JOSE PEDROZA					)
						)
		Claimant-Petitioner		)
						)
	v.					)
						)
NATIONAL STEEL AND 				)DATE ISSUED: 07/28/2003
SHIPBUILDING COMPANY				)
						)
		Self-Insured			)
		Employer-Respondent		)DECISION and ORDER

Eric A. Dupree, San Diego, California, for claimant.

Roy D. Axelrod, Solana Beach, California, for self-insured employer.

Before: SMITH, HALL and GABAUER, Administrative Appeals Judges.

PER CURIAM:

Claimant appeals the Decision and Order Denying Benefits (2001-LHC-1871) of Administrative Law Judge Thomas M. Burke 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 administrative law judge?s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. ?921(b)(3); O?Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant has worked for employer since the 1970?s. On August 24, 1999, in his capacity as a Grade-All operator, he was loading and unloading material from the USS Boxer. The load on the lift obstructed claimant?s view, and claimant accidentally drove the Grade-All into a 440-volt cable on the ship, causing an explosion. Claimant did not suffer any physical injuries, but he claims he began feeling anxious and afraid after this incident. Although he continued to work, he contended he developed psychological injuries as a result of this accident and that these injuries worsened after receiving letters of reprimand in July 2000 for poor work performance and then being demoted.

The administrative law judge found it undisputed that claimant suffers from psychological ill health and that an accident occurred on August 24, 1999, that could have caused this problem. Thus, he shifted the burden to employer to rebut the Section 20(a), 33 U.S.C. ?920(a), presumption that claimant?s psychological injury was caused by the 1999 accident. Decision and Order at 24. Based on the testimonial evidence, the fact that claimant did not seek medical attention until July 2000, the fact that he stated his reasons for seeking medical attention were in response to four memoranda he received reprimanding him for his poor work performance, the fact that claimant did not mention the electrical accident as a reason for his worsening performance to his supervisors, and the opinion of Dr. Ornish that claimant?s depression and anxiety were related to the reprimands and demotion and not to the accident, the administrative law judge found that employer rebutted the Section 20(a) presumption, and that, on the record as a whole, claimant failed to establish that his psychological condition is related to the explosion. Decision and Order at 25-30. Accordingly, he denied claimant benefits. Decision and Order at 30. Claimant appeals, and employer responds, urging affirmance.

Claimant contends the administrative law judge erred in failing to address the ?alternate? issue of whether claimant?s condition was caused by ?prolonged and cumulative stress? at the workplace. Claimant contends that as the administrative law judge found that claimant?s depression and anxiety are the result of the reprimands and demotion, employer failed to rebut the Section 20(a) presumption linking claimant?s psychological condition to his employment. Employer asserts that claimant did not raise this alternate theory before the administrative law judge and cannot raise it for the first time on appeal.

In U.S. Industries/Federal Sheet Metal, Inc., v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982), the Supreme Court held that the presumption of Section 20(a) of the Act, 33 U.S.C. ?920(a), attaches only to the claim asserted by the claimant. Pertinent to the instant case, the court discussed the requirements for a claim under the Act, specifically addressing the fact that the claim may be amended, noting that ??considerable liberality is usually shown in allowing the amendment of pleadings to correct. . . . defects,? unless the ?effect is one of undue surprise or prejudice to the opposing party.?? U.S. Industries, 455 U.S. at 613 n. 7, 14 BRBS at 633 n. 7, quoting 3 A. Larson, The Law of Workmen?s Compensation, ?78.11 (1976), currently 7 Arthur Larson and Lex K. Larson, Larson?s Workers? Compensation Law, ?124.04[3] (2001). In this regard, the Larson treatise states that a wide variance is permitted between pleading and proof, unless the employer is prejudiced by having to defend at the hearing an injury completely different than the one pleaded. 7 Arthur Larson and Lex K. Larson, Larson?s Workers? Compensation Law, ?124.04[5] (2001).

In Meehan Seaway Serv. Co. v. Director, OWCP [Hizinski], 125 F.3d 1163, 31 BRBS 114(CRT)(8 ^th Cir. 1997), cert. denied, 523 U.S. 1020 (1998), the United States Court of Appeals for the Eighth Circuit addressed a case in which the claimant filed a claim alleging a knee injury occurred at work on October 14, 1989, when he stepped in a hole while he was carrying heavy bags of wheat. The administrative law judge found that the evidence did not support a finding of a specific accident on that day, but that the evidence did support a finding that cumulative trauma aggravated claimant?s pre-existing knee condition. Id., 125 F.3d at 1167, 31 BRBS at 116(CRT). On appeal, the employer contended that it was denied due process because the administrative law judge awarded benefits on a theory that the claimant did not assert. In affirming the Board?s decision, the Eighth Circuit quoted the language regarding the amendment of pleadings from the Supreme Court?s decision in U.S. Industries, and proceeded to discuss whether employer was prejudiced by consideration of a cumulative trauma claim. The court held that employer was on notice of the possibility that claimant?s injury was due to cumulative trauma sufficiently before the hearing so that it was not prejudiced by an award based on such a claim. Specifically, claimant?s pre-trial pleading and a copy of a letter to the Department of Labor provided notice to employer of a cumulative trauma claim. In addition, medical reports generated prior to the alleged injury of October 1989 denoted progressive knee complaints. Id. The court thus denied the employer?s challenge to the sufficiency of claimant?s amended claim.

