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                                 BRB No. 98-1105  

ANTHONY CARIA                           )    
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME                      )    DATE ISSUED:   05/10/1999

SERVICE CORPORATION                     )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of  Edward J. Murty, Jr.,
     Administrative Law Judge, United States Department of Labor.
          
     Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
     York, for claimant.

     Hugh O'Boyle (Foley, Smit, O'Boyle & Weisman), New York, NewYork, for
     self-insured employer. 

     Before: HALL, Chief Administrative Appeals Judge, SMITH, and McGRANERY,
     Administrative Appeals Judges.
.                        
          PER CURIAM:

     Claimant appeals the Decision and Order (95-LHC-2271) of Administrative Law
Judge Edward J. Murty, 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).  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).

     Claimant was injured during the course of his employment with employer as a
freight handler on August 9, 1993.  Employer voluntarily paid claimant temporary
total disability compensation, 33 U.S.C. §908(b), from September 28, 1993, to
May 24, 1994, and  permanent partial disability benefits for an impairment of the
left leg, 33 U.S.C. §908(c)(2).  Claimant  looked for employment on November
21-22, 1996, but he never returned to work.  He sought benefits under the Act for
permanent total disability based on the combination of his left knee injury and an
alleged work-related psychological disability.  Employer controverted the claim.

     In his Decision and Order, the administrative law judge initially determined
the work restrictions imposed by claimant's left knee impairment, crediting the
medical opinions of Drs. Magliato and Lerman, whose findings support the conclusion
that claimant is unable to return to his usual longshore employment.  The
administrative law judge next credited the medical opinion of Dr. Aldin over that
of Dr. Feretti to find that claimant is not disabled from a psychological
standpoint.  Based on jobs identified by employer's expert and his personal
observations of the work of a security guard in his office building, the
administrative judge further found that claimant could obtain employment as a
security guard and that employer therefore established the availability of suitable
alternate employment as of June 11, 1996.  Based on the impairment rating of Dr.
Magliato, the administrative law judge found that claimant is entitled to permanent
partial disability benefits for a 20 percent disability to his left leg. 
Accordingly, claimant was awarded  temporary total disability benefits from
September 28, 1993, to June 11, 1996, and permanent partial disability benefits
thereafter for a 20 percent impairment to his left leg.

     On appeal, claimant challenges the administrative law judge's finding
regarding the extent of his disability.  Specifically, claimant contends the
administrative law judge erred by failing to apply the Section 20(a), 33 U.S.C.
§920(a), presumption when addressing this issue, and by failing to adequately
explain why he credited Dr. Aldin rather than  Dr. Feretti and claimant's
testimony.  Finally, claimant argues that employer's vocational consultant, Dr.
Stein, failed to ascertain all of claimant's physical limitations or define the
precise nature and terms of the job opportunities he identified as establishing the
availability of suitable alternate employment.  Employer  responds, urging
affirmance.[1]              

     Initially, we reject claimant's argument that the administrative law judge
erred by failing to apply the Section 20(a) presumption to the issue of the nature
and extent of claimant's disability, as it is well-established that the Section
20(a) presumption does not apply to this issue. See Jones v. Genco,
Inc., 21 BRBS 12, 15 (1988).  Rather, claimant has the burden of establishing
the nature and extent of any disability sustained as a result of a work-related
injury. See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); see also
Trask v. Lockheed Shipbuilding & Const. Co., 17 BRBS 56 (1985).  Once
claimant establishes that he is unable to perform his usual employment duties as
a result of his work-related injury, 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. See Palombo v. Director,
OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d
Cir. 1991).  In order to meet this burden, employer must demonstrate that there are
jobs reasonably available in the geographic area where claimant resides that he is
capable of performing and which he could realistically secure if he diligently
tried. Southern v. Farmer's Export Co., 17 BRBS 64 (1985).  In addressing
this issue, the administrative law judge must compare claimant's physical
restrictions 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
Palombo. See generally Ballesteros v. Willamette Western Corp., 20
BRBS 184 (1988).

