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                                  BRB No. 98-0489


WILLIAM CLIFF HATCHER, JR.              )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   12/21/1998
                                        )
     v.                                 )
                                        )
PROFESSIONAL COATINGS,                  )
INCORPORATED                            )
                                        )
          and                           )
                                        )
CRAWFORD AND COMPANY                    )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER
                                             
     Appeal of the Decision and Order of Fletcher E. Campbell, Jr.,
     Administrative Law Judge, United States Department of Labor.

     Eric P.  Gordan, Chesapeake, Virginia, for claimant.

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

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

     PER CURIAM:

     Claimant appeals the Decision and Order (95-LHC- 192) of Administrative Law
Judge Fletcher E. Campbell, Jr., 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).

     Claimant, who has worked for approximately 22 years doing body and paint work, 
sustained a back injury while working for employer as a painter on April 16, 1994. 
After a period of conservative treatment, claimant underwent surgery performed by
Dr. Messer on August 1, 1994.  Thereafter, claimant was treated by  Dr. Williamson,
another orthopedic surgeon, after Dr. Messer left the area.  In July 1995, Dr.
Williamson released claimant  to return to work with restrictions.[1]   In November 1995, claimant  returned to work at
Auto Craft Express, an autobody shop where he had worked prior to his injury, and
worked there on a light duty basis through July 24, 1996.  Claimant's back pain
increased, and in February 1996, Dr. Williamson referred him to Dr. Molligan,
another orthopedic surgeon.  Dr. Molligan provided treatment through January 1997. 
After a CT scan and an MRI confirmed that he needed additional surgery, Dr.
Molligan proposed inserting clasps and screws in claimant's spine at an estimated
cost of approximately  $41,500.  Although this surgery was scheduled, in February
1997, at his family's urging, claimant sought a second opinion from Dr. Penix,
another orthopedic surgeon.  Dr. Penix performed a less involved,  less costly,
surgical procedure on February 21, 1997, at Sentara Norfolk General Hospital.  The
surgery, paid for by claimant's mother, proved to be successful.  After a period
of work hardening under the direction of  Dr. Walko, claimant was released to
return to work on May 20, 1997, with restrictions on bending, stooping and
climbing, and picking up 20 pounds once per hour. Subsequent to the June 1997
hearing, Dr. Walko increased claimant's weight limitation to 60 pounds, and on
August 6, 1997, claimant returned to work at Auto Craft Express, earning wages
comparable to, or in excess of,  those he had earned pre-injury.

     Employer  voluntarily paid claimant temporary total disability compensation
from April 23, 1994 until November 1, 1994, and from April 11, 1995 until November
13,  1995.  In addition, employer agreed that claimant was entitled to temporary
total disability benefits from February 21, 1997 through May 7, 1997, following Dr.
Penix's surgery.  Claimant  sought  additional compensation under the Act, arguing
that as of the time he returned to work in August 1997, he was entitled to $63,700, 
representing 127 weeks of temporary total disability compensation based upon a
minimum average weekly wage of $750.  In addition, claimant sought partial
disability compensation for those periods in  1994, 1995, and 1996 when he worked
part-time.[2]   Moreover, he  claimed entitlement
to a lump sum award for a 20 percent permanent physical impairment or other award
of permanent disability benefits, after his return to work in August 1997, and, in
addition requested past and future medical benefits.  

     In his Decision and Order, the administrative law judge initially stated  that
claimant's average weekly wage calculated under Section 10(a), 33 U.S.C.
§910(a), was $600, based on claimant's actual earnings while working for  Stan
Gill's Body Shop, Incorporated (Stan Gill's) in the 23-week period prior to his
injury from November 3, 1993 until April  6, 1994.  Moreover, the administrative
law judge determined that even if  Section 10(a) could not reasonably and fairly
be applied, he would nonetheless reach the same result in calculating claimant's
average weekly wage under Section 10(c), 33 U.S.C. §910(c).  In addition,
claimant was awarded temporary total disability benefits from November 14, 1994
until April 10, 1995,  temporary partial disability compensation  from November 14,
1995 until July 24, 1996, and from July 25, 1996 until February 21, 1997, and
temporary total disability benefits from February 21, 1997 until May 7, 1997.  The
administrative law judge denied claimant's claim for temporary total disability
compensation after May 7, 1997, and his claim for permanent disability
compensation.  Finally, the administrative law judge determined that claimant
failed to establish that employer was liable for any additional medical expenses.

