BRB No. 99-1001
EVELYN COTTON )
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Claimant-Respondent )
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v. )
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ARMY & AIR FORCE EXCHANGE ) DATE ISSUED: 06/23/2000
SERVICES )
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Self-Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Alexander Karst,
Administrative Law Judge, United States Department of Labor.
Gerald S. Besses, M.D. (Law Office of Steven M. Birnbaum), San
Francisco, California, for claimant.
Frank B. Hugg, San Francisco, California, for self-insured employer.
Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (98-LHC-1206) of
Administrative Law Judge Alexander Karst 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., as extended by the Nonappropriated Fund
Instrumentalities Act, 5 U.S.C. §8171 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 is a warehouse worker who has worked for employer for 17 years. She
sustained a work-related injury on August 19, 1995, when she stepped on the edge
of a pallet and twisted her left ankle. Claimant returned to work, and was
transferred to a different job location where she was given a physically easier,
sedentary desk job for reasons which were unrelated to her work injury. Claimant
continues to complain of pain in her ankle, and both physicians of record, Drs.
Blackwell and Renbaum, diagnosed chronic ankle pain. Claimant sought an award of
permanent partial disability under the schedule.
In his decision, the administrative law judge awarded claimant permanent
partial disability compensation benefits pursuant to Section 8(c)(4), 33 U.S.C.
§908(c)(4), of the Act, for a 10 percent loss of use of the left foot, or 20.5
weeks of compensation. In so doing, the administrative law judge credited the
impairment rating of Dr. Blackwell, which was based on subjective factors. On
appeal, employer contends that an award of permanent partial disability for a
scheduled injury, based solely on subjective complaints of pain, presents an issue
of first impression and that the Board should consider the philosophical and policy
implications under the Act of affirming such an award. Employer argues that where
the administrative law judge bases an award of impairment on a system other than
the American Medical Association Guides to the Evaluation of Permanent
Impairment (4th Ed. 1993) (AMA Guides),[1] such application must be rational, reasonable and in accordance
with law. Employer also alleges that the administrative law judge weighed the
evidence improperly. Claimant responds, urging affirmance of the decision.
Employer replies, reiterating its arguments.
Initially, we reject employer's argument that consideration of medical ratings
of impairment based on pain raises an issue of first impression. In the event of
an injury to a scheduled member, recovery for a claimant's permanent partial
disability under Section 8(c) is confined to the schedule in Section 8(c)(1)-(19),
Potomac Electric Power Co. v. Director, OWCP [PEPCO], 449 U.S. 268,
14 BRBS 363 (1980), and claimant is compensated based on the degree of physical
impairment. Loss of wage-earning capacity is not a factor in a scheduled award.
See Rowe v. Newport News Shipbuilding & Dry Dock Co., 193 F.3d 836, 33 BRBS
160 (CRT) (4th Cir. 1999). Contrary to employer's contention, the Board has
previously affirmed an administrative law judge's decision to rely on a physician's
impairment rating based on subjective factors, holding that an administrative law judge
is not bound by any particular formula but may rely on a variety of medical
opinions and observations in addition to claimant's description of symptoms and
physical effects of his injury in assessing the extent of disability. See
Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154, 159 (1993).
Employer concedes that the Act does not require that impairment ratings in
medical opinions use the criteria of the AMA Guides except in cases
involving hearing loss and voluntary retirees, see 33 U.S.C.
§§908(c)(13), 902(10), but asserts that if claimant's impairment rating
is not made in accordance with the AMA Guides, the administrative law judge's
conclusions must nonetheless be rational, reasonable and in accordance with law.
We agree that an administrative law judge's findings must be guided by these
principles, see O'Keeffe, 380 U.S. at 359, and hold that in this case the
decision abides by them. The administrative law judge assessed claimant's
impairment at 10 percent, based on the opinion of Dr. Blackwell. Dr. Blackwell
rated claimant's impairment at 10-15 percent under the guides for impairment of the
California Labor Code, see Cal. Lab. Code §4660, stating that he
considers it a shortcoming of the AMA Guides ratings that if a patient does
not have objective abnormalities as defined by the Guides, the patient
cannot be rated as impaired. Tr. at 82. While the Guides incorporate an
element of pain for a given impairment, Dr. Blackwell stated that unless the
patient has objective abnormalities, the pain is dismissed. Id. Dr.
