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                                 BRB No. 97-1361                                     
ROZELL  RANDOLPH                        )
                                        )
          Claimant-Respondent           )    DATE ISSUED:   06/15/1998   

                                        )
     v.                                 )
                                        )
DELAWARE RIVER STEVEDORES,              )
INCORPORATED                            ) 
                                        )
                                        )
     and                                )
                                        )
LIBERTY MUTUAL INSURANCE,               )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of  the Decision and Order of Ralph A. Romano, Administrative Law
     Judge, United States Department of Labor.

     Aloysius J. Staud (Fine and Staud), Philadelphia, for claimant.

     John E. Kawczynski (Weber Goldstein Greenberg & Gallagher),
     Philadelphia, Pennsylvania, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order (97-LHC-0744) of Administrative Law
Judge Ralph A. Romano awarding benefits 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. §321(b)(3).  

     On February 2, 1994, claimant sustained an injury to his knee in the course
of his employment as a car handler.  Claimant received compensation for temporary
total disability from February 3, 1994 through July 19, 1996, and medical benefits
pursuant to Section 7 of the Act, 33 U.S.C. §907.  Claimant sought a
continuing award for total disability and  continuing payment of medical benefits. 
After consideration of the evidence, the administrative law judge awarded claimant
compensation benefits for temporary total disability from July 20, 1996 and
continuing, based upon an average weekly wage of  $673.19.  The administrative law
judge also awarded claimant continuing medical benefits.

     On  appeal, employer contends that the administrative law judge erred in
failing to find that claimant's condition was permanent, in finding that employer
failed to establish the availability of suitable alternate employment, and in
awarding claimant continuing medical benefits.  Claimant responds, urging
affirmance.

     Employer initially contends the administrative law judge erred in finding
claimant's condition is not permanent.  Specifically, employer contends that the
administrative law judge failed to address its argument that claimant's knee injury
has been so long lasting in nature and that his medical progress has been so
limited as to render his condition permanent.  We reject employer's contention. A
disability is considered permanent as of the date claimant's condition reaches
maximum medical improvement or if the condition has continued for a lengthy period
and appears to be of lasting or indefinite duration. See Watson v. Gulf
Stevedore Corp., 400 F.2d 649 (5th Cir. Tex. 1968), cert. denied, 394
U.S. 976 (1969).  The determination of  when maximum medical improvement is reached
is primarily a question of fact based on medical evidence and is not dependent on
economic factors. See Ballesteros v. Willamette W. Corp., 20 BRBS 184
(1988); Trask v. Lockheed Shipbuilding & Construction Co., 17 BRBS 56
(1985).  Moreover, if a physician believes that further treatment should be
undertaken, then a possibility of success exists, and even if, in retrospect, it
was unsuccessful, the administrative law judge may find that maximum medical
improvement has not occurred until the treatment is complete. See Louisiana Ins.
Guaranty Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22  (CRT)(5th Cir. 1994),
aff'g 27 BRBS 192(1993).

     In the instant case, employer contends  that claimant's condition  has become
permanent based on the opinion of Dr. Resnick, employer's consulting physician,
that claimant's injury has reached  maximum medical improvement and that no further
treatment is necessary or warranted.  The administrative law  judge, however, 
credited the opinion of claimant's treating physician, Dr. Lefkoe, who performed
surgery on claimant's left knee on January 10, 1995, and who opined that claimant's
injury has not reached maximum medical improvement and that rehabilitation
treatment is necessary.[1]  CX D, H, J.  The
administrative law judge also relied on the reports of claimant's physical
therapist which confirmed ongoing, progressive gains resulting in increased
strength and pain.  In crediting the opinion of Dr. Lefkoe, over that of 
Dr.Resnick, the administrative law judge concluded that Dr. Lefkoe, as the treating
physician, is in a better and more informed position to evaluate claimant's
condition than  Dr. Resnick.  Such a determination is within his discretion as the
trier-of- fact. Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir.
1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961);  Santoro v. Maher Terminals, Inc.,
30 BRBS 171 (1996).  As the Board may not reweigh the evidence, we affirm the
administrative law judge's crediting of Dr. Lefkoe's opinion, and the
administrative law judge's consequent finding that claimant's condition remains
temporary in nature as it is supported by substantial evidence.

     Similarly, we reject employer's contention that the administrative law judge
erred in awarding claimant continuing medical benefits under Section 7 of the Act. 
The administrative law judge considered Dr. Resnick's  statement that he doubted
any form of treatment in the future would have any significant impact or produce
any further progress in claimant's condition.  The administrative law judge weighed
Dr. Resnick's statement, which he considered equivocal at best, against the
contrary opinions of  Dr. Lefkoe and his physical therapist, that claimant requires
further medical treatment and rehabilitation, and, crediting Dr. Lefkoe's opinion,
concluded that claimant established entitlement to continued medical care at
employer's expense under Section 7 of the Act, as such care is appropriate,
reasonable and necessary to treat the work injury.  As the administrative law
judge's award of continuing medical benefits is supported by substantial evidence,
it is affirmed.

     Finally, we reject employer's contention that the administrative law judge
erred in finding that employer failed to establish the availability of suitable
alternate employment and that claimant therefore is totally disabled.  It is
uncontested that claimant cannot return to his usual work.  The burden therefore
is on employer to establish the availability of alternate employment that is
suitable for claimant given, inter alia, his physical restrictions, age,
education and vocational history. See generally New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  In the
instant case, the administrative law judge stated that employer's labor market
survey consists of merely a listing of the names and addresses of ten prospective
employers with respective job titles.  The administrative law judge stated further
that, inasmuch as no description of  job duties and functions is provided, there
is no way that he can determine whether the enumerated jobs are within claimant's
physical restriction resulting from the work  injury.  The administrative law judge
thus found the survey inadequate to satisfy employer's burden to establish the
availability of suitable alternate employment.  Although the vocational
consultant's report states that the jobs are in the "sedentary-light" exertional
category, in light of the lack of specificity regarding each job's requirements,
we hold that the administrative law judge rationally found employer's labor market
survey to be inadequate to establish the suitability of the positions. See,
e.g., Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989); Williams v.
Halter Marine Service, Inc., 19 BRBS 148 (1987).  Consequently, we affirm the
administrative law judge's award of total disability benefits.[2] 

      Accordingly, the administrative law judge's award of benefits is
affirmed.

     SO ORDERED.   


                                                                   
                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge
                         
                              
                                                                            
                                                                                            JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)Dr. Lefkoe performed a surgical arthroscopy, medial meniscectomy and partial synovectomy on claimant's left knee on January 10, 1995. Back to Text
2)We note that employer additionally contends that the administrative law judge erred in failing to discuss the evidence of record bearing on claimant's willingness to work. Because the administrative law judge properly found the availability of suitable alternate employment is not established, however, he was not required to address the issue of whether claimant diligently sought work. See Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79 (CRT) (5th Cir. 1986), cert. denied, 479 U.S. 826 (1986). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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