BRB No. 99-0991
ALBERT BAUMAN )
)
Claimant-Respondent )
)
v. )
)
DOMINO SUGAR CORPORATION ) DATE ISSUED: 06/15/2000
)
and )
)
CIGNA INSURANCE COMPANY )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order of James W. Kerr, Jr., Administrative
Law Judge, United States Department of Labor.
James E. Vinturella (Lewis & Caplan), New Orleans, Louisiana, for
claimant.
James A. Babst (Lamothe & Hamilton, PLC), New Orleans, Louisiana, for
employer/carrier.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order (1998-LHC-1038) of Administrative Law
Judge James W. Kerr, 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 if they 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 suffered an injury to his back on July 8, 1997, while
moving sugar in the hold of a vessel with a shovel. Claimant immediately reported
the alleged incident to employer's foreman, Mr. Robinson, who allowed claimant to
return home. The following day, claimant requested and was granted authorization
from employer to visit employer's physician, who diagnosed claimant as having
sustained a lumbosacral strain. Claimant has not returned to work since the date
of this incident.
In his Decision and Order, the administrative law judge concluded, based upon
the testimony of claimant, that claimant established the existence of working
conditions which could have caused his present back condition, that claimant was
therefore entitled to the Section 20(a), 33 U.S.C. §920(a), presumption, and
that employer failed to rebut the same; accordingly, the administrative law judge
found causation established. Next, the administrative law judge determined that
claimant was incapable of resuming his usual employment duties, but that employer
established the availability of suitable alternate employment as of October 13, 1998.
Accordingly, the administrative law judge awarded claimant temporary total disability
benefits during the period of July 8, 1997 through October 12, 1998, and temporary
partial disability benefits thereafter, as well as medical benefits, interest and
an attorney's fee. See 33 U.S.C. §§907, 908(b), (e).
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; alternatively, employer challenges the administrative law judge's
finding that it failed to establish rebuttal of the Section 20(a) presumption.
Employer additionally challenges the administrative law judge's determination regarding
the extent of any disability sustained by claimant. Claimant responds, urging
affirmance.[1]
Working Conditions
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 Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59
(CRT)(5th Cir. 1998); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996).
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 shoulder strain, but argues that claimant failed to establish
the existence of a work incident which could have caused that condition. In
raising this contention, employer challenges claimant's motives in accepting
employment with it on July 8, 1997, noting that higher-paying, more comfortable
work was available to claimant on that date. Additionally, employer states that
the incident at issue was unwitnessed, that the level of sugar in the vessel's hold
was less than the foot opined by claimant and that, thus, claimant should have been
using a scraper or broom rather than a shovel to perform his duties. In addressing
this issue, the administrative law judge acknowledged claimant's testimony that he
accepted work with employer to ensure employment on July 8, 1997. Next, the
administrative law judge found the depth of the sugar in the vessel's hold to be
irrelevant, since claimant asserted that he sustained an injury moving that sugar;
moreover, the administrative law judge noted Mr. Robinson's concession that it was
possible that claimant was using a shovel on July 8, 1997. Moreover, the
administrative law judge found that claimant was working for employer at the time
of the onset of his back pain, that the following day claimant was sent to
employer's doctor, and that claimant was thereafter diagnosed by that physician as
having sustained a lumbosacral strain. Thus, in concluding that claimant
affirmatively established the existence of working conditions which could have
caused his harm, the administrative law judge specifically addressed and rejected
each of employer's contentions, and relied upon claimant's testimony that claimant
heard a pop in his back, and experienced an immediate onset of pain in his back,
while working for employer in the hold of a ship.
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).
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). In the
instant case, the administrative law judge specifically set forth and considered
each of employer's concerns and concluded that claimant did, in fact, sustain a
work-related accident as described on July 8, 1997. 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).
Causation
Upon invocation of the Section 20(a) presumption, the burden shifts to
employer to rebut it with substantial evidence that claimant's condition is not
caused or aggravated by his employment. See Conoco v. Director, OWCP, 194
F.2d 684, 33 BRBS 187 (CRT)(5th Cir. 1999); Swinton v. J. Frank Kelly, Inc.,
554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976);
Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995). If
employer establishes rebuttal of the presumption, 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);
see also Greenwich Collieries, 512 U.S. at 267, 28 BRBS at 43 (CRT).
We affirm the administrative law judge's finding that employer did not rebut the Section 20(a) presumption in the
instant case. The administrative law judge's finding is supported by the record, as he rationally found the opinion of Dr.
