BRB No. 01-0782
HERSHEL DAVIS )
)
Claimant-Respondent )
)
v. )
)
DELAWARE RIVER ) DATE ISSUED: 06/24/2002
STEVEDORES )
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Self Insured )
Employer-Petitioner ) DECISION and ORDER
Appeal of the Decision and Order and Decision Denying Reconsideration of
Ralph A. Romano, Administrative Law Judge, United States Department of
Labor.
David M. Linker (Freedman and Lorry, P.C.), Cherry Hill, New Jersey, for
claimant.
John E. Kawczynski (Field, Womack & Kawczynski, LLC), South Amboy, New
Jersey, for self-insured employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order and Decision Denying Reconsideration
(00-LHC-2160) of Administrative Law Judge Ralph A. Romano awarding benefits 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, while working for employer as a crane operator, sustained injuries
to his right foot and left hip when he fell through the floor of a crane on
December 16, 1998. Following the accident, claimant was evaluated at U.S.
Healthworks where he was diagnosed with a left hip strain, right foot strain and
a fracture of his right second toe. Claimant subsequently sought and received treatment from a
Board-certified orthopedic surgeon, Dr. Mandel, beginning on February 3, 1999. Dr. Mandel initially diagnosed
degenerative joint disease of the left hip and a healed fracture of the second toe of right foot, and ordered two weeks of
physical therapy. Dr. Mandel cleared claimant to return to work as of March 1, 1999, and employer's records indicate that
between March 3, 1999, and April 7, 1999, claimant returned to work for 77 hours.[1]
Dr. Mandel next saw claimant on April 8, 1999, at which time he stated that claimant "has been working but notes
increasing left hip pain." As a result of claimant's complaints, Dr. Mandel reduced claimant's work level from full duty
to sedentary duty only. Dr. Mandel recommended on May 13, 1999, that claimant attend an aquatic exercise program at
the local YMCA, and claimant later briefly participated in this therapy. Over the course of the next several months claimant
developed multiple medical problems including the onset of diabetes, high blood pressure, a pituitary tumor, and congestive
heart failure.[2]
At his deposition, Dr. Mandel stated that at the time of his last examination of claimant, on April 21, 2000, he
observed the following work-related diagnoses: 1) a healed fracture of the second toe of the right foot; 2) aggravation of
degenerative arthritis of the left hip; and 3) indirectly lumbar strain and sprain. Claimant's Exhibit (CX) 1 at 18. Dr.
Mandel explained that the back strain/sprain occurred during physical therapy for his work-related problems, and
additionally opined that claimant could not have returned to work for employer at any time that he had been under his care.
CX 1 at 18, 21.
Employer had claimant examined by a Board-certified orthopedic surgeon, Dr. Kahn, on August 24, 2000. Dr. Kahn
diagnosed a "history of lumbosacral sprain and strain," and opined that claimant has subjective complaints without any
objective findings, that there was no evidence of a back injury, that claimant's problems appear to be cardiac in origin as
well as due to his gross obesity, and that from an orthopedic standpoint, claimant could return to work full duty. JX 14.
On August 20, 2000, Dr. Pickering, a cardiologist, diagnosed: 1) morbid obesity; 2) multiple compression fractures of the
spine; 3) degenerative joint disease of the left hip; 4) hypertension; 5) congestive heart failure; 6) maturity onset diabetes,
and he opined that claimant was totally disabled from all work due to these conditions. JX 13. In a supplemental report
dated September 26, 2000, Dr. Pickering opined that claimant was fully recovered from his injury of December 16, 1998.
JX 13.
In his decision, the administrative law judge found that claimant was entitled to invocation of the Section 20(a)
presumption with regard to the aggravation of his degenerative arthritic condition of his left hip, 33 U.S.C. §920(a),
and that employer has not established rebuttal. He therefore concluded that claimant is entitled to a continuing award of
temporary total disability benefits from December 17, 1998, and related medical benefits
under Section 7 of the Act, 33 U.S.C. §907. Employer's motion for
reconsideration was summarily denied.
On appeal, employer asserts that the administrative law judge's award of
benefits cannot stand as his decisions do not comply with the Administrative
Procedure Act (APA), 5 U.S.C. §557(c)(3)(A). Claimant responds, urging
affirmance.
