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                                 BRB Nos. 99-0627
                                   and 99-0627A

ARLETHA WILLIAMS-McDOWELL               )
                                        )
          Claimant-Petitioner    )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   03/15/2000

AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    
          Cross-Petitioner              )    DECISION and ORDER


          Appeals of the Decision and Order Granting Benefits of Richard K.
     Malamphy, Administrative Law Judge, United States Department of Labor.

          Gregory E. Camden (Montagna, Klein & Camden, L.L.P.), Norfolk, Virginia,
     for claimant.

          Christopher A. Taggi (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

          Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

          PER CURIAM:

     Claimant appeals and employer cross-appeals the Decision and Order Granting
Benefits (98-LHC-0125) of Administrative Law Judge Richard K. Malamphy 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 sheet metal worker, experienced pain in both her hands while
working on August 15, 1991.  Claimant subsequently had several operations on each
wrist.  Claimant returned to work for employer in a light duty capacity from which
she was laid off on December 7, 1996.  She obtained alternate employment on March
17, 1997.  Employer voluntarily paid claimant temporary total disability benefits
for various periods, as well as permanent partial disability benefits for 23.57
weeks for a 50 percent impairment to the right wrist and $2000 for disfigurement. 
Claimant sought additional temporary total disability benefits for the period
between December 7, 1996 and March 17, 1997, and permanent partial disability
benefits for a 50 percent impairment to the right arm pursuant to Section 8(c)(1),
33 U.S.C. §908(c)(1).

     The administrative law judge awarded claimant temporary total disability benefits for
the period in question, finding that employer did not establish suitable alternate
employment prior to claimant's obtaining employment on March 17, 1997.  The
administrative law judge awarded claimant scheduled permanent partial disability benefits
for a 30 percent impairment to the right hand pursuant to Section 8(c)(3), 33
U.S.C. §908(c)(3).

     On appeal, claimant contends the administrative law judge erred in not
awarding her benefits for a 50 percent impairment to the arm pursuant to Section
8(c)(1).  Employer responds urging affirmance of the administrative law judge's
permanent partial disability award. On cross-appeal, employer challenges the
administrative law judge's award of temporary total disability benefits, stating
that such an award is improper because claimant's condition was already permanent
at the time of the layoff and that claimant did not file a claim for permanent total
disability benefits.  Claimant responds, urging affirmance of the administrative law
judge's award of temporary total disability benefits.  

     Claimant contends the administrative law judge erred in two respects with regard to
the permanent partial disability award.  Claimant contends that the administrative law
judge erred in not awarding benefits pursuant to Section 8(c)(1) for an impairment
to the arm rather than pursuant to Section 8(c)(3) for an impairment to the hand. 
She further contends the administrative law judge erred in not crediting the entirety of
Dr.  Freund's opinion to find that her impairment rating is 50 percent.

     In the instant case, the administrative law judge awarded claimant permanent
partial disability benefits for injury to her wrist/hand under Section 8(c)(3),
finding that because the site of claimant's injury was her wrist, she has to be
compensated for an impairment to the hand pursuant to Section 8(c)(3).  The basis
for the administrative law judge's finding was Section 8(c)(15) of the Act, 33 U.S.C.
§908(c)(15), which states that if an arm is amputated below the elbow,
compensation shall be the same as for the loss of a hand. The administrative law
judge then noted that Dr.  Freund rated claimant as having a 30 percent impairment
due to  loss of motion and an additional 20 percent impairment due to loss of grip strength.  The
administrative law judge, however, credited the opinion of  Dr. Ross that loss of grip
strength should not be separately rated in this case, as this opinion is consistent
with the American Medical Association Guides to the Evaluation of Permanent
Impairment (4th ed.  1993) (AMA Guides).   The administrative law judge
thus discredited the 20 percent grip strength component of Dr.  Freund's impairment
rating, but nevertheless deferred to him as claimant's treating physician regarding
the  impairment rating for lack of range of motion.  Thus, he  credited Dr.
Freund's opinion of a 30 percent impairment  over the 26 percent impairment rating
assigned by Dr. Ross.  

