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                                 BRB No. 97-1211

JOHN ATKINS                             )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/02/1998 

                                        )
     v.                                 )
                                        )
BRASWELL SERVICES                       )
                                        )
     and                                )
                                        )
ARM INSURANCE SERVICES                  )
                                   )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Edith Barnett, Administrative Law
     Judge, United States Department of Labor.

     John M. Schwartz (Blumenthal, Schwartz & Garfinkel, P.A.), Titusville,
     Florida, for claimant.

     Bert G. Utsey (Sinkler & Boyd, P.A.), Charleston, South Carolina, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (92-LHC-1938) of Administrative Law
Judge Edith Barnett 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 25, 1991, claimant sustained a work-related injury during the
course of his employment with employer when he fell and struck his right knee. 
Claimant's treating physician, Dr. Carter, determined that claimant suffered from
traumatic degenerative arthritis resulting from a tibial plateau fracture with
anterior crutiate ligament instability as a result of a 1980 motorcycle accident,
which was aggravated by claimant's work injury.  Dr. Carter placed claimant on
anti-inflammatories and pain medication, with recommended physical therapy.

     Thereafter, claimant filed a claim for temporary total disability compensation
under the Act.  In  a Decision and Order issued on December 9, 1993, Administrative
Law Judge G. Marvin Bober awarded claimant temporary total disability compensation
from October 25, 1991 through January 31, 1993, see 33 U.S.C. §908(b),
at which time claimant secured a light duty position with another employer, and
temporary partial disability compensation commencing on February 1, 1993 and
continuing for the duration of claimant's impairment, not to exceed five years.[1]   33 U.S.C. §908(e).

     On January 6, 1994, claimant underwent an MRI, which revealed no indication
of injury other than the tibial plateau fracture from his motorcycle accident.  
After two months of unsuccessful physical therapy, Dr. Carter recommended that
claimant undergo arthroscopic surgery to determine if anything was missed by the
MRI.  Requesting a second opinion, claimant declined to undergo this procedure. 
On February 7, 1994, employer terminated claimant's benefits based on the negative
MRI; thereafter, on February 9, 1994, employer filed a motion for modification with
the district director, who referred the case to the Office of Administrative Law
Judges.[2]   Claimant filed for a default judgment
in the United States district court, and on July 13, 1994, employer reinstated
claimant's benefits with all back payments due, plus a penalty.  On August 4, 1994,
employer terminated benefits a second time, citing as its reason claimant's refusal
to undergo surgery.  After another default judgment was obtained in district court,
employer reinstated claimant's benefits on January 10, 1995.  On March 29, 1995,
claimant filed a motion for modification, claiming that he now suffers from a
psychological condition as a result of his work-related knee injury, which has
rendered him totally disabled; claimant requested authorization for treatment for
this condition.  Additionally, claimant requested authorization to obtain a second
opinion with respect to whether knee surgery was necessary, and furthermore, sought
modification of Judge Bober's decision with respect to the extent of claimant's
knee disability, contending he is now permanently totally disabled.

     In her Decision and Order addressing the parties' motions for modification,
Administrative Law Judge Edith Barnett (the administrative law judge), relying on
the opinion of Dr. Carter, found that claimant's knee condition reached maximum
medical improvement in October 1992.  Thus, the administrative law judge modified
Judge Bober's award to reflect that claimant is entitled to temporary total
benefits from October 25, 1991 until October 25, 1992; thereafter, based on Dr.
Seig's 20 percent impairment rating to claimant's lower extremity, the
administrative law judge awarded claimant permanent partial disability compensation
pursuant to Section 8(c)(2) of the Act, 33 U.S.C. §908(c)(2), to be offset by
the compensation payments employer previously made pursuant to Judge Bober's award.
See 33 U.S.C. §914(j).  Lastly, the administrative law judge determined
that claimant's psychological condition resulted from anger that his benefits had
been terminated by employer, not from the knee injury itself, and thus denied
claimant's request for modification based on a psychological injury.

     On appeal, claimant contends that the administrative law judge committed error
in failing to award temporary total disability benefits for his psychological
injury, and by finding that his knee condition had reached maximum medical
improvement in October 1992.  Additionally, claimant asserts that the
administrative law judge erred by not fully addressing the issue of the extent of
claimant's disability due to his knee injury.  Employer responds, urging affirmance
of the administrative law judge's decision. 