     In addressing the nature and extent of claimant's disability, the
administrative law judge discussed the medical opinion of Dr. Magliato, an
independent examiner for the Department of Labor, who opined that, while claimant
is unable to perform longshore duties due to his knee impairment,  claimant could
perform sedentary employment. CX 3. The administrative law judge also summarized
the opinion of Dr. Lerman, a board-certified orthopedic surgeon, who evaluated
claimant at employer's request and found  that his knee condition would not prevent
his performing work of more than a sedentary nature so long as he can minimize
continuous trauma to the knee.  EX 1-4.  The administrative law judge next
addressed the psychological evidence, specifically, the opinions of two
psychiatrists.  Dr. Feretti found claimant totally disabled due to a work-related
psychological disorder.  CX 1.  Dr. Aldin concluded that claimant is not
psychologically disturbed and that there is nothing of a psychiatric nature that
would prevent claimant from working.  Aldin depo.at 7.  The administrative law
judge found both Aldin and Feretti to be well-credentialed and that there is little
basis to choose between their opposite conclusions "except as I relate their
opinions to the experiences of every day life."  Decision and Order at 3. 
Thereafter, the administrative law judge noted that claimant had not received
treatment for his psychiatric complaints and was not examined by Dr. Feretti until
shortly before the formal hearing.  The administrative law judge then relied on his
personal experiences and that of others in their sixties to find that claimant's
complaints sound like those of a "grumpy old man" that are common to the age and
do not result in a psychiatric disorder. Id.   Based on his own experience,
the administrative law judge credited Dr. Aldin.  With regard to claimant's knee,
the administrative law judge stated that employer's expert identified a "number of
positions" in the general area which he felt were suitable and which were
available.  Without specifically discussing the effect of claimant's restrictions
on the specific jobs identified, the administrative law judge found claimant was
best suited for a position as a security guard.  The administrative law judge found
this job suitable based on his observations of such a position in his office
building. 

     On appeal, claimant argues that the administrative judge failed to provide
adequate  reasons for crediting the opinion of Dr. Aldin over the opinion of Dr.
Feretti.  We agree.  Hearings of claims under the Act are subject to the
Administrative Procedure Act (APA), which requires that decisions be based on
evidence formally admitted into the record.  5 U.S.C. §556(e).  Thus, a
decision issued based on evidence not formally admitted into the record violates
the APA. See Ross v. Sun Shipbuilding & Dry Dock Co., 16 BRBS 224 (1984). 
In the instant case, the administrative law judge violated the APA and thus erred
in crediting the opinion of  Dr. Aldin over the opinion of Dr. Feretti based on his
own life experience and that of others in their sixties, rather than weighing the
evidence before him.  See Ross, 16 BRBS at 225.  It is clear in this case
that the administrative law judge's conclusion to give greater weight to Dr. Aldin
was based on his own experiences rather than on an analysis of the medical
findings.[2]   The administrative law judge may not
substitute his opinion for that of the psychiatric experts. See Pietrunti v.
Director, OWCP, 119 F.3d 1035, 31 BRBS 84 (CRT)(2d Cir. 1997).  In any
event, claimant saw both Drs. Ferretti and Aldin for evaluation for trial, and
thus, their opinions cannot be distinguished on this basis.[3]   Thus, as the administrative law judge failed to provide a rational
explanation for his conclusions in weighing the evidence, we vacate his decision
to credit Dr. Aldin and remand the case for the administrative law judge to
reconsider all the medical evidence relevant to the issue of claimant's alleged
work-related psychological disability, make appropriate findings based on the law
and evidence, and give a written explanation for the reasons and bases for that
determination.

     Finally, claimant contends that Dr. Stein, a vocational consultant, failed to
ascertain claimant's physical limitations and to specify the precise nature and
terms of the job openings which he identified as being within claimant's physical
limitations.  We disagree. While Dr. Stein's assessment of claimant's limitations
did not incorporate the psychological assessment of Dr. Feretti, he relied on the
physical limitations diagnosed by Drs. Magliato and Lerman. See Stein depo.
at 10, 14. See also Southern v. Farmers Export Co., 17 BRBS 64 (1985). 
Moreover, his labor market survey contains the precise nature and terms of the
available jobs that he opined are within the work restrictions of Drs. Magliato and
Lerman. See Stein depo. at 50-67; CX 7. See also Universal Maritime Corp.
v. Moore, 126 F.3d 256, 31 BRBS 119 (CRT) (4th Cir. 1998).  The administrative
law judge, however, did not base his suitable alternate employment finding on the
job descriptions provided by Dr. Stein but rather on his personal observations of
a security guard.  He also did not compare claimant's physical restrictions with
the job requirements.  Thus, on remand the administrative law judge must reconsider
the evidence of suitable alternate employment in light of his findings regarding
the physical restrictions placed on claimant as a result of his work-related
injury. See Palombo, 937 F.2d 70, 25 BRBS 1 (CRT); Ballesteros, 20
BRBS 184.  His analysis should also address any restrictions due to claimant's
psychiatric condition, consistent with his findings on that issue on remand. 

     Accordingly, the administrative law judge's Decision and Order is vacated, and
the case is remanded for further consideration consistent with this opinion.

     SO ORDERED. 




                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)On appeal, no party has challenged the administrative law judge failure to specifically address the cause of claimant's alleged psychological disability. Back to Text
2)The administrative law judge concluded his discussion of the psychiatric evidence stating: "My own experience as I become older and grumpler cause [sic] me to lean in the direction of Dr. Aldin's way of thinking." Decision and Order at 3. Back to Text
3)Dr. Ferretti did recommend that claimant receive treatment for his condition. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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