BRB No. 99-1012


RAYMOND J. COURY                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NORTHWEST MARINE,                       )    DATE ISSUED:   06/27/2000
  
INCORPORATED                            )
                                        )
     and                                )
                                        )
LEGION INSURANCE COMPANY                )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order on Reremand of John C. Holmes,
     Administrative Law Judge, United States Department of Labor.

     Meagan A. Flynn (Preston, Bunnell & Stone, LLP), Portland, Oregon, for
     claimant.

     Russell A. Metz (Metz & Associates, P.S.), Seattle, Washington, for
     employer/carrier.

     Before: HALL, Chief Administrative Appeals Judge, SMITH , Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order on Reremand (93-LHC-3080, 93-LHC-3081)
of Administrative Law Judge John C. Holmes 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 third time. To recapitulate the
facts, claimant, who worked for employer for over 30 years in various capacities
related to painting, sustained a cervical sprain when he hit his head on a beam
while inspecting a ship on May 11, 1991.  On October 26, 1991, claimant sustained
another work-related injury to the great toe of his left foot.  Claimant continued
to work at his usual job following both injuries and lost no time from work until
he was laid off when employer closed its shipyard on October 30, 1992.  At that
time, claimant alleged that he attempted to secure other work but was precluded
from accepting a number of jobs that demanded a great deal of physical activity
because of the effects of his work-related injuries.  At the time of the hearing,
claimant was employed as a supervisor for a barge painting project earning $3,700
per month. On December 1, 1992, claimant filed separate claims under the Act for
his neck and foot injuries, seeking permanent partial disability compensation under
Section 8(c)(4) of the Act, 33 U.S.C. §908(c)(4), for his foot injury, and
permanent partial disability compensation under Section 8(c)(21) of the Act, 33
U.S.C. §908(c)(21), based on a weekly loss of over $600 in his wage-earning
capacity due to his neck injury. 

     In a Decision and Order issued on December 15, 1995, Administrative Law Judge
Mahony found that the disability claims filed by claimant on December 1, 1992, were
untimely.  On appeal, the Board held that both claims were timely as a matter of
law.   Thus, the Board remanded the case for further proceedings. Coury v.
Northwest Marine, Inc., BRB No. 96-0535 (Dec. 23, 1996)(unpublished). 

     On remand, Judge Mahony found that, with regard to claimant's neck injury,
claimant is capable of performing the duties of his former job with employer as a
painter/supervisor and that claimant is currently performing the same job duties
that he had performed with employer, albeit with a different employer, Oregon Iron
Works.  In reaching this decision, the administrative law judge relied on medical
opinions relating claimant's neck condition to aging rather than the work injury. 
As he  found that claimant's symptoms are not related to his work injury he
concluded that claimant does not have a compensable disability.   Thus, Judge
Mahony determined that claimant is not entitled to an award of permanent partial
disability compensation under Section 8(c)(21) of the Act.  He further found that
claimant did not sustain any permanent impairment to his left toe and, therefore,
denied claimant's claim for permanent partial disability compensation under Section
8(c)(4) of the Act. 

     On appeal of that decision, the Board vacated Judge Mahony's denial of
permanent partial disability compensation under Section 8(c)(21), and once again
remanded the case.  The Board found that Judge Mahony's denial of benefits rested
on evidence regarding the cause of claimant's disability.  As the Section 20(a)
presumption, 33 U.S.C. §920(a),  applies to the issue of the cause of
claimant's allegedly disabling neck condition and Judge Mahony did not apply 
Section 20(a), the Board remanded the case for its application.  The Board stated
that if the administrative law judge found a causal relationship between claimant's
neck condition and his employment on remand, then the administrative law judge must
address the nature and extent of claimant's disability, specifically considering
his  testimony that his post-injury employment at Oregon Iron Works required very
little of the physical type of work which he had performed while working for
employer, and other relevant evidence in order to determine whether claimant has
suffered a post-injury loss in wage-earning capacity, see 33 U.S.C.
§908(h), and therefore is entitled to permanent partial disability
compensation pursuant to Section 8(c)(21). Coury v. Northwest Marine, Inc.,
BRB No. 97-1675 (Aug. 25, 1998) (unpublished).  The Board affirmed the
administrative law judge's denial of benefits for the toe injury under Section
8(c)(4).  The Board also remanded the case for consideration of claimant's
entitlement to medical benefits under Section 7 for both the neck and toe injuries.