     We reject claimant's contention that the administrative law judge erred in
crediting Dr. Ross's opinion that a rating for loss of grip strength is not merited
here based on the criteria in the AMA Guides  over Dr. Freund's conflicting 
opinion that claimant sustained a 20 percent additional impairment due to a lack
of  grip strength. The administrative law judge rationally concluded after his own
review of the AMA Guides that  Dr. Ross's opinion is better reasoned. 
Decision and Order at 12.  As the fact finder, the administrative law judge is
entitled to weigh the medical evidence and draw his own inferences therefrom, and
is not bound to accept the opinion or theory of any particular medical examiner.
Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1965). Consequently,
we affirm the administrative law judge's finding as it is rational, supported by
substantial evidence, and in accordance with law. See generally Pimpinella v. 
Universal Maritime Service, Inc., 27 BRBS 154 (1993). 

     Claimant correctly argues, however, that the administrative law judge erred
in awarding her benefits under Section 8(c)(3) for the wrist/hand instead of
Section 8(c)(1) for the arm.  Both physicians, Drs. Freund and Ross, stated that
claimant suffered an impairment to her right  upper extremity as a result of her
work injury to her wrist, and both physicians rated her impairment in terms of the
upper extremity rather than the hand.  Thus, the record does not contain
substantial evidence to support a rating to claimant's hand. When the claimant
suffers an injury to the smaller member which affects the larger member, the 
claimant is entitled to an award for an impairment to the larger member if the
evidence of record supports such an award.  Young v. Todd Pacific Shipyards
Corp., 17 BRBS 201 (1985).  Furthermore, the Board has rejected the contention
that Section 8(c)(15) supports only an award for a hand impairment when the site
of the injury is below the elbow.  Mason v.  Baltimore Stevedoring Co., 22
BRBS 413 (1989).  Inasmuch as the only impairment ratings of record are to
claimant's upper extremity, we hold that claimant must receive an award for an
impairment to the arm pursuant to Section 8(c)(1) in this case.  We therefore 
modify the administrative law judge's award to hold that claimant is entitled
benefits for a 30 percent permanent partial impairment pursuant to Section 8(c)(1).

      On cross-appeal, employer contends that  the administrative law judge cannot
award temporary total disability benefits to claimant for the period between
December 7, 1996 to March 17, 1997, because claimant's condition reached permanency
in July 1996 when claimant's treating physician, Dr. Freund, assigned claimant a
permanent impairment rating, and claimant did not seek permanent total disability
benefits.  We reject this contention. While claimant did not claim permanent total
disability benefits for the period in question,  and claimant's condition  reached
maximum medical improvement as asserted by employer,  inasmuch as the contested
issue concerned the extent of claimant's disability, the administrative law
judge did not err in awarding benefits as there is no difference in the burden of
proof between a claim for permanent total and temporary total disability benefits
on the facts in this case. See Duran v. Interport Maintenance Corp., 27 BRBS
8 (1993); Bonner v.  Ryan-Walsh Stevedoring Co., Inc., 15 BRBS 321 (1983). 
Moreover, the administrative law judge's award of total disability benefits for the period
following the layoff from the light duty job at employer's facility until alternate
employment was identified comports with law. Norfolk Shipbuilding & Drydock
Corp. v. Hord, 193 F.3d 797, 33 BRBS 170 (CRT)(4th Cir.1999).  
Consequently, we affirm the administrative law judge's award of total
disability benefits.

          Accordingly,  the administrative law judge's decision is modified to
award claimant benefits for a 30 percent impairment under Section 8(c)(1).  In all
other respects, the administrative law judge's decision is affirmed.

      SO ORDERED.





                                                                                                      
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                                                      
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                                                      
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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