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                                 BRB No. 98-0509

PETER VOOLICH                           )
          Claimant-Petitioner           )    DATE ISSUED:   12/16/1998

     v.                                 )
TODD PACIFIC SHIPYARDS                  )
CORPORATION                             )
     and                                )
COMPANY                                 )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Denying Further Benefits of Paul A. 
     Mapes, Administrative Law Judge, United States Department of Labor.

     James K.  Woods (Woods & Stauffer), Dallesport, Washington, for

     Russell A. Metz (Metz & Associates, P.S.), Seattle, Washington, for

     Before: SMITH and BROWN, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge. 


     Claimant appeals the Decision and Order Denying Further Benefits (95-LHC-3093)
of Administrative Law Judge Paul A. Mapes 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 if they 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 sustained injuries to his left knee and cervical spine on August 10,
1992, while working as a rigger for employer.  As a result of his work-related
injuries, claimant underwent a partial medial meniscectomy on September 8, 1992,
and an anterior cervical discectomy on August 16, 1993.  Claimant was referred by
the Office of Workers' Compensation Programs for vocational rehabilitation and,
pursuant to his vocational rehabilitation plan, completed a two-year associate
degree program in business management on June 14, 1996.  Claimant obtained
employment as an administrative assistant with WPH Crane Services on July 7, 1997. 
Employer voluntarily paid claimant temporary total disability compensation from
August 22, 1992 to June 14, 1996.  33 U.S.C. §908(b).  Employer additionally
made voluntary payments of permanent partial disability compensation to claimant
from September 24, 1996 to June 16, 1997, 33 U.S.C. §908(c)(21), and a
scheduled award for a 5 percent leg impairment, 33 U.S.C. §908(c)(2), (19). 
Claimant sought additional unscheduled permanent partial disability compensation
commencing June 14, 1996, based on the difference between his pre-injury average
weekly wage and the wages paid by his present employer, WPH Crane Services, which
he contended fairly and reasonably represent his post-injury wage-earning capacity.

     The sole issue presented for adjudication before the administrative law judge
was the extent of any loss of wage-earning capacity sustained by claimant
subsequent to claimant's completion of his vocational rehabilitation on June 14,
1996.  In his Decision and Order, the administrative law judge determined that
claimant failed to show by a preponderance of the evidence that he is incapable of
performing his usual work as a rigger as a result of any disability arising out of
his work-related injuries.  Accordingly, the administrative law judge denied the
claim for additional compensation.

     On appeal, claimant contends that the administrative law judge erred in
denying him permanent partial disability compensation; alternatively, claimant
avers that the administrative law judge erred in failing to issue a de minimis
award.  Employer responds, contending that the administrative law judge
properly denied the claim for ongoing compensation benefits and that claimant is
not entitled to a de minimis award.

     It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v.  Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v. 
Lockheed Shipbuilding & Const. Co., 17 BRBS 56 (1985).  In order to establish
a prima facie case of total disability, claimant bears the burden of
establishing that he is unable to return to his usual work. See Blake v.
Bethlehem Steel Corp., 21 BRBS 49 (1988).  If claimant establishes his prima
facie case, the burden of proof shifts to employer to establish the
availability of suitable alternate employment. See Hairston v.  Todd Shipyards
Corp., 849 F.2d 1194, 21 BRBS 122 (CRT)(9th Cir.  1988).  If it is shown that
claimant can perform alternate employment, he is only partially disabled. Dove
v.  Southwest Marine of San Francisco, Inc., 18 BRBS 139 (1986).  
     In concluding that claimant had not established a prima facie case of 
total disability, the administrative law judge declined to rely upon the opinion
of Dr. Perkins that claimant cannot perform the duties of his usual job as a
rigger.  The administrative law judge additionally determined that the evidence
indicates that claimant misrepresented his physical limitations, and that the
opinions of both Dr. Schlitt and Dr. McCollum are insufficient  to establish that
claimant cannot work as a rigger.

     We reject claimant's contention that the administrative law judge erred in
failing to give determinative weight to Dr. Perkins' opinion.  It is well-established that an administrative law judge is not bound to accept the opinion of
any particular medical examiner, but rather, is entitled to weigh the credibility
of all witnesses and draw his own inferences from the evidence. See Todd
Shipyards Corp.  v.  Donovan, 300 F.2d 741 (5th Cir.  1962); John W. 
McGrath Corp.  v.  Hughes, 289 F.2d 403 (2d Cir.  1961); Anderson,  22
BRBS at 22.  In the instant case, the administrative law judge rationally found
that Dr. Perkins' opinion was not determinative as to the extent of claimant's
disability.  Contrary to claimant's argument on appeal, it was reasonable for the
administrative law judge, in evaluating the reliability of Dr. Perkins' opinion,
to take into account the record evidence regarding both the deliberate
misrepresentation by Dr. Perkins of his educational and professional qualifications
and the sanctions imposed on Dr. Perkins by the State of Washington Medical Quality
Assurance Commission for various instances of unprofessional conduct. See
Emp.  Ex.  12.  Thus, as the administrative law judge's credibility determinations
are rational and within his authority as factfinder, we affirm the administrative
law judge's determination that claimant has failed to meet his burden of proving
that he is incapable of performing his former occupational duties as a rigger.
See generally Cordero v.  Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744
(9th Cir.  1978), cert.  denied, 440 U.S. 911 (1979); Donovan, 300
F.2d at 741.

     Claimant contends, in the alternative, that the administrative law judge erred
in failing to grant a de minimis  award.[1] 
 The United States Supreme Court, in Metropolitan Stevedore Co.  v.  Rambo,
117 S.Ct.  1953, 31 BRBS 54 (CRT)(1997), stated that a nominal award may be entered
on claimant's behalf upon a showing that there is a significant possibility that
a worker's wage-earning capacity will at some future point fall below his pre-injury wages.  Accordingly, the Court held that a worker is entitled to nominal
compensation when his work-related injury has not diminished his present wage-earning capacity under current circumstances, but there is a significant
possibility of future economic harm as a result of the injury.  In the instant
case, although claimant submitted into evidence testimony which, if  credited, may
support a de minimis award, the administrative law judge did not discuss
this issue in his decision; we therefore remand this case for the administrative
law judge to address claimant's possible entitlement to a nominal award pursuant
to the Supreme Court's decision in Rambo.

     Accordingly, the administrative law judge's Decision and Order is affirmed,
and the case is remanded for consideration of claimant's entitlement to a de
minimis award in accordance with this decision.


                         ROY P.  SMITH
                         Administrative Appeals Judge

                         JAMES F.  BROWN
                         Administrative Appeals Judge

                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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1)We reject employer's contention that the issue of claimant's entitlement to a de minimis award should not be considered by the Board because it was not raised before the administrative law judge. The United States Court of Appeals for the Ninth Circuit has indicated that a claim for a greater award implicitly includes a request for a lesser possible award. See Rambo v. Director, OWCP, 81 F.3d 840, 843, 30 BRBS 27, 30 (CRT) (9th Cir. 1996), vacated in part on other grounds sub nom., Metropolitan Stevedore Co. v. Rambo, 117 S.Ct. 1953, 31 BRBS 54 (CRT)(1997). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