BRB No. 98-1460

  
THEODORE TAYLOR                         )
                                        )
          Claimant-Respondent     )
                                        )
     v.                                 )
                                        )
MAHER TERMINALS,                        )    
INCORPORATED                            )    DATE ISSUED:   07/26/1999
                                             1999    
                                        )
          Self-Insured                  )
          Employer-Respondent           )    
)                                        
     and                                )
                                  )
CERES MARINE TERMINALS,                 )
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER  

     Appeal of the Decision and Order on Remand of Vivian Schreter-Murray,
     Administrative Law Judge, United States Department of Labor.

     William D. Kurtz (Verderaime & DuBois, P.A.), Baltimore, Maryland, for
     claimant.

     Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for Maher Terminals, Incorporated.

     Thomas G. Young III (Young & Valkenet, L.L.C.), Baltimore, Maryland, for
     Ceres Marine Terminals, Incorporated.

     Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.



     SMITH, Administrative Appeals Judge:

     Ceres Marine Terminals, Incorporated, appeals the Decision and Order on Remand
(96-LHC-2139, 96-LHC-2141) 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).

     This is the second time this case is before the Board.  Claimant fractured his
hip and injured his left leg on February 14, 1981, while working for Maher
Terminals, Incorporated (Maher), when he fell 20 feet from a ship into the water,
striking the side of a pier.  He returned to longshore work on November 11, 1982. 
On November 8, 1982, pursuant to the parties' stipulations, the district director
entered a compensation award in which Maher was to pay claimant temporary total
disability benefits, followed by permanent partial disability compensation
equivalent to a 53 percent loss of use of the left leg.  On August 4, 1992, while
working for Ceres Marine Terminals, Incorporated (Ceres), claimant was injured when
the brakes of a car that he was driving up a ramp failed, causing the car to roll
back down the ramp, striking other vehicles.  Claimant, who has not returned to
work since undergoing hip surgery on August 11, 1993, sought permanent total
disability compensation and medical benefits under the Act, filing claims against
both Maher and Ceres on May 21, 1996. 

     In her initial decision, the administrative law judge found that as claimant's
left hip replacement and associated permanent total disability were the inevitable
result of his 1981 hip fracture and related progressive post-traumatic
osteoarthritis, Maher was liable as the responsible employer for claimant's
benefits.  The administrative law judge determined, however, that claimant had not
sought modification within one year of the last payment of compensation under the
district director's November 1982 compensation order, and finding such action
required under Section 22 of the Act, 33 U.S.C. §922, in order for claimant
to seek disability compensation from Maher, claimant's right to such compensation
was time-barred.  Inasmuch, however, as a claim for medical benefits is never
untimely, the administrative law judge held Maher liable for past and future
medical benefits relating to claimant's hip replacement.

     On appeal, the Board reversed the administrative law judge's determination
that Maher is liable as the responsible employer for payment of benefits to
claimant, as that finding was not supported by substantial evidence and was not in
accordance with law.  Specifically, in a majority opinion, the Board concluded that
the administrative law judge failed to properly apply the aggravation rule by
suggesting that it was necessary for claimant to prove that his hip condition was
stable and asymptomatic prior to the 1992 injury at Ceres before Ceres could be
held liable for claimant's benefits.  Contrary to the administrative law judge's
finding, the Board noted that the aggravation rule provides that where an injury
at work aggravates, accelerates or combines with a prior condition, the entire
resultant disability is compensable. See Independent Stevedore Co. v.
O'Leary, 357 F.2d 812 (9th Cir. 1966).  Thus, where a work-related injury
accelerates a prior condition, hastening disability or death which would have
happened anyway, it is compensable under the aggravation rule. See Fineman v.
Newport News Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993).  Accordingly, the
Board held that the administrative law judge erred in relying on 1982 medical
opinions that claimant's hip injury would, with time, put him at substantial risk
of requiring surgical intervention, as this evidence has no bearing on the question
of whether claimant's pre-existing hip condition was aggravated by his 1992 work
injury.  Moreover, the Board held that the record overwhelmingly supports the
aggravation theory.  Specifically, the Board held that the administrative law judge
mischaracterized the opinion of Dr. Halikman by selectively extracting statements
relating to the severity of claimant's residuals from the 1981 injury while
ignoring those portions of his reports which are consistent with aggravation.  The
Board also reversed the administrative law judge's discrediting of Dr. Lippman's
opinion, holding that, contrary to the administrative law judge's determination,
the timing of claimant's inability to work is a valid consideration for a medical
expert in determining whether an injury had an aggravating effect on a prior
condition.[1]   The Board further noted that the
record reflects that Dr. Lippman's opinion was based on his review of claimant's
records, as well as his work history and examinations.  Ultimately, the Board held
that as the uncontradicted record establishes that claimant sustained an
aggravating injury in August 1992, Ceres, and not Maher, is liable as the
responsible employer.  Thus, the Board remanded the case for consideration of all
remaining issues, including claimant's entitlement to disability compensation and
Ceres's entitlement to relief under Section 8(f) of the Act, 33 U.S.C.
§908(f). Taylor v. Maher Terminals, Inc., BRB Nos. 97-0839/A (March 18,
1998)(unpublished)(Brown, J., dissenting).[2] 


