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                                  BRB No. 98-458

JOHN BEDNAREK                           )
          Claimant-Respondent           )    DATE ISSUED:   12/16/1998
       v.                               )
CERES CORPORATION                       )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order Denying Additional Benefits of John C.
     Holmes, Administrative Law Judge, United States Department of Labor.

     Myles R. Eisenstein, Baltimore, Maryland, for claimant.

     Andrew M. Battista, Towson, Maryland, for self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.


     Claimant appeals the Decision and Order Denying Additional Benefits (96-LHC-30) of Administrative Law Judge John C. Holmes 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
administrative law judge's findings of fact and conclusions of law if they are
supported by substantial evidence, are rational, and are in accordance with law. 
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).

     Claimant was injured in 1974 when the boom of a crane fell on his head.  He
sustained a T5 compression fracture of his spine and a fracture of his left ankle. 
He returned to his usual work in 1976, continuing medical treatment until 1984 or
1985. Tr.2 at 8-9, 11-12.  In 1982, his doctor assessed a 40 percent impairment and
stated that claimant is unable to return to his usual work.  Claimant was awarded
permanent partial disability benefits, and the Board affirmed this award.  Emp.
Exs. 44, 50-51; Tr.2 at 19.  Nevertheless, claimant continued to perform his usual

     On February 27, 1992, while working as yard hustler driver for employer,
claimant was injured when a crane lifted his tractor along with the container and
then the tractor dropped to the ground.  He testified he felt severe pain in his
back, shoulder and neck, and he stopped working after that shift.  Tr.2 at 16-17,
25-27, 30, 32-33.   After treatment from many doctors, claimant was released to
return to light duty work on January 8, 1993.  In reality, claimant performed his
usual job and he continued to work for over two years thereafter, except for short
periods when he was off due to treatment for pain.  On August 28, 1995, claimant
voluntarily retired.  Tr.2 at 103, 110.  Employer paid claimant  temporary total
disability benefits from March 4, 1992, until his return to work in January 1993,
and again from December 28, 1994, through January 7, 1995.  Claimant filed a claim
for additional temporary and permanent total disability benefits, as well as for
medical benefits for his radio frequency ablation treatment.

     After reviewing the voluminous record, the administrative law judge credited
those doctors who stated claimant has no work-related disability and can return to
his usual job. The administrative law judge found further support for this
conclusion because claimant actually returned to his usual work after the 1992
injury, working 50 to 60 hours per week during 1994 and 1995.  Additionally, the
administrative law judge denied medical benefits for claimant's back treatment in
the fall of 1995, finding it was not related to any condition caused by the work
injury.  Decision and Order at 12, 16, 20, 22.  Claimant appeals this decision, and
employer responds, urging affirmance.

     Claimant first contends the administrative law judge erred in denying
permanent total disability benefits.  He argues that the administrative law judge
erred in crediting only employer's evidence and misinterpreting Dr. Narrow's
opinion.  We reject claimant's assertions.  As stated previously, this record is
voluminous, and it is clear from the decision that the administrative law judge
considered all documentation and testimony submitted by the parties.  While
claimant is correct in asserting that many doctors opined that he cannot return to
his usual work, he incorrectly asserts that the administrative law judge must
credit those opinions.  Rather, questions of witness credibility are for the
administrative law judge 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).  The
administrative law judge specifically stated that he credited the opinions of Drs.
Narrow, Weiner, Slaughter, Henderson, Halikman and Shear, all of whom stated that
claimant has no work-related disability and/or can return to his usual work.  Emp.
Exs. 1, 3, 5, 11-13.  For example, Dr. Narrow, whose opinion the administrative law
judge gave greatest weight, stated in his report of January 3, 1995, that
claimant's pain is related to degenerative changes, not to the 1992 incident, and
that claimant can return to his usual work.  Emp. Ex. 1g.  In March 1995, Dr.
Narrow stated that claimant's condition had returned to its "baseline functions,"
Emp. Ex. 1m, and he testified at the hearing that claimant's complaints are not
related to the 1992 work incident, but rather are related to a genetic condition.[1]   Tr.3 at 250, 259-260.  Additionally, the
administrative law judge credited Dr. Henderson's opinion, in which he stated that
claimant has neither a physical nor a psychological disability that would prevent
him from returning to work were he motivated.  Emp. Ex. 2.  Because substantial
evidence supports the administrative law judge's determination that claimant is not
disabled, we affirm his denial of permanent total disability benefits. See generally
Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242 (1989), aff'd mem. sub nom. Chong v. Director, OWCP,
909 F.2d 1488 (9th Cir. 1990).

