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                                 BRB No. 97-1259 

  
NATHAN E. HUFFMAN, JR.                  )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/10/1998

                                        )
     v.                                 )
                                        )
STEVEDORING SERVICES OF                 )
AMERICA                                 )
                                        )
          and                           )
                                        )
EAGLE PACIFIC INSURANCE                 )
COMPANY                                 )
                                        )
          Employer/Carrier-             )    
          Respondents                   )    DECISION and ORDER
                                         

     Appeal of the Decision and Order on Remand Denying Benefits of Henry B.
     Lasky, Administrative Law Judge, United States Department of Labor.

     J. Bradford Doyle, Corte Madera, California, for claimant.

     Richard M. Slagle and Joan L.G. Morgan (Slagle Morgan & Ellsworth, LLP),
     Seattle, Washington, for employer/carrier.

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

     HALL, Chief Administrative Appeals Judge:

     Claimant appeals the Decision and Order on Remand Denying Benefits (91-LHC-1502) of Administrative Law Judge Henry B. Lasky 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).  

     This case is before the Board for the second time.  On April 26, 1990,
claimant, a casual longshoreman, injured his right shoulder and cervical spine
while working for employer.  Claimant was initially treated on April 30, 1990, by
Dr. Strange, a board-certified family practitioner.  Dr. Strange diagnosed a right
shoulder strain, and referred claimant on May 3, 1990 to Dr. Mysliwiec, an
orthopedic specialist, who opined that claimant could not return to longshoring
work, but released claimant to light duty work on January 31, 1991.  Paul Tomita,
a vocational rehabilitation counselor, identified job opportunities within
claimant's physical restrictions as a motel desk clerk, customer service
representative, and bank teller, which were available as of January 31, 1991, and
Dr. Mysliwiec approved these positions. On November 18, 1991, claimant returned to
Dr. Strange for treatment of depression.  Dr. Strange attributed this condition to
multiple stresses, including claimant's cervical injury, and prescribed Prozac. 
In addition, in March 1992, claimant was evaluated for emotional difficulties by
Don Filmore, MA, a psychological counselor of the Quinault Indian Nation Clinic, 
who noted that a major source of claimant's stress was his dealings with the
insurance company and his inability to move the proceedings along.  On April 2,
1992, claimant was also evaluated by Carol Baros, MA, a psychological counselor who
diagnosed him as suffering from major depression with paranoia and feelings of
victimization related to his dealings with the insurance company  handling his
claim.  Employer voluntarily paid claimant temporary total disability compensation
from May 4, 1990 through March 2, 1992.  Claimant sought additional disability
compensation and medical benefits under the Act for his cervical injury and
depression.

     In his initial Decision and Order, dated August 5, 1992, the administrative
law judge, rejecting claimant's testimony that his depression is related to his
cervical injury, found that claimant's depression was due to his legal tax problems
with the Internal Revenue Service and the State of Washington, a pending paternity
suit, and his multiple unrelated medical problems.  The administrative law judge
also determined that any disability claimant had resulting from claimant's cervical
injury ceased as of January 31, 1991, when employer established the availability
of suitable alternate employment which paid more than claimant was earning at the
time of his injury.  Accordingly, he awarded claimant temporary total disability
benefits from May 4, 1990, until he was released to return to work on January 31,
1991, but denied claimant any disability compensation benefits thereafter. The
administrative law judge further concluded that there was no credible evidence that
either claimant's cervical injury or his depression would preclude him from
performing the suitable alternate work established by employer, citing  Dr.
Mysliwiec's deposition testimony which reflects that claimant is capable of
performing reasonably continuous gainful employment in light, sedentary
occupations.  CX 29 at 59-60. 

     Claimant appealed, arguing that he was entitled to ongoing temporary total
disability compensation from November 18, 1991, for depression caused in part by
his work-related cervical injury.  Claimant also challenged the administrative law
judge's calculation of his average weekly wage,  asserting that although he had 
a post-injury wage-earning capacity of $240 per week  based on Mr. Tomita's
testimony, if the correct average weekly wage was applied, he had nonetheless
sustained a permanent loss in his wage-earning capacity and was therefore entitled
to permanent partial disability compensation for his cervical injury.  Employer
responded, urging affirmance.

