BRB No. 93-1341
LARRY NELSON )
)
Claimant-Respondent )
)
v. )
)
TODD PACIFIC SHIPYARDS ) DATE ISSUED: 07/29/1996
CORPORATION )
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and )
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AETNA CASUALTY & SURETY )
COMPANY )
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Employer/Carrier- )
Petitioners )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order - Awarding Benefits of Paul A. Mapes,
Administrative Law Judge, United States Department of Labor.
Larry M. Nelson, Seattle, Washington, pro se.
Charles E. Henshall (Thomas G. Hall & Associates), Seattle, Washington,
for employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order - Awarding Benefits (91-LHC-1828) of
Administrative Law Judge Paul A. Mapes 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).
On October 31, 1989, claimant injured his left knee during the course of his
employment for employer. Surgery to repair a torn medial meniscus was performed
on November 7, 1989. On November 15, 1989, claimant began physical therapy to
rehabilitate his knee. Claimant subsequently experienced back pain
symptomatology, which he alleges is related to his rehabilitation regimen.
Employer voluntarily paid claimant temporary total disability compensation from
November 1, 1989, to June 12, 1990, and compensation for a 5 percent permanent
partial impairment of the left knee due to the work injury. 33 U.S.C.
§§908(b), (c)(2), (19). Employer controverted claimant's claim for
continuing compensation for temporary total disability due to his back
symptomatology, which it maintained is unrelated to claimant's work injury.
In his Decision and Order, the administrative law judge applied the Section
20(a) presumption, 33 U.S.C. §920(a), which he found employer rebutted. He
then applied the "true doubt rule" to find that the physical therapy prescribed
after claimant's left knee surgery aggravated claimant's previous back impairment.
Claimant was thus awarded temporary total disability compensation until September
8, 1992, at which time the administrative law judge found that employer established
the availability of suitable alternate employment paying $6.85 per hour, and
permanent partial disability compensation thereafter at a rate of $49.97 per week.
33 U.S.C. §908(c)(21), (h). Finally, claimant was denied a penalty under
Section 14(e), 33 U.S.C. §914(e), and employer was awarded relief pursuant to
Section 8(f) of the Act, 33 U.S.C. §908(f).
On appeal, employer contends the administrative law judge erred in finding
claimant's back condition to be causally related to his left knee injury. Employer
additionally asserts that the administrative law judge erred in arbitrarily
determining that claimant has a residual wage-earning capacity of $6.85 per hour.
Claimant responds, urging affirmance of the administrative law judge's Decision and
Order.
Employer initially challenges the administrative law judge's finding that
claimant's back pain is related to the October 31, 1989, work-related knee injury.
Where, as in the instant case, claimant establishes his prima facie case,
claimant is entitled to the presumption at 33 U.S.C. §920(a) that his injury
or harm arose out of and in the course of his employment. See Stevens v. Tacoma
Boatbuilding Co., 23 BRBS 191 (1990). An employment injury need not be the
sole cause of a disability; rather, if the employment aggravates, accelerates or
combines with an underlying condition, the entire resultant condition is
compensable. See Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th
Cir. 1966); see also Mattera v. M/V Mary Antonette, Pacific King, Inc., 20
BRBS 43 (1987) (an injury sustained during the course of vocational testing is
covered under the Act, because it necessarily arose out of and in the course of
claimant's employment); Weber v. Seattle Crescent Container Corp., 19 BRBS
146 (1986)(same rationale for injury occurring during medical examination). Upon
invocation of the presumption, the burden shifts to employer to present specific
and comprehensive evidence sufficient to sever the casual connection between the
injury and the employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075,
4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). If the
administrative law judge finds that the Section 20(a) presumption is rebutted, the
administrative law judge must weigh all of the evidence and resolve the causation
issue on the record as a whole. See Devine v. Atlantic Container Lines,
G.I.E., 23 BRBS 279 (1990).