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based upon a mistake of fact in the initial decision or a change in
claimant's physical or economic condition. See Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291, 30 BRBS 1 (CRT)(1995).  Under Section 22, the
administrative law judge has broad discretion to correct mistakes of fact "whether
demonstrated by wholly new evidence, cumulative evidence, or merely further
reflection on the evidence submitted." O'Keeffe v. Aerojet-General Shipyards,
Inc., 404 U.S. 254, 256 (1971), reh'g denied, 404 U.S. 1053 (1972);
see also Banks v. Chicago Grain Trimmers Association, Inc., 390 U.S. 459,
reh'g denied, 391 U.S. 929 (1968).  When considering a motion for
modification, the administrative law judge is permitted to have before her the
record from the prior hearing. Dobson v. Todd Pacific Shipyards Corp., 21
BRBS 174 (1988).  In order to obtain modification for a mistake of fact, however,
the modification must render justice under the Act. See McCord v. Cephas,
532 F.2d 1377, 3 BRBS 371 (D.C. Cir. 1976).  It is well-established that the party
requesting modification due to a change in condition has the burden of showing the
change in condition. See, e.g., Vasquez v. Continental Maritime of San
Francisco, Inc., 23 BRBS 428 (1990). See also Rambo, 515 U.S. at 291,
30 BRBS at 1 (CRT).  Moreover, the applicable legal standards are the same during
Section 22 modification proceedings as during the initial adjudicatory proceedings
under the Act. See Rambo, 515 U.S. at 296, 30 BRBS at 3 (CRT); Delay v.
Jones Washington Stevedoring Co., 31 BRBS 197 (1998); Vasquez, 23 BRBS
at 431. 

     We first address claimant's contentions regarding the administrative law
judge's denial of his request for modification based on a work-related
psychological injury.  In order to be entitled to the Section 20(a), 33 U.S.C.
§920(a),  presumption linking claimant's condition to his employment, claimant
must establish a prima facie case by showing that he suffered a harm and
that either a work-related accident occurred or that working conditions existed
which could have caused or aggravated the harm. See Stevens v. Tacoma
Boatbuilding Co., 23 BRBS 191 (1990); Perry v. Carolina Shipping Co.,
20 BRBS 90 (1987).  The Section 20(a) presumption is applicable in psychological
injury cases. Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS
380, 384 n.2 (1990).  Claimant's psychological injury need only be due in part to
work-related conditions to be compensable under the Act. See Peterson v. General
Dynamics Corp., 25 BRBS 78 (1991), aff'd sub nom. Ins. Co. of North America
v. U.S. Dept. of Labor, OWCP, 969 F.2d 1400, 26 BRBS 14 (CRT)(2d Cir. 1992),
cert. denied, 507 U.S. 909 (1993).  Once claimant has established his
prima facie case, he is entitled to invocation of the Section 20(a)
presumption linking his harm to his employment. See Stevens, 23 BRBS at 191. 
Upon invocation of the presumption, the burden shifts to employer to rebut it with
substantial evidence that claimant's condition was not caused or aggravated by his
employment. See 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 presumption is
rebutted, the administrative law judge must weigh all of the evidence contained in
the record and resolve the causation issue based on the record as a whole. See
Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985); see also Director, OWCP
v. Greenwich Collieries; 512 U.S. 267, 28 BRBS 43 (CRT)(1994). 

     The administrative law judge, in analyzing causation herein, did not apply the
Section 20(a) presumption. In the instant case, it is undisputed that claimant
sustained an injury to his knee on October 25, 1991, during the course of his
employment with employer.  In her Decision and Order, the administrative law judge
acknowledged that the record contains complaints of psychological difficulties on
the part of claimant, which include feelings of anger and depression.[3]   Thus , claimant established the two elements of
his prima facie case with regard to his psychological condition and met the
initial burden of demonstrating a change in condition under Section 22.  Since the
same statutory standards apply on modification, he is entitled to the presumption
that his psychological condition is causally related to his employment. 
Furthermore, our review of the record indicates that employer presented no evidence
that claimant's psychological condition is unrelated to his work injury.  In fact,
the record contains only one opinion with regard to claimant's psychological
condition, the deposition of Dr. Podnos, as well as Dr. Podnos' January 30, 1995,
report.  That report, which was based on Dr. Podnos' examination of claimant,
states that claimant has had lingering difficulty with his knee, that claimant is
extremely focused on his knee condition, that claimant's emotional and physical
conditions are interrelated, and that claimant suffers from depression and pain
disorder associated with psychological factors and his knee disorder. See
Podnos Dep. Ex. 2; see also Podnos Dep. at 9, 15.

     In her decision on modification, the administrative law judge discounted this
opinion, stating that as Dr. Podnos examined claimant only once, a year and half
before the modification hearing,  his opinion has little bearing on claimant's
current condition.  Rather, the administrative law judge found, based on claimant's
testimony, that claimant's psychological problems are related to his anger at
employer for terminating his benefits. However, while claimant testified that he
believed his psychological condition was largely caused by employer's termination
of his benefits on two occasions, he also testified that he felt anger that his
knee problem was not taken care of. See Tr. at 42.  Therefore, claimant's
testimony cannot rebut Section 20(a).  As there is no medical evidence in the
record which establishes that claimant's psychological condition is not related to
his knee injury, the administrative law judge's finding of no causation must be
reversed, as claimant's psychological condition is work-related as a matter of law.
See Manship v. Norfolk & Western Railway Co., 30 BRBS 175 (1996); Bass
v. Broadway Maintenance, 28 BRBS 11 (1994); see generally ITO Corp. v.
Director, OWCP, 883 F.2d 422, 22 BRBS 126 (CRT)(5th Cir. 1989).  As claimant
has established that his psychological condition is work-related, the instant case
must be remanded for the administrative law judge to address the remaining issues
concerning that condition.  

