BRB No. 97-1415


LARRY MANEN                             )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   07/10/1998 
                                        )
     v.                                 )
                                        )
EXXON CORPORATION                       )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER


     Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.

     John A. Ferrone (Sparagna, Sparagna, Ferrone & Ferrone), Encino,
     California, for claimant.

     Ira J. Rosenzweig (Smith Martin), New Orleans, Louisiana, for self-insured employer.

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

     PER CURIAM:

     Employer appeals the Decision and Order (95-LHC-2521) of Administrative Law
Judge Lee J. Romero, Jr., 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 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, who was employed by employer as a maintenance specialist, alleged
that he suffered an injury to his back on February 17, 1995, while loosening a bolt
from a large pipe in a cramped area.  Claimant continued performing his usual job
until March 15, 1995, when he reported the alleged injury to employer and sought
medical treatment.  He has not returned to his usual employment since that time and
was terminated by employer in October 1995.

     In his Decision and Order, the administrative law judge concluded that
claimant had established a prima facie case for a work-related injury, that
claimant was therefore entitled to the Section 20(a), 33 U.S.C. §920(a),
presumption, and that employer failed to rebut the presumption; accordingly, the
administrative law judge found causation established.  Thereafter, the
administrative law judge determined that claimant had not yet reached maximum
medical improvement, and he concluded that claimant remained temporarily totally
disabled from March 17, 1995.  Accordingly, he awarded claimant continuing
temporary total disability compensation plus medical benefits.

     On appeal, employer contends that the administrative law judge erred in
finding that an accident or injury occurred during the course of claimant's
employment and in determining that claimant remains temporarily totally disabled. 
Claimant responds, urging affirmance of the administrative law judge's decision.

     Employer initially challenges the administrative law judge's determination
that claimant established the existence of a work-related accident or injury which
could have caused his present back condition.  It is well-established that claimant
bears the burden of proving the existence of an injury or harm and that a work-related accident occurred or that working conditions existed which could have
caused the harm in order to establish his prima facie case. See Bolden
v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996); Obert v. John T. Clark & Son
of Maryland, 23 BRBS 157 (1990).  It is claimant's burden to establish each
element of his prima facie case by affirmative proof. See Kooley v.
Marine Industries Northwest, 22 BRBS 142 (1989); see also Director, OWCP v.
Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (CRT)(1994).

     In the instant case, employer does not dispute that claimant has suffered a
harm, i.e., a disc herniation, but argues that no work incident occurred
which could have resulted in claimant's current condition.   In raising this
contention, employer notes that claimant failed to immediately report the alleged
injury but continued to perform his usual work for a period of time, that claimant
had a motive for faking an injury, i.e, he wanted a transfer to a different
facility, and that claimant's being injured at almost exactly the same time as his
brother, who also works for employer, is an uncanny coincidence.  In concluding
that a specific incident occurred on February 17, 1995, the administrative law
judge addressed and rejected each of employer's contentions, and relied upon
claimant's testimony as supported by the testimony of his work colleagues.
Specifically, the administrative law judge found that claimant provided consistent,
straight-forward, credible and unequivocal testimony which is supported by the
medical evidence of record.  It is well-established that, in arriving at his
decision, the administrative law judge is entitled to evaluate the credibility of
all witnesses and to draw his own inferences and conclusions from the evidence.
See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 371 U.S. 954 (1963); 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).  Accordingly, the administrative law judge's credibility determinations are
not to be disturbed unless they are inherently incredible or patently unreasonable.
See generally Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 3 (1988). 
In the instant case, the administrative law judge considered each of employer's
concerns and concluded that claimant did, in fact, sustain a work related accident
as described on February 17, 1995.  On the basis of the record, the administrative
law judge's decision to credit the testimony of claimant is neither inherently
incredible nor patently unreasonable; accordingly, we affirm the administrative law
judge's finding that claimant established his prima facie case, and his
consequent invocation of the Section 20(a) presumption. See Sinclair v. United
Food & Commercial Workers, 23 BRBS 148 (1989).

     Next, employer contends that the administrative law judge erred in failing to
find that claimant reached maximum medical improvement.  We disagree.  It is well-established that a claimant is entitled to temporary disability benefits until he
reaches maximum medical improvement, the date of which is determined by medical
evidence.  A claimant has reached maximum medical improvement when he is no longer
undergoing treatment with a view toward improving his condition. See Louisiana
Ins. Guaranty Assn. v. Abbott, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994). 
In concluding that claimant has not yet reached maximum medical improvement, the
administrative law judge relied on the opinion of Dr. Kendrick, claimant's treating
physician, that claimant requires surgery on his back; in this regard, the
administrative law judge specifically found that Dr. Kendrick's repeated
suggestions of surgical intervention indicate that claimant's condition will
improve with that surgery.  We hold that the administrative law judge could
properly find that Dr. Kendrick's surgical recommendation constitutes substantial
evidence that claimant has not yet reached maximum medical improvement, and,
therefore, we affirm the administrative law judge's finding on this issue. See
generally Leone v. Sealand Terminals Corp., 19 BRBS 100 (1986). 

     Lastly, employer challenges the administrative law judge's finding regarding
the extent of claimant's disability; specifically, employer contends that the administrative law
judge erred in failing to address the testimony of its rehabilitation expert and in failing to find that it established the
availability of suitable alternate employment.  Where, as in the instant case, claimant is unable
to perform his usual employment, 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. Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS
660 (9th Cir. 1980); Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 21
BRBS 122 (CRT)(9th Cir. 1988); Anderson v. Lockheed Shipbuilding & Const.
Co., 28 BRBS 290 (1994). 

     We agree with employer that the administrative law judge's finding that
claimant is presently totally disabled cannot be affirmed.  In addressing this
issue, the administrative law judge did not discuss the vocational testimony and
evidence submitted by employer into the record.  In this regard, we note that Ms.
Favaloro, employer's vocational witness, specifically identified five jobs as being
available and suitable for claimant. See Tr. at 285; EX 14.  Moreover,
although the administrative law judge acknowledged that claimant's treating
physician, Dr. Kendrick, indicated that claimant was capable of performing the
identified positions, he ultimately declined to rely on that physician's testimony
based upon an inference that Dr. Kendrick "approved the job positions based on the
fact that claimant would not undergo surgical intervention [sic] elected to live
with his back pain and symptoms." See Decision and Order at 22.  The
administrative law judge, however, provided no support for this inference;
moreover, contrary to the administrative law judge's finding, it is claimant's
ability to perform the identified jobs which is dispositive of this issue. See
generally Bryant v. Carolina Shipping Co., 25 BRBS 294 (1992).  We therefore
vacate the administrative law judge's finding that claimant is presently totally
disabled, and we remand the case to the administrative law judge for consideration
of the evidence of record regarding the issue of whether employer established the
availability of suitable alternate employment. 

     Accordingly the administrative law judge's determination that claimant is
totally disabled is vacated and the case remanded for consideration of this issue
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



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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