In the instant case, after finding that claimant had invoked, and employer had
rebutted, the Section 20(a) presumption, the administrative law judge considered
the issue of causation based upon the record as a whole. In addressing this issue,
the administrative law judge initially stated that, pursuant to the decision of the
United States Court of Appeals for the Ninth Circuit in Parsons Corp. of
California v. Director, OWCP, 619 F.2d 38, 12 BRBS 234 (9th Cir. 1980),
employer still bore the burden of persuasion even after it had rebutted the
presumption. The administrative law judge thereafter concluded that, since the
evidence was evenly balanced regarding the issue of causation, the "true doubt
rule" required that the benefit of the doubt be given to claimant. Accordingly,
the administrative law judge found that claimant's back condition was aggravated
by the medical treatment and physical therapy that had been prescribed as a result
of his work-related knee injury.
Subsequent to issuance of the administrative law judge's Decision and Order,
the United States Supreme Court held in Director, OWCP v. Greenwich
Collieries, 114 S.Ct. 2251, 28 BRBS 43 (CRT)(1994), that application of the
"true doubt rule" does not apply to cases under the Act because it violates Section
7(c) of the Administrative Procedure Act, 5 U.S.C. §556(d), which requires
that the party seeking the award bear the burden of persuasion. Pursuant to
Greenwich Collieries, the administrative law judge's reliance upon the "true
doubt rule" requires that we remand the case because the administrative law judge
has not weighed the medical evidence of record regarding the alleged causal
connection between claimant's work-related knee injury and his back condition.
Accordingly, we vacate the administrative law judge's finding that claimant's back
condition is related to his work injury and remand the case for him to determine
if, in light of all relevant evidence, claimant has met his burden of establishing
a causal relationship between his back condition and the work injury. See Holmes
v. Universal Maritime Service Corp., 29 BRBS 18 (1995)(decision on recon).
Employer next contends that the administrative law judge erred in finding that
claimant has a residual wage-earning capacity of $6.85 per hour. Pursuant to
Section 8(c)(21), an award for permanent partial disability is based on the
difference between claimant's pre-injury average weekly wage and his post-injury
wage-earning capacity. 33 U.S.C. §908(c)(21). Section 8(h) of the Act
provides that claimant's wage-earning capacity shall be his actual post-injury
earnings if these earnings fairly and reasonably represent his wage-earning
capacity. 33 U.S.C. §908(h). The objective of the inquiry concerning
claimant's wage-earning capacity is to determine the post-injury wage to be paid
under normal employment conditions to claimant as injured. See Long v. Director,
OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th Cir. 1985). Sections 8(c)(21) and
8(h) require that wages earned in a post-injury job be adjusted to the wages that the job paid at the
time of claimant's injury and then compared with claimant's average weekly wage to
compensate for inflationary effects. See Richardson v. General Dynamics
Corp., 23 BRBS 327 (1990).
In the present case, the administrative law judge determined that five
positions identified by employer establish the availability of suitable alternate
employment.[1] Next, in calculating claimant's
post-injury wage-earning capacity, the administrative law judge stated that
"[g]iving the claimant the benefit of the doubt as to the actual wage he could
obtain if he diligently sought work, I find that claimant has a residual earning
capacity of $6.85 per hour." See Decision and Order at 29. The
administrative law judge's summary statement regarding this issue is in violation
of the Administrative Procedure Act, which requires that every adjudicatory
decision be accompanied by a statement of "findings and conclusions, and the
reasons or basis therefor, on all the material issues of fact, law or discretion
presented on the record." 5 U.S.C. §557(c)(3)(A). We therefore vacate the
administrative law judge's determination of claimant's post-injury wage-earning
capacity; on remand, the administrative law judge must make appropriate findings
based on the relevant law and evidence and give an explanation of the reasons and
basis for that determination. See Ballesteros v. Willamette Western Corp.,
20 BRBS 184 (1988).
Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits 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
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)Specifically, employer identified positions as a night auditor,
bookkeeper, estimator, accounting clerk and accounts receivable clerk paying $6.85,
$7.00-$8.00, $7.00, $7.20, and $9.50 per hour respectively.
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NOTE: This is an UNPUBLISHED LHCA Document.
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