Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB Nos. 99-0607
                             and 99-0607A    
                                         
DAVID K. WILSON                         )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
ATLAS WIRELINE SERVICES                 )    DATE ISSUED:   03/10/2000

                                        )
     and                                )
                                        )    
CNA INSURANCE COMPANIES                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
                                                       Cross-Respondent              )    DECISION and ORDER

          Appeal of the Decision and Order and Order Granting in Part and Denying
     in Part Motion for Reconsideration of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.

          David K. Wilson, Ellisville, Mississippi, pro se.

          Thomas J. Smith and Kevin A. Marks (Galloway, Johnson, Tompkins & Burr),
     New Orleans, Louisiana, for employer/carrier.

          Laura Stomski (Henry L. Solano, Solicitor of Labor; Carol DeDeo,
     Associate Solicitor; Samuel J. Oshinsky, Counsel for Longshore),
     Washington, D.C., for  the Director, Office of Workers' Compensation
     Programs, United States Department of Labor.  
          Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant, representing himself, appeals, and employer cross-appeals, the
Decision and Order and Order Granting in Part and Denying in Part Motion for
Reconsideration (98-LHC-255) 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. (the
Act).  In an appeal by a claimant without representation by counsel, the Board will
review the administrative laws 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); 20 C.F.R. §§802.211(e), 802.220.

     Claimant injured his lower back on December 27, 1988, during the course of his
employment for employer as a field engineer. On February 6, 1989, claimant had a
lumbar hemilaminectomy and diskectomy, which was performed by Dr. Lowry.  Claimant
obtained work as an auto parts service writer on January 22, 1990; however, he quit
this job due to back pain on June 16, 1990 and has not worked since. On June 10,
1996, Dr. Lowry installed a TENS unit, which he removed a week later as it was
ineffective for pain relief.  On October 10, 1996, claimant received a morphine
pump, which has provided some relief; however, claimant also requires Darvocet on
occasion.  Dr. Lowry subsequently recommended psychological counseling for
depression and suicidal and homicidal ideation.  Claimant was seen by Lynda Thoms,
a psychological counselor, in December 1997, who diagnosed depression and post-
traumatic stress.  He was also evaluated by Drs. Kamp and Maggio, both of whom
opined that claimant is unable to work due to his psychological condition. 

     In his Decision and Order, the administrative law judge accepted the parties'
stipulation that claimant sustained a work-related orthopaedic injury.  He credited
the  opinions of Ms. Thoms, Dr. Kamp and Dr. Maggio to find that claimant
established a prima facie case of a work-related psychological injury and
thus invoked the presumption in  Section 20(a) of the Act, 33 U.S.C. §920(a);
he further found that employer failed to produce sufficient evidence to rebut the
Section 20(a) presumption.  He credited the opinion of Dr. Lowry that claimant's
back condition reached maximum medical improvement on May 19, 1997, and the
opinions of Ms. Thoms, Dr. Kamp and Dr. Maggio to find that claimant's depression
has not reached maximum medical improvement.  Furthermore, he credited the work
restrictions placed by Drs. Lowry and Helveston, both of whom limited claimant to
lifting no more than 25 pounds.  Dr. Helveston also opined that any job should
allow for  alternate sitting and standing, while Dr. Lowry further opined that
claimant could, at best, perform sedentary work for a couple of hours at a time
and, ideally, claimant would have frequent rest breaks when he could lie down.  The
administrative law judge  found that employer failed to establish the availability of
suitable alternate employment.  He credited the vocational opinions of Dr. Stokes
and Mr. Carlisle that claimant is unemployable at present due to his physical and
psychological limitations.  Claimant was awarded compensation for temporary total
disability, 33 U.S.C. §908(b),  from the date of injury, December 27, 1988,
to January 22, 1990, and from June 16, 1990, to the present and continuing. 
Claimant was awarded compensation for temporary partial disability, 33 U.S.C.
§908(e), from January 22, 1990, to June 16, 1990.  On reconsideration, the
administrative law judge rejected claimant's contention that his conditions are
permanent.