Employer argues that the administrative law judge's decisions do not comply
with the APA because he failed to fully discuss all of the evidence of record and
did not provide the reasons why it was credited or discredited. In particular,
employer asserts that the administrative law judge ignored claimant's testimony
that he could not return to work because of his non-work-related excessive weight
gain, the administrative law judge did not address the testimony of employer's
expert cardiologist, Dr. Pickering, that claimant is disabled due to his multiple
non-work-related medical problems, and that the administrative law judge
misinterpreted the testimony of claimant's expert, Dr. Mandel, regarding claimant's
back injury and failed to address employer's contention that Dr. Mandel's testimony
was equivocal and based on facts not in evidence. In addition, employer argues
that the administrative law judge erred in awarding total disability benefits
during a time period in which claimant had returned to work for employer. Lastly,
employer maintains that the administrative law judge exacerbated his errors by
issuing a summary denial of its request for reconsideration.
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. Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996); Obert
v. John T. Clark & Son of Maryland, 23 BRBS 157 (1990); see also U.S.
Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982). Once the Section 20(a) presumption is invoked, the burden shifts to employer to rebut the presumption
with substantial evidence that claimant's condition was not caused or aggravated by his employment. See
Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT)(9th Cir. 1999); Manship v. Norfolk
& Western Ry. Co., 30 BRBS 175 (1996). It is employer's burden on rebuttal to present substantial evidence sufficient
to sever the causal connection between the injury and the employment. Conoco, Inc. v. Director,
OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); American Grain
Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999),
cert. denied, 120 S.Ct. 1239 (2000). 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, with claimant
bearing the burden of persuasion. 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).
In his decision, the administrative law judge found that claimant invoked the
Section 20(a) presumption based on the opinion of Dr. Mandel, that the December 16,
1998, work accident aggravated a degenerative arthritic condition of claimant's
left hip rendering him incapable of the climbing requirements of that job, as well
as claimant's own consistent and credible testimony that his left hip problems and
consequent climbing difficulties related to his work accident. The administrative
law judge then determined that employer did not establish rebuttal. Specifically,
he observed that he could attach no significance to Dr. Kahn's examination and
opinion because he did not examine claimant's left hip, and thus never rendered an
opinion relative to whether claimant's climbing capacity is affected by any
impairment thereto. He thus concluded that there exists in the record "absolutely
no expert orthopedic medical opinion evidence refuting claimant's proffered expert
orthopedic medical opinion evidence (from Dr. Mandel) that claimant cannot perform
the climbing requirements of his job due to the left hip impairment." Decision and
Order at 5. Accordingly, he found claimant entitled to continuing temporary total
disability benefits from December 17, 1998.
The record establishes, and employer admits, that claimant sustained an injury
to his left hip as a result of his work accident on December 16, 1998. Dr. Mandel
diagnosed a work-related aggravation of degenerative joint arthritis of the left
hip. Moreover, the presumption cannot be rebutted as a matter of law as employer
has offered no evidence severing the causal connection between the work accident
and the aggravation of claimant's degenerative joint disease of his left hip.
See Bass v. Broadway Maintenance, 28 BRBS 11 (1994). Neither Dr. Kahn nor
Dr. Pickering provides any causation opinion contrary to the one proffered by Dr.
Mandel with regard to claimant's left hip condition. Consequently, the
administrative law judge's findings that claimant is entitled to the Section 20(a)
presumption, that employer has not established rebuttal, and thus, that claimant
has established that he sustained a work-related aggravation of his degenerative
joint disease condition of his left hip are affirmed as rational, supported by
substantial evidence and in accordance with law.
We observe however that the administrative law judge intermingled the issues
of causation and disability. The Section 20(a) presumption does not apply to the issues of the nature and
extent of disability. Carlisle v. Bunge Corp., 33 BRBS 133 (1999), aff'd, 227 F.3d 934, 34 BRBS 79(CRT)
(7th Cir. 2000); Jones v. Genco, Inc., 21 BRBS 12 (1988). Thus, upon determining that claimant sustained a work-related aggravation of his degenerative joint disease, the administrative law judge should have determined whether claimant
established his entitlement to total disability benefits based on this hip condition.
