BRB No. 99-0995

GIOVANNI CUCCI                               )
                                             )
          Claimant-Petitioner                )
                                             )
     v.                                      )
                                             )
GLOBAL TERMINAL AND                                                                            )    DATE ISSUED:  
                                                                                               06/22/2000     
CONTAINER SERVICES,                          )
INCORPORATED                            )
                                             )
     and                           )
                         )
SIGNAL MUTUAL INDEMNITY            )
ASSOCIATION                             )
                                             )
          Employer/Carrier-                  )    
          Respondents                        )    DECISION and ORDER

     Appeal of the Decision and Order (Upon Remand By the Benefits Review
     Board) of Robert D. Kaplan, Administrative Law Judge, United States
     Department of Labor.

     Philip J. Rooney (Israel, Adler, Ronca & Gucciardo), New York, New York,
     for claimant.

     Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for employer/carrier.  

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

     PER CURIAM:

     Claimant appeals the Decision and Order (Upon Remand by the Benefits Review
Board) (96-LHC-0226) of Administrative Law Judge Robert D. Kaplan 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 case is on appeal to the Board for the second time.  Claimant, a hustler
driver, injured his coccyx and low back at work on May 17, 1995, when he fell down
the steps of a hi-lo.  Employer voluntarily paid claimant temporary total
disability benefits from May 18, 1995, to June 7, 1995, and July 10, 1996, to
September 17, 1996.  Claimant sought temporary total disability benefits from
September 24, 1995, through July 10, 1996, and after September 17, 1996.  In his
initial decision, the administrative law judge awarded claimant temporary total
disability benefits from May 18, 1995, to September 25, 1995, and employer a credit
for all compensation paid claimant from July 10, 1996, to September 17, 1996.  In
awarding claimant these benefits, the administrative law judge found the opinion
of claimant's treating physician, Dr. Stein, flawed by the lack of a documented and
thorough examination of claimant.  Therefore, the administrative law judge credited
the opinions of Drs. Genova and Koval with greater weight since they conducted and
documented thorough examinations of claimant and possessed superior credentials. 


     In Cucci v. Global Terminal & Container Services, Inc., BRB No. 98-0181
(Oct. 19, 1998)(unpub.), the Board vacated the administrative law judge's finding
that claimant suffered no disability after September 25, 1995, and remanded the
case to the administrative law judge to reconsider the relevant medical opinions
and provide a rational explanation for his conclusions in weighing this evidence. 
The Board pointed out that the administrative law judge's weighing of the opinions
of Drs. Stein, Genova, and Koval was flawed in that Dr. Stein (a Board-certified
physiatrist) was not less qualified than Dr. Genova (a Board-certified general
surgeon) and Dr. Koval (a Board-certified orthopedic surgeon).  The Board also
noted that Dr. Stein did not perform a less thorough examination of claimant than
Drs. Genova and Koval and that, in fact, Dr. Koval had examined claimant only once
while Dr. Stein had examined claimant numerous times as claimant's treating
physician.  The Board also vacated the administrative law judge's finding that
employer is entitled to a credit for the compensation it paid claimant from July
19, 1996,[1]  to September 17, 1996, and remanded
the case to the administrative law judge to address claimant's contention that the
parties had stipulated that he was disabled during the period of his work hardening
program.

     In his decision on remand, the administrative law judge again awarded claimant
temporary total disability benefits from May 18, 1995, to September 25, 1995,
crediting the opinions of Drs. Genova and Koval over Dr. Stein's opinion.  The
administrative law judge also held that the parties did not enter into a
stipulation or agreement that claimant was entitled to total disability benefits
for the period during which he was undergoing a work hardening program, from July
10, 1996, to September 17, 1996.  Thus, the administrative law judge awarded
employer credit for payments of compensation it made to claimant between July 10,
1996, to September 17, 1996.

     In the instant appeal, claimant challenges the administrative law judge's
decision to credit the opinions of Drs. Genova and Koval over those of Drs. Stein
and Dermksian and his consequent conclusion that claimant is not entitled to
benefits after September 25, 1995.  Claimant also challenges the administrative law
judge's finding that employer is entitled to a credit for compensation it paid
claimant from July 10, 1996, to September 17, 1996, when claimant was undergoing
a work hardening program.  Employer responds in support of the administrative law
judge's decision.  Claimant's counsel also filed a fee petition for work performed
before the Board in BRB No. 98-0181.  Employer has not objected to the requested
fee.  

     Claimant initially contends that the administrative law judge erred in
crediting the opinions of Drs. Genova and Koval over those of Drs. Stein and
Dermksian in denying claimant benefits after September 25, 1995.  Claimant bears
the burden of establishing the nature and extent of his disability sustained as a
result of a work-related injury. See Anderson v. Todd Shipyards Corp., 22
BRBS 20 (1989).  In arriving at a decision regarding the nature and extent of
claimant's disability, the administrative law judge is entitled to evaluate the
credibility of all witnesses and to draw his own inferences from the evidence.
See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 372 U.S. 954 (1963); John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961).

