-related injury or the April 1, 1994,
alleged incident.  In the Board's decision, the Board affirmed the administrative law judge's finding that an employer-employee relationship no longer existed between employer and claimant at the time of the April 1, 1994 incident.  The
Board therefore affirmed the administrative law judge's determination that claimant was not an employee at the time of
her alleged injury on April 1, 1994, and, thus, her claim based upon an incident occurring on that date is not
compensable under the Act. Johnson, slip op. at 5-6.  Similarly, the Board held that even if claimant's
condition was the natural and unavoidable result of her original 1985 work-related
injury, she would nevertheless be barred from receiving any additional compensation
pursuant to Section 33(g) of the Act, as Judge Williams's initial decision on that
issue was not appealed.[5]   Johnson, slip
op. at 5, n. 4.  As no change in condition or mistake in fact has been demonstrated
with regard to these findings, we affirm the denial of modification. 

     Accordingly, the administrative law judge's Order Denying Request for
Modification 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)Claimant's statements regarding these events were made during a telephonic, pre-hearing conference call before the administrative law judge on October 5, 1998. Back to Text
2)The administrative law judge additionally found that receipt of workers' compensation benefits is not tantamount to continued employee status and, even if it were, claimant's compensation ceased on March 22, 1988. Back to Text
3)The Board noted that even if claimant's panic disorder and accompanying claim were viewed as the natural and unavoidable result of claimant's original 1985 work-related injury, she would nevertheless be barred from receiving any additional compensation in light of Judge Williams's 1990 decision holding the claim for those injuries barred by Section 33(g), as the judge's decision was not appealed and had become final. Johnson, slip op. at 5, n. 4. Back to Text
4)Additionally, we note that claimant did not produce any evidence suggesting that there was a mistake in the administrative law judge's determination of fact regarding the date of her termination, i.e., that claimant was placed on LWOP status on October 19, 1985, because of her workers' compensation injury and was separated from LWOP on June 19, 1987, in accordance with Army regulations restricting LWOP to a period of one year. Back to Text
5)Any error in the application of law by Judge Williams, or change in legal interpretation since his decision, see generally White v. Peterson Boatbuilding Co., 29 BRBS 1 (1995), cannot be raised via Section 22. O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256 (1971), reh'g denied, 404 U.S. 1053 (1972). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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