BRB No. 97-1540
CHARLES R. REEVES )
)
Claimant-Respondent ) DATE ISSUED: 07/27/1998
)
v. )
)
NEWPORT NEWS SHIPBUILDING )
AND DRY DOCK COMPANY )
)
Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
Administrative Law Judge, United States Department of Labor.
Robert J. Macbeth, Jr. and Matthew H. Kraft (Rutter & Montagna, L.L.P.),
Norfolk, Virginia, for claimant.
Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for
self-insured employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (96-LHC-2120) of Administrative Law
Judge Fletcher E. Campbell, 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).[1] 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 worked as a welder for employer. On June 30, 1993, he was injured
when a package of primary coolant lube insulation, weighing between 20 and 30
pounds, fell and hit the left side of his head and face and his left shoulder. He
was placed on light duty work for approximately one week, and then he returned to
his usual work. Tr. at 19-21, 29. Claimant continued to experience pain in the
affected areas and continued to seek medical advice and treatment, but he lost no
further time from work due to this injury. On January 31, 1995, claimant quit his
job, alleging pain and disorientation as well as a fear of being unsafe. Tr. at
35-36, 52, 54-55. He began treating with Dr. Towne on February 23, 1995, who
diagnosed post-traumatic pain syndrome with a substantial psychological component,
and he determined that claimant is totally disabled from returning to his usual
work. Emp. Ex. 2. Employer voluntarily paid temporary total disability benefits
under the Virginia workers' compensation law from February 23 through June 29,
1995, when Dr. Towne released claimant to light duty work. Emp. Ex. 2; Tr. at 7.
Claimant filed a claim for temporary total disability benefits under the Act from
February 23,1995, and continuing. Tr. at 8.
The administrative law judge determined that claimant's condition is causally
related to his 1993 injury, as claimant established a prima facie case and
invoked the Section 20(a), 33 U.S.C. §920(a), presumption. Decision and Order
at 8. Further, he found that employer failed to rebut the presumption, as there
is no evidence which severs the causal connection. Id. Next, the
administrative law judge concluded that claimant established a prima facie
case of total disability and that employer failed to present evidence of suitable
alternate employment. Id. at 8-9. Therefore, the administrative law judge
awarded claimant temporary total disability benefits from February 23, 1995, and
continuing.[2] Id. at 9. Employer appeals
the administrative law judge's decision, and claimant responds, urging affirmance.
Employer contends the administrative law judge erred in finding that the
causal nexus between claimant's disability and his work-injury was not severed.
Employer argues that the administrative law judge failed to separately consider the
physical and psychological components of claimant's condition, that he failed to
consider claimant's voluntary retirement, that he failed to consider all the
relevant medical evidence, and thus that his decision violates the Administrative
Procedure Act, 5 U.S.C. §553(c)(3)(A).[3]
Claimant argues in response that the decision is supported by substantial evidence
of record and should be affirmed.
In determining whether a disability is work-related, a claimant is aided by
the Section 20(a), 33 U.S.C. §920(a), presumption, which may be invoked only
after the claimant establishes a prima facie case. Kubin v. Pro-Football,
Inc., 29 BRBS 117 (1995). To establish a prima facie case, a claimant
must show that he sustained a harm or pain and that conditions existed or an
accident occurred at the employer's facility which could have caused that harm or
pain. Once the presumption is invoked, an employer may rebut it by producing facts
to show that a claimant's employment did not cause, aggravate or contribute to his
condition. Peterson v. General Dynamics Corp., 25 BRBS 71, 78 (1991),
aff'd sub nom. Insurance Company of North America v. U.S. Dept. of Labor,
969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir. 1992), cert. denied, 507 U.S. 909
(1993); Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C.
Cir.), cert. denied, 429 U.S. 820 (1976); Obert v. John T. Clark and Son
of Maryland, 23 BRBS 157 (1990). If the employer submits substantial
countervailing evidence to sever the connection between the injury and the
employment, the Section 20(a) presumption no longer controls and the issue of
causation must be resolved on the whole body of proof. Stevens v. Tacoma
Boatbuilding Co., 23 BRBS 191 (1990).