Steiner, upon whom employer relies in support of its contention of error, insufficient to rebut the presumption since that
physician's opinion focuses on whether claimant was disabled as of the date of his examination, February 5, 1998, and he
did not render an opinion as to whether claimant sustained an injury following the July 8, 1997, work-incident. See
RX-1. Accordingly, as Dr. Steiner's testimony does not address whether claimant's employment caused, aggravated,
accelerated, or contributed to claimant's back problems following the July 8, 1997, incident, the administrative
law judge properly found it insufficient to rebut the Section 20(a) presumption. As employer did not produce evidence
severing the causal relationship between claimant's employment and his back condition, we affirm the administrative law
judge's finding that claimant's back condition is related to his employment. See Clophus v. Amoco Production
Co., 21 BRBS 261 (1988).
Prima Facie Case of Total Disability
Lastly, employer contends that the administrative law judge erred in determining that claimant is
incapable of performing his usual employment duties with employer. Specifically,
employer asserts that the administrative law judge erred in failing to credit the opinion
of Dr. Steiner over the opinion of Dr. Phillips since, employer states, Dr. Steiner
tested claimant for malingering while Dr. Phillips did not. It is well-established
that claimant bears the burden of establishing the nature and extent of any
disability sustained as a result of a work-related injury. See Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1989); Trask v. Lockheed Shipbuilding &
Constr. Co., 17 BRBS 56 (1985). In order to establish a prima facie
case of total disability, claimant bears the burden of establishing that he is
unable to return to his usual work. See New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also Palombo
v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d Cir. 1991); CNA Ins. Co.
v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT)(1st Cir. 1991); Newport News
Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th Cir.
1988); Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687,
18 BRBS 79 (CRT)(5th Cir. 1986), cert. denied, 479 U.S. 826 (1986); Hooe
v. Todd Shipyards Corp., 21 BRBS 258 (1988).
In finding that claimant established a prima facie case of total
disability, the administrative law judge credited the opinions of claimant and Dr.
Phillips. In this regard, Dr. Phillips opined that claimant's bulging disc at L4-5, as evidenced by an MRI, weakened claimant's disc ligament and, as a result of
claimant's work activities on July 8, 1997, that weakened ligament was torn. As
a result of his condition, Dr. Phillips opined that claimant would be restricted
to light-duty work and would thus be unable to resume employment as a longshoreman.
See CX-1. Claimant testified that following the July 8, 1997, work-incident, he unsuccessfully attempted to return to work, but that his back
restricted his ability to lift. See TR at 26-28. In contrast, Dr. Steiner,
while acknowledging that claimant's MRI revealed a disc bulge, determined that
claimant's responses upon examination were inconsistent and that claimant was
capable of resuming his usual employment duties as a longshoreman. See RX-1.
We reject employer's contention that the administrative law judge erred in failing
to credit and rely upon the opinion of Dr. Steiner. An administrative law judge is not bound
to accept the opinion of any particular medical examiner, but rather, is entitled to weigh the credibility of all witnesses and
draw his own inferences from the evidence. See Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962)
; Anderson, 22 BRBS at 22. In the instant case, the administrative law judge rationally found that Dr. Phillips
accepted the credibility of claimant, took into account the abnormal results evidenced on claimant's MRI, and
determined that claimant is precluded from employment as a longshoreman.[2] As this opinion provides substantial evidence
to support the administrative law judge's determination that claimant is incapable of
resuming his usual employment duties, see Mijangos v. Avondale Shipyards,
Inc., 948 F.2d 941, 25 BRBS 78 (CRT)(5th Cir. 1991), we affirm the
administrative law judge's finding that claimant has established a prima
facie case of total disability, and his consequent award of ongoing disability
benefits to claimant. See Manigault v. Stevens Shipping Co., 22 BRBS 332
(1989).
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)In his response brief, claimant additionally challenges the
administrative law judge's finding that employer established the availability of suitable alternate employment. We decline
to address this issue, which should have been raised in a cross-appeal. See Garcia v. National Steel & Shipbuilding
Co., 21 BRBS 314 (1988).
Back to Text
2)Contrary to employer's assertion, the administrative law judge committed
no error in crediting Dr. Phillips' opinion even though Dr. Phillips expressed his disdain for tests used by other
physicians to determine whether a claimant is credible. The administrative law judge considered Dr. Phillips testimony
on this issue and, as is within his discretion, thereafter weighed the credibility of the medical witnesses in addressing
the issue of claimant's ability to resume work as a longshoreman. See generally Casey v. Georgetown University
Medical Center, 31 BRBS 147 (1997).
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
