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                                    BRB No. 02-0687

ARISTOMENIS PSALIDAS                    )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
CORE LABORATORIES                       )  DATE ISSUED:   06/30/2003
2003
                                        )
     and                                )
                                        )
AMERICAN HOME ASSURANCE                 )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )  DECISION and ORDER

        Appeal of the Decision and Order Denying the Claim of Robert D.
        Kaplan, Administrative Law Judge, United States Department of Labor.

        Aristomenis Psalidas, Flushing, New York, pro se.

        Before:  DOLDER, Chief Administrative Appeals Judge, SMITH and
        McGRANERY, Administrative Appeals Judges.

        PER CURIAM:
        Claimant, without the assistance of counsel, appeals the Decision and Order
Denying the Claim (01-LHC-2965) 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).  As claimant appeals without  representation by counsel, we will review
the administrative law judge's findings of fact and conclusions of law to determine whether they are
supported by substantial evidence, are rational, and are in accordance with law.  O'Keeffe v. Smith, Hinchman &
Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.§921(b)(3); 20 C.F.R. §§802.211(e),
802.220.  If they are, they must be affirmed.
        Claimant, who was 65 years old at the time of the formal hearing, was employed by employer as a
petroleum inspector from March 1978  until December 8, 1999.  In furtherance of his employment duties,
claimant traveled to marine terminals where he boarded vessels and barges in order to measure and take
samples of the liquids, including petroleum products, stored there.  Claimant testified that he first noticed that
he was experiencing breathing problems and coughing in 1996.  He stayed out of work for several weeks in
1996 due to his breathing difficulties and consulted Dr. Bakoss who prescribed a spray inhaler and
medication.  The inhaler alleviated his shortness of breath for two to six hours.  Claimant's breathing
difficulties became progressively worse, and by 1999 he needed to use his prescribed inhaler all of the time
and he felt fatigued at work.  A co-worker and claimant's field supervisor testified that they noticed that
claimant had breathing problems and coughed all of the time; these witnesses further testified that when
claimant had trouble performing physical work, others helped him by carrying his tools.  Tr. at 12, 17-19, 21-25, 29.  Claimant last worked for employer on December 8, 1999, and claimant lists that as the date of the
alleged injury.[1]   Claimant subsequently filed a claim for benefits
under the Act, alleging that he is total disabled as a result of respiratory or pulmonary problems arising from
the inhalation of irritants or toxic matter with which he came into contact during his work with employer.  
        In his Decision and Order,[2]   the administrative law judge
credited the opinion of Dr. Karetzky that claimant has no pulmonary or respiratory injury, and that therefore
the question of whether claimant has a causally-related injury is moot.  Consequently, the administrative law
judge denied claimant benefits under the Act.  
        On appeal, claimant, representing himself, appeals the administrative law judge's denial of benefits. 
Employer  has not filed a response brief. 
        In establishing the work-relatedness of his condition, claimant is aided by the Section 20(a), 33
U.S.C. §920(a), presumption. See Kubin v. Pro-Football, Inc., 29 BRBS 117 (1995).  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 either a work-related accident occurred or that working conditions
existed which could have caused or aggravated the 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).  Claimant need not show that he has a specific illness or disease in
order to establish that he has suffered an injury under the Act, but need only establish some physical
harm, i.e., that something has gone wrong with the human frame. Wheatley v. Adler,
407 F.2d 307 (D.C. Cir. 1968); see Crawford v. Director, OWCP, 932 F.2d 152, 24 BRBS
123(CRT) (2d Cir. 1991); Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989).  In this regard,
a claimant's credible complaints of subjective symptoms can be sufficient to establish the element of
physical harm necessary to invoke the presumption. See Sylvester v. Bethlehem Steel Corp.,
14 BRBSD 234 (1981), aff'd, 681 F.2d 359, 14 BRBS 984 (5th Cir. 1982). 
        In the instant case, although the administrative law judge did not specifically invoke the Section
20(a) presumption, any error in this regard is harmless.  It is not disputed that claimant was exposed to
various irritants while performing his employment duties as a petroleum tester for employer; thus,
claimant has established the existence of working conditions which may have caused or aggravated his
alleged harm.  Moreover, claimant testified, and the two physicians of record do not dispute, that he has
experienced shortness of breath and coughing since at least 1996.[3]  See Tr. at 34, 35; CXs 3, 7, 12 (Deposition of Dr.
Bakoss) at 8-9; EX 1 (Deposition of Dr. Karetzky) at 12, 19, 20-22, 31, 39-41, 57-58.  As it is thus
undisputed that claimant, since at least 1996, has experienced shortness of breath and coughing,
something has gone wrong within claimant's frame, and he is entitled to invocation of the
presumption.  
        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 neither caused nor aggravated by his employment.
See Conoco 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); Swinton v. J. Frank
Kelley, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976);
Bridier v. Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995).  Thereafter, 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 O'Kelley v. Dep't of
the Army, 34 BRBS 39 (2000); see also Director, OWCP v. Greenwich Collieries, 512 U.S.
267, 28 BRBS 43(CRT)(1994).  In this case, the opinion of Dr. Karetzky, which was credited by the
administrative law judge, is substantial evidence to rebut the presumption and establish the absence of
a causal nexus between claimant's symptoms and his work exposure on the record as a whole.  Dr.
Karetzky testified that claimant has no lung disease, no abnormalities on objective testing, no airway
obstruction as would be expected with presence of occupational asthma, and that claimant's symptoms
were continuous and chronic rather than limited to episodes upon exposure.  EX 1 at 15, 16, 21, 23.  He
therefore concluded that claimant does not have an occupationally induced lung problem.  Id. 1
at 20-22, 31, 39-41, 57-58. See generally Holmes v. Universal Maritime Service Corp.,
29 BRBS 18 (1995).  The administrative law judge gave rational reasons for crediting Dr. Karetzky's
opinion rather than that of Dr. Bakoss, who diagnosed occupational asthma.  As the administrative law
judge's decision is supported by substantial evidence, we affirm his conclusion that claimant's present
condition is not causally related to his employment.[4]  
        
        
        
        Accordingly, the Decision and Order Denying the Claim of the administrative law judge is
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)The administrative law judge stated that the record contains no evidence whether claimant was last employed with employer in New York or New Jersey. Back to Text
2) Claimant was represented by an attorney during the proceedings before the administrative law judge. Back to Text
3) Dr.Bakoss testified on deposition that he first saw claimant on February 5, 1996, and that claimant presented with tightness and shortness of breath and cough on exertion, and that claimant's history of increased symptoms while at work was consistent with asthmatic bronchitis. CX 12 at 9-14. Dr. Karetzky deposed that claimant's symptoms were continuous and chronic and that at the time he examined claimant, claimant reported that he coughed all the time and always experienced shortness of breath when he walked up stairs. Dr. Karetzky testified that, if so, reversibility of claimant's breathing dysfunction would be lost, but claimant has no airway obstruction to explain his current symptomatology. EX 1 at 20-22, 31, 39-41, 57-58. Back to Text
4) In his letter appealing the administrative law judge's Decision and Order to the Board, claimant states that he has acquired significant and relevant new medical evidence regarding the compensability of his claim for benefits under the Act. Should claimant wish for this new evidence to be considered, he may file, pursuant to Section 22 of the Act, 33 U.S.C. §922, a petition for modification with the district director. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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