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                                 BRB No. 98-1159

RICKY L. NELSON                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
EMTECH ENVIRONMENTAL                    )    DATE ISSUED:   05/26/1999 1999
                                )
     and                                )
                                        )
INSURANCE COMPANY OF                    )
PENNSYLVANIA                            )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order, Supplemental Decision and Order
     Denying Attorney's Fees and Order Denying Motion for Reconsideration of
     C. Richard Avery, United States Department of Labor.

     Bradford M. Condit, Corpus Christi, Texas, for claimant.
     
     Nicholas Canaday, III (Canaday Law Firm), Baton Rouge, Louisiana, for
     employer/carrier.    

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

     PER CURIAM:

     Claimant appeals the Decision and Order, Supplemental Decision and Order
Denying Attorney's Fees, and Order Denying  Motion for Reconsideration  (97-LHC-1273) of  Administrative Law Judge C. Richard Avery 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 sustained a work-related back injury on March 26, 1995, for which
employer voluntarily paid claimant temporary total disability benefits and medicals
benefits through the time of the hearing.[1]   The
sole issue presented to the administrative law judge was whether claimant reached
claimant reached maximum medical improvement entitling him to permanent disability
benefits.  The administrative law judge rejected claimant's argument  that he had
reached maximum medical improvement, and therefore awarded claimant continuing
temporary total disability benefits.  The administrative law judge, in a
supplemental order, and on reconsideration, denied claimant's counsel an 
attorney's fee based on a lack of successful prosecution.  

     On appeal, claimant contends that the administrative law judge erred in
failing to find him permanently totally disabled, and in denying an attorney's fee. 
Employer responds, urging affirmance.

     Claimant contends that the administrative law judge erred in finding that his
condition is not permanent.  A permanent disability is one that has continued for
a lengthy time and appears to be of  lasting duration, as opposed to one that
merely awaits a normal healing period. Watson v. Gulf Stevedore Corp., 400
F.2d 649 (5th Cir. 1968), cert. denied, 349 U.S. 976 (1969).  The
administrative law judge need not search for a medical opinion that specifically
references "maximum medical improvement;" he may rely on an opinion which
rates claimant's disability, as that is sufficient evidence of permanency.
McKnight v. Carolina Shipping Co., 32 BRBS 165, aff'd on recon.  en banc,
32 BRBS 251 (1998).  Where the record contains evidence that claimant's
condition was of a lasting and indefinite duration, a prognosis that the employee's
condition may improve in the future does not preclude a finding of permanency.
Mills v. Marine Repair Serv., 21 BRBS 115 (1988), modified on other
grounds on recon., 22 BRBS  335 (1989).

     The administrative law judge found that claimant's condition is still
temporary based on the opinions of Drs.  Vaughn and Halcomb that claimant had not
reached maximum medical improvement.  The administrative law judge declined to
credit the opinion of Dr.  Kennedy that claimant reached maximum medical
improvement absent surgery, on the ground that he was not as familiar with
claimant's treatment.  The administrative law judge also noted that claimant's
psychologist is optimistic about his improvement, and that a rehabilitation
counselor thinks claimant can be retrained for other employment.[2] 
     We cannot affirm the administrative law judge's finding that claimant's
condition is temporary, as the administrative law judge did not address all the
medical evidence in terms of the law on permanency.  Although the administrative
law judge rationally credited the opinions of the treating physicians, Drs. 
Halcomb and Vaughn, over that of the examining physician, Dr.  Kennedy, see
generally John W.  McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961),
the administrative law judge did not fully discuss the opinions of  Drs. 
Halcomb and Vaughn.  Dr.  Halcomb stated on October 17, 1996, that claimant had not
reached maximum medical improvement as claimant might require surgery.  CX 5 at 16. 
The administrative law judge may find a claimant's condition temporary when surgery
is anticipated. Kuhn v.  Associated Press, 16 BRBS 46 (1983).  The
administrative law judge, however, did not fully discuss  Dr.  Halcomb's later
reports. On February 21, 1997, Dr.  Halcomb stated that claimant had been given an
impairment rating of eight percent,[3]  and that
claimant's pain was "no where near significant enough to contemplate" surgery.  CX
5 at 14.  This opinion was repeated on May 23, 1997. Id. at 13.  Thus, the
administrative law judge's reliance on Dr.  Halcomb's earlier opinion that claimant
had not reached maximum medical improvement because surgery was anticipated  must
be reexamined in light of the later reports acknowledging claimant's impairment
rating and finding surgery unnecessary.