     In its Decision and Order dated April 29, 1996, the Board vacated the
administrative law judge's determination that claimant's depression was not related
to his work injury as he did not analyze the relevant evidence in light of the
Section 20(a) presumption.  As it was undisputed that claimant suffers from
depression and that a work accident occurred, the Board concluded that claimant was
entitled to the Section 20(a), 33 U.S.C. §920(a), presumption and remanded
for the administrative law judge to reconsider claimant's entitlement to
disability compensation in light of all relevant evidence consistent with the
requirements of the Administrative Procedure Act (APA), 5 U.S.C.
§557(c)(3)(A).  In remanding the case, the Board noted that in attributing
claimant's depression to other causes,  the administrative law judge failed to
consider relevant evidence, including the medical opinion of Dr. Strange that from
at least November 18, 1991, claimant has been unable to pursue gainful employment
because of depression related, at least in part, to the effects of his cervical
injury, and the opinion of the psychological counselor, Ms. Baros.

     With respect to the administrative law judge's determination that there was
no credible evidence that claimant's depression would preclude his performing the
suitable alternate work established by employer, the Board noted that the
administrative law judge's reliance on Dr. Mysliwiec's deposition testimony was
misplaced as his opinion that claimant was capable of performing gainful employment
in light, sedentary occupations was premised only on claimant's physical capacity. 
CX 29 at 59-60.  In addition, the administrative law judge did not address Mr.
Tomita's testimony that, while he was unaware of whether claimant's depression was
chronic or acute or whether he had been prescribed medication for it, the condition
would affect his employability.  Tr. at 244.  The Board, however, affirmed the
administrative law judge's determination that claimant failed to establish
a loss in his wage-earning capacity based on his physical injuries,
concluding that the administrative law judge rationally determined that
claimant's average weekly wage was $166.89 ,which was less than his
unchallenged post-injury wage-earning capacity of $240. Huffman v.
Stevedoring Services of America, BRB No. 92-2397 (April 29,
1996)(unpublished).  Thereafter, employer sought review of the Board's
Decision and Order before the United States Court of Appeals for the Ninth
Circuit, which dismissed employer's appeal as interlocutory.  Stevedoring
Services of America v.  Director, OWCP, No.  96-70520 (9th Cir. Sept.
16, 1996).  
     In a Decision and Order on Remand Denying Benefits issued May 21, 1997,
the administrative law judge did not follow  the Board's Decision and Order
holding claimant entitled to the benefit of the Section 20(a) presumption. 
Instead, citing U.S. Industries/Federal Sheet Metal, Inc. v. Director,
OWCP, 455 U.S. 608, 14 BRBS 631 (1982), he reaffirmed his prior Decision
and Order, stating that the Board misstated the law and facts with respect
to Section 20(a) presumption, as employer did not concede that claimant has
depression and claimant did not present any credible lay or medical
testimony sufficient to establish that he suffered from depression as a
result of his April 1990 cervical injury.[1] 
 In finding that claimant was not entitled to the Section 20(a) presumption, the
administrative law judge also noted that claimant did not mention depression until
he saw Dr. Strange in November 1991, 19 months after his cervical injury, and that
there was no medical diagnosis  of clinical depression by a qualified board-certified psychiatrist. The administrative law judge determined, however,  that
even if the Section 20(a) presumption was invoked, it was rebutted and that the
record as a whole is replete with evidence that any alleged stress, depression,
anxiety, or similar condition  is not causally related to claimant's  1990 cervical
injury. Finally, the administrative law judge took issue with the Board's
determination that  in concluding that claimant's depression was not disabling, he
erred in failing to consider Mr Tomita's testimony regarding claimant's
employability;  he found that as claimant did not have any depression arising out
of and incurred in the course of his employment and  claimant had conceded that he
had a $249 per week residual wage-earning capacity based on the alternate jobs
identified by Mr. Tomita, consideration of this testimony was unnecessary. 
Accordingly, he again denied the claim.

     On appeal, claimant challenges the administrative law judge's finding that he
is not entitled to compensation for depression resulting from his work-related
cervical injury on various grounds, arguing that employer did not rebut the Section
20(a) presumption and that the administrative law judge exhibited animus toward him
by relying on extrinsic evidence of claimant's falsifying IRS returns and a
paternity suit against claimant to discredit all of the testimony he presented
relating his depression to the 1990 cervical injury.   Employer responds, urging
affirmance.