     On the second remand, Administrative Law Judge Holmes (the administrative law
judge) found that the Board mischaracterized Judge Mahony's decision, because
although Judge Mahony did not apply the Section 20(a) presumption, he specifically
found that the parties stipulated that claimant's neck injury arose out of and in
the course of his employment.  The administrative law judge reasoned that a
stipulation serves the same purpose as application of the Section 20(a)
presumption.  He further determined that as Judge Mahony found claimant was not
disabled by any cause, it was irrelevant whether the cervical condition was work-
or age- related and,  therefore, it was unnecessary to discuss the opinion of Dr.
Calhoun as to causation.  The administrative law judge reasoned that as the Board
vacated Judge Mahony's decision only on the basis of causation, a finding that a
causal connection existed renders the Board's command to address the nature and
extent of disability unnecessary. The administrative law judge nevertheless adopted
Judge Mahony's finding that claimant is capable of performing his previous work and
was thus not disabled, noting that the Board found no error in Judge Mahony's
opinion that claimant is capable of performing his previous work and that therefore
this finding constitutes the rule of the case.  The administrative law judge also
denied claimant a nominal award.  Finally, the administrative law judge awarded
claimant medical benefits for his work-related neck and toe treatment.  

     In the current appeal, claimant appeals the denial of benefits related to his
cervical condition.  Claimant argues that the administrative law judge erred in
refusing to follow the Board's order to determine whether his alleged cervical
disability is work-related pursuant to the Section 20(a) presumption, in failing
to discuss Dr. Calhoun's opinion, in finding that claimant is capable of performing
his usual work, and in denying a nominal award.  Employer responds, urging
affirmance.  Claimant replies, reiterating his arguments.  

     We agree with claimant that the case must be remanded once again.  Section
802.405(a) of the regulations, 20 C.F.R. §802.405(a), governing the operations
of the Benefits Review Board, provides that "[w]here a case is remanded, such
additional proceedings shall be initiated and such other action shall be taken as
is directed by the Board."  See generally Obert v. John T. Clark & Son of
Maryland, 23 BRBS 157 (1990). Judge Holmes stated that he need not address the
causation issue as the parties stipulated  that claimant's neck injury is work-related. Nevertheless, an issue herein is whether claimant's disabling cervical
condition is related to the work injury.

     While Section 20(a) does not aid claimant in establishing the degree of
disability, it is applicable in analyzing the cause of a disabling condition.
Kubin v. Pro-Football, Inc., 29 BRBS 117 (1995).  Contrary to the
administrative law judge's decision, the parties' stipulation that claimant initially
sustained a work-related neck injury does not answer the question as to the cause
of his continuing cervical condition.  As this issue was raised by Judge Mahony's
decision,  the administrative law judge's determination that the instant case does
not present a causation issue cannot be affirmed.

     In this case, claimant is entitled to invocation of the Section 20(a)
presumption as a matter of law, as it is undisputed that he sustained a harm, a
cervical sprain, and that an incident occurred on May 11, 1991, while he was
inspecting a ship, which could have caused the harm or aggravated an existing
condition. See, e.g., Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir.
1999); Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59 (CRT) (5th Cir.
1998).  Once the Section 20(a) presumption is invoked, the burden shifts to
employer to rebut the presumption with substantial evidence that claimant's
condition is not caused or aggravated by his employment. See American Grain
Trimmers, Inc. v. Director, OWCP, 181 F.3d 810, 33 BRBS 71 (CRT) (7th Cir.
1999)(en banc).  The unequivocal testimony of a physician that no
relationship exists between an injury and a claimant's employment is sufficient to
rebut the presumption. See Duhagon v. Metro. Stevedore Co., 169 F.3d 615,
33 BRBS 1 (CRT)(9th Cir. 1999); Kier v. Bethlehem Steel Corp., 16 BRBS 128
(1984).  In this case, Drs. Tesar and Platt in their February 24, 1994, report
concluded that claimant has degenerative disk disease of the cervical spine on the
basis of aging, that a minor injury would neither cause the degenerative disk
disease nor accelerate or aggravate it, and that claimant's disease and symptoms
are totally unrelated to his work injuries or activities.  Emp. Ex. 4 at 18. 
Contrary to claimant's contention, we hold that this report constitutes substantial
evidence to support a finding that claimant's  cervical condition was not caused
or aggravated by the work injury.[1]   Therefore,
this evidence is sufficient to rebut the Section 20(a) presumption as a matter of
law.  Duhagon, 169 F.3d at 615, 33 BRBS at 1 (CRT).