     Claimant  appeals, arguing that the administrative law judge erred in
determining that his average weekly wage was $600 rather than $800, in failing to
award him the compensation claimed, and in denying his claim for past and future
medical benefits. Employer responds, urging affirmance.

      A claimant's average weekly wage for compensation purposes is to be calculated pursuant to Section 10
of the Act, 33 U.S.C. §910.  Section 10(a) is to be applied when an employee has worked substantially the
whole of the year immediately preceding his injury and requires the administrative law judge to determine the
average daily wage claimant earned during the preceding twelve months.  Gilliam v. Addison Crane Co.,
21 BRBS 91 (1988).   This average daily wage is then multiplied by 260 if claimant
had been a five-day per week worker, or 300 if claimant had been six-day per
week worker; the resulting figure is then divided by 52, pursuant to Section
10(d) of the Act, 33 U.S.C. §910(d), in order to yield claimant's
statutory average weekly wage.  Section 10(b), 33 U.S.C. §910(b), is applicable to injured
workers who have not been employed for substantially the whole year preceding the injury and utilizes the
earnings of a comparable worker.  Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988). 
Section 10(c) is a catch-all provision to be used in instances when neither Section
10(a) nor Section 10(b) can be reasonably and fairly applied. See Newby v.
Newport News Shipbuilding & Dry Dock Co., 20 BRBS 155 (1988). 

     In the present case, the administrative law judge stated  that claimant 
suggested an average weekly wage of  $750, while employer urged an average weekly
wage of $500, but no supporting calculations had been provided for either figure. 
Accordingly, he determined that in accordance with Section 10(a), he would utilize
claimant's actual earnings while working for Stan Gill's in the 52-week period
prior to his injury.  In so concluding, he noted that he considered the 23-week
period that claimant had worked for Stan Gill's to be "substantially the whole of
the year," and that prior to that time claimant was unemployed.  Inasmuch as
claimant's wage records revealed that when he  worked 40 hours for Stan Gills he
netted $600 per week, the administrative law judge divided this figure by 5 days
and determined that claimant's average daily wage was $120.  He then multiplied
that figure by 260 days for a 5-day worker, which yielded average annual earnings
of $31,200, which divided by 52 weeks, as is required under Section 10(d),
yielded an average weekly wage of $600. The administrative law judge then
determined that even if Section 10(a) could not fairly and reasonably be
applied, he would reach the same result under Section 10(c).

     We agree with claimant that the administrative law judge's average
weekly wage finding cannot be affirmed.  Initially, the administrative law
judge erred in utilizing Section 10(a) rather than Section 10(c) to
determine claimant's average weekly wage; contrary to the  administrative
law judge's conclusion, the 23 weeks of work claimant performed at Stan
Gill's does not equate to  working "substantially the whole of the year."
See Lozupone v.  Stephano Lozupone and Sons, 12 BRBS 148 (1979). 
Moreover, as the record is devoid of  information from which an
average daily wage could be determined with regard to claimant's other
employers, Section 10(a) cannot be applied on the facts presented in this case.
Lobus v. I.T.O. Corp. of Baltimore, Inc., 24 BRBS 137 (1990).  In this
regard, the record contains evidence not considered by the administrative law judge
which reflects that in the 52-week period prior to his injury, claimant  worked for 
Jemm Industries during April and May 1993.[3]   
EX-9 at 31-32.