     In denying claimant temporary total disability benefits after September 25,
1995, the administrative law judge found that the opinions of Drs. Genova and Koval
that claimant had no disability caused by lumbar spine problems in the summer of
1995 outweigh those of Drs. Stein and Dermksian that claimant remains totally
disabled due to his lumbar spine problems. Decision and Order Upon Remand at 8-9;
Cl. Exs. 1, 4, 6, 7, 9; Emp. Exs. 5, 6, 9, 16, 23, 25.  The administrative law
judge found that the opinions of Drs. Stein and Dermksian are solely based on
subjective factors including claimant's complaints of pain and his inability or
reduced ability to perform a  range of motion maneuvers, while both physicians'
objective findings are normal.  Additionally, the administrative law judge found
claimant's complaints of low back pain were exaggerated because claimant's
complaints of coccygeal pain to Dr. Stein disappeared after claimant's normal
September 21, 1995, CT scan of the coccyx, no physician found any objective
evidence supporting claimant's complaints of lumbosacral area pain, Dr. Flax
commented that claimant left his office with a healthy jaunt, and Mr. Gonzalez, a
physical therapist, concluded that claimant's complaints of pain were magnified. 
Decision and Order Upon Remand at 9-10; Cl. Exs. 1, 3, 4, 6-9; Emp. Exs. 3, 5, 6,
8, 9, 12-14, 16, 23-25.  As the administrative law judge acted within his
discretion in evaluating and weighing the evidence and provided rational
explanations for his conclusions, we affirm his denial of temporary total
disability benefits after September 25, 1995, as it is supported by substantial
evidence. See generally Chong v. Todd Pacific Shipards Corp., 22 BRBS 242
(1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir.
1990). 

     Claimant also contends that the administrative law judge erred in
awarding a credit to employer for the voluntary compensation it paid claimant
between July 10, 1996, and September 17, 1996, against the temporary total
disability compensation to which claimant was found to be entitled during the
period from May 18, 1995, to September 25, 1995.  Claimant asserts that the parties
stipulated that claimant was totally disabled for this period and thus that
employer should not be allowed a credit.[2] 

     The parties did not enter into any written stipulations.   See Tr. at
7-9.  In finding that employer did not agree to claimant's entitlement to benefits,
but merely that it paid benefits for this period, the administrative law judge set
out the relevant statements of counsel for claimant and employer at the hearing. 
At the hearing, claimant's counsel, in addressing the parties' agreements, stated:

     And the claimant underwent that program [the work hardening program
     which the parties agreed claimant would undergo] and the employer paid
     an additional period of temporary total disability from 7/10/96 to
     7/23/96. . . .  The issue presented before your Honor is disability
     between June the 7th of 1995 and 7/10 of  96 and subsequent to 9/16 of
      96. . . .
     
Tr. at 7-8.  Employer's counsel's only comment was to correct claimant's counsel
by stating that employer paid claimant temporary total disability benefits for the
work hardening program period prior to September 17, 1996.  Tr. at 8.  The
administrative law judge rejected a literal interpretation of claimant's counsel's
statement as he thought it would yield the result that the parties agreed that
claimant was totally disabled from July 10, 1996, to September 17, 1996, and there
is no evidence that the parties reached a meeting of the minds on this subject
prior to the hearing.  Decision and Order Upon Remand at 2-3.  The administrative
law judge found that employer had no intent to enter into any stipulation about
entitlement to compensation but merely intended to posit that it paid compensation
for this period, pointing out that mere payment of compensation does not constitute
a concession that claimant is legally entitled to that compensation.  In the
absence of a written stipulation and in light of the administrative law judge's
rational finding that employer agreed only to its payment of compensation, but not
to claimant's entitlement to compensation, from July 10, 1996, to September 17,
1996, we affirm the administrative law judge's conclusion that employer  is
entitled to a credit for its voluntary payment of compensation to claimant for this
period.  33 U.S.C. §914(j).

     Claimant's counsel has filed a petition for an attorney's fee for work
performed before the Board in BRB No. 98-0181.  He requests a total fee of
$1,706.25, representing 9.75 hours of work at an hourly rate of $175.  Employer did
not file objections to the fee petition.  The Board will award attorney's fees only
upon a successful prosecution or defense of an appeal.  33 U.S.C. §928(a); 20
C.F.R. §§702.134(a), 802.203; see also Eifler v. Peabody Coal Co.,
13 F.3d 236, 27 BRBS 168 (CRT)(7th Cir. 1993); Murphy v. Honeywell, Inc.,
20 BRBS 68 (1986).  In light of claimant's failure on remand to gain additional
compensation over that initially awarded by the administrative law judge, we deny
claimant's counsel's requested fee in its entirety. 

     Accordingly, the administrative law judge's Decision and Order (Upon Remand
By the Benefits Review Board) is affirmed.  Claimant's counsel's request for an
attorney's fee of $1,706.25 for work performed before the Board in BRB No. 98-0181
is denied.  33 U.S.C. §928(a); 20 C.F.R. §§702.134(a), 802.203.        

     SO ORDERED.


                                                                   
                         ROY P. SMITH                                      Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN                                    Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY                          Administrative Appeals Judge






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Footnotes.
 1)On remand, the administrative law judge noted that this date
should be July 10, 1996, and not July 19, 1996.  Decision and Order Upon Remand at
2 n. 2.
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 2)Claimant's counsel submitted new evidence in his appeal to the
Board--a July 8, 1996 letter to claimant from the branch manager of employer's
carrier arranging for claimant to enter a work hardening program beginning July 10,
1996, and advising claimant that his compensation benefits will commence following
this date and will continue until the work hardening program is completed.  The
Board cannot consider this new evidence.  33 U.S.C. §921(b)(3); Williams
v. Hunt Shipyards, Geosource, Inc., 17 BRBS 32 (1985).  However, if claimant
wishes the administrative law judge to consider it, he may request modification
pursuant to Section 22 of the Act, 33 U.S.C. §922. See Metropolitan
Stevedore Co. v. Rambo, 515 U.S. 291, 30 BRBS 1 (CRT)(1995); Woods v.
Bethlehem Steel Corp., 17 BRBS 243 (1985).   
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