     Dr.  Vaughn, a chiropractor who was actively treating claimant,[4]  testified at the hearing.  He stated his opinion
that claimant is "permanently injured and disabled," although he stated that
claimant had not reached "maximum medical improvement" because that implies that
no further medical intervention will improve the condition.  Tr.  at 19-20, 44. 
Dr.  Vaughn testified that therapy was intended to reduce claimant's pain and to
improve his ability to do the activities of his daily life.   Id.  at 24.
A claimant's condition may be considered permanent even if further improvement is
foreseen, if it is of an indefinite duration, see generally White v. Exxon
Corp., 9 BRBS 138 (1978), aff'd mem., 617 F.2d 292 (5th Cir.
1980)(table), but a finding that a disability is still temporary is proper if the
claimant is undergoing active treatment to improve his condition.   Louisiana
Ins. Guaranty Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22 (CRT) (5th  Cir. 1994),
aff'g 27 BRBS 192 (1993). On remand, the administrative law judge
must reconsider whether claimant's condition, which was some two and one half years
post-injury at the time of the hearing, is permanent in light of all relevant
evidence of record.[5]   See generally
McKnight, 32 BRBS at 71; Diosdado v. Newpark Shipbuilding &
Repair, Inc., 31 BRBS  70 (1997); see generally Mills, 21 BRBS at 117. 


     We next address claimant's contention that the administrative law judge erred
in finding he is not entitled to an attorney's fee.  Section 28(b) of the Act, 33
U.S.C. §928(b), applies when a controversy develops over additional
compensation where employer has tendered compensation or is  voluntarily paying
compensation, and claimant successfully obtains more than employer  was paying.
See Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 31 BRBS 150 (CRT)
(5th Cir. 1997).  Claimant contends that he obtained greater benefits than employer
was paying, as employer refused to stipulate to certain issues until the morning
of  trial which required a hearing for claimant to obtain an award of continuing
benefits.  In denying a fee, the administrative law judge found that as a result
of the  hearing, claimant did not obtain greater benefits than that which employer
voluntarily paid, as claimant did not prevail on his sole contention of permanent
disability.

     We reject claimant's contention that the administrative law judge erred in
denying him an attorney's fee.  The record reflects that shortly after the informal
conference, employer began paying claimant compensation of $220 per week based on
an average weekly wage of  $360 per week.[6]   The
administrative law judge also found that employer voluntarily paid medical benefits
which were not an issue at the hearing.  Decision and Order at 1.  The
administrative law judge ordered employer to continue paying $240 per week, less
its credit.  The administrative law judge also rejected claimant's contention that
he was entitled to permanent total disability benefits and ordered employer to
continue paying temporary total disability benefits.  Thus, the administrative law
judge properly concluded that claimant did not obtain greater compensation than
employer was paying, and he properly found that claimant is not entitled to an
attorney's fee pursuant to Section 28(b) of the Act. See Wilkerson, 125 F.3d
at 904, 31 BRBS at 150 (CRT); Flowers v. Marine Concrete Structures, Inc.,
19 BRBS 162 (1986).  Contrary to claimant's contention, employer did not  refuse
to stipulate to certain issues until the morning of the hearing, as the only
contested issue was the issue of permanency.  See generally Finch v. Newport
News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989).   Consequently, we affirm
the administrative law judge's denial of an attorney's fee as it is in accordance
with law. See 33 U.S.C. §928(b). On remand, the administrative law
judge must reconsider claimant's entitlement to an attorney's fee if claimant is
awarded benefits for a permanent disability.

      Accordingly, the administrative law judge's finding that claimant's condition
is temporary is vacated, and the case is remanded to the administrative law judge
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)Employer first paid benefits pursuant to the Texas workers' compensation law, and then pursuant to the Longshore Act. Back to Text
2)The administrative law judge stated that it was his hope that claimant "will continue to make an effort to improve his condition, as his medical providers feel he can." Decision and Order at 4. We note that vocational rehabilitation generally is irrelevant to a determination of permanency, as the nature of a claimant's disability concerns only the medical aspects of the condition. See Price v. Dravo Corp., 20 BRBS 94 (1987). Back to Text
3) 3The only impairment rating in the record is that of Dr. Kennedy, who stated on September 11, 1996, that claimant had an eight percent impairment if he elected not to undergo surgery. CX 7 at 38. Back to Text
4)Dr. Halcomb's records indicate that as of November 22, 1996, he was seeing claimant only every two to three months. Back to Text
5)The evidence regarding claimant's need for psychological treatment is relevant to this finding. See generally Jenkins v. Kaiser Aluminum & Chemical Sales, Inc., 17 BRBS 183 (1985). Back to Text
6)The district director's January 17, 1997, Memorandum of Informal Conference recommends an average weekly wage of $360 per week, with a compensation rate of $240 per week less a recoupment of $20 per week for employer's overpayment. Employer's letter dated March 18, 1997, after the case was referred for a formal hearing, reflects a willingness to continue paying weekly compensation to claimant in accordance with the agreement reached. The administrative law judge noted that claimant's counsel did not request a fee for any work performed prior to the time that employer reinstituted its payments. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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