To establish a prima facie case of total disability, claimant must show that he cannot return to his regular
or usual employment due to his work-related injury. See Williams v. Halter Marine Service, Inc., 19 BRBS 248
(1987); Elliot v. C & P Telephone Co., 16 BRBS 89 (1984). In the instant case, the administrative law judge, in
his discussion of the Section 20(a) presumption, determined that Dr. Mandel opined that the work-related aggravation of
claimant's degenerative arthritic left hip condition rendered him incapable of the climbing requirements of his usual
employment. This opinion is the basis for the administrative law judge's conclusion that claimant is entitled to temporary
total disability benefits. In addition, the administrative law judge rejected, as neither relevant nor persuasive, employer's
contention that the numerous inconsistencies in Dr. Mandel's opinion warrant its rejection as credible evidence of
claimant's condition. The administrative law judge also determined that the record did not support employer's contention
that claimant had conceded he was totally disabled by non-work-related medical problems, and the administrative
law judge flatly rejected as irrelevant Dr. Kahn's opinion with regard to
claimant's left hip condition.
The Administrative Procedure Act requires that every adjudicatory decision be
accompanied by a statement of "findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law or discretion presented on the
record." 5 U.S.C. §557(c)(3)(A). An administrative law judge must
independently analyze and discuss the evidence, and must adequately detail the
rationale behind his decision and specify the evidence upon which he relied.
Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988); Williams v.
Newport News Shipbuilding & Dry Dock Co., 17 BRBS 61 (1985).
Although the administrative law judge's findings on the issue of disability
were incorrectly subsumed in his consideration of the evidence of causation under
Section 20(a), he nevertheless sufficiently discussed the relevant evidence of
record and provided a rationale for concluding that claimant cannot perform his
usual work as a result of his work-related left hip condition. This finding is
supported by substantial evidence.[3] See
generally Corcoran v. Preferred Stone Setting, 12 BRBS 201 (1980).
Specifically, as the administrative law judge found, Dr. Mandel opined that
claimant has been unable to perform his usual work as a crane operator during the
time period of the doctor's treatment, i.e., February 3, 1999, through
November 10, 2000. CX 1 at 21. The doctor added that while he did send claimant
back to work, and that claimant attempted to work for a short period of time,
claimant was physically unable to perform his usual work as a crane operator.
Id. Dr. Mandel based this opinion on his belief that the climbing requirements associated with that position,
i.e., climbing a ladder anywhere from 30 to 50 feet four or five times a day, would, as a result of the condition of
claimant's left hip, put a lot of stress on the hip joint and would therefore be problematic. CX 1 at 21-22. In short,
Dr. Mandel attributed claimant's inability to perform his usual employment to a work-related aggravation of his left hip
condition.
In crediting Dr. Mandel's opinion regarding claimant's inability to perform his usual work, albeit under his
discussion of the Section 20(a) presumption, the administrative law judge specifically considered and rejected employer's
contentions regarding Dr. Mandel's opinion. Both before the administrative law judge below and before the Board on
appeal employer's arguments have predominantly focused on Dr. Mandel's statements regarding the work-relatedness of
claimant's back strain/sprain, which the administrative law judge found is meaningless in light of the fact that the left hip
injury, and not the back injury, is the disabling factor underlying Dr. Mandel's opinion. Moreover, the administrative law
judge determined that the suggestion that Dr. Mandel had, in November and December 1999, released claimant to return
to work despite the back impairment is neither inconsistent with his disability opinion regarding claimant's hip, nor
contradictory to his December 29, 1999, office treatment note since, as Dr. Mandel explained, a later February 2000, x-ray
of the left hip displayed a worsening of the degenerative arthritis of that hip.