In this case, the parties agree claimant sustained a work-related injury. The
dispute is solely over whether claimant's current physical and psychological
conditions are related to that injury. Claimant testified he suffers from pain on
the left side of his head and neck and his left shoulder related to the injury, and
the record reveals he continued to seek medical help to resolve the problem. Cl.
Exs. 1-14; Emp. Exs. 1-4, 6-11, 14; Tr. at 22-23, 25-26, 36, 40. Although employer
argues there is no objective evidence to support claimant's complaints of pain and,
therefore, that there is no physical disability, claimant's MRI revealed
degenerative cervical changes, and the administrative law judge credited Dr.
Towne's opinion that these changes may have been aggravated by the 1993 incident.
Decision and Order at 8; Cl. Ex. 10; Emp. Ex. 3 at 24-25.
Additionally, based on Dr. Towne's determination that claimant's condition
involved a significant psychological component, he referred claimant to Dr. Wade,
a neuropsychologist, who administered tests and determined that claimant has a
somatoform pain disorder.[4] Emp. Ex. 4. Dr.
Wade concluded that claimant's somatoform disorder pre-existed his 1993 work injury
and, while claimant is no longer suffering from any cognitive impairment from the
injury, the event is that on which he "hangs his hat" -- on which he blames his
pain. Id. at 28, 30. The administrative law judge credited Dr. Wade's
opinion, and he found that the opinion does not sever the connection between the
injury and an aggravation of claimant's pain disorder. Decision and Order at 8.
Based on the evidence of record, the administrative law judge properly
determined that claimant's current conditions are related to his 1993 injury
because employer failed to produce evidence which would rule out a causal
connection. See Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS
22 (CRT) (11th Cir. 1990); Sinclair v. United Food & Commercial Workers, 23
BRBS 148 (1989). Although claimant's disability involves two separate conditions,
we hold that the administrative law judge did not err in failing to analyze the
conditions separately. Rather, in this case, claimant's pain is comprised of both
a physical and a psychological aspect. Further, the administrative law judge
properly found that no medical opinion of record, regarding either the physical or
the psychological aspect of claimant's condition, ruled out a work-related
aggravation of the pre-existing conditions. Gencarelle v. General Dynamics
Corp., 892 F.2d 173, 23 BRBS 13 (CRT) (2d Cir. 1989); Peterson, 25 BRBS
at 78. As employer failed to rebut the Section 20(a) presumption, claimant's
disability is work-related as a matter of law.[5]
Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).
Accordingly, the administrative law judge's decision is affirmed.
SO ORDERED.
_______________________________
BETTY JEAN HALL, Chief
Administrative Appeals Judge
_______________________________
ROY P. SMITH
Administrative Appeals Judge
_______________________________
JAMES F. BROWN
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge amended his Decision and Order in
an Errata Order, wherein he corrected a typographical error which awarded claimant
benefits at a rate of $359.47 per month instead of per week. Decision and Order at
9; Errata Order.
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2)Although the administrative law judge found that claimant's
condition reached maximum medical improvement on April 26, 1996, Decision and Order
at 6, he did not award permanent disability benefits, as claimant did not file a
claim for permanent benefits.
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3)Employer does not challenge the administrative law judge's
finding that it did not establish the availability of suitable alternate
employment.
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4)A somatoform pain disorder occurs when a person's physical
condition cannot explain the degree to which he believes he is suffering from pain.
Jt. Ex. 1 at 27.
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5)We reject employer's remaining arguments. Contrary to
employer's assertion, the administrative law judge's decision is thorough and
considers all relevant medical evidence; thus, his decision does not violate the
Administrative Procedure Act. Further, the administrative law judge credited
claimant's explanation for his retirement, Decision and Order at 9 n.6, and found
that he did not retire voluntarily. Moreover, the issue of whether claimant's
retirement was voluntary or involuntary is not relevant to a discussion involving
the Section 20(a) presumption and the cause of claimant's disability.
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NOTE: This is an UNPUBLISHED LHCA Document.
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