      Claimant next alleges that the administrative law judge erred by finding that
his knee condition reached maximum medical improvement in October 1992. 
Specifically, claimant argues that Dr. Carter's March 1, 1996, opinion that
claimant reached maximum medical improvement in October 1992 conflicts with his
previous opinion on April 14, 1994, that claimant had not reached maximum medical
improvement, and his recommendations in 1994 that claimant undergo physical therapy
and surgery.  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).  Thus, a finding 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).

     In the instant case, claimant underwent physical therapy in 1994 in accordance
with Dr. Carter's recommendation; however, this therapy proved to be  unsuccessful. 
Thereafter, Dr. Carter scheduled diagnostic arthroscopic surgery to see if there
was any problem undetected by claimant's prior MRI, but claimant declined to
undergo this procedure.  In a March 1, 1996 report, Dr. Carter opined that claimant
reached maximum medical improvement one year after his work accident.  Emp. Ex. 6. 
The administrative law judge acknowledged that Dr. Carter's opinion appears to be
inconsistent, but gave little weight to his April 14, 1994, opinion as it was only
represented by a check mark on a questionnaire. See Cl. Ex. 3.  The
administrative law judge additionally found that Dr. Carter's opinion that claimant
reached maximum medical improvement one year after the work-accident was supported
by Dr. Seig's January 22, 1996, opinion that claimant had long since reached
maximum medical improvement, and that claimant had sustained a 20 percent
impairment to his lower extremity. See Emp. Ex. 7.  As the record thus
contains substantial evidence to support the administrative law judge's finding
that claimant reached maximum medical improvement in October 1992, we affirm that
finding, as well as the administrative law judge's termination of claimant's
temporary total disability  compensation on October 25, 1992.[4]   See Delay, 31 BRBS at 197; Ion v.
Duluth, Missabe and Iron Range Railway Co., 31 BRBS 75 (1997); Diosdado v.
Newpark Shipbuilding & Repair, Inc., 31 BRBS 70 (1997); Mason v. Baltimore
Stevedoring Co., 22 BRBS 413 (1989).

     Lastly, claimant asserts that the administrative law judge erred by failing
to fully address the issue of the extent of his disability due to his knee injury. 
We agree.  In the initial Decision and Order in this matter, Judge Bober found that
claimant's entitlement to temporary total disability compensation ended on January
31, 1993, at which time claimant secured an income from another employer; thus,
Judge Bober awarded claimant temporary partial disability benefits commencing on
February 1, 1993.  However, at the modification hearing, claimant testified that
since the time of the first hearing, he has been unable to secure steady gainful
employment, Tr. at 34-36, and asserted that he is now permanently totally disabled
as a result of the October 25, 1991, work-incident.  If claimant is permanent total
disabled as a result of his knee injury, he is not limited to a schedule award.
Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 277 n.17, 14
BRBS 363, 366-367 n.17 (1980).  Resolution of this issue requires findings as to
whether claimant is able to return to his usual work due to his knee injury,
psychological condition, or a combination of the two, and if he is not able to do
so, whether employer demonstrated the availability of suitable alternate
employment.  The administrative law judge did not address these issues.  As the
extent of claimant's disability was at issue on modification, we vacate the
administrative law judge's award of permanent partial disability benefits and
remand this case for the administrative law judge to make the necessary findings.
See, e.g., Hoodye v. Empire/United Stevedores, 23 BRBS 341 (1990).

     Accordingly, the administrative law judge's determination that claimant did
not sustain a work-related psychological injury is reversed, and the case is
remanded for consideration of the remaining issues regarding that injury.  The
administrative law judge's award of permanent partial disability compensation
pursuant to Section 8(c)(2) of the Act is vacated, and the case is remand for the
administrative law judge to reconsider the extent of claimant's disability.  In all
other respects, the Decision and Order 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)Judge Bober found that commencing on February 1, 1993, claimant's post-injury wage-earning capacity was $150 per week. Back to Text
2)Employer initially asserted in its motion for modification that the October 25, 1991, incident caused no damage to claimant's right knee. At the hearing, employer amended its position on modification, contending that claimant's knee condition had reached maximum medical improvement. Tr. at 6. Back to Text
3)We note that these complaints are documented by Dr. Podnos, claimant's treating physician. Back to Text
4)Claimant additionally asserts that a finding of maximum medical improvement cannot be made, as Dr. Podnos opined that claimant had not reached maximum medical improvement with respect to his psychological injury. We reject this assertion, as the administrative law judge's finding of permanency involves claimant's knee, not his psychological condition. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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