     The administrative law judge determined claimant's average weekly wage under
Section 10(c) of the Act, 33 U.S.C. §910(c).  He credited claimant's testimony
that he worked seven days on and seven days off.  He thus calculated a bi-average
weekly wage of $1,193.08  and a bi-weekly compensation rate of $795.43.  The
administrative law judge modified this finding on reconsideration, however,
crediting claimant's 1988 W-2 form to find claimant earned $49,139.29 in 1988,
which, when divided by 52, yields an average weekly wage of $944.39.  Pursuant to
Section 7(a) of the Act, 33 U.S.C. §907(a), employer was ordered to pay for
reasonable and necessary, past and present medical treatment for claimant's back
and psychological conditions.  The administrative law judge denied employer's
request for Section 8(f) relief, 33 U.S.C. §908(f).  Employer relied on a
medical report from a 1979 automobile accident which noted that claimant may have
suffered a possible disc condition and left leg radiculopathy.  The administrative
law judge found that this report failed to establish a pre-existing permanent
partial disability or that any pre-existing disability contributed to claimant's
total disability due to his work-related back injury and depression.  Finally,
employer was held liable for a penalty pursuant to Section 14(e) of the Act, 33
U.S.C. §914(e), from August 1 through October 14, 1997. 

     On appeal, claimant, representing himself, challenges the administrative law
judge's findings as to the date of maximum medical improvement for his back and
psychological injuries, the award of compensation for temporary partial disability
while he worked as a service writer, and the administrative law judge's average
weekly wage determination.  Claimant further contends that he is entitled to
medical benefits for hypertension, and to interest on medical bills he paid, and
he raises the alleged applicability of Sections 14(f), 18(a), 30(a), and 31(c), 33
U.S.C. §§914(f), 918(a), 930(a), 931(c).  Employer responds, urging
rejection of claimant's contentions.  BRB No. 99-0607.  In its cross-appeal,
employer contends that it established the availability of suitable alternate
employment within the restrictions imposed by claimant's back injury, and that it
established entitlement to Section 8(f) relief.  Claimant responds, urging
affirmance of the administrative law judge's finding on these issues.  The Director,
Office of Workers' Compensation Programs, responds, urging affirmance of the
administrative law judge's denial of Section 8(f) relief.  BRB No. 99-0607A.
     Claimant initially contends that the administrative law judge erred by finding
that his back injury reached maximum medical improvement on May 19, 1997, arguing
that the administrative law judge should have credited evidence that his back
condition stabilized on December 19, 1989.  Moreover, claimant contends that the
administrative law judge erred in finding that he remains temporarily disabled by
his psychological condition.

     The determination of when maximum medical improvement is reached is primarily a question of fact based on
medical evidence. Eckley v. Fibrex & Shipping Co., Inc., 21 BRBS 120 (1988); Ballesteros v.
Willamette W. Corp., 20 BRBS 184 (1988).  A claimant's condition may be considered permanent when it has
continued for a lengthy period and appears to be of lasting and indefinite duration, as opposed to one in which recovery
merely awaits a normal healing period, Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968),
cert. denied, 394 U.S. 976 (1969), or if  he has any residual impairment after reaching  maximum medical
improvement, the date of which is determined by medical evidence. See Seidel v. General Dynamics
Corp., 22 BRBS 403 (1989).  A finding of fact establishing the date of maximum medical
improvement must be affirmed if it is supported by substantial evidence. See Mason v. Bender Welding & Machine
Co., 16 BRBS 307 (1984).

     Regarding claimant's back injury, claimant's treating physician, Dr. Lowry,
stated on December 19, 1989, that claimant's back had reached maximum medical
improvement post-surgery; however, he subsequently opined that claimant's back
stabilized on May 19, 1997.  EX 26 at 29-31.  In this regard, claimant's continuing
back complaints resulted in Dr. Lowry's installing, in 1996, a TENS unit and, after
claimant failed to obtain any relief, a morphine pump, from which claimant reported
significant improvement of his pain symptomatology.  EX 26 at 14-18; Tr. at 57-61. 
Dr. Lowry further testified that claimant's back condition thereafter stabilized. 
EX 26 at 17-18. Based on the evidence of record, we affirm the administrative law
judge's crediting of  Dr. Lowry's testimony that claimant's back condition reached
maximum medical improvement on May 19, 1997, after claimant's pain significantly
improved. See generally Cooper v. Offshore Int'l Pipelines, Inc., 33
BRBS 46, 51-53 (1999).  Regarding claimant's psychological condition, Ms. Thoms's
opinion is uncontradicted that claimant requires continuing treatment and that his
condition has not reached maximum medical improvement.  EX 28 at 57-58. 
Accordingly, the administrative law judge's finding that claimant is temporarily
totally disabled due to his psychological injury is supported by substantial
evidence and is affirmed. See Louisiana Ins. Guaranty Ass'n v. Abbott,  40
F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994).

