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                                 BRB No. 97-1371


TERRY W. CAMPBELL                       )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   06/17/1998 

                                        )
     v.                                 )
                                        )
NORFOLK SHIPBUILDING AND                )
DRYDOCK CORPORATION                     )
                                        )
     and                                )
                                        )
RICHARD FLAGSHIP SERVICES               )
INCORPORATED                            )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Denying Section 22 Modification of
     Richard K. Malamphy, Administrative Law Judge, United States Department
     of Labor.

     Robert J. Macbeth, Jr., and Matthew H. Kraft (Rutter & Montagna,
     L.L.P.), Norfolk, Virginia, for claimant.

     R. John Barrett and Kelly O. Stokes (Vandeventer, Black, Meredith &
     Martin, L.L.P.), Norfolk, Virginia, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Section 22 Modification (94-LHC-822) of Administrative Law Judge Richard K. Malamphy 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 May 2, 1987, claimant sustained a broken cheek bone and compressed jaw bone
during the course of his employment with employer while taking a front cover off
of a boat davit casing.  Claimant thereafter was diagnosed with a cervical strain
and vascular headaches; in October 1992, Dr. Suter, claimant's treating physician,
limited claimant to part-time light-duty work with no heavy lifting and no use of
hand-held equipment.  Employer voluntarily paid claimant temporary total disability
compensation, 33 U.S.C. §908(b), and temporary partial disability
compensation, 33 U.S.C. §908(e), for various periods of time between May 1987
and January 1993.  Claimant was terminated by employer on January 9, 1993, due to
excessive absenteeism.  Thereafter, claimant filed a claim for benefits under the
Act seeking temporary total disability compensation.  In addition, claimant alleged
that employer violated the provisions of Section 49 of the Act, 33 U.S.C.
§948a, by terminating him.

     In his initial Decision and Order, the administrative law judge found that
employer did not violate Section 49 of the Act when it terminated claimant.  Next,
having found that claimant established causation and a prima facie case of 
total disability, the administrative law judge determined that employer established
the availability of suitable alternate employment by virtue of claimant's return
to a light-duty position with employer, and, as claimant was terminated for
violating a company rule, the administrative law judge denied claimant's claim for
temporary total disability compensation.  Claimant filed a motion for
reconsideration with the administrative law judge, contending that the
administrative law judge failed to consider whether he was entitled to temporary
partial disability benefits.  In an order issued on June 12, 1995, the
administrative law judge, relying on Brooks v. Newport News Shipbuilding & Dry
Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v. Director, OWCP, 2
F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993), denied claimant's motion.  Claimant
thereafter filed a motion for modification  alleging both a change in condition and
a mistake of fact and seeking permanent total disability compensation.

     In his decision addressing claimant's motion for modification, the
administrative law judge found that a mistake of fact had not been made regarding
the nature and extent of claimant's condition, and that Dr. Suter's 1996 deposition
was insufficient to compel modification based on a change in condition, since Dr.
Suter testified that claimant's condition had not changed in the previous three or
four years.  The administrative law judge further found that Dr. Suter's testimony
regarding the extent of claimant's disability was inconsistent.  Thus, the
administrative law judge denied claimant's motion for modification.

     On appeal, claimant contends that the issue of permanent total disability was
not specifically before the administrative law judge in the initial hearing, and
that, based on Dr. Suter's 1994 and 1996 opinions, claimant is now permanently and
totally disabled from any employment.  Claimant additionally alleges a mistake of
fact, asserting that the administrative law judge's initial finding that claimant
was capable of performing the light duty position at employer's facility was in
error.  Employer responds, contending that the administrative law judge's findings
are supported by substantial evidence, and that the matter on modification is
barred by the doctrine of res judicata.

     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 him 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.[1]   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 initially reject claimant's assertion that the administrative law judge
erred in concluding that claimant did not establish a change in his condition.  In
rendering his decision, the administrative law judge found that Dr. Suter, in his
1996 deposition, stated that claimant's condition had not changed in the previous
three or four years. See Cl. Ex. 1A at 14. The administrative law judge thus
concluded that claimant failed to establish a change in his condition based upon
this physician's testimony.  As the administrative law judge's finding regarding
this issue is rational and supported by substantial evidence, it is affirmed.
See generally General Dynamics Corp. v. Director, OWCP, 673 F.2d 23, 14 BRBS
636 (1st Cir. 1982). 

     We agree with claimant, however, that the administrative law judge erred in
his evaluation of the evidence of record when discussing claimant's assertion that
a mistake in fact had occurred.  In his initial decision, the administrative law
judge, in discussing the extent of claimant's disability, acknowledged that
claimant's light-duty post-injury job involved disassembling broken lamp guards by
using a hand-held electrical drill and lifting heavy drop cords, even though
claimant was restricted by Dr. Suter from both heavy lifting and the use of hand-held equipment. See Emp. Exs. 2 at 35, 6 at 16.  The administrative law
judge further noted claimant's uncontradicted testimony that he had trouble
performing this light-duty position, and that he suffered from headaches due to the
lifting, bending and stooping which he was required to perform. See Decision
and Order at 10, 17. The administrative law judge concluded, however, that since
claimant filed a grievance with regard to his having to work outside his
restrictions but failed to attend the hearing, and since claimant never complained
about the physical requirements of this position to his supervisor, the light-duty
position which claimant was performing post-injury constituted suitable alternate
employment since claimant was able to perform this  job for employer and the job
did not constitute sheltered employment.

