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                              BRB No. 97-1241      

ROBERT CARTER                           )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/05/1998
                                        )
     v.                                 )
                                        )
                                        )
TRAILER MARINE TRANSPORT                )
CORPORATION                             )
                                        )
     and                                )
                                        )
NATIONAL UNION FIRE                     )
INSURANCE COMPANY                       )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Donald W. Mosser, Administrative Law
     Judge, United States Department of Labor.

     Howard L. Silverstein, Miami, Florida, for claimant.

     Robert L. Teitler (Walton, Lantaff, Schroeder & Carson), Miami, Florida,
     for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order (93-LHC-1565) of Administrative Law
Judge  Donald W. Mosser 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 the
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 January 19, 1987, claimant injured his shoulder, his right leg, and purportedly his neck while working
for employer.  Employer voluntarily paid claimant temporary total disability compensation for various time periods, and
in addition scheduled permanent partial disability compensation for a 14 percent loss of use of the
right leg under Section 8(c)(2) and (19) of the Act, 33 U.S.C. §908(c)(2) and (19).  Claimant sought additional
compensation under the Act. In a Decision and Order issued November 20, 1991, Administrative Law Judge E. Earl
Thomas concluded that, as claimant's shoulder and neck injuries were temporary and  had resolved rather quickly, the
only permanent impairment he suffered was that involving his right knee.  Inasmuch as claimant conceded his ability to
perform alternate work as a self-employed auto mechanic, the administrative law judge determined that claimant was not
totally disabled and was thus limited to an award under the schedule.  Crediting the 14 percent impairment
rating of Dr. Burgess, claimant's most recent treating physician, the
administrative law judge found that claimant was not entitled to any additional
compensation beyond that which employer had voluntarily paid him.  This decision
was subsequently affirmed by the Board. Carter v.  Trailer Marine Transport
Corp., BRB No.  92-0707 (Nov. 5, 1992)(unpublished). 

     Claimant thereafter requested modification under Section 22 of the Act, 33
U.S.C. §922, asserting a change in his condition subsequent to the issuance of the initial 
Decision and Order based on  additional injuries to his left knee and back as a result of his altered gait
due to his prior right knee injury.  In addition, following surgery on both knees
on February 24, 1995, claimant alleged that he suffered increasing back pain while
using a cane or crutches after his surgery, and as a result, was unable to perform
his previous alternate work. 

     On May 8, 1997, Administrative Law Judge Donald W. Mosser issued a Decision and Order granting
modification.[1]   Relying upon the opinions of Drs. Reilly and Blumberg,
he concluded that claimant successfully established a change in his condition in that  subsequent to the
issuance of the initial Decision and Order, he suffered injuries to his left knee
and back which were the natural and unavoidable result of his altered gait due to
his right knee injury.  Based on the medical opinions of Drs. Levitt and Reilly
that claimant can perform only sedentary work and Dr. Blumberg's opinion that
claimant was unable to perform any work as of January 11, 1995, the administrative
law judge further found  that claimant established a prima facie case of
total disability due to his knee and back condition.  The administrative law judge
further determined that claimant was not entitled to additional disability
compensation prior to  January 11, 1995, when Dr. Blumberg examined him and found
that he was unable to do any work due to his back problems.  Crediting Dr.
Blumberg's opinion that claimant's condition had not yet reached maximum medical
improvement,  the administrative law judge thus awarded claimant temporary total
disability compensation commencing January 11, 1995,[2]   and various past and future medical expenses for treatment rendered by Drs.  Reilly and Blumberg
pursuant to Section 7 of the Act, 33 U.S.C. §907.[3]  

     Employer appeals, contending that the administrative law judge erred as a matter of law in determining that
claimant's modification claim was not barred by the doctrine of res judicata because the issue of claimant's
entitlement to compensation for his left knee and lower back was ripe and was litigated in the initial proceeding. 
Employer asserts that the back and left knee conditions claimed in the modification proceedings are the same conditions
claimed in the initial proceedings and thus, regardless of the evidence that claimant has produced on the issue of
causation, there has been no change in claimant's condition between the initial claim and the  modification claim. 
Claimant responds, urging affirmance, arguing that no claim for compensation had  been made for injuries to
his left knee and back prior to the modification proceeding, and that, in any
event, the administrative law judge rationally concluded based on the medical
opinions of Drs.  Reilly, Blumberg, and Gorenberg that claimant had established a
change in his condition. 