A review of the record in this case demonstrates that claimant raised the stressful working conditions theory while the case was still before the administrative law judge. While claimant did not expressly set forth the theory in his pre-hearing statement, ALJ Ex. 1; Emp. Ex. 2, claimant?s counsel stated at the hearing that claimant ?suffered psychological ill health as a result of his electrical exposure and . . . psychological ill health as a result of the management activities thereafter. . . .? Tr. at 10-11 (emphasis added). This statement establishes that claimant believed his injury was caused by employment factors other than the 1999 explosion. More importantly, in claimant?s post-hearing brief he stated that his psychological injuries were due, at least in part, to the explosion, general working conditions and his interactions with his supervisors. Cl?s Post-Hearing Brief at 2-3. This argument should not come as a surprise to employer, as claimant?s treating physician, Dr. Alvarez, reported a number of factors affecting claimant?s psychological condition, including the threat of job loss, discord with his supervisors and co-workers, and an inability to maintain his workload. Cl. Ex. 1; Emp. Ex. 18. The administrative law judge directed the parties to set forth their arguments in their post-hearing briefs, Tr. at 876, and he stated that claimant argued that his psychological condition is related to his accident as well as from subsequent reprimands and a demotion by employer. Decision and Order at 25. He further stated that in response, employer argued claimant?s condition is solely the result of its legitimate personnel actions. Id. The administrative law judge then addressed specifically only whether claimant?s psychological problems were related to the explosion. As the issue was raised, he erred in not addressing claimant?s contention that his psychological condition is due at least in part to general working conditions and to the post-explosion interactions with his supervisors. See Hizinski, 125 F.3d 1163, 31 BRBS 114(CRT); Dangerfield v. Todd Pacific Shipyards Corp., 22 BRBS 104 (1989). Because the administrative law judge did not address claimant?s assertion that his anxiety and depression are related to his general working conditions, we vacate the denial of benefits, and we remand the case for the administrative law judge to determine whether claimant?s psychological condition is work-related and compensable. ¹

In determining whether an injury is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked only after he establishes a prima facie case. To establish a prima facie case, the claimant must show that he sustained a harm or pain and that conditions existed or an accident occurred at his place of employment which could have caused the harm or pain. Bath Iron Works Corp. v. Brown, 194 F.3d 1, 33 BRBS 162(CRT) (1 ^st Cir. 1999); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5 ^th Cir. 1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981); see also U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982). Once the claimant establishes a prima facie case, Section 20(a) applies to relate the injury to the employment, and the employer can rebut this presumption by producing substantial evidence that the injury was not related to the employment. Louisiana Ins. Guar. Ass?n v. Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5 ^th Cir. 2000); Conoco, Inc. v. Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5 ^th Cir. 1999); see also Ortco Contractors, Inc. v. Charpentier, __ F.3d __, No. 02-60447 (5 ^th Cir. 2003); American Grain Trimmers v. Director, OWCP [Janich], 181 F.3d 810, 33 BRBS 71(CRT) (7 ^th Cir. 1999) (en banc), cert. denied, 528 U.S. 1187 (2000). If the employer rebuts the presumption, it no longer controls and the issue of causation must be resolved on the evidence of record as a whole, with the claimant bearing the burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4 ^th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).

In Marino v. Navy Exchange, 20 BRBS 166 (1988), the Board held that a psychological injury due solely to a termination resulting from a reduction-in-force is not compensable under the Act, and it stated that a ?legitimate personnel action or termination is not the type of activity intended to give rise to a workers? compensation claim.? Marino, 20 BRBS at 168. The Board remanded the case to the administrative law judge to consider claimant?s assertion that, in addition to the lay-off notice, his condition was related to cumulative stress on the job due to his supervising a number of locations, having insufficient personnel and other factors. In Sewell v. Noncommissioned Officers? Open Mess, 32 BRBS 134 (1998) (on recon. en banc) (Brown and McGranery, JJ., dissenting), the Board held that claimant demonstrated stressful working conditions sufficient to invoke Section 20(a) irrespective of disciplinary and termination proceedings against the claimant. The Board stated that Marino is not limited to actual termination proceedings, and it acknowledged that ?disciplinary actions may involve personnel actions such as counseling, training, and warnings,? Sewell, 32 BRBS at 136 n.3, but held that the administrative law judge?s findings established the existence of stress in claimant?s daily work environment, specifically in her daily interactions with her supervisor, and those stressful conditions satisified the ?working conditions? element of her prima facie case.

On remand, in this case, the administrative law judge must address whether claimant has established the existence of working conditions, aside from the explosion, that could have caused his psychological condition, taking into account the holding in Marino. Claimant contends his condition resulted in part from prolonged and cumulative stress, deriving from working in a dangerous environment. The administrative law judge must determine whether claimant demonstrated that stressful conditions, apart from employer?s formal personnel actions, existed which could have caused his psychological injury based on the evidence of record.

Accordingly, the administrative law judge?s denial of benefits is vacated, and the case is remanded for further consideration consistent with this opinion. The administrative law judge?s finding that claimant?s psychological condition is not related to the August 1999 explosion is affirmed, as unchallenged on appeal.

SO ORDERED.

_______________________________

ROY P. SMITH

Administrative Appeals Judge

_______________________________

BETTY JEAN HALL

Administrative Appeals Judge

_______________________________

PETER A. GABAUER, Jr.

Administrative Appeals Judge

ENDNOTES

1.  The parties? briefs were due simultaneously with the administrative law judge, Tr. at 875, and employer did not address claimant?s theory that his condition was related to his working conditions. Employer now asserts it was not sufficiently notified that claimant was raising this theory. If the administrative law judge finds merit in this assertion, he should allow employer an opportunity to respond to claimant?s allegation on remand.

NOTE: This is a LHCA Unpublished Document