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                                   BRB No. 02-0749
                                        
                                        
MAXINE PETTY                          )
                            )
          Claimant-Petitioner              )
                            )      
     v.                               )
                            )
ARMY & AIR FORCE EXCHANGE SERVICE  )DATE ISSUED:   06/26/2003
                            )
          Self-Insured Employer-           )
                Respondent                      ) DECISION and ORDER
                            )
                            )

     Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.

     Maxine Petty, Montgomery, Alabama, pro se.

     Paul B. Howell (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
     Mississippi, for employer.
     
     Before:  DOLDER, Chief Administrative Appeals Judge, McGRANERY and
     GABAUER, Administrative Appeals Judges.
     
     PER CURIAM:
     Claimant, without the assistance of counsel, appeals the Decision and Order
(2001-LHC-1944) of Administrative Law Judge Lee J. Romero, Jr., 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).  In an appeal by a claimant who is not represented by counsel, the Board will
review the administrative law judge's findings of fact and conclusions of law to
determine if they are rational, supported by substantial evidence, and in
accordance with law; if they are they must be affirmed.  O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).
     Claimant was employed at Maxwell Air Force Base in November and December 1993
as a sales area manger.  In November 1993, claimant was asked to help unload boxes
from an "eighteen-wheeler" truck over a period of several days, and on December 2,
she was asked to lift furniture and a rug.  She began to suffer back pain which
extended into her legs.  She was seen at the emergency room on December 2, 1993,
where she was diagnosed with a strained back muscle.  She attempted to return to
work beginning on December 13, 1993, but was either sent home or to the emergency
room due to complaints of back pain.  Claimant returned to work in February 1994,
working the same number of hours as before her December injury.  Hearing Transcript
(Tr.) at 91.  Claimant was seen in the emergency room for low back pain in March,
April and June 1994.  Dr. Babb, claimant's treating physician at that time,
recommended that claimant be restricted to sedentary work, but stated that there
had been no cause identified for claimant's chronic back pain.  Employer's Exhibit
(Emp. Ex.) 25.  On July 21, 1994, claimant was involved in a motor vehicle
accident.  She was seen by Dr. Babb on July 25, 1994, at which time she complained
of back pain since the July 21 accident, as well as severe pain in her right
shoulder and legs.  Claimant began treatment with Dr. Pinchback on January 4, 1995. 
After a course of treatment including facet joint injections and immobilization
with a fiberglass body jacket, Dr. Pinchback recommended and performed a
posterolateral lumbar arthrodesis on September 5, 1995.  Claimant has not returned
to work and sought compensation and medical benefits under the Act.
     In his decision, the administrative law judge found that employer concedes
that claimant sustained a work injury on December 2, 1993, for which temporary
total and temporary partial disability benefits have been paid.  Emp. Ex. 7. 
However, the administrative law judge found that claimant eventually returned to
her full and regular duties and was on vacation leave at the time of her automobile
accident in July 1994.  After reviewing the medical evidence and testimony of
record, the administrative law judge concluded that claimant's current injuries and
disability can be attributed to the July 1994 auto accident, and thus found that
employer is not liable for any further compensation or medical benefits.
     Claimant, without legal representation, appeals this decision.  Employer
responds, urging affirmance of the administrative law judge's decision.
     In establishing that an injury arises out of her employment, a claimant is
aided by the presumption under Section 20(a) of the Act, 33 U.S.C. §920(a),
which applies to the issue of whether an injury is causally related to the
employment activities.  See, e.g., O'Kelly v. Dept. of the Army/NAF, 34 BRBS
39 (2000).  The administrative law judge accepted the parties' stipulation that
claimant was injured on December 2, 1993, during the course and scope of her
employment.  Therefore, claimant has invoked the Section 20(a) presumption that her
disabling back condition is work-related.  Upon invocation of the presumption, the
burden shifts to the employer to present substantial evidence that claimant's
employment did not cause her condition. See Brown v. Jacksonville Shipyards,
Inc., 893 F.2d 294, 23 BRBS 22(CRT) (11th Cir. 1990); O'Kelley, 34 BRBS
at 41; see also American Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33
