BRB No. 01-0808
ROGER O. FURBEE )
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Claimant-Petitioner )
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v. )
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WEAVERTOWN ENVIRONMENTAL ) DATE ISSUED: 07/15/2002
GROUP )
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and )
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NATIONAL UNION FIRE )
INSURANCE COMPANY )
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Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order-Denying Benefits and the Order Denying
Motion for Reconsideration of Daniel L. Leland, Administrative Law
Judge, United States Department of Labor.
Joseph P. Moschetta and Stephen P. Moschetta (Joseph P. Moschetta and
Associates), Washington, Pennsylvania, for claimant.
John E. Kawczynski (Field Womack & Kawczynski, LLC), South Amboy, New
Jersey, for employer/carrier.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order-Denying Benefits and the Order Denying
Motion for Reconsideration (2000-LHC-2920) of Administrative Law Judge Daniel L.
Leland 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 was injured during the course of his employment on October 24, 1999,
while standing on the banks of the Ohio River. He was struck on the head by a pipe
and fell into the water. Claimant was transported to the hospital, where he was
diagnosed with a muscle sprain and contusions. On November 1, 1999, claimant was
released to return to work. Employer voluntarily paid claimant temporary total
disability compensation from October 24, 1999, through November 7, 1999, when
claimant returned to his usual employment duties with employer as an environmental
technician. On February 9, 2000, claimant was terminated by employer for reasons
unrelated to his work-injury. Claimant subsequently complained of back and neck
pain, as well as headaches, dizziness, and blurred vision, for which he sought
medical treatment.
In his Decision and Order, the administrative law judge determined that
claimant failed to establish his prima facie case that he is incapable of
performing his usual work as an environmental technician as a result of any
disability arising out of his work-related injury. Accordingly, the administrative
law judge denied the claim for compensation and medical benefits. The
administrative law judge thereafter denied claimant's motion for reconsideration.
On appeal, claimant challenges the administrative law judge's finding that he
is not entitled to total disability compensation and medical benefits. Employer
responds, urging affirmance of the administrative law judge's decisions in their
entirety.
It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1988); Trask v.
Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1985). In this regard, a
physical impairment alone is insufficient to support a finding of total disability;
rather, in order to establish a prima facie case of total disability, a
claimant must establish that he is incapable of returning to his regular or usual
employment. See Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988). In
concluding in the instant case that claimant did not sustain a compensable
impairment subsequent to February 9, 2000, the administrative law judge credited
the opinions of Drs. Kasden, Bernstein and Rothenberg, each of whom opined that
claimant could return to his usual employment duties with employer.
In challenging the administrative law judge's denial of his claim for ongoing
total disability compensation, claimant initially avers that the administrative law
judge erred by failing to discuss the presumption at 33 U.S.C. §920(a) when
addressing the extent of his alleged work-related disability. The Section 20(a)
presumption, however, applies to the issue of whether an injury arises out of and
in the course of employment and, thus, is work-related, see Meehan Service
Seaway Co. v. Director, OWCP, 125 F.3d 1163, 31 BRBS 114(CRT) (8th Cir. 1997),
cert. denied, 523 U.S. 1020 (1998); Vitola v. Navy Resale & Services
Support Office, 26 BRBS 88 (1992), and does not apply to the issues of nature
and extent of disability. See Carlisle v. Bunge Corp., 33 BRBS 133 (1999),
aff'd, 227 F.3d 934, 34 BRBS 79(CRT) (7th Cir. 2000). Accordingly, we hold
that claimant's contention of error in this regard is without merit.[1]
We further reject claimant's contention that the administrative law judge
erred in relying upon the opinions of Drs. Kasden, Bernstein, and Rothenberg,
rather than the contrary opinions of physicians including Drs. Kant, Romano and
Liebeskind, in concluding that claimant sustained no compensable impairment
subsequent to February 9, 2000.[2] It is well-established that an administrative law judge is not bound to accept the opinion of
any particular medical examiner, but rather, is entitled to weigh the credibility
of all witnesses and draw his own inferences from the evidence. See Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath
Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961); Anderson, 22 BRBS 20. In
the instant case, the administrative law judge rationally found that the opinions
of Drs. Kasdan, Berstein and Rothenberg were determinative as to the extent of
claimant's disability, finding these physicians were very credible as they provided
thorough, well-reasoned reports based upon objective factors. These physicians all
opined that claimant was fully capable of returning to his usual employment duties
with employer. See Clt. Exs. 14, 15, 19. Contrary to claimant's argument
on appeal, it was reasonable for the administrative law judge, when evaluating the
opinions Drs. Kant and Romano, as well as others who opined that claimant was
totally disabled, to reject those opinions based on his findings regarding
claimant's false statements to them. The administrative law judge fully evaluated
the respective medical opinions relied upon by the parties, declined to rely upon
claimant's witnesses due to their acceptance of claimant's misstatements, and
rationally credited the opinions of Drs. Kasdan, Bernstein and Rothenberg regarding
the extent of claimant's disability.[3] Thus, as
the administrative law judge's credibility determinations are rational and within
his authority as factfinder, we affirm the administrative law judge's determination
that claimant failed to establish that he is incapable of performing his usual
employment duties as an environmental technician as of February 9, 2000. See
Donovan, 300 F.2d 741.
Claimant's assertion that he remained totally disabled during his period of
post-injury employment between November 8, 1999, and February 9, 2000, is similarly
rejected. An employee may be found to be totally disabled despite continued
employment if he works only through extraordinary effort and in spite of
excruciating pain, or is provided a position only through employer's beneficence.
See CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202(CRT) (1st Cir. 1991);
Haughton Elevator Co. v. Lewis, 572 F.2d 477, 7 BRBS 838 (4th Cir. 1978);
Ramirez v. Sea-Land Services, Inc., 33 BRBS 41 (1999). In his decision, the
administrative law judge specifically found claimant's testimony, that he was
unable to resume his usual work for employer post-injury, directly contradicted by
the credible testimony of Mr. Miller, claimant's supervisor, who testified that
claimant returned to his usual duties after four days of office work, Mr. McCloud,
claimant's co-worker, who testified that claimant performed heavy lifting post-injury, and Ms. Vulcano, employer's Director of Human Resources, who testified that
claimant submitted no medical documentation restricting his work activities post-injury. Moreover, the sole citation by claimant to the record in support of his
contention that he worked post-injury only through extraordinary effort and
employer's beneficence supports the administrative law judge's finding that
claimant returned to and performed his usual employment duties with employer post-injury. See Tr. at 122. We therefore reject claimant's contention that he
established entitlement to total disability compensation following his return to
work for employer on November 8, 1999.
Lastly, claimant contends that the administrative law judge erred in
concluding that employer is not liable for his medical treatment resulting from the
October 24, 1999, work-incident. For the reasons that follow, we agree with
claimant that the administrative law judge's finding on this issue cannot be
affirmed.
Section 7(a) of the Act, 33 U.S.C. §907(a), states that "[t]he employer
shall furnish such medical, surgical, and other attendance or treatment . . . for
such period as the nature of the injury or the process of recovery may require."
See Brooks v. Newport News Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992),
aff'd sub nom. Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS 100(CRT) (4th
Cir. 1993); Anderson, 22 BRBS 20. Section 7 does not require that an injury
be economically disabling in order for claimant to be entitled to reimbursement of
medical expenses, but requires only that the injury be work-related. Ballesteros
v. Willamette W. Corp., 20 BRBS 184 (1988). Medical care, however, must be
appropriate for the injury, see 20 C.F.R. §702.402, and claimant must
establish that the requested services are reasonable and necessary for the
treatment of the work injury. See Wheeler v. Interocean Stevedoring, Inc.,
21 BRBS 33 (1988).
In the case at bar, claimant submitted into the record evidence that he
incurred medical expenses subsequent to February 9, 2000, which are related to his
injury of October 24, 1999. The administrative law judge, however, did not address
claimant's proported reimbursable medical expenses; rather, the administrative law
judge rejected claimant's request for medical benefits in a single sentence,
stating that "[c]laimant is . . . not entitled to the payment of medical expenses
after his termination because they were not necessary for the treatment of his work
injury. (See Section 7)." See Decision and Order at 8. This statement by
the administrative law judge does not satisfy the Administrative Procedure Act,
which requires that every adjudicatory decision be accompanied by a statement of
"findings and conclusions, and the reasons or basis therefor, on all the material
issues of fact, law or discretion presented on the record." 5 U.S.C.
§557(c)(3)(A). As the administrative law judge did not address the evidence
relevant to this issue, we vacate the administrative law judge's conclusory finding
regarding employer's liability for claimant's medical expenses. On remand, the
administrative law judge must address all of the evidence in order to determine,
pursuant to Section 7, whether claimant has accrued compensable medical expenses
subsequent to February 9, 2000. See Ballesteros, 20 BRBS 184.
Accordingly, the administrative law judge's determination that claimant is not
entitled to total disability benefits is affirmed. The administrative law judge's
denial of medical benefits to claimant is vacated, and the case is remanded for
further consideration consistent with this opinion.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1) 1We similarly reject claimant's contention that the
administrative law judge's failure to discuss the testimony of Mr. Sheldon in his
initial decision requires "that the Decision and Order must be overturned in its
entirety, and the matter remanded for a hearing before another administrative law
judge." See Claimant's brief at 5-8. The administrative law judge correctly
found that Mr. Sheldon's testimony relates solely to claimant's Section 49, 33
U.S.C. §948a, claim, which was unequivocally withdrawn by claimant on April
16, 2001. Moreover, in his Order on reconsideration, the administrative law judge
specifically stated that he had read Mr. Sheldon's testimony, but that this
evidence did not affect his assessment of the credibility of the witnesses
addressing the issue of the extent of claimant's alleged work-related disability.
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2) 2The administrative law judge specifically found claimant
was not a credible witness. He rejected claimant's testimony that he was unable to
resume his duties as an environmental technician post-injury, as it was
contradicted by evidence that he performed work in that capacity post-injury. The
administrative law judge also rejected claimant's allegation that he was unable to
seek medical treatment during his three months of post-injury work because no
physician would take a workers' compensation patient, finding it was belied by the
fact that he was able to seek treatment following his termination for cause. The
administrative law judge also relied on a physician's observation that claimant did
not seem to be in pain when his attention was distracted. Decision and Order at
7.
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3)Claimant's reliance on the decision of the United States Court
of Appeals for the Ninth Circuit in Amos v. Director, OWCP, 153 F.3d 1051,
(9th Cir. 1998), amended, 164 F.3d 480, 32 BRBS 144 (9th Cir. 1999), cert.
denied, 528 U.S. 809 (1999), for the proposition that the opinions of
claimant's treating physicians should have been given greater weight is misplaced.
While Amos held that a treating physician's opinion is entitled to special
weight, it did not require that an administrative law judge credit such opinions.
Thus, Amos does not support a different outcome here where the
administrative law judge gave valid and rationale reasons for weighing the medical
evidence as he did.
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NOTE: This is an UNPUBLISHED LHCA Document.
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