       The administrative law judge's denial of benefits cannot be affirmed. 
Initially, we note that in the prior Decision remanding the case, the Board
specifically held that claimant is entitled to the Section 20(a) presumption. 
Thus, on remand, the issues before the administrative law judge were the cause of
claimant's depression in light of the presumption and the extent of his disability,
if any, resulting therefrom in light of all of the relevant evidence.  Section
804.405(a) of the regulations, 20 C.F.R. §802.405(a), governing the operations
of the Benefits Review Board, provides that "[w]here a case is remanded, such
additional proceedings shall be initiated and such other action shall be taken as
is directed by the Board."  Thus, in reconsidering claimant's entitlement to
invocation of the Section 20(a) presumption on remand, the administrative law judge
erred by failing to follow the Board's directive. See Obert v. John T. Clark and
Son of Maryland, 23 BRBS 157 (1990).  Moreover, as it was based on claimant's
diagnosed depression[2]  and the undisputed work
injury, the Board's holding that claimant invoked Section 20(a) is in accordance
with U.S. Industries, 455 U.S. at 608, 14 BRBS at 631.  The issue before the
administrative law judge on remand thus involved employer's burden to rebut the
statutory presumption. 

     Once the Section 20(a) presumption is invoked, the burden shifts to employer
to rebut it with substantial evidence that claimant's condition is not caused or
aggravated by his employment. See Bridier v. Alabama Dry Dock & Shipbuilding
Corp., 29 BRBS 84 (1995); Sam v. Loffland Bros., 19 BRBS 288 (1987). 
If the administrative law judge finds that the Section 20(a) presumption is
rebutted, he must weigh all of the evidence and resolve the causation issue based
on the record as a whole. See Hughes v. Bethlehem Steel Corp., 17 BRBS 153
(1985). 

     Notwithstanding his finding that claimant was not entitled to the Section
20(a) presumption, the administrative law judge also found that rebuttal had been
established and that the record as a whole established that  any alleged stress,
depression, or anxiety is not causally related to claimant's work-related 1990
cervical injury.  On appeal, claimant asserts that the administrative law judge
denied his claim on the basis of tenuous inferences and circumstantial evidence
while at the same time mischaracterizing, ignoring, and failing to rationally and
objectively consider relevant evidence.  Claimant further avers that as  there is
no record evidence sufficient to establish the absence of a causal connection
between claimant's depression and his work-related cervical injury, the
administrative law judge erred in finding employer rebutted the Section 20(a)
presumption and in denying the claim accordingly.

     We agree with claimant that the administrative law judge's finding of rebuttal
does not comport with applicable law.  The administrative law judge initially found
that employer had completely ruled out the causal connection between claimant's
April 26, 1990, physical injury and his claim of depression 19 months later because
the purported diagnoses of depression  by Drs. Strange and Mysliwiec were not
credible inasmuch as they were premised on claimant's mendacious complaints.  This
finding does not provide an adequate ground for rebuttal.  Initially, the
administrative law judge abused his discretion by substituting his own medical
judgment for the uncontradicted opinion of claimant's treating physicians that
claimant was experiencing depression as a result of his work injury based upon his
finding that claimant's symptoms were not credible. See Pietrunti v.  Director,
OWCP, 119 F.3d 1035, 31 BRBS 84 (CRT) (2d Cir. 1997).  The evidence relevant
to claimant's mental state includes the reports and depositions of these doctors,
as well as reports of two psychological counselors, Carol Baros and Don Filmore,
who evaluated claimant and recommended counseling.  Although, as the administrative
law judge noted, none of these professions was a clinical psychiatrist, Dr. Strange
in fact treated claimant for depression and deposed that treatment of patients for
depression was a regular part of his family practice.[3]   CX 30 at 16-17.  Dr. Strange described claimant's feelings of
depression, his resulting physical symptoms and stressors causing the condition in
discussing the basis for his diagnosis. Id. at 15-16, 17-18.  At the time
of the hearing, claimant had been taking Prozac, an antidepressant prescribed by
Dr. Strange for approximately 6 months.  Given this evidence and the lack of
countervailing evidence from employer, the record does not contain substantial
evidence supporting the administrative law judge's conclusions.  Inasmuch as
"depression is not the blues.  It is a mental health illness; and health
professionals, in particular psychiatrists, not lawyers or judges, are the experts
on it," Pietrunti, 119 F.3d at 1044, 31 BRBS at 91 (CRT), quoting Wilder
v. Chater, 64 F.3d 335, 337 (7th Cir. 1995),  the administrative law judge's
decision cannot be affirmed as it is not supported by the opinions of the health
professionals in this case. 