     Once the Section 20(a) presumption is rebutted, however, the administrative
law judge must weigh all of the evidence and resolve the causation issue based on
the record as a whole. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT)
(4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267,
28 BRBS 43 (CRT)(1994).  Claimant correctly contends that in assessing the cause
of claimant's condition, neither Judge Mahony nor Judge Holmes discussed the
opinion of Dr. Calhoun.[2]   The administrative law
judge found it unnecessary to discuss this opinion, based on his conclusion that
causation was not at issue.  He noted, however, that Dr. Calhoun's October 21, 1993
opinion that claimant's bulging disk is work-related was a vague diagnosis which
does not comport with an earlier, January 6, 1992, report finding degenerative disk
disease but no other abnormalities.  However, neither judge fully weighed all of
the relevant evidence of record, addressing whether claimant's ongoing neck
problems are work-related.  This issue also requires that the evidence be weighed
consistent with the aggravation rule, under which it is well-settled that where a
work injury aggravates, accelerates or combines with  a pre-existing condition, the
entire resultant disability is compensable. See Duhagon v.  Metro. Stevedore
Co., 31 BRBS 98 (1997), aff'd, 169 F.3d 615, 33 BRBS 1 (CRT)(9th Cir.
1999).  Thus, the administrative law judge must consider whether claimant's work
injury aggravated his degenerative disk disease to result in his continuing
symptomatology.  The case is therefore remanded for weighing of the evidence
related to the cause of claimant's cervical condition based on the record as a
whole.  

     Claimant's argument that the administrative law judge did not follow the
Board's instructions to address the issue of the extent of claimant's disability,
including whether claimant has suffered a post-injury loss in wage-earning capacity
and thus is entitled to permanent partial disability compensation pursuant to
Section 8(c)(21), has merit as well.  The administrative law judge, in declining
to analyze the issue of extent of disability, stated that as the "Board has found
no error in Judge Mahony's opinion in this regard [ability to perform usual job] 
I must accept [his] analysis as the rule of the case."  Decision and Order On
Reremand at 4. The administrative law judge noted that the Board focused on only
one of the grounds on the basis of which Judge Mahony found claimant could perform
his usual work, i.e., the testimony of Drs. Tesor and Platt that
claimant does not have a work-related disability, without specifically addressing
the administrative law judge's finding that claimant can perform his usual
employment. 

     Contrary to Judge Holmes's decision, the Board's prior decision recognized
that, in addition to the cause of claimant's disabling condition, Judge Mahony's
denial of benefits was also premised on claimant's ability to perform his usual
work.  In this regard, the Board did address this issue in stating that, on remand,
"the administrative law judge must specifically consider the testimony of claimant
that his post-injury employment required very little of the physical type of work
which he had performed while working for employer."  Coury, slip op. at 4
(Aug. 25, 1998).[3]   Claimant has the burden of
establishing his inability to perform his usual work because of his injury.
Delay v. Jones Washington Stevedoring Co., 31 BRBS 197, 201 (1998). 
Claimant testified that he could not return to his painting trade if he had to
perform its physical aspect.  Tr. at 72.  He testified that as a paint supervisor
with employer prior to the injury, he was not doing the physical painting or
handling the tools, but still had to crawl through small spaces holding his neck
in hyperextended position for extended periods while inspecting paint jobs.  Tr.
at 56-57.  Claimant said that after the accident he tried to avoid crawling through
tight areas and going down vertical ladders.  In his post-injury job as a paint
superintendent with a different employer, claimant testified that he did not have
to do any of the physical work that he did at his job prior to the injury;
moreover, in his new job, he supervised three employees, whereas in his former job
he supervised up to 300.  Tr. at 82.  On remand, the administrative law judge must
determine if claimant is capable of performing all of the duties of his former
employment with employer. See Delay, 31 BRBS at 197.  If he cannot,
claimant has established a prima facie case of total disability. See
Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  The administrative law
judge then must consider whether claimant has a loss in wage-earning capacity in
his post-injury job considering relevant factors.  If after considering this
evidence the administrative law judge finds that claimant cannot return to his
usual work, he is instructed to render findings as to claimant's residual wage-earning capacity.  33 U.S.C. §908(c)(21), (h); Devillier v. National Steel
& Shipbuilding Co., 10 BRBS 649 (1979).