Contrary to employer's contention, the administrative law judge similarly rejected, as unsupported, its assertion that
claimant's testimony establishes that the only reason he cannot perform his usual employment is due to his non-work-related
excessive weight. Specifically, the administrative law judge found that the record contains no support for this assertion and
that claimant's testimony on this issue, in fact, supports the opposite conclusion. At the hearing, claimant testified that "I've
seen bigger guys go up in the cranes," and that "I could have probably got up in there," but that "with my condition now,
my legs and hip and back, I wouldn't want to take a chance going up in the crane." HT at 33. Moreover, the administrative
law judge rationally accorded less weight to Dr. Kahn's examination and opinion on the issues of causation and disability
attributable to claimant's left hip condition, because Dr. Kahn did not examine claimant's left hip, and thus, did not render
an opinion relative to whether claimant's climbing capacity is affected by any impairment due to that condition.[4]
Furthermore, while employer correctly notes that the administrative law judge did
not discuss Dr. Pickering's opinion, any error is harmless. On September 26, 2000,
Dr. Pickering opined that claimant is totally disabled as a result of his morbid
obesity, and his chronic back pain which is augmented by his obesity. JX 13. Dr.
Pickering, however, readily admitted at his deposition that he is a cardiologist
and not an orthopedist and that he cannot offer an opinion on the nature or the
cause of any disability relating to any orthopedic conditions which claimant may
have sustained as a result of his work-related accident of December 16, 1998. EX
1 at 19. In addition, the administrative law judge's finding that claimant cannot
do his usual employment rests on Dr. Mandel's opinion and the fact there is
"absolutely no expert orthopedic medical opinion evidence" of record to the
contrary. Decision and Order at 5. Consequently, as the credited evidence of record establishes that
claimant cannot do his usual employment as a result of the work-related aggravation of his left hip, and as employer has
presented no evidence of suitable alternate employment, we affirm the administrative law judge's finding that claimant is
entitled to temporary total disability benefits.[5] See generally Clophus v.
Amoco Prod. Co., 21 BRBS 261 (1988).
Accordingly, the administrative law judge's decisions are affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant however steadfastly maintains that following the December 16, 1998, accident he
never went back to work. Hearing Transcript (HT) at 21, 33.
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2)The record establishes that claimant was removed from his water therapy as a result of
hypertension. Additionally, claimant was hospitalized between September 3, 1999, and September 10, 1999, as a result
of congestive heart failure. Joint Exhibit (JX) 19. The record further indicates that claimant was previously hospitalized
between March 29, 1999, and April 2, 1999, for the symptoms of diarrhea, abdominal pain, and nausea. JX 19.
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3)Moreover, we reject employer's contention that the administrative law judge erred in
summarily denying its motion for reconsideration. Employer's contentions on reconsideration were virtually identical to
those submitted in its post-hearing brief, which were, as evidenced above, rejected by the administrative law judge in his
initial decision. As such, the administrative law judge reviewed and rejected the issues raised by employer on
reconsideration.
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4)In his deposition testimony, Dr. Kahn does, in fact, discuss this issue. After referencing Dr.
Mandel's statement that he did not address the issue of claimant's hip injury, Dr. Kahn acknowledged that he did not
examine claimant's hip because claimant reported to him "that [claimant] does not have any problems with his hip." EX
2, Deposition at 13-14. This admission supports the basis for the administrative law judge's discrediting of Dr. Kahn's
opinion.
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5)Since Dr. Mandel's opinion immediately following claimant's failed attempt to return to his
usual work establishes that claimant could not do this work in light of the work-related aggravation of his left hip condition
and thus, that claimant should not have been released to return to that work at that time, it establishes that this job was, as
opined by Dr. Mandel at his deposition, beyond his physical restrictions and therefore not suitable for him post-injury.
See generally Delay v. Jones Washington Stevedoring Co., 31 BRBS 197 (1998). In addition, the fact
that claimant allegedly worked only 77 hours over the course of one month's time establishes that claimant's ability to
perform this work is too speculative to satisfy employer's burden of showing the availability of suitable alternate
employment. See generally Caudill v. Sea Tac Alaska Shipbuilding, 25 BRBS 92 (1991), aff'd mem. sub nom.
Sea Tac Alaska Shipbuilding v. Director, OWCP, 8 F.3d 29 (9th Cir. 1993). Thus, this trial period of employment does
not establish that claimant was not totally disabled during the entire period in question.
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NOTE: This is an UNPUBLISHED LHCA Document.
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