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                                 BRB No. 99-0795

THOMAS WUOLLET                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
SCAPPOOSE SAND AND GRAVEL               )    DATE ISSUED:   03/16/2000

                                        )
     and                                )
                                        )
ARGONAUT INSURANCE COMPANY              )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION AND ORDER

          Appeal of the Decision and Order on Remand of Alexander Karst,
     Administrative Law Judge, United States Department of Labor.

          Edward Tylicki (Pozzi Wilson Atchison, LLP), Portland, Oregon, for
     claimant.

          Karen O'Kasey and Darien S. Loiselle (Schwabe, Williamson & Wyatt,
     P.C.), Portland, Oregon, for employer/carrier.

          Before:  HALL, Chief Administrative Appeals Judge, SMITH and BROWN, 
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand (89-LHC-0417) of
Administrative Law Judge Alexander Karst 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 if they 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).
     This is the third time this case has been before the Board.  To recapitulate
the facts, on August 11, 1980, claimant was struck on his neck, head and arm by a
chain or cable during the course of his work with employer.  Claimant was in a coma
for approximately five months following this incident and has since been in
extensive rehabilitation therapy.  In the original decision in this case,
Administrative Law Judge Murty noted that the parties stipulated that claimant was
totally disabled since the date of injury, August 11, 1980, and ordered employer
to pay temporary total disability benefits from the date of injury.[1]   Claimant subsequently filed a petition for
modification pursuant to Section 22 of the Act, 33 U.S.C. §922, asserting that
Judge Murty failed to determine the date upon which claimant became permanently
disabled.  Administrative Law Judge Alexander Karst (the administrative law judge)
found that claimant became permanently totally disabled on the date of his
accident, August 11, 1980, because "he then became irreversibly paralyzed and
otherwise so impaired as to preclude any further competitive employment."  Decision
and Order at 3.  Accordingly, the administrative law judge modified Judge Murty's
Order to change the characterization of claimant's disability from temporary total
disability to permanent total disability as of the date of claimant's injury,
August 11, 1980.  

     On appeal, the Board vacated the administrative law judge's determination that
claimant's condition became permanent as of the date of his work injury, holding
that claimant's ability to work is irrelevant to ascertaining the nature of his
disability, since medical rather than economic considerations determine whether his
condition can be deemed permanent.  The Board remanded the case for the
administrative law judge to reconsider the issue of permanency under the proper
legal standard, and instructed him to address all of the relevant record evidence
regarding the nature of claimant's condition and provide a rationale for his
ultimate findings. Woullet v. Scappoose Sand and Gravel, BRB No. 90-0807
(Feb. 28, 1996)(unpublished).  On remand, the administrative law judge considered
the medical reports of record and found that claimant's condition reached
permanency on December 2, 1983, based on the independent evaluation of a panel of
physicians consisting of Drs. Leonard, Stainsby and Higgins.  

     On appeal, claimant challenges the administrative law judge's finding that
claimant's condition reached maximum medical improvement December 2, 1983. 
Specifically, claimant contends that the administrative law judge applied an
incorrect standard in making this determination, and asserts that in cases of
paralysis, the appropriate standard for determining the date of maximum medical
improvement is the moment the paralysis becomes irreversible.  Claimant contends
that because the traumatic injury on August 11, 1980, resulted in immediate and
irreversible paralysis, a finding of permanence from the moment of injury is
appropriate, arguing that any minor functional improvements he attained were
attempts at coping with his severe injury and did not reflect any change in his
disabling condition.  Employer responds, urging affirmance of the administrative
law judge's Decision and Order on Remand.  In a reply brief, claimant reiterates
the contention that his disability became permanent on the date of the accident,
August 11, 1980.

     We hold that the administrative law judge in the instant case applied the
correct standard in determining the date of maximum medical improvement.  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).  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).

     On remand, the administrative law judge applied the proper legal standard and
addressed the medical opinions of record regarding permanency, rather than
claimant's ability to return to work.  In determining that claimant's condition
reached maximum medical improvement on December 2, 1983, the administrative law
judge relied on the report of Drs. Leonard, Stainsby and Higgins, composed on the
same date.  In their report, these physicians noted by history claimant's
improvement since his August 11, 1980 injury, such that claimant gradually regained
consciousness in the fall of 1980, was discharged from the hospital on January 27,
1981, received therapy and home health care, and at the time of the report was
performing several basic functions such as bathing, walking with a cane, cooking
and dressing himself, though each with difficulty.  Claimant's continued
significant difficulty with speech and language was acknowledged, but these doctors
noted that claimant denied the need for more physical, occupational or speech
therapy, and that he has been taking an art program at a community college.
Ultimately, Drs. Leonard, Stainsby and Higgins diagnosed, inter alia, post-
traumatic cerebral and brain stem contusion with residual cognitive impairments and
post-traumatic seizures, and stated:

          [T]he patient's condition is stationary from a neurological and
     orthopedic standpoint.  There may be additional improvement in motor and
     cognitive functions but it is unlikely that these will make a
     significant difference in his severe level of disability.  He is totally
     disabled from gainful employment.  He is marginal in the activities of
     daily living and will continue to require homemaker assistance part-
     time. . . .  The patient does not wish additional occupational, physical
     or speech therapy and it is unlikely that any of these services would
     make a significant impact on his present disability.

Emp. Ex. 46.  The  administrative law judge found that, with one exception, all of
the other medical opinions showed that claimant did not reach maximum medical
improvement prior to December 2, 1983.  The administrative law judge noted Dr.
Grewe's opinion that claimant was not yet medically stationary as of December 1980,
see Emp. Ex. 64, and Dr. Buza's opinion that claimant was not medically
stationary as of July 1, 1981.  Emp. Ex. 10.  Dr. Settle, in his July 27, 1982
report, checked the "no" box to the question as to whether claimant was medically
stationary, and in subsequent reports in 1982 and 1983  noted claimant's continued
improvement in his rehabilitation.  Emp. Exs. 12, 26, 36.  The administrative law
judge rejected Dr. Kirkpatrick's opinion that claimant's condition was medically
stationary on December 4, 1986, as he gave no opinion as to whether claimant
reached maximum medical improvement on an earlier date.[2]   Emp. Ex. 63.  Lastly, the administrative law judge rejected Dr.
Zipp's opinion that claimant's condition was medically stationary on the date of
the accident, see Emp. Ex. 6, as it was outweighed by the other reports
which showed claimant's continued improvement through December 1983.  Relying on
the opinion of Drs. Leonard, Stainsby and Higgins, the administrative law judge
determined that claimant's condition plateaued on December 2, 1983, the date of
their report.[3]   Decision and Order on Remand at
4-5.  Thus, as the administrative law judge applied the proper legal standard, and
the record contains substantial medical evidence to support the administrative law
judge's determination that claimant reached maximum medical improvement on December
2, 1983, we affirm that finding. See Delay v. Jones Washington Stevedoring
Co., 31 BRBS 197 (1998); Ion v. Duluth, Missabe & Iron Range Ry. Co.,
31 BRBS 75 (1997); Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS
70 (1997).

     Accordingly, the Decision and Order on Remand of the administrative law judge
is affirmed.

     SO ORDERED. 


                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge


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Footnotes.


1)Employer appealed this decision to the Board; the Board affirmed Administrative Law Judge Murty's finding that claimant satisfied the "status" requirement for jurisdiction under the Act. Wuollet v. Scappoose Sand and Gravel, 18 BRBS 108 (1986). Back to Text
2)The administrative law judge also rejected this report as being internally inconsistent. In his May 2, 1989 report, Dr. Kirkpatrick stated that he treated claimant for lacerations in 1988, but then stated that December 4, 1986 was the last time he saw claimant and that his condition was medically stationary at that time. See Emp. Ex. 63; Decision and Order on Remand at 5. Back to Text
3)In arguing that the administrative law judge applied an erroneous standard, claimant's reliance on Dupre v. Cape Romain Contractors, Inc., 23 BRBS 86 (1989), and Meecke v. I.S.O. Personnel Support Dep't, 10 BRBS 670 (1979), is misplaced. In Dupre, the claimant suffered immediate paralysis below the waist after falling out of a tree. Unlike the instant case, the administrative law judge's finding that the claimant was permanently disabled as of the date of the accident was not contested by the employer. Dupre, 23 BRBS at 88-89. In Meecke, the Board reversed the administrative law judge's finding of temporary disability, as the medical evidence established that the claimant's head condition had not changed since the date of her accident, and remanded the case for a determination of the date of permanency. Meecke, 10 BRBS at 675-676. By contrast, in the instant case, the credited medical evidence establishes that claimant's condition since the date of his accident continued to improve until it plateaued in December 1983. While it is apparent that claimant's ability to return to work has not changed since the date of the accident, economic considerations are not determinative in assessing whether a condition is deemed permanent. See Price v. Dravo Corp., 20 BRBS 94 (1987). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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