     In addition, in determining that claimant's average weekly wage was
$600, the administrative law judge erred in relying on claimant's net
instead of his gross earnings at Stan Gill's, and in failing to discuss
relevant evidence which suggests that claimant's pre-injury weekly earnings
may have been substantially greater.  As initially noted in the decision,
claimant testified that prior to his injury, he averaged about $1,000 per
week when he worked at Autocraft, and  $800 per week at Stan Gills. Tr.  at 70;
Decision and Order at 3.  In addition, he testified that he earned $2,000
for the 1.5 weeks he worked for employer prior to his injury. Tr. at 71-72. 
Finally, claimant testified that when he worked as a mechanic on the frame machine
he was paid a commission of $11 per hour based on the insurance company's
estimation of how long a particular job should take and that, as he was frequently
able to complete the job in a shorter time than that allotted, he would receive
payment for an average of 130 hours in a 40-hour work week.  Tr.  at 171-172. 
Employer does not dispute this evidence.  In light of these facts, we vacate the
administrative law judge's  finding that claimant's average weekly wage was $600
under either Section 10(a) or Section 10(c), and remand the case for him to
reconsider and make a reasonable determination of claimant's annual earning
capacity at the time of injury under Section 10(c) based on all of the
relevant evidence. See Richardson, 14 BRBS at 855; Hicks v.
Pacific Marine & Supply Co., Ltd., 14 BRBS 549 (1981).

     Next, claimant contends that the administrative law judge erred in awarding
him temporary total disability benefits for only 74 of the 127 weeks in which he
was unemployed between April 16, 1994, his date of injury, and  August 6, 1997,
when he resumed work  at Auto Craft.  In order to establish a prima facie
case of total disability, claimant must establish that he is unable to perform his
usual employment duties due to a work-related injury.  If claimant satisfies this
initial burden, the burden shifts to employer to demonstrate the availability of
suitable alternate employment. See Lentz v. The Cottman Co., 852 F.2d 129,
21 BRBS 109 (CRT)(4th Cir. 1988); see also Newport News Shipbuilding & Dry Dock
Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th Cir. 1988); Trans-State
Dredging v. Benefits Review Board, 731 F.2d 199, 16 BRBS 74 (CRT)(4th Cir.
1984).  Employer may meet its burden by showing the availability of a range of job
opportunities within the geographic area where claimant resides, which claimant,
by virtue of his age, education, work experience, and physical restrictions, is
capable of performing. See Lentz, 852 F.2d at 129, 21 BRBS at 109 (CRT);
Bryant v. Carolina Shipping Co., Inc., 25 BRBS 294 (1992).  If employer
establishes the availability of suitable alternate employment, claimant
nevertheless can prevail in his quest to establish total disability if he
demonstrates that he diligently tried and was unable to secure such employment.
See Tann, 841 F.2d at 540, 21 BRBS at 10 (CRT); Hooe v. Todd Shipyards
Corp., 21 BRBS 258 (1988). 

     In the present case, claimant argues initially that the administrative law
judge erred in failing to award him all of the temporary total disability
compensation claimed inasmuch as he proved that he was unable to work for the
entire 127 week period with  the uncontradicted testimony of  his treating doctors,
himself, and his mother.  We disagree. Although claimant argues otherwise, the
administrative law judge acted within his discretionary authority in excluding
claimant's mother's testimony from the record based on the fact that claimant
failed to identify Mrs. Hatcher as a potential witness when employer asked claimant
to identify all potential witnesses in its interrogatories. See Vonthronsohnhaus
v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1990); McCurley v. Kiewest
Co., 22 BRBS 115 (1989); Durham v. Embassy Dairy, 19 BRBS 105 (1986). 
Moreover,  the administrative law judge also properly determined that the medical
opinions cited by claimant showed that for the periods in question, although
claimant could not perform his usual work, he was capable of performing other work. 
In this regard, claimant argues specifically that the administrative law judge
erred in failing to find him totally disabled because claimant asserts that Dr.
Molligan stated in his deposition, EX 12 at 11-12, that claimant could not work
during the periods he was treating him and further that claimant would be unable
to work at his regular job subsequent to the recommended operation, and also cites
Dr. Penix's report, CX-15, for the same proposition.  We disagree.  Consistent with
the disability findings made by the administrative law judge, the cited medical
testimony reflects that Dr. Molligan testified that claimant could have performed
sedentary work during this period, while Dr. Penix opined that claimant could have
worked in an office-type environment pending his surgery.  Thus, contrary to
claimant's assertions, substantial evidence supports the administrative law judge's
determination that claimant was not precluded from working during the entire 127
week period prior to August 6, 1997 in which he did not work.