     In her Decision and Order on Remand, the administrative law judge found that
claimant was entitled to an award of permanent total disability compensation,
payable by Ceres, commencing on August 4, 1992, and continuing.  The administrative
law judge also determined that Ceres was entitled to relief from continuing
compensation liability pursuant to Section 8(f) of the Act.

     Ceres's sole contention on appeal is that the administrative law judge's
original decision in the instant case was based on substantial evidence and should
not have been reversed by the Board.  In support of its argument, Ceres asserts
that any error the administrative law judge may have committed in her first
decision with regard to the aggravation rule was harmless, as the administrative
law judge based her decision on evidentiary findings not involving construction of
the aggravation rule.  Ceres further argues that the Board improperly substituted
its own judgment, with regard to the weighing of the evidence and credibility
determinations, for that of the administrative law judge.  Thus, Ceres requests
that the Board overrule its March 18, 1998 Decision and Order in the instant case,
vacate the administrative law judge's Decision and Order on Remand, and reinstate
the administrative law judge's original decision.  Claimant and Maher respond,
urging affirmance of the administrative law judge's Decision and Order on Remand. 


     Pursuant to the law of the case doctrine, we will not reconsider the
aggravation issue as it was fully addressed in our prior decision.  The Board has
held that it will adhere to its initial decision when a case is before it for a
second time unless there has been a change in the underlying factual situation,
intervening controlling authority demonstrates the initial decision was erroneous,
or the first decision was clearly erroneous and to let it stand would produce a
manifest injustice. See Jones v. U.S. Steel Corp., 25 BRBS 355 (1992);
Williams v. Healy-Ball-Greenfield, 22 BRBS 234 (1989)(Brown, J.,
dissenting).  Employer's contention on appeal does not fall within any of the
exceptions to the law of the case doctrine.  Rather, in its appeal of the
administrative law judge's Decision and Order on Remand, employer avers no error
on the part of the administrative law judge on remand, except that the
administrative law judge followed the instructions of the Board in its previous
decision.  While the law of the case doctrine is not a rule of law, it is a
discretionary rule of practice used to promote finality in the adjudication
process, see Williams, 22 BRBS at 237, and acceptance of employer's request
on appeal for the Board to reconsider its previous decision in the instant case
would contravene this policy.  Thus, as the administrative law judge's application
of the aggravation rule, her weighing of the evidence and her credibility
determinations have been previously decided by the Board, we hold that the prior
decision constitutes the law of the case, and therefore, we reject employer's
contention on appeal.  See, e.g., Ricks v. Temporary Employment Services,
Inc.,    BRBS     , BRB No. 98-1227, slip op. at 6 (June 8, 1999); Schaubert
v. Omega Service Industries, Inc., 32 BRBS 233, 234 (1998); Doe v. Jarka
Corp. of New England, 21 BRBS 142, 144-145 (1988).     Accordingly, the Decision and Order on Remand of the administrative law judge
is affirmed.

     SO ORDERED.




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



     I concur:                                                     
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



     BROWN, Administrative Appeals Judge, dissenting:

     For the reasons stated in my prior opinion, I would hold that the
administrative law judge properly held Maher was the responsible employer in her
initial opinion.



                                                                   

                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge  

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Footnotes.
 1)Dr. Lippman based his opinion that the 1992 injury exacerbated
claimant's pre-existing hip condition, in part, on the fact that claimant had
worked before, but not after, the 1992 injury.  Cl. Ex. 11(b).
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 2)In his dissenting opinion, Judge Brown stated that the
administrative law judge acted within her discretionary authority in discrediting
Dr. Halikman's 1996 opinions that claimant's 1992 work accident contributed to his
hip condition, and in ultimately finding that claimant's hip surgery was due to the
natural progression of his 1981 injury. Taylor v. Maher Terminals, Inc., BRB
Nos. 97-0839/A, slip op. at 10-11 (March 18, 1998)(Brown, J., dissenting).
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