     In support of his motion for modification, claimant submitted into evidence
the 1996 deposition of his treating physician, Dr. Suter.  In October 1992, Dr.
Suter released claimant to work part-time, three to four hours a day, three days
a week, in a light-duty position, with the restrictions of no heavy lifting and no
use of hand-held equipment.   See Emp. Exs. 2 at 35, 6 at 16.  Claimant
subsequently complained of headaches and physical discomfort.  As a result of these
ongoing complaints, Dr. Suter re-evaluated claimant's condition and opined, in a
September 1994 report, that claimant's vascular headaches rendered him disabled
from any work, either sedentary or physically active.  Cl. Ex. 2A.  Dr. Suter
deposed in 1994 that claimant was physically unable to handle employer's light duty
position because of his headaches and the medication he was taking, that claimant
is not fitted for any job in the regular market due to his physical complaints and
lack of education, and that claimant is permanently disabled from any type of
employment.  Emp. Ex. 6 at 23-24.  At his 1996 deposition, Dr. Suter reaffirmed his
1994 opinion, commenting only that prior to 1994 he had released claimant for part-time work with physical limitations.  Cl. Ex. 1A at 14. 

     The administrative law judge, on modification, determined that Dr. Suter's
testimony was not sufficient to compel modification since, he  concluded, Dr. Suter
has rendered inconsistent opinions regarding the extent of claimant's disability. 
Contrary to the administrative law judge's statement, Dr. Suter's testimony is not
inconsistent; rather, Dr. Suter's change of opinion in 1994 regarding  claimant's
ability to work, and his restatement of that opinion in 1996, takes into
consideration his ongoing treatment of claimant and reflects the progression of
this diagnoses of claimant's condition subsequent to his work-injury.  Accordingly,
the administrative law judge's finding that Dr. Suter's testimony is inconsistent
is vacated, and the case is remanded for the administrative law judge to re-consider the totality of the evidence of record regarding the issue of claimant's
ability to perform the light-duty position at employer's facility.[2] See 5 U.S.C. §557(c)(3)(A); 33 U.S.C.
§919(d); Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS
380 (1990).[3]  

     Accordingly, the Decision and Order Denying Section 22 Modification is
vacated, and the case is remanded for reconsideration consistent with the opinion
herein.[4] 

     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)Employer's argument that this matter should be barred by the doctrine of res judicata is rejected, as it is well-settled that Section 22 displaces traditional notions of res judicata. See Hudson v. Southwestern Barge Fleet Services, Inc., 16 BRBS 367 (1984), citing Banks v. Chicago Grain Trimmers Association, Inc., 390 U.S. 459, reh'g denied, 391 U.S. 929 (1968). Back to Text
2)We note that the administrative law judge on modification additionally failed to consider the May 6, 1994, report of Dr. Dvorak, which is supportive of Dr. Suter's opinion regarding the extent of claimant's disability. On Remand, the administrative law judge must address this report in considering this issue. In addition, if claimant is not totally disabled, the administrative law judge must determine whether claimant is entitled to partial disability benefits, either permanent or temporary, as a claim for total disability benefits includes any lesser degree of disability. Young v. Todd Pacific Shipyards Corp., 17 BRBS 201, 204 n.2 (1985). In this regard, if claimant's job at employer's facility was suitable, an award of partial disability must be based on a comparison of claimant's average weekly wage and his wage-earning capacity in the job at employer's facility; since claimant lost this post-injury job due to his violation of a company rule, under Brooks, if the job was suitable, employer does not bear the renewed burden of proving suitable alternate employment after the termination. However, any loss in wage-earning capacity in that job continues. See Harrod v. Newport News Shipbuilding & Dry Dock Co., 12 BRBS 10, 17 (1980). Thus, in view of the fact that this position was part-time and as employer was making voluntarily payments of temporary partial disability benefits, it appears that claimant may have had a loss in wage-earning capacity in the alternate job provided, and the administrative law judge must consider whether claimant remains entitled to partial disability benefits. See Mangaliman v. Lockheed Shipbuilding Co., 30 BRBS 39 (1996). Back to Text
3)If, on remand, the administrative law judge determines that claimant suffers from a compensable permanent disability, he must address whether employer is entitled to Section 8(f) relief. Back to Text
4)Employer's request for Section 26 penalties was made in a response brief, not a cross-appeal, and thus, such a request is not ordinarily considered on appeal. See Garcia v. National Steel & Shipbuilding Co., 21 BRBS 314 (1988); Shoemaker v. Schiavone & Sons, Inc., 20 BRBS 214 (1988). In any event, employer's request is rejected, as neither the Board nor an administrative law judge has the authority to award fees and costs under Section 26 of the Act. See Boland v. Marine & Manufacturing Co. v. Rihner, 41 F.3d 997, 29 BRBS 43 (CRT)(5th Cir. 1995); Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 27 BRBS 132 (CRT)(9th Cir. 1993); Porter v. Kwajalein Services, Inc., 31 BRBS 112 (1997). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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