     The administrative law judge's determination that with the exception of the
periods from November 1, 1994 until April 10, 1995, and from February 21, 1997
through May 7, 1997, when claimant was entirely precluded from working, he was
limited to partial disability compensation is affirmed because it is rational,
supported by substantial evidence and in accordance with applicable law.  With the
exception of these periods in which claimant was awarded total disability
compensation, the administrative law judge rationally found that although claimant
could not perform his usual work, he was only partially disabled because employer
had demonstrated the availability of suitable alternate employment based on the
testimony and labor market surveys performed by its vocational consultant, Ms.
Beyer, EX-6 at 1-58; Tr. at 120-166. After interviewing claimant on several
occasions, and determining his transferable skills and educational level through
vocational testing, Ms. Beyers identified a range of available job opportunities
which the administrative law judge rationally found to be  consistent with
claimant's age, education, and physical restrictions during the periods at issue.[4]    While claimant argues on appeal that Ms. Beyer's
testimony is incredible for various reasons, it is well established that the
weighing of the evidence is solely within the purview of the administrative law
judge who is free to accept or reject all or any part of any medical evidence as
he or she sees fit.  See Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969).  Inasmuch as Ms.
Beyer's testimony provides substantial evidence to support the administrative law
judge's finding that employer succeeded in establishing the availability of
suitable alternate employment, and claimant cites no specific error in Ms. Beyer's
findings, we affirm his determination that with the exception of  the periods from
November 1, 1994 until April 10, 1995, and from February 21, 1997 through May 7,
1997, claimant is not entitled to the claimed temporary total  disability
compensation.[5]   Nonetheless, in light of our
decision to remand the case for reconsideration of claimant's average weekly wage,
the case must also be remanded for the administrative law judge to reconsider the
extent of claimant's disability during these periods.  Specifically, if on remand
he concludes that claimant has a higher average weekly wage than that determined
initially, he must recalculate the extent of claimant's disability for each of the
periods in which compensation was claimed by explicitly comparing claimant's newly
determined pre-injury average weekly wage with his assessment of claimant's
post-injury wage-earning capacity consistent with the requirements of Section
8(c)(21), (e) and (h) of the Act, 33 U.S.C. §908(c)(21),(e),and (h), and
the mandate of the Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A).

     In addition, the administrative law judge must reconsider whether claimant has
a permanent disability.  Claimant asserts that the administrative law judge ignored relevant
testimony and the medical records of Drs. Penix and Molligan on this issue.  The
determination of when permanency is reached is primarily a question of fact based
on  medical evidence. Ion v. Duluth, Missabe and Iron Range Railway Co., 31
BRBS 75 (1997).  An employee is considered permanently disabled when he has any
residual disability following maximum medical improvement, see Devine v.
Atlantic Container Lines, G.I.E., 23 BRBS 279 (1990) (Lawrence, J., dissenting
on other grounds).