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for changing otherwise final decisions. 
Modification of a prior decision is permitted at any time prior to one year after the last payment of compensation or the
rejection of the claim, based on a mistake in 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, 115 S.Ct. 2144 (1995); Fleetwood
v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d 1225, 18 BRBS 12 (CRT)(4th Cir. 1985); Finch
v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989).  A party requesting modification due to
a change in condition has the burden of showing the change in condition. See, e.g., Winston v. Ingalls
Shipbuilding, Inc., 16 BRBS 168 (1984).  Additionally, 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 initially submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254
(1971), reh'g denied, 404 U.S. 1053 (1972); Wynn v. Clevenger Corp., 21 BRBS 290 (1988). 

     We affirm the administrative law judge's decision to grant claimant's motion for modification.  Employer argues
initially that  the administrative law judge erred as a matter of law in determining that
claimant's claim for modification was not barred by the doctrine of res judicata
because the issue of claimant's entitlement to compensation for injuries to his
left knee and back had previously been litigated and held non-compensable in the
initial proceedings.  Initially, we note that modification proceedings under
Section 22 of the Act are intended to replace traditional notions of res
judicata and thus allow the fact-finder to consider newly submitted evidence
or to further reflect on the evidence initially submitted. Duran v. Interport
Maintenance Corp., 27 BRBS 8 (1993); Hudson v. Southwestern Barge Fleet
Services, Inc., 16 BRBS 367 (1984).  Thus, contrary to employer's contention,
the doctrine of res judicata does not bar consideration of the issues
presented in claimant's motion for modification.  

     In any event, employer's argument that the administrative law judge erred in
finding that claimant demonstrated a change in his condition because  the lower
back and left leg conditions claimed on modification are the same conditions for
which compensation had been  claimed in the initial proceedings is without merit. 
The record reflects that the claim for compensation in the initial proceeding was
limited to claimant's neck, shoulder, and right knee injuries.  In contrast, in his
petition for modification,  claimant asserted that subsequent to the entry of the
original Decision, he began to experience progressively worsening back pain which
two doctors, Drs. Gorenberg, a chiropractor, and Dr. Blumberg, an orthopedic
surgeon, related to aggravation of his pre-existing back condition by his altered
gait resulting from his 1987 right knee injury.  In addition, claimant asserted
that in February 1995,  he was diagnosed as having a meniscus tear and degenerative
thinning of the patellar articular cartilage of the left knee which Dr. Reilly, one
of Dr. Blumberg's associates, felt was secondary to his work-related right knee
injury because claimant would tend to put more weight on the knee that was least
traumatized by the accident.  CX 10 at  15.   

     In weighing the medical evidence regarding claimant's condition, the
administrative law judge rationally found that inasmuch as Drs. Reilly and Blumberg
both determined that claimant's left knee and back could have been caused by his
altered gait resulting from his work-related right knee injury, claimant was
entitled to invocation of the Section 20(a) presumption of the Act, 33 U.S.C.
§920(a). See Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990). 
He also properly determined that as employer had not proffered any medical evidence
to rebut the Section 20(a) presumption, claimant successfully established that his
left knee and back conditions are work-related.  Peterson v. General Dynamics
Corp., 25 BRBS 71 (1991), aff'd sub nom. Ins. Co. of N. America v. U.S.
Dept. of Labor, 969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir. 1992), cert.
denied,    U.S.   , 113 S.Ct. 1253 (1993).  Based on Dr. Blumberg's assessment 
that claimant was unable to perform any work due to  his back condition as of January 11,
1995, and while he was recovering from his November 17, 1995, back surgery, the administrative
law judge awarded him temporary total disability compensation as of  January 11,
1995.  The administrative law judge rationally determined based on the evidence
submitted on modification that claimant established a change in his condition under
Section 22. See Wynn, 21 BRBS at 290. Employer's arguments that the administrative law judge
erred in entertaining claimant's motion and in granting modification are thus rejected, and the award of disability
compensation and medical expenses, which is not otherwise challenged, is affirmed.

     Accordingly, the administrative law judge's Decision and Order granting claimant's motion for modification is
affirmed.

     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)There were two hearings held on modification in this case; one before Administrative Law Judge Robert G. Mahony on April 12, 1995, and one before Judge Mosser on April 4, 1996. Back to Text
2)Regarding the left knee injury, the administrative law judge found that claimant suffered a 12 percent permanent impairment to the left knee, but noted that claimant was precluded from receiving permanent partial disability benefits under the schedule during the period when he was receiving total disability compensation. Back to Text
3)Claimant also sought medical benefits for the chiropractic treatment rendered by Dr. Gorenberg, which were denied by the administrative law judge. Claimant argues in his response brief that he is entitled to medical benefits for Dr. Gorenberg's chiropractic treatment. We will not address this argument, as it should have been raised in a timely filed cross-appeal. Briscoe v. American Cyanamid Corp., 22 BRBS 389 (1989). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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