     Next, claimant contends the administrative law judge erred in failing to award
additional temporary total disability benefits.  On appeal, claimant asserts his
entitlement to temporary total disability benefits from the date employer ceased
its voluntary payments, January 7, 1995, through the date on which Dr. Narrow
determined that claimant's condition reached maximum medical improvement, March 23,
1995.  Claimant did not raise this argument before the administrative law judge and
cannot raise it now for the first time on appeal. See Boyd v. Ceres
Terminals, 30 BRBS 218 (1997); Hite v. Dresser Guiberson Pumping, 22
BRBS 87 (1989).  Moreover, Dr. Narrow released claimant to return to work in
January 1995, and it appears claimant resumed his employment at that time.
See Cl. Ex. 39 at 21-22; Emp. Ex. 47.  As entitlement to temporary total
disability benefits requires the demonstration of a loss of wage-earning capacity,
Burson v. T. Smith & Son, Inc., 22 BRBS 124 (1989), we reject claimant's
assertion that he is entitled to the additional benefits merely because Dr. Narrow
did not assess his condition as permanent until March 1995.  Maximum medical
improvement need not directly correlate with a claimant's ability to return to
work. Thompson v. McDonnell Douglas Corp., 17 BRBS 6 (1984); Williams v.
General Dynamics Corp., 10 BRBS 915 (1979).  As claimant has not established
entitlement to additional temporary total disability benefits, we affirm the
administrative law judge's denial of same.[2]        Claimant also contends the administrative law judge erred in finding that his
condition is not related to the 1992 incident, as he alleges there was an
exacerbation of his pre-existing condition.  Contrary to claimant's argument, there
is substantial evidence to support the administrative law judge's finding that
claimant's current condition is caused by his genetic or degenerative conditions
and is not work-related.  Specifically, Dr. Narrow testified that the services he
provided for claimant were to resolve claimant's genetic problem of ankylosing
spondylitis and that any exacerbation caused by the 1992 incident had resolved by
the time he first treated claimant in November 1994.  Tr.3 at 250, 259-260, 270,
272, 300, 304-305.  Dr. Shear, an independent evaluator, noted that claimant's
complaints inexplicably involved most of his body with no objective substantiation. 
He found there is no causal relationship between claimant's current complaints and
his 1992 injury.  Emp. Ex. 3.  Thus, although the evidence cited by claimant
invoked the Section 20(a), 33 U.S.C. §920(a), presumption, linking his
condition to his employment, the evidence presented by employer rebutted the
presumption by establishing the cause of claimant's condition to be his genetic and
degenerative problems and not his 1992 injury.  Therefore, the Section 20(a)
presumption drops from the case. Universal Maritime Corp.  v.  Moore, 126
F.3d 256, 31 BRBS 119(CRT) (4th Cir.  1997); Stevens v. Tacoma Boatbuilding
Co., 23 BRBS 191 (1990); MacDonald v. Trailer Marine Transport Corp.,
18 BRBS 259 (1986), aff'd mem. sub nom. Trailer Mariner Transport Corp. v.
Benefits Review Board, 819 F.2d 1148 (11th Cir. 1987).  On the record as a
whole, the administrative law judge credited employer's evidence and found that
claimant failed to show that his condition was caused by the work-related injury.[3]   Santoro v. Maher Terminals, Inc., 30 BRBS
171 (1996); Phillips v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS
94 (1988).  We affirm this conclusion as it is rational and supported by
substantial evidence.

     Finally, claimant avers that employer is liable for his radio frequency
ablation treatment.  In order to be compensable, medical treatment must be related
to and be appropriate for the work-related injury. Frye v. Potomac Electric
Power Co., 21 BRBS 194 (1988); Ballesteros v. Willamette Western Corp.,
20 BRBS 184 (1988).  Where the work-related condition has resolved, the
administrative law judge may find that further medical treatment is unnecessary and
is not compensable. 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).  As the administrative law judge found, and as we have
affirmed, claimant's work-related condition resolved prior to Dr. Narrow's
treatment, and his current condition is due to his degenerative and genetic
problems.  Consequently, the pain for which Dr. Narrow recommended the ablation
treatment, which was first thought to be caused by the work-related injury, was
later determined by Dr. Narrow to be caused by claimant's ankylosing spondylitis,
a genetic condition.  Emp. Ex. 1n; Tr.3 at 250, 259, 267-268, 270.  Therefore, the
administrative law judge found that the ablation treatment was not related to the
work injury, and he properly denied medical benefits for this procedure.
Brooks, 26 BRBS at 1; Ballesteros, 20 BRBS at 184; 20 C.F.R.

     Accordingly, the administrative law judge's Decision and Order Denying
Additional Benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)We reject claimant's allegation that the administrative law judge misinterpreted Dr. Narrow's opinion. While we note there may be some discrepancies between the doctor's notes written concurrently with the treatment and his testimony at the hearing, Dr. Narrow clearly explained in his testimony that his opinion had changed because of developments which occurred later in the treatment, e.g., claimant's positive test for the genetic condition of ankylosing spondylitis. It is within the administrative law judge's discretion to accept or reject all or any part of any testimony according to his judgment. Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969). Back to Text
2)We also reject claimant's contention that he is entitled to temporary total disability benefits after he voluntarily retired from his employment, as he cannot show a loss of wage-earning capacity after a voluntary retirement. Burson, 22 BRBS at 124. Back to Text
3)Although the administrative law judge did not discuss invocation and rebuttal of the Section 20(a) presumption, his error is harmless, as there is substantial evidence on the record as a whole to support his decision. Reed v. The Macke Co., 14 BRBS 568 (1981). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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