     We agree with claimant that the administrative law judge's denial of
claimant's claim for permanent disability compensation does not comport with
applicable law.  The administrative law judge properly concluded that claimant was
not entitled to a lump sum award of permanent disability compensation based on Dr.
Molligan's impairment rating; as claimant's injury was to his back, he is not
entitled to a scheduled recovery  under  33 U.S.C. §908(c)(1)-(20). 
See Andrews v. Jeffboat, Inc., 23 BRBS 169 (1990).  In addition,
he also rationally concluded that the record is devoid of evidence that
maximum medical improvement has been achieved.  A claimant, however,  may
also be considered permanently disabled if his condition has lasted for a
lengthy period of time and appears to be of a  lasting and indefinite
duration.  See Watson v. Gulf Stevedore Corp., 400 F.2d 649,
pet. for reh'g denied sub nom. Young & Co. v. Shea, 404 F.2d 1059
(5th Cir. 1968), cert. denied, 394 U.S. 976 (1969).  In denying
claimant permanent disability benefits, the administrative law judge did not
consider this test for permanency.   Relevant to this determination, we note
that Dr. Molligan testified that claimant  would not have been able to
return to his regular work regardless of whether he had the second surgery,
EX-12 at 1, 23.  Moreover, we note that the record also reflects that as of
the time claimant underwent his second surgery, he was almost 3 years post-injury.  Inasmuch as the administrative law judge erred in  failing to
consider whether claimant was entitled to permanent disability compensation
under the alternate test for permanency articulated in Watson, we
vacate his denial of the claim for permanent disability compensation.  On
remand, the administrative law judge must consider whether claimant's
condition  appears to be of a  lasting and indefinite duration so as to
qualify as a permanent condition as that term is defined in Watson
based on Dr. Molligan's testimony and any other relevant evidence of record.
See generally Eckley v. Fibrex & Shipping Co., Inc., 21 BRBS 120 (1988).

     In this regard, we note that for the period after August 4, 1997, when
claimant returned to work at Auto Craft Express, although claimant asserted
that he worked in some pain, required a helper, and was not able to perform
all of his prior duties, the administrative law judge summarily found that
claimant no longer had a loss in his wage-earning capacity because he was
earning well in excess of his pre-injury average weekly wage. Contrary to
the finding of  the administrative law judge, however,  higher post-injury
earnings do not preclude compensation if claimant has suffered a loss of
wage-earning capacity. See Metropolitan Stevedore Co. v.  Rambo, 515 U.S.
291, 300 , 30 BRBS 1, 5 (CRT) (1995) (Rambo I); Mangaliman v. Lockheed
Shipbuilding Co., 30 BRBS 39 (1996).   Sections 8(c)(21) and (e) of the
Act, 33 U.S.C. §908(c)(21), (e), provide for an award for partial
disability benefits based on two-thirds of the difference between claimant's
pre-injury average weekly wage and his post-injury wage-earning capacity. 
Section 8(h) of the Act, 33 U.S.C. §908(h), provides that claimant's wage-earning capacity shall be his actual post-injury earnings if these earnings fairly
and reasonably represent his wage-earning capacity. Rambo I, 515 U.S. at
300, 30 BRBS at 5 (CRT);  Avondale Shipyards, Inc. v. Guildry, 967 F.2d
1039, 26 BRBS 30 (CRT) (5th Cir. 1992); Penrod Drilling Co. v. Johnson, 905
F.2d 84, 23 BRBS 108 (CRT) (5th Cir. 1990).  The party contending that the
employee's actual earnings are not representative of his wage-earning capacity, in
this case the claimant, bears the burden of establishing an alternative reasonable
wage-earning capacity. See Metropolitan Stevedore Co. v.  Rambo, 521 U.S.
121, 117 S.Ct.  1953, 1963, 31 BRBS 54, 62 (CRT) (1997)(Rambo II); Peele
v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 133, 136 n.3 (1987).  If
claimant's actual post-injury earnings do not fairly and reasonably represent
claimant's wage-earning capacity, Section 8(h) provides for the administrative law
judge to determine a reasonable wage-earning capacity based on "the nature of his
injuries, the degree of physical impairment, his usual employment and any other
factors or circumstances in the case which may effect his capacity to earn wages
in his disabled condition, including the effect of disability as it may naturally
extend into the future."  Thus, to the extent that a  claimant's pain and
limitations affect his ability to work, these factors should be considered
in determining his  post-injury wage-earning capacity and may support an
award of partial disability based on reduced earning capacity despite the
fact that claimant's actual earnings may have increased.  See, e.g.,
Container Stevedoring Co. v. Director, OWCP, 935 F.2d 1544, 24 BRBS 213
(CRT)(9th Cir. 1991).   Inasmuch as the administrative law judge in denying
claimant compensation following his return to work in August 1997 never made
a specific dollar amount determination of claimant's post-injury wage-earning capacity, he must do so on remand.  If he concludes that claimant's
actual earnings following his return to work in August 1997 do not fairly
and reasonably represent his post-injury wage-earning capacity, he should
determine an alternate figure which does, based on consideration of the
relevant factors identified in Section 8(h).  See Randall  v.  Comfort Control,
Inc., 725 F.2d 791, 16 BRBS 56 (CRT) (D.C. Cir. 1984); Devillier v.
National Steel & Shipbuilding Co., 10 BRBS 649 (1979).  The
administrative law judge must then compare this figure with claimant's pre-injury average weekly wage to determine whether claimant has a present loss
in wage-earning capacity.  If he concludes that claimant has no present loss
of wage-earning capacity, he should then consider whether claimant's physical
impairment  results in a significant possibility of future economic harm so as to
entitle him to a nominal award under Rambo II.

