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                                 BRB No. 98-0939

ELNORA FERGUSON                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NAVY EXCHANGE                           )    DATE ISSUED:   03/18/1999

                                        )
     and                                )
                                        )
GATES, McDONALD AND COMPANY             )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Vivian Schreter-Murray,
     Administrative Law Judge, United States Department of Labor.

     Carl H. Jacobson (Uricchio, Howe, Krell, Jacobson, Toporek & Theos),
     Charleston, South Carolina, for claimant.

     Mark K. Eckels and Benford L. Samuels (Boyd & Jenerette, PA),
     Jacksonville, Florida, for employer/carrier.

     Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand (95-LHC-2873) of
Administrative Law Judge Vivian Schreter-Murray 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).  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).  This is the second time this case is before the Board.
     Claimant, a worker on a hot dog cart, suffered an  injury to her back on
February 7, 1993, when she fell from a milk crate while trying to close a window
on her cart.  Claimant sought compensation for total disability, as well as for
medical benefits for treatment provided by Dr. Sheldon.

     In her first decision, the administrative law judge denied claimant's claim
for temporary total disability compensation based upon her findings that claimant
sustained a work-related soft tissue injury as a result of her fall, reached
maximum medial improvement on May 28, 1993, and was thereafter capable of
performing any light and sedentary jobs offered to her by employer. She also
concluded that employer was not liable for the medical treatment provided by Dr.
Sheldon beyond his initial evaluation in November 1993, as claimant had been
referred to him only for evaluation and not for treatment.  Claimant appealed this
decision to the Board.

     On appeal, the Board held that the administrative law judge committed no error
in concluding that claimant suffered only a soft tissue injury as a result of her
work accident,[1]  and modified the date of maximum
medical improvement to June 3, 1993.   The Board  vacated the administrative law
judge's findings regarding the extent of claimant's disability related to the work
injury and employer's liability for the medical treatment of Dr. Sheldon.
Ferguson v. Navy Exchange, BRB No. 96-1482 (June 20, 1997)(unpublished). 
On remand, the administrative law judge was to determine if claimant was capable
of performing her regular employment duties and, if not, whether the light duty
positions offered by employer constitute suitable alternate employment.  Further,
the administrative law judge was to reconsider the evidence of record as to whether
claimant is entitled to reimbursement for Dr. Sheldon's services pursuant to
Section 7 of the Act, 33 U.S.C. §907.

     On remand, the administrative law judge found that claimant is capable of
performing her pre-injury job as well as two additional light duty jobs in
employer's facility.  She further found that employer is not responsible for Dr.
Sheldon's treatment as claimant was referred to him for an evaluation only and as
any treatment he provided  was neither appropriate nor necessary for the work
injury.

     Claimant again appeals to the Board, contending that the administrative law
judge erred in finding her capable of performing her usual job or the proffered
light duty jobs, and in denying reimbursement of Dr. Sheldon's treatment.  Employer
responds, urging affirmance.
     Claimant contends that the administrative law judge erred in finding that she
is  not  totally disabled, first by concluding she is capable of performing her
pre-injury job duties as a hot dog vendor, and second by determining that employer
established the availability of suitable alternate employment within its facility. 
The burden of establishing the nature and extent of disability is on claimant.
Anderson v. Todd Shipyard Corp., 22 BRBS 20 (1989); Trask v. Lockheed
Shipbuilding & Const. Co., 17 BRBS 56 (1985).  Once claimant has established
that she is unable to perform her usual employment because of a work-related
injury, however, the burden shifts to employer to prove the availability of
suitable alternate employment. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 31
BRBS 119 (CRT) (4th Cir. 1997); Newport News Shipbuilding & Dry Dock Co. v. Tann,
841 F.2d 540 21 BRBS 10 (CRT)(4th Cir. 1988).  Employer may meet this burden by
offering claimant a job in its facility which is tailored to the employee's
physical limitations so long as the job is necessary and claimant is capable of
performing it.  See Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93
(CRT) (5th Cir. 1996); Peele v.  Newport News Shipbuilding & Dry Dock Co., 20 BRBS 133
(1987); Larsen v. Golten Marine Co., 19 BRBS 54 (1986). 

     In order to establish a prima facie case of total disability, claimant
bears the burden of establishing that she is unable to return to her usual work.
See Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988).    Claimant must establish
that her medical restrictions preclude the performance of her former work duties. Carroll v.  Hanover Bridge
Marina, 17 BRBS 176 (1985).  In the instant case, the administrative law judge found
that claimant's usual employment duties as a hot dog vendor were within the
restrictions imposed by Dr. Warren.  In so concluding, the administrative law judge
reasonably inferred that claimant's duties were the same as those of any other hot
dog vendor,[2] see generally Sprague v. 
Director, OWCP, 688 F.2d 862, 15 BRBS 11 (CRT) (1st Cir.  1982), and that none
of the duties was shown to exceed the light duty category.  Although Dr. Warren
opined that claimant could return to modified duty status, CX B, with restrictions
on stooping, bending, and moderate to heavy lifting, Dep. at 11, the administrative law
judge found no credible evidence that claimant's pre-injury job duties exceeded
these restrictions, inasmuch as the administrative law judge discredited claimant's
testimony as she found it to be unreliable and exaggerated.  Moreover,  claimant
concedes that there is no direct evidence that the job at the hot dog stand
required bending and/or heavy lifting.  Reply Brief at 1.  