     More importantly, since employer bears the burden of severing the presumed
causal nexus, even if the decision to discredit all of the relevant evidence was
affirmable, such a finding cannot rebut Section 20(a).  The administrative law
judge found that rebuttal was established because neither  Drs.  Strange and
Mysliwiec, nor the psychological counselors, Mr. Filmore and Ms. Baros, provided
credible testimony which linked claimant's depression to his 1990 cervical injury. 
This conclusion improperly placed the burden on claimant to establish that his
depression is work-related, rather than on employer to establish that it is not
work-related. See generally 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).  It is employer's burden on rebuttal to present specific and
comprehensive evidence sufficient to sever the causal connection between the injury
and the 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); Devine v.
Atlantic Container Lines, G.I.E., 23 BRBS 279 (1990). 

      In addition, the administrative law judge erred in finding  that employer
succeeded in completely ruling out the connection between claimant's 1990 injury
and his alleged depression because the records of both Dr. Strange and Dr.
Mysliwiec attributed claimant's depression to causes in addition to the injury. 
Inasmuch as  Dr. Strange opined that claimant's depression was due at least in part
to his cervical injury, his opinion cannot rebut the Section 20(a) presumption.
Konno v. Young Bros., Ltd, 28 BRBS 57, 62 (1994).  Moreover, that the
doctors and counselors may have attributed claimant's symptoms to additional causes
other than the  work injury is also not determinative; the Section 20(a)
presumption is not rebutted merely by suggesting alternate ways that claimant's
injury might have occurred. See  Sinclair v. United Food & Commercial
Workers, 23 BRBS 148 (1989).  Moreover, under the aggravation rule, claimant's
entire condition is compensable if due in part to the work-related injury. See
Konno, 28 BRBS at 61.  Finally, the administrative law judge's reliance on the
19 month gap between claimant's last day of work and the first documentation of his
depression is also insufficient, by itself, to establish rebuttal. Gencarelle
v. General Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23
BRBS 13 (CRT) (2d Cir. 1989). 

     Inasmuch as the administrative law judge improperly allocated the burden
of proof  in determining that employer established rebuttal of the Section
20(a) presumption,[4]   this finding must
be vacated.  As employer introduced no evidence that claimant did not suffer
from depression due at least in part to his work injury, moreover, the
record contains no evidence to rebut the Section 20(a) presumption. 
Accordingly, causation is established as a matter of law, and the
administrative law judge's finding that claimant does not suffer from
depression due to his work injury must be reversed.

     Employer suggests in its response brief, however, that the denial of benefits
may be affirmed, in any event, because the administrative law judge's alternate
finding that claimant failed to establish any loss in his wage-earning capacity
based on stress, depression, anxiety or similar conditions is rational and
supported by substantial evidence.  We are unable, however, to affirm the denial
of benefits on this alternate basis because in so concluding, the administrative
law judge disregarded the Board's prior remand instructions and misinterpreted the
import of claimant's concession that Mr. Tomita's testimony established that he
retained the capacity to earn $6.00 per hour or $240 per week.  In its  prior
decision, the Board noted that although the administrative law judge found based
on Dr. Mysliwiec's testimony that claimant is capable of performing reasonably
continuous or gainful employment in light, sedentary occupations, Dr. Mysliwiec's
testimony did not provide substantial evidence to support this determination
because in context it was clear he  had been referring only to claimant's physical
capacity.  In addition, the Board noted that at the hearing Mr. Tomita testified
that while he was unaware of whether claimant's depression was chronic or acute and
whether he had been prescribed medication for it, this condition would affect his
employability.  Tr. at 244.  Thus, the Board directed the administrative law judge
on remand to reconsider claimant's entitlement to disability compensation for
depression in light of all of the relevant testimony.