     Claimant's final argument concerns the administrative law judge's denial of
his claim for medical benefits. Section 7(a) of the Act, 33 U.S.C. §907(a),
states that "[t]he employer shall furnish medical, surgical, and other attendance
or treatment for such period as the nature of the injury or the process of recovery
may require."  Thus, even where a claimant is not entitled to disability benefits,
employer may still be liable for medical benefits for a work-related injury. See
Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14
(CRT)(5th Cir. 1993).  Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth
the prerequisites for an employer's liability for payment or reimbursement of
medical expenses incurred by claimant.  The Board has held that Section 7(d)
requires that a claimant request his employer's authorization for medical services
performed by any physician, including the claimant's initial choice. See Maguire
v. Todd Shipyards Corp., 25 BRBS 299 (1992); Shahady v. Atlas Tile &
Marble, 13 BRBS 1007 (1981)(Miller, J., dissenting), rev'd on other
grounds, 682 F.2d 968 (D.C. Cir. 1982), cert. denied, 459 U.S. 1146
(1983).  Where a claimant's request for authorization is refused by the employer,
however, claimant is released from the obligation of continuing to seek approval
for subsequent treatment and thereafter need only establish that the treatment
subsequently procured on his own initiative was necessary for his injury in order
to be entitled to such treatment at employer's expense. See Schoen v. U.S.
Chamber of Commerce, 30 BRBS 112 (1996); Anderson v. Todd Shipyards
Corp., 22 BRBS 20 (1989).

     In addressing the claim for medical benefits in the present case,  the
administrative law judge found that as claimant had switched from Dr. Molligan to
Dr. Penix without obtaining employer's prior authorization for a change in
physicians, and there was no evidence indicating  that employer had refused further
treatment by Dr. Molligan or that a  request for a change in physician would have
been futile, employer was not liable for the treatment of either Dr. Penix or Dr.
Walko.  The administrative law judge further found that as claimant  admitted that
Drs. Messer and Williamson had been paid, Tr. at 105,[6]  and the other bills of record appear to have been paid, claimant
failed to establish that employer was responsible  for any additional medical
bills. Decision and Order at 6. 

     On appeal, claimant argues that  the administrative law judge erred in
determining  that with the exception of Dr. Penix's treatment all of claimant's
medical expenses for which employer is liable had been paid.  Moreover, he asserts
that the administrative law judge erred in failing to address his claim for  future
medical benefits.  Finally, claimant maintains that the administrative law judge
erred in  denying him medical benefits  for  Dr. Penix's and Dr. Walko's treatment
based on his determination that his treatment was unauthorized inasmuch as the
record reflects that employer's workers' compensation carrier exhibited  a pattern
of stonewalling his treatment requests, and the surgery Dr. Penix ultimately
performed cost about one-third of that recommended by Dr. Molligan.

