BRB No. 97-1497
OTHAL CHEESE )
)
Claimant-Petitioner ) DATE ISSUED: 07/07/1998
)
v. )
)
TARTAN TERMINALS, )
INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Vivian Schreter-Murray,
Administrative Law Judge, United States Department of Labor.
Michael C. Eisenstein, Baltimore, Maryland, for claimant.
Thomas G. Young III (Young & Valkenet, L.L.C.), Baltimore, Maryland, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (96-LHC-2076) of Administrative Law
Judge Vivian Schreter-Murray 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 alleged that he sustained an injury during the course of his
employment with employer on or about October 5, 1992, when a crane hook struck the
back of his left hand. Claimant continued to work during the weeks following the
alleged incident until he suffered a heart attack on November 18, 1992, but he
returned to work three months thereafter. On March 1, 1993, claimant first sought
medical attention for his hand injury when he was examined by Dr. Pidlaoan, who
diagnosed a ganglion cyst on claimant's left hand. On May 4, 1993, Dr. Pidlaoan
performed an aspiration of the cyst. Dr. Rosenbaum, who examined claimant on
January 31, 1996, gave claimant a 13 percent impairment rating to claimant's left
hand due to claimant's pain, atrophy and loss of function of the hand. Dr.
Rosenbaum upgraded the impairment rating to claimant's left hand to 15 percent
after examining claimant on July 18, 1996. Claimant thereafter filed a claim under
the Act seeking permanent partial disability compensation pursuant to Section
8(c)(3) of the Act, 33 U.S.C. §908(c)(3), alleging that his hand condition is
causally related to the October 1992 work accident.
In her Decision and Order, the administrative law judge found that claimant
failed to establish that a traumatic injury to his left hand occurred in October
1992, and thus failed to establish a prima facie case sufficient to invoke
the presumption of causation under Section 20(a) of the Act, 33 U.S.C.
§920(a). Assuming, arguendo, that a traumatic work injury did occur
in October 1992, the administrative law judge found that claimant failed to
establish any residual functional impairment or disability with respect to his left
hand. Thus, the administrative law judge denied the claim.
On appeal, claimant contends that the administrative law judge erred in
finding that he is not entitled to invocation of the Section 20(a) presumption and
by failing to find that he has a permanent partial disability with regard to his
left hand which was caused by the October 1992 work-incident. Employer responds,
urging affirmance.
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 U.S. Industries/Federal Sheet Metal, Inc. v.
Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982); 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.[1] 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). Once claimant has established his prima facie case, he is
entitled to invocation of the Section 20(a) presumption linking his harm to his
employment. See Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).
Upon invocation of the presumption, the burden shifts to employer to rebut the
presumption with substantial evidence that claimant's condition was not caused or
aggravated by his employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d
1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). If the
administrative law judge finds that the Section 20(a) presumption is rebutted, the
administrative law judge must weigh all of the evidence and resolve the causation
issue based on the record as a whole. See Devine v. Atlantic Container Lines,
G.I.E., 23 BRBS 279 (1990).
In rendering her decision, the administrative law judge analyzed claimant's
testimony and determined that claimant's allegation of a traumatic injury to his
hand in October 1992 lacked credibility. In this regard, the administrative law
judge initially found that claimant provided conflicting testimony with regard to
the specific date of the alleged work-incident.[2]
Moreover, the administrative law judge found it implausible that claimant would
be able to work without seeking medical treatment for such an injury for nearly six
months, and incredible that he suffered pain and swelling in his left hand during
his subsequent hospitalization but did not report it to the medical staff and was
not treated for these symptoms.[3] In addition,
the administrative law judge credited the opinion of Dr. Pidlaoan, as supported by
the opinion of Dr. Sarshar, that claimant's cyst was not due to a traumatic impact,
but was the result of either hyperextension or hyperflexion of the wrist.[4] Emp. Exs. 2, 7 at 27-28, 8 at 44. Thus, the
administrative law judge concluded that the alleged traumatic injury in October
1992, to claimant's left hand did not occur. See Decision and Order at 4.
In adjudicating a claim, it is well-established that an administrative law
judge is entitled to evaluate the credibility of all witnesses, including doctors,
and is not bound to accept the opinion or theory of any particular medical
examiner; rather, the administrative law judge may draw her own inferences and
conclusions from the evidence. See Calbeck v. Strachan Shipping Co., 306
F.2d 693 (5th Cir. 1962), cert. denied, 373 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). Moreover, the administrative law
judge may discredit a claimant's testimony to find that an alleged accident arising
out of the course of claimant's employment did not occur. See Bartelle v. McLean
Trucking Co., 14 BRBS 166 (1981)(Miller, J., dissenting), aff'd, 687
F.2d 34, 15 BRBS 1 (CRT)(4th Cir. 1982). 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 33 (1988).
On the basis of the record before us, the administrative law judge's decision
to discredit the testimony of claimant is neither inherently incredible nor
patently unreasonable. 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).
We therefore affirm the administrative law judge's determination that claimant
failed to establish that .the alleged accident in October 1992 occurred. See,
e.g., Rochester v. George Washington University, 30 BRBS 233 (1997);
Bolden, 30 BRBS at 73. As claimant failed to establish an essential element
of his prima facie case, his claim for benefits was properly denied. See
U.S. Industries, 455 U.S. at 608, 14 BRBS at 631; Goldsmith v. Director,
OWCP, 838 F.2d 1079, 21 BRBS 27 (CRT)(9th Cir. 1988).
Accordingly, the Decision and Order of the administrative law judge 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)Contrary to claimant's assertion, Section 20(a) of the Act does
not apply to the determination of whether an accident occurred. Thus, if claimant
alleges that an accident caused his injury, he must establish that the alleged
accident did in fact occur. See Kelaita v. Triple A Machine Shop, 13 BRBS
326 (1981).
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2)Claimant reported to Dr. Pidlaoan that the incident occurred
on October 1, 1992, see Emp. Ex. 2, but testified that it occurred between
October 1 and October 5, 1992. Emp. Ex. 9 at 15; Tr. at 32.
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3)Specifically, the administrative law judge found it implausible
that claimant could conceal a swollen and painful left hand from doctors and
nurses during his 14-day hospitalization.
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4)Dr. Pidlaoan testified that a ganglion cyst is a traumatic
injury, but one that is caused by excessive hyperextension of hyperflexion, and is
not caused by a blow to the hand. Emp. Ex. 7 at 27-28.
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NOTE: This is an UNPUBLISHED LHCA Document.
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