     Claimant next contends that the administrative law judge erred in determining
that his average weekly wage at the date of injury is $944.39.  Section 10 of the
Act, 33 U.S.C. §910, sets forth three alternative methods for determining
claimant's average annual wage, which is then divided by 52 pursuant to Section
10(d), 33 U.S.C. §910(d), to arrive at an average weekly wage.  Sections 10(a)
and (b), 33 U.S.C. §910(a), (b), are the statutory provisions relevant to a
determination of an employee's average annual wages where an injured employee's
work is regular and continuous, and he is a five or six day per week worker.  The
computation of average annual earnings must be made pursuant to Section 10(c), 33
U.S.C. §910(c), if subsections (a) or (b) cannot be reasonably and fairly
applied.  The object of Section 10(c) is to arrive at a sum that reasonably
represents a claimant's annual earning capacity at the time of his injury.
See Empire United Stevedores v. Gatlin, 936 F.2d 819, 25 BRBS 26
(CRT)(5th Cir. 1991).  It is well-established that an administrative law judge has
broad discretion in determining an employee's annual earning capacity under Section
10(c). See Bonner v. National Steel & Shipbuilding Co., 5 BRBS 290 (1977),
aff'd in pert. part, 600 F.2d 1288 (9th Cir. 1979).       

     In the present case, the administrative law judge properly utilized Section
10(c) to calculate claimant's average weekly wage as claimant was not a five or six
day per week employee; rather he worked seven days on and seven days off.  Section
10(a) or (b) therefore cannot be applied. See Duhagon v. Metropolitan Stevedore
Co., 31 BRBS 89 (1997), aff'd, 169 F.3d 615, 33 BRBS 1 (CRT)(9th Cir.
1999).  Moreover, the administrative law judge rationally relied on claimant's 1988
W-2 form to calculate claimant's average weekly wage in the year preceding his
December 27, 1988, work injury.  His finding on reconsideration of an average
weekly wage of $944.39 therefore is affirmed.[1] 
 See generally Fox v. West State, Inc., 31 BRBS 118 (1997).

     In its cross-appeal, employer argues that the administrative law judge erred
in finding that employer did not establish the availability of suitable alternate
employment within claimant's work restrictions from his back injury.    Specifically,
employer cites to videotape surveillance evidence, the work restrictions of Drs.
Lowry and Helveston that claimant could perform sedentary work, and the vocational
testimony of Dr. Stokes to contend that claimant's back condition allows him to
work at the positions it identified as evidence of suitable alternate employment. 


     Where, as here, it is uncontested that claimant is unable to return to his
usual employment as a field engineer, claimant has established a prima facie
case of total disability and the burden shifts to employer to establish the
availability of realistic job opportunities within the geographic area where
claimant resides, which claimant, by virtue of his age, education, work experience,
and physical restrictions is capable of performing and which he could realistically
secure if he diligently tried. New Orleans (Gulfwide) Stevedores v. Turner,
661 F. 2d 1031, 14 BRBS 156 (5th Cir. 1981).  In addressing this issue, the
administrative law judge must compare claimant's restrictions and vocational
factors with the requirements of the positions identified by employer in order to
determine whether employer has met its burden under the standard set forth in
Turner. See generally Ledet v. Phillips Petroleum Co., 163 F.2d 901,
32 BRBS 212 (CRT) (5th Cir. 1999).

     In the instant case, the administrative law judge found the surveillance
evidence of claimant building a garage type structure unpersuasive because the
videotape did not reveal  whether claimant was working in pain and there is no
evidence of what claimant did after working; moreover, he noted that most of the
times claimant was filmed he remained at home.  Decision and Order at 33.  In
discussing the work restrictions of Drs. Lowry and Helveston, the  administrative
law judge specifically credited Dr. Lowry's testimony that claimant would require
frequent rest breaks and would need to lie down during the day.  Decision and Order
at 31-33, 36; see EX 26 at 35-36.  Finally, the administrative law judge
credited the vocational opinions of Mr. Carlisle and Dr. Stokes that prospective
employers were unlikely to hire claimant under this restriction. Decision and Order
at 36; see EX 30 at 53-59.  