     We conclude that the administrative law judge's denial of the claim for
medical benefits in the present case cannot be affirmed because it does not
comport with applicable law.  The Administrative Procedure Act requires that
the administrative law judge consider, analyze, and discuss all of the
relevant evidence in resolving the issues before him.   Cotton v. Newport
News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990).  In denying claimant's
claim for medical benefits in this case, however, the administrative law
judge neglected to consider all of the relevant evidence.  Initially, we
note that in determining that employer was not liable for additional medical
benefits because the record reflected that with the exception of Dr. Penix's
bills, claimant's medical expenses had been paid previously, the
administrative law judge failed to recognize that payment by another does
not relieve employer of liability.  Claimant testified that he paid for Dr.
Schaier's chiropractic treatment, paid $100 to Dr. Williamson, and  received 
numerous other medical bills, most of which have been paid by Medicaid or other
public assistance. We further note that in determining that employer was not liable
for Dr. Penix's and Dr. Molligan's treatment because claimant failed to request
authorization for a change in physicians, the administrative law judge failed to 
consider claimant's testimony that employer's carrier exhibited a pattern of stone-walling his requests for medical treatment, testimony which was corroborated by
notations contained in Dr. Williamson's and Dr. Molligan's medical records.  The
Board has previously recognized that such evidence of delay could,  if properly
credited, establish a constructive refusal by employer to provide medical treatment
sufficient to relieve claimant of the continuing obligation of the need to request
authorization and would render employer liable for reasonable and necessary
treatment claimant procured on his own initiative.[7] Schoen, 30 BRBS at 114.  Accordingly, we  vacate the
administrative law judge's denial of claimant's claim for medical benefits and
remand the case for him to reconsider this issue in light of the  evidence and case
authority. 

     Accordingly, the administrative law judge's findings regarding  claimant's 
average weekly wage and the extent of his disability are vacated, as is his denial
of claimant's claim for permanent disability compensation and medical benefits. 
The case is remanded for further consideration of these issues consistent with this
opinion.  In all other respects, the Decision and Order of the administrative law
judge 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)Dr. Williamson found that claimant could sit, walk, lift, bend, squat, climb, kneel, and stand intermittently for various periods ranging from 1- 4 hours but could not twist, lift more than 20-50 pounds, or push or pull. EX-5, p.8. In addition, according to Ms. Beyer, when asked, Dr. Williamson specifically opined that claimant could do any job he pleased provided that it did not require lifting more than 40 pounds, ladder climbing, or exposure to temperature extremes, and that it would be fine for him to perform auto body repair. EX-6, at 49. Back to Text
2)Claimant sought partial disability benefits for 16 weeks in 1994, 15 weeks in 1995, and 29 weeks in 1996. Back to Text
3)The administrative law judge stated that claimant worked for Stan Gill's from November 1993 to April 6, 1994 and was employed prior to that time. Decision and Order at 6. His decision does not provide a record citation for his statement regarding a period of unemployment, and there is evidence of other employment in the year prior to injury. Back to Text
4)Although claimant argues on appeal that the administrative law judge erred in failing to set forth the periods in which claimant was able to work or the jobs he was able to perform, we disagree. The administrative law judge specifically found that for the period from November 14, 1995 until July 24, 1996, Ms. Beyer identified suitable alternate job opportunities, consistent with Dr. Williamson's restrictions with several different employers, paying $14 per hour, EX-6, at 38-41. Decision and Order at 7. Moreover, the administrative law judge found that Ms. Beyer identified suitable sedentary work consistent with Dr. Molligan's limitations, EX-12, at 11, for the period from July 25, 1996 until February 21, 1997. Decision and Order at 8. As for the remaining disability benefits claimed after May 7, 1997, the administrative law judge denied compensation, finding that in light of claimant's new work restrictions, employer had demonstrated the availability of suitable alternate employment, and noted that as of August 4, 1997, when claimant returned to work at Auto Craft Express, he was earning in excess of his pre-injury average weekly wage. Decision and Order at 8; EX-6 at 52. Back to Text
5)Claimant does not contest the administrative law judge's determination that he failed to exercise due diligence in attempting to secure alternate work. Back to Text
6)It is not clear from the cited testimony whether claimant was testifying that Dr. Williamson and Dr. Molligan had been paid, or whether Dr. Messer and Dr. Molligan had been paid. Tr. at 105. Back to Text
7)Moreover, if claimant's 1997 surgery was necessary and Dr. Molligan was authorized to perform it, reimbursement for the less costly procedure performed by Dr. Penix should be considered. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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