      In his Decision and Order On Remand, the administrative law judge found that
the Board's determination that  he erred in failing to consider Mr. Tomita's
testimony was unfounded.  Specifically, he determined that  inasmuch as he found
that claimant did not  suffer from any depression arising out of and incurred in
the course of his employment as a result of his 1990 injury and that claimant
conceded in his post-hearing filing that the suitable alternate employment
identified by Mr. Tomita established that he had a post-injury wage-earning
capacity of $240,  which was greater than his average weekly wage, Mr. Tomita's
testimony was immaterial.  As discussed previously, however, the administrative law
judge's causation analysis  does not comport with applicable law.  Moreover,
although claimant did concede that "relying upon Mr. Tomita's analysis claimant has
retained earning capacity of $6.00 per hour... or $240 per week,"  Mr. Tomita
testified  that he did not take into account claimant's mental state in considering
his employability, and  employer argued in the prior proceedings that the jobs
identified in Mr. Tomita's labor market survey were consistent with the physical
limitations imposed by Dr. Mysliwiec, who also did not account for claimant's
mental state.  Thus, it is evident that claimant's concession referred only to his
physical injury.  Accordingly, we must again vacate the administrative law judge's
finding that claimant's depression was not disabling. On remand, the administrative
law judge must reconsider claimant's entitlement to disability compensation for his
depression in light of all of the relevant evidence of record consistent with the
requirements of the APA.  
     Accordingly, the Decision and Order on Remand Denying Benefits of the
administrative law judge is vacated, and this case is remanded for further
consideration consistent with this opinion.

     SO ORDERED.    



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




     I concur:                                                     
                         ROY P. SMITH
                         Administrative Appeals Judge

     BROWN, Administrative Appeals Judge, dissenting:

     I disagree with my colleagues' decision to reverse the administrative law
judge's finding that claimant does not suffer from depression related to his work
injury.  I would affirm the administrative law judge's decision based on the
reasoning therein, as it is supported by substantial evidence and in accordance
with law.  Therefore, I dissent. 




                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge


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Footnotes.


1)The administrative law judge specifically found that the testimony of claimant's live-in girlfriend, Rose Courcy, stating that claimant was depressed and that she believed that it was related to his inability to do what he had done previously, was insufficient to establish any relationship between claimant's alleged depression and his work injury, characterizing it as unconvincing, unreliable, and biased. In addition, he also found the testimony of claimant's classmate, Penny Burnett, that claimant was depressed because of his insurance problems, insufficient to invoke Section 20(a) as it was tainted by information provided by claimant and was contradicted by testimony provided by Drs. Strange, Mysliwiec and Mr. Filmore. Moreover, he determined that there was no medical evidence of clinical depression by a qualified board-certified psychiatrist but merely record notations by an orthopedist and family practitioner, Drs. Mysliwiec and Strange, who have no qualifications in this regard and merely accepted claimant's assertion that he felt depressed. Back to Text
2)On remand, the administrative law judge for the first time purports to find claimant does not suffer from depression, a conclusion requiring that he discredit virtually all of the medical and lay evidence regarding claimant's mental condition as employer introduced no affirmative evidence that either claimant was not depressed or that his depression was not work-related. His conclusion can be essentially summed up as resting on the premise that since he found claimant's complaints to lack credibility, the opinions of health providers and others regarding those complaints should also be rejected. In relying upon his own conclusion regarding claimant's complaints to override the medical evidence, the administrative law judge used identical reasoning to that rejected by the United States Court of Appeals for the Second Circuit in Pietrunti v. Director, OWCP, 119 F.2d 1035, 31 BRBS 84 (CRT)(2d Cir. 1997). See discussion, infra. In any event, the administrative law judge erred in raising this issue for the first time on remand. Employer did not dispute that claimant had depression in the initial proceedings before the administrative law judge or the Board; it only argued that because claimant's depression did not develop until 19 months after his work accident and he had numerous other problems, it was not related to his cervical injury. See Employer's July 17, 1992 Proposed Findings of Fact and Conclusions of Law at 22-23. Moreover, in his initial Decision and Order, the administrative law judge found that claimant suffered from depression, but that it was not work-related or disabling. Aug. 4, 1992, Decision and Order at 5-6. Thus, the record not only lacks any evidence that claimant was not depressed, but it also reflects that this issue was not timely raised. Aug. 4, 1992, Decision and Order at 5-6. Back to Text
3)There is no evidence in this case that Dr. Strange, or any other board-certified family practitioner, is not qualified to diagnose or treat depression. Back to Text
4)Although much of claimant's brief is dedicated to challenging the administrative law judge's discrediting of record evidence linking claimant's depression to the 1990 cervical injury, in light of our decision herein, we need not address claimant's specific credibility arguments. Claimant's contention that the administrative law judge exhibited bias against him, however, is rejected. Adverse rulings, alone, are insufficient to show bias. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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