Blackwell did not provide a rating under the AMA Guides because claimant has
no impairment from leg/muscle atrophy or lower extremity muscle weakness, and thus
does not meet the standards under the Guides. Cl. Ex. 2.
The administrative law judge relied on this testimony as well as the fact that the
Act does not mandate the use of the AMA Guides for scheduled awards in
deciding to credit Dr. Blackwell. He also found that Dr. Blackwell's use of
subjective factors in arriving at a disability rating was acceptable under the
California compensation system. In this regard, the administrative law judge
noted that page 2-17 (Section 14.6) of the schedule appears to require immobility
or atrophy of the ankle joint in order for the physician to assign a rating, but
that section 1.II.B. "Subjective Factors of Disability" provides for the
consideration of subjective residuals of an injury such as pain, numbness,
weakness, parasthesia, and sensitivity, in assigning a rating. Decision and Order
at 8. Employer cites extensively from the California Labor Code in support of its
assertion that the administrative law judge erred in his discussion. As employer
acknowledges, however, the administrative law judge is not bound by California law
in a Longshore case. He permissibly relied on the opinion of Dr. Blackwell, who
testified he used the state law as a guide in rating claimant's subjective
complaints of pain, and employer has not shown that the administrative law judge
erred in relying on this opinion.
Despite employer's attempts to characterize this case as raising novel
questions about disability, in fact it involves well-settled principles involving
the administrative law judge's authority to weigh medical evidence. The
administrative law judge did not base his award on claimant's allegation of pain
alone, but rather on Dr. Blackwell's medical opinion.[2] Contrary to employer's assertion, it was within the administrative law
judge's discretion to give more weight to the opinion of Dr. Blackwell, who was
able to provide an explanation for claimant's current pain, thus considering the
particular situation of this particular claimant and providing an explanation for
claimant's continuing pain three years after the injury, than to Dr. Renbaum. Dr.
Blackwell explained that his impairment rating of 10-15 percent is not for the pain
itself, but the weakness that occurs in the ankle as a result of the pain and
claimant's consequent different use or adjustment of the ankle in compensation for
the pain.[3] Tr. at 70-72. The administrative
law judge found Dr. Renbaum's opinion less persuasive because, while he offered
several possible theoretical reasons for claimant's continued pain, he could not
relate the possible causes specifically to the claimant and did not have an
independent recollection of her. As the administrative law judge fully weighed the
medical evidence,[4] and his decision to credit
the opinion of Dr. Blackwell over that of Dr. Renbaum is rational, we affirm his
award of permanent partial disability benefits as it is supported by substantial
evidence.
Accordingly, the Decision and Order Awarding Benefits of the administrative
law judge is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Employer moved below that the administrative law judge take
official notice of several sections of the California Labor Code, the California
Administrative Code, and the "Schedule for Rating Permanent Disabilities" under the
California Labor Code, Cal. Lab. Code §4660. Decision and Order at 2.
Claimant did not object.
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2)Any implication by employer that claimant ought not to be
compensated under the schedule for her ankle condition because it has had no
effect on her capacity to perform her job or maintain a particular level of income
must be rejected under the holding of Potomac Electric Power Co. v. Director, OWCP
[PEPCO], 449 U.S. 268, 14 BRBS 363 (1980); see also Rowe v. Newport News Shipbuilding & Dry Dock
Co., 193 F.3d 836, 33 BRBS 160 (CRT) (4th Cir. 1999).
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3)Moreover, Dr. Blackwell testified that during her June 6,
1996, visit with Dr. Taylor claimant had the "objective" finding of tenderness upon
palpation, in addition to the subjective complaint of pain. Tr. at 55-56. Dr.
Renbaum, who examined claimant in September 1998, also found claimant to have
medial tenderness, but he characterized this as a "subjective," finding,
i.e., claimant's expression of pain upon the doctor's palpation. Tr. at
147-149.
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4)In fact, while Dr. Blackwell rated claimant's impairment at
10-15 percent, the administrative law judge determined that 10 percent, the lower
range of the estimate, is a reasonable estimate of claimant's disability because
Dr. Blackwell did not substantiate the additional five percent. Decision and Order
at 9.
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NOTE: This is an UNPUBLISHED LHCA Document.
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