     In adjudicating a claim, it is well-established that the administrative law
judge is entitled to weigh the evidence, and is not bound to accept the opinion or
theory of any particular witness; rather, the administrative law judge may draw his
own conclusions and inferences from the evidence. See Mijangos v.
Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT)(5th Cir. 1991);
Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988).  In the
instant case, we hold that the administrative law judge's decision to find
employer's video surveillance evidence unpersuasive and to credit instead the work
restrictions of Drs. Lowry and Helveston, as well as the opinions of Drs. Stokes
and Carlisle consistent with these restrictions, is rational. See Cordero v.
Triple A Machine Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th Cir. 1978),
cert. denied, 440 U.S. 911 (1979).   Thus, the administrative law judge's finding
that claimant is not realistically employable at this time due to his back injury
is supported by substantial evidence, and is affirmed.[2]   Moreover, as employer does not challenge the administrative law
judge's finding that claimant is temporarily totally disabled by his psychological
disability, we affirm his conclusion that employer failed to establish the
availability of suitable alternate employment. Lostanau v. Campbell
Industries, Inc., 13 BRBS 227 (1981), rev'd on other grounds sub nom.
Director, OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th
Cir. 1982), cert. denied, 459 U.S. 1104 (1983).

     Finally, employer contends that the administrative law judge erred by denying
its request for Section 8(f) relief.  Specifically, employer argues the
administrative law judge erred by finding that employer failed to establish that
claimant had a pre-existing permanent partial disability.  Section 8(f) shifts
liability for compensation for permanent disability from the employer to the
Special Fund established in Section 44 of the Act, 33 U.S.C. §944, after 104
weeks, if the employer establishes the following three prerequisites:  1) the
injured employee has a pre-existing permanent partial disability; 2) the pre-
existing disability was manifest to employer; and 3) claimant's permanent
disability is not solely due to the subsequent work-related injury. Ceres Marine
Terminal v. Director, OWCP, 118 F.3d 387, 31 BRBS 9 (CRT)(5th Cir. 1997); 
Two "R" Drilling Co., Inc. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34
(CRT)(5th Cir. 1990); Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996).

     In the instant case, the administrative law judge found that employer failed
to establish either the pre-existing permanent partial disability element or that
any such disability contributed to claimant's total disability from his back and
psychological injuries.  As employer does not challenge the administrative law
judge's finding that it failed to establish that claimant's total disability is not
due solely to the work injury, we need not address employer's contention that it
established a pre-existing partial disability.[3] 
 Moreover, we note that Section 8(f) relief is inapplicable, as here, where the
claimant's total disability remains temporary. Jenkins v. Kaiser Aluminum &
Chemical Sales, Inc., 17 BRBS 183 (1985).  Therefore, the administrative law
judge's denial of Section 8(f) relief is affirmed.

     Accordingly, the administrative law judge's Decision and Order and Order
Granting in Part and Denying in Part Motion for Reconsideration are affirmed.

     SO ORDERED.



                                                                                                      
                              ROY P. SMITH
                              Administrative Appeals Judge
     


                                                                                                           
                              JAMES F. BROWN
                              Administrative Appeals Judge



                                                                                                           
                              REGINA C. McGRANERY
                              Administrative Appeals Judge

To Top of Document

Footnotes.


1) 1Claimant's remaining arguments, concerning the alleged applicability of penalties and fines pursuant to Sections 30(a) and 31(c), the temporary partial disability award in 1990, and the compensability of his hypertension will not be addressed as they are raised for the first time on appeal. See Boyd v. Ceres Terminals, 30 BRBS 218, 223 (1997). We note claimant's allegation that he is entitled to a penalty pursuant to Section 14(f), 33 U.S.C. §914(f), for employer's late payment of compensation. This contention must first be raised before the district director. See Sinclair v. United Food & Commercial Workers, 23 BRBS 148, 157 (1989). Moreover, while there is no supporting evidence of record that claimant was not paid interest by employer for covered medical bills that he paid himself, we note claimant's entitlement to interest on any bills he actually paid. See Ion v. Duluth, Missabe & Iron Range Ry. Co., 31 BRBS 75, 79-80 (1997). Back to Text
2) 2Thus, we need not address employer's contention that the administrative law judge erred in finding that the jobs it identified lack specificity as to their requirements. Back to Text
3) 3Following its argument that claimant has a pre-existing permanent partial disability, employer summarily states that, ipso facto, claimant's work accident is not the sole cause of his total disability. This statement is insufficient to invoke the Board's review as it does not assign error to the administrative law judge's finding. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document