     It is well established that in arriving at her decision, the administrative
law judge is entitled to evaluate the credibility of all witnesses and to draw her
own inferences from the evidence. See John W. McGrath Corp. v. Hughes, 289
F.2d 402 (2d Cir. 1961).  In the instant case, we hold that the administrative law
judge's  finding that claimant did not meet her burden of establishing that she is
unable to perform her pre-injury employment duties is rational and supported by
substantial evidence.   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 conclusion that claimant
did not establish her prima facie case of total disability is affirmed.

     Claimant also argues that the administrative law judge erred in concluding
that employer established the availability of suitable alternate employment. 
Although it is not necessary to address the administrative law judge's
determinations in this regard given the above disposition, we hold that the
administrative law judge committed no error in finding that employer established
the availability of two suitable  positions within its own facility.

     Employer proffered three positions within its own facility: deli sandwich
maker, cashier, and secretary/receptionist.  These three positions were approved by Dr. Warren
based upon the recommendation of claimant's physical therapist who visited the work sites and found the physical
requirements to be within claimant's restrictions.[3]  EX 1.  The
administrative law judge relied on the opinions of Dr. Warren and claimant's physical therapist, discrediting claimant's
assertion that she could not perform these positions. Inasmuch as the administrative law judge's
findings are rational and are supported by substantial evidence, we affirm the
administrative law judge's determination that employer established the availability
of  work  within claimant's restrictions and her consequent finding that claimant
is not disabled. See Peele, 20 BRBS at 136.

     Next, claimant contends that the administrative law judge erred in finding
that employer is  not liable for the medical treatment provided by Dr. Sheldon. 
Section 7 of the Act generally describes an employer's duty to provide medical and
related services and costs necessitated by its employee's work-related injury,
employer's rights regarding control of those services and the Secretary's duty to
over see them. See Anderson, 22 BRBS at 20.   In order for a medical expense
to be assessed against employer, however, the expense must be both reasonable and
necessary, and it must be related to the injury at hand. See Pardee v. Army &
Air Force Exchange Service, 13 BRBS 1120 (1981); 20 C.F.R. §702.402. 
Whether a particular medical expense is necessary is a factual issue within the
administrative law judge's authority to resolve. See Wheeler v. Interocean
Stevedoring, Inc., 21 BRBS 33 (1988).

     A review of the record supports the administrative law judge's conclusion that
claimant was referred to Dr. Sheldon only for an evaluation, not treatment.  This
conclusion is supported not only by the fact that claimant returned to Dr. Warren
following the evaluation for further treatment, CX A: Dep. at 19-20, but also by
Dr. Sheldon's own admission that claimant was initially referred for evaluation
purposes only, HT at 79-80, and did not return for treatment until five months
later.  HT at 79.

     Moreover, the record further supports that administrative law judge's
conclusion that any treatment provided by Dr. Sheldon was either unnecessary or
unrelated to claimant's work injury.  Dr. Warren opined, upon claimant's return
following her evaluation by Dr. Sheldon, that the therapy recommended by Dr. 
Sheldon had already been tried without success.  CX A: Dep. at 20.  Thus, Dr.
Sheldon's proposed treatment was duplicative of that previously administered by Dr.
Warren.

     Claimant's further argument that Dr. Sheldon was a specialist to whose care
she was entitled, see 20 C.F.R. §702.406(a), is without merit as the
record reflects that Dr. Sheldon is a specialist in rheumatology, HT at 77, and
therefore specially qualified to treat anklyosing spondylitis.  The administrative
law judge, however,  determined that claimant's ankylosing spondylitis, a form of
spinal arthritis, is unrelated to claimant's work accident, Decision at 9-10, a
finding previously affirmed by the Board.  Thus, any treatment Dr.  Sheldon may
have provided for this condition would be unrelated to claimant's work injury.  It
was therefore within the administrative law judge's discretion as factfinder to
reject Dr. Sheldon's testimony regarding the necessity of his treatment for
claimant's work injury and to rely instead on the contrary opinion of Dr. Warren
that all treatment necessary and reasonable to the treatment of claimant's work
injury had been rendered.   See generally Cordero v. Triple A Machine Shop,
580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U..S. 911
(1979).

     Thus, the administrative law judge's conclusion that claimant was not referred
to Dr. Sheldon for treatment and that any treatment rendered by him was either
unnecessary or unrelated to the work injury is supported by the record.  Therefore,
we affirm the administrative law judge's conclusion that employer is not liable for
the cost of Dr. Sheldon's medical treatment.

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

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge
                         


                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)In so holding, the Board affirmed that administrative law judge's conclusion that claimant suffered a soft tissue injury as a result of her fall and that her ankylosing spondylitis and/or fibromyalgia, if any, were unrelated to the work incident. Back to Text
2) 2The administrative law judge concluded that claimant's pre-injury duties as a hot dog vendor involved taking orders, placing a hot dog on a roll with or without condiments, handing it to a customer and taking payment. At the end of the day, claimant closed the stand. Decision on Remand at 2. Back to Text
3) 3In reaching her conclusions, the administrative law judge did not rely on the secretarial position which, while being approved by Dr. Warren as within claimant's physical restrictions, may have been beyond her vocational skills. Decision on Remand at 3. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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