     Claimant next challenges the administrative law judge's denial of a nominal
award in the event he finds that claimant has no current loss in wage-earning
capacity.   A claimant is entitled to nominal compensation when his work-related
injury has not diminished his present wage-earning capacity, but there is a
significant potential of future economic harm due to the injury.  Metropolitan
Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54 (CRT) (1997).  In
this case, the administrative law judge, although citing Rambo, erroneously
based his denial partly on the premise that such awards "are frowned upon by the
Board."  Decision and Order on Reremand at 4. As the United States Supreme Court
in Rambo has spoken on this issue, its determination of course supersedes
any prior statement by the Board in this regard.  Moreover, prior to Rambo,
the Board acquiesced in the holdings of the several circuits to endorse nominal
awards. See Ward v. Cascade Gen'l, Inc., 31 BRBS 65 (1995).  In addition,
the administrative law judge applied an erroneous standard in denying a nominal
award on the reasoning that: "[a]ny significant loss of wage-earning
capacity under the circumstances of this case would be purely speculative."
Decision and Order on Reremand at 4 (emphasis added).  Contrary to the
administrative law judge's statement, in order to receive a nominal award, claimant
does not need a significant loss in wage-earning capacity, but  rather must show
a significant possibility of a future loss  in earning capacity.  Claimant argues
that he is entitled to a nominal award based on his physical impairments, a
currently beneficent employer, and employer's recognition that claimant must now
delegate certain physical tasks required in his work. See Randall v. Comfort
Control, Inc., 725 F.2d 791, 16 BRBS 56 (CRT) (D.C. Cir. 1984). If, on
remand, the administrative law judge again determines that claimant has no current
loss in wage-earning capacity, he must reconsider claimant's entitlement to a
nominal award in accordance with the correct standard.

     Claimant's counsel has submitted an application for an attorney's fee for work
performed before the Board between January 8, 1996, and August 31, 1998, in
connection with the two previous appeals.  BRB Nos. 96-0535, 97-1675.   He requests
a fee of $6,126.75, representing 3.125 hours at $225 per hour for Attorney
Hytowitz, 19 hours at $225 per hour for Attorney Udziela, and 8.5 hours at $135 per
hour for Attorney Flynn.  Employer responds, alleging the request is premature, as
claimant has not obtained any economic benefits and that, although claimant
obtained medical benefits, the exact amount has not been ascertained by the
district director.[4]    In the alternative,
employer contends that the fee requested should be reduced to not more than $1,000,
based on claimant's limited success, citing Hensley v. Eckerhart, 461 U.S. 424 (1983).
Employer also argues that the hourly rate should be reduced to $175 per hour
from $225.  Claimant replies, alleging he is entitled to an attorney's fee based
on the award of medical benefits by the administrative law judge, as a result of
the Board's second remand, which employer has not appealed, and which has therefore
become final.  Claimant reasserts his entitlement to the requested hourly rate.
     Since as a result of the first appeal the Board determined that claimant's
claims were timely filed, and claimant prevailed as a result of the second appeal
in obtaining medical benefits related to work-related cervical and toe problems,
claimant's attorney is entitled to a fee to be assessed against employer pursuant
to Section 28 of the Act,  33 U.S.C. §928. See generally Powers v. General
Dynamics Corp., 20 BRBS 119 (1987); Morgan v. General Dynamics Corp.,
16 BRBS 336, 339 (1984).  As we are again remanding the case for causation and
disability findings, however, and it is uncertain whether and to what degree
claimant will prevail on these issues, claimant's ultimate success is at present
unknown.   We therefore decline to award claimant's counsel  an attorney's fee at
this time, as the basis upon which we would determine the amount of such a fee is
uncertain.  We direct claimant's counsel to resubmit a fee petition at the
conclusion of the proceedings on remand. See 20 C.F.R. §802.203(c).

     Accordingly, the Decision and Order on Reremand denying disability benefits
is vacated, and the case is again remanded for further consideration consistent
with this opinion.  The award of medical benefits is affirmed.

     SO ORDERED.




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1)Claimant alleges that it was patently unreasonable to credit
the opinions of Drs. Tesar and Platt as Dr. Tesar previously testified in another
case that  heavy work activity can affect degenerative disk disease.  Employer's
burden on rebuttal is one of production, and this argument, which goes to the
weighing of the evidence, does not affect the fact that employer produced medical
evidence sufficient to rebut the presumed causal relationship.

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 2)     2Claimant's argument that Judge Holmes could not assess
Dr. Calhoun's opinion because he did not observe him is without merit, as weighing
the medical opinions has nothing to do with observing demeanor or determining
veracity.  Dr. Calhoun provided his opinion by way of reports; he did not testify. 
Judge Mahony did not observe him personally either, and there is no requirement
that an administrative law judge must observe a medical expert in order to weigh
his or her medical opinion.
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 3)Judge Mahony framed the issue of disability as "whether
claimant is capable of performing the duties required of a paint supervisor." 
Decision and Order on Remand at 14.  However, the fact that a claimant has the same
job title pre- and post-injury is irrelevant if the duties of the two positions are
not the same. See Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS
70, 72-73 and n.5 (1997).  Thus, the administrative law judge must address whether
claimant is capable of performing the duties of his pre-injury job.
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 4)Employer asserts that claimant has thus far presented bills
totaling $1,420.40.  Emp. Response to Attorney Fee Application at 5. 
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