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                                 BRB No. 99-0599

ANTHONY FOCARINO                        )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
                                             SELECT CARGO SERVICES,                  )    DATE ISSUED:   03/03/2000    
                                               
INCORPORATED                            )
                                        )
     and                                )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
                                                       Respondents                   )    DECISION and ORDER

          Appeal of the Decision and Order and Order on Motion for Reconsideration
     of Ralph A. Romano, Administrative Law Judge, United States Department
     of Labor.

          James R. Campbell, Middle Island, New York, for claimant.

          Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for employer/carrier.

          Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order and Order on Motion for
Reconsideration (98-LHC-0527) of Administrative Law Judge Ralph A. Romano 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, a cooper,[1]  was injured at work
on October 30, 1995.  He did not return to work.  Employer voluntarily paid
claimant temporary total disability benefits from October 31, 1995, until April 21,
1996.  Claimant sought temporary total disability benefits from April 22, 1996,
through April 4, 1998, and permanent total disability benefits from April 5, 1998,
and continuing.  The administrative law judge denied claimant additional disability
benefits, finding that the evidence does not establish claimant's continued
inability to return to his usual work.  The administrative law judge denied
summarily claimant's Motion for Reconsideration.  

     On appeal, claimant challenges the administrative law judge's denial of
additional disability benefits. Employer responds in support of the
administrative law judge's denial of benefits.  Employer also requests that
claimant's appeal be dismissed since claimant did not file a Petition for Review
in addition to his brief.[2] 

     To establish a prima facie case of total disability, claimant must
establish that he is unable to perform his usual employment due to his work-related
injury.  Lombardi v. Universal Maritime Service Corp., 32 BRBS 83 (1998);
 Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988). After consideration of
claimant's contentions on appeal, employer's response, and the administrative law
judge's decisions in light of the record evidence, we affirm the administrative law
judge's finding that claimant did not establish a continued inability
to return to his usual work, as it is supported by substantial evidence.   

     In the instant case, the administrative law judge acted within his discretion
in relying upon the opinions of Dr. Vassallo, that claimant may return to work on
November 27, 1995, and that of Dr. Swearingen, that claimant should be able to
return to whatever work he was doing before the work injury, as he found they were
well-reasoned, documented, detailed, and comprehensive.  See Calbeck v.
Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372
U.S. 954 (1963); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir.
1961); Decision and Order at 5; Emp. Exs. 4, 11, 17.  Contrary to claimant's
contention, the administrative law judge was not required to give less weight to
Dr. Vassallo's opinion  because he is not Board-certified or because he sent
claimant back to work before Dr. Magliato, the impartial examiner for the
Department of Labor, did.  As substantial evidence supports the finding that
claimant did not establish his prima facie case of total disability, we
affirm the administrative law judge's denial of additional disability benefits.
See generally Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242 (1989),
aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir. 1990).

     Accordingly, the administrative law judge's Decision and Order and
Order on Motion for Reconsideration denying claimant additional disability benefits
are affirmed.

     SO ORDERED.



                                                                                                      
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                                                      
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                                                      
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge


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Footnotes.


1)A cooper is responsible for the recooping, banding, stuffing, and retaping of cargo that has been damaged or opened by United States Customs. Tr. at 152-153, see also Tr. at 23-24, 69; Cl. Ex. 11 at 16; Emp. Ex. 17 at 26. Back to Text
2)The Board denies employer's motion to dismiss and will address claimant's appeal. 20 C.F.R. §802.211(d). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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