BRBS 71(CRT) (7th Cir.  1999), cert. denied, 528 U.S. 1187 (2000);
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.),
cert. denied, 429 U.S. 820 (1976).  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 Gooden v.
Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1998).
     In a case involving a subsequent injury, an employer can rebut the Section
20(a) presumption by showing that the claimant's disabling condition was caused by
a subsequent event, provided the employer also proves that the subsequent event was
not caused by the claimant's work-related injury. See Plappert v. Marine Corps
Exchange, 31 BRBS 13, aff'd on recon. en banc, 31 BRBS 109 (1997);
Bass v. Broadway Maintenance, 28 BRBS 11 (1994); James v. Pate
Stevedoring Co., 22 BRBS 271 (1989).  The employer is liable for the entire
disability if the second injury is the natural or unavoidable result of the first
injury; however, where the second injury is the result of an intervening cause, the
employer is relieved of liability for the portion of the disability attributable
to the second injury. See generally Shell Offshore, Inc. v. Director, OWCP,
122 F.3d 312, 31 BRBS 129(CRT)  (5th Cir. 1997), cert. denied, 523 U.S. 1095
(1998); Jones v. Director, OWCP, 977 F.2d 1106, 26 BRBS 64(CRT) (7th Cir.
1992).
     In reviewing the medical evidence of record, the administrative law judge
found that the diagnostic testing and neurological exams ordered and performed
before the July 1994 auto accident were negative.  In addition, he found that Dr.
Miller released claimant to return to full duty by February 1994, Emp. Ex. 22, and
that Dr. Canedo opined that claimant reached maximum medical improvement without
permanent impairment about February 16, 1994.  Emp. Ex. 24.  The administrative law
judge also found that claimant returned to work prior to July 1994, and that she
had been working ten to twelve hours a day in her usual position as a sales area
manager.[1]   Tr. at 91.  The administrative law judge thus rationally concluded that any
injury sustained as a result of the December 1993 work-related accident had stabilized before July 1994. See
generally Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2nd Cir. 1961).
     The administrative law judge also reviewed the medical evidence regarding the cause of claimant's physical
condition after the motor vehicle accident in July 1994.  He found that Dr. Canedo opined that the auto accident
permanently aggravated her back condition and led to the surgery performed in September 1995, and that
claimant's present condition is not due to her injury in December 1993. Emp. Ex. 24.  In addition, Dr. Pinchback,
claimant's treating physician, opined that the motor vehicle accident of July 21, 1994, "aggravated [claimant's]
underlying back condition to the point that she was no longer able to continue performing her employment and
required surgery."  Emp. Ex. 32.  Dr. Pinchback also opined that prior to the auto accident, claimant had no
identifiable disability. Id.  In addition to the medical evidence, the record contains the testimony of
claimant and her husband in a civil case involving the July 1994 auto accident, in which they stated that claimant's
pain and symptoms increased following the accident. See Emp. Exs. 28-29.
     The administrative law judge thoroughly reviewed the evidence of record, and his finding that the July 1994
auto accident, which was not a natural or unavoidable result of the initial work accident, was the supervening cause
of claimant's disability thereafter is supported by substantial evidence.  Thus, we affirm the administrative law
judge's finding that claimant's current back condition is due solely to the injuries suffered in the motor vehicle
accident of July 21, 1994, see Arnold v. Nabors Offshore Drilling, Inc., 35 BRBS 9 (2001), aff'd
mem., 32 Fed. Appx. 126 (5th Cir. 2002)(table), and that employer is not liable for any further compensation
or medical benefits under the Act.
     Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
     SO ORDERED.


                              ____________________________________
                              NANCY S. DOLDER, Chief
                              Administrative Appeals Judge



                              ____________________________________
                              REGINA C. McGRANERY
                              Administrative Appeals Judge



                              ____________________________________
                              PETER A. GABAUER, Jr.
                              Administrative Appeals Judge     




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Footnotes.


1) Claimant testified in the present case that she was on vacation leave at the time of the car accident in July because employer refused to grant her sick leave. Tr. at 91. However, in a previous deposition, claimant stated that she was on vacation because she planned to go to Cincinnati for a week. Tr. at 95. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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