BRB No. 00-0982
RONALD J. GNIAZDOWSKI )
)
Claimant-Petitioner )
)
v. )
)
I.T.O. CORPORATION OF ) DATE ISSUED: 06/20/2001
BALTIMORE, INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of John C. Holmes, Administrative Law
Judge, United States Department of Labor.
Gerald F. Gay (Arnold & Gay, P.A.), Baltimore, Maryland, for claimant.
Robert J. Lynott (Thomas & Libowitz, P.A.), Baltimore, Maryland, for
self-insured employer.
Before: SMITH and DOLDER, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order (99-LHC-1488) 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).
Claimant suffered a fracture of his first toe when his right foot was struck
by a turnbuckle as he was assisting in the unloading of a barge on October 28,
1992. Subsequently, claimant developed an infection in the toe resulting in the
removal of the toe nail on November 23, 1992. Claimant was released to return to
work on January 10, 1993, but thereafter retired on a disability pension.[1] In March 1993, claimant developed an infection
in his right ankle resulting in an ulcer. On March 24, 1993, claimant underwent
a surgical procedure for the removal of a necrotic ulcer from his right ankle.
In his decision the administrative law judge initially found that the parties
were in agreement that claimant sustained a work-related injury to his big toe.
The administrative law judge concluded, however, that claimant failed to establish
his prima facie case under Section 20(a) of the Act, 33 U.S.C.
§920(a), with regard to his ankle condition. Assuming, arguendo, that
claimant was entitled to invocation of the Section 20(a) presumption, the
administrative law judge determined that employer had established rebuttal of that
presumption and that claimant failed to establish a causal connection between his
employment with employer and his ankle condition based upon the evidence as a
whole. Accordingly, the administrative law judge found claimant entitled to
temporary total disability compensation from November 29, 1992, until January 13,
1993 and, thereafter, permanent partial disability compensation for a ten percent
impairment to his great toe under the schedule based upon claimant's stipulated
average weekly wage. See 33 U.S.C. §908(c)(8).
On appeal, claimant contends that the administrative law judge erred in not finding that claimant sustained a work-related injury to his right ankle. Employer responds, urging affirmance of the administrative law judge's decision in its
entirety.[2]
Claimant initially contends that the administrative law judge erred in failing to invoke the Section 20(a)
presumption with regard to his right ankle condition. In order to be entitled to the
Section 20(a) presumption, claimant must establish a prima facie case by
showing that he suffered a harm and that an accident occurred or working conditions
existed which could have caused the injury or harm. See U.S. Industries/Federal
Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982);
Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996); Obert v. John T.
Clark & Son of Maryland, 23 BRBS 157 (1990). 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). Claimant is not,
however, required to prove that the working conditions in fact caused the harm;
rather, claimant must show only the existence of working conditions which could
have conceivably caused the harm alleged. See Sinclair v. United Food &
Commercial Workers, 23 BRBS 148 (1989); see generally U. S. Industries, 455 U.S. 608,
14 BRBS 631. However, claimant's theory as to how the injury occurred must go beyond "mere fancy." See Stevens
v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).
In his Decision and Order, the administrative law judge acknowledged that claimant
sustained "some harm" to his right ankle but declined to invoke the Section 20(a)
presumption, stating that claimant's failure to prove that there was a connection
between his work-related toe injury and his ankle infection prevents invocation
of the presumption. See Decision and Order at 5. In order to establish his
prima facie case for invocation of the statutory presumption, however,
claimant is not required to prove that working conditions in fact caused the harm
alleged. In any event, in this case, any error with regard to whether Section
20(a) is invoked, is harmless, as the administrative law judge found in the
alternative that, if invoked, the presumption was rebutted, and this finding is
supported by substantial evidence.
It is employer's burden on rebuttal to present substantial evidence sufficient
to sever the causal connection between the injury and the employment. Swinton v.
J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert denied, 429 U.S. 820 (1976); see also
Del Vecchio v. Bowers, 296 U.S. 280 (1935); American Grain Trimmers, Inc. v. Director, OWCP, 181 F.3d
810, 33 BRBS 71(CRT)(7th Cir. 1999)(en banc); Duhagon v. Metropolitan Stevedore
Co., 169 F.3d 615, 33 BRBS 1(CRT)(9th Cir. 1999), aff'g 31 BRBS 98;
Bath Iron Works Corp. v. Director, OWCP, 950 F.2d 56, 25 BRBS 55(CRT) (1st Cir.
1997); O'Kelley v. Dep't of the Army/NAF, 34 BRBS 39 (2000). Where
aggravation of a pre-existing condition is at issue, employer must establish that
work events neither directly caused the injury nor aggravated the pre-existing
condition resulting in injury. See, e.g., Cairns v. Matson Terminals, 21
BRBS 252 (1988). The testimony of a physician that no relationship exists between
an injury and a claimant's employment is sufficient to rebut the presumption.
See Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984). If the
administrative law judge finds that the Section 20(a) presumption is rebutted, he
must weigh all of the evidence and resolve the causation issue based on the record
as a whole. See Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985); see
also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT)(1994); Del Vecchio v.
Bowers, 296 U.S. 280 (1935).
In this case, the administrative law judge determined that employer established rebuttal of the Section 20(a)
presumption based upon the opinion of Dr. Honick, claimant's long-term treating physician, that claimant's right ankle
infection and toe injury were not connected. Although claimant contends that Dr. Honick's opinion supports his position
that the ankle ulcer was related to the work injury, Dr. Honick's records support the administrative law judge's conclusion
that Dr. Honick viewed the two conditions as separate and unrelated.[3] Moreover,
the administrative law judge found that Dr. Honick's records are supported by Dr. Becker's assessment that
claimant's ankle ulcer was unrelated to either the initial injury to claimant's
right great toe or the resulting surgery.[4] These
opinions constitute substantial evidence sufficient to rebut the presumption;
therefore, we affirm the administrative law judge's finding that the Section 20(a)
presumption is rebutted. See generally Phillips v. Newport News Shipbuilding &
Dry Dock Co., 22 BRBS 94 (1988).
Claimant next argues that the administrative law judge erred in finding that
he failed to establish causation based on the record as a whole; specifically,
claimant avers that the opinions of Drs. Honick and DeLeon establish the existence
of a causal relationship between his employment and his ankle condition. After
considering all of the medical evidence of record, the administrative law judge
concluded that the opinions of Drs. Honick and DeLeon were insufficient to meet
claimant's burden of proof. Specifically, the administrative law judge initially
found that Dr. DeLeon, while asking the question of whether a causal relationship
existed between claimant's toe and ankle condition, never answered that question.[5] Next, the administrative law judge considered
the medical records of Dr. Honick, claimant's treating physician, reflecting that
claimant's ankle problem was considered a separate condition, CX 2, the supporting
opinion of Dr. Becker, and the considerable time gap between the toe injury and
claimant's ankle infection, in concluding that claimant's ankle injury is not
related to his work accident.
In this case, as the administrative law judge fully evaluated the relevant
evidence and his findings regarding the medical opinions are supported by the
record, his determination that claimant failed to meet his burden in this case is
affirmed. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT). We
therefore affirm the administrative law judge's determination, based on the record
as a whole, that claimant's right ankle condition is not causally related to his October 28, 1992, work accident. See, e.g., Rochester
v. George Washington University, 30 BRBS 233 (1997).
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)In addition to the injury to his toe, claimant has been diagnosed as suffering from diabetes,
panic attacks and arthritis. CX 7.
Back to Text
2)The Board notes that employer now operates under the name of P&O Ports, Incorporated.
See Employer's Response Brief.
Back to Text
3)On March 3, 1993, Dr. Honick reported that claimant's work-related toe injury had healed
and showed no signs of infection, Dr. Honick then mentioned, without apparent connection, the appearance of a small
necrotic ulcer on claimant's ankle. CX 2.
Back to Text
4)Dr. Becker stated that any "further management of this patient's foot [ankle ulcer] in no way
relates to this accident of 10/28/92....certainly the surgery performed by Dr. DeLeon for this patient's ulcer in the ankle in
no way relates to the accident... ." EX 2.
Back to Text
5)In his office notes of November 29, 1993, Dr. DeLeon asks if the toe and ankle infection are
related and refers to a report that would be prepared "for the lawyer." See CX 3. Dr. DeLeon never answered his
own question in his office notes and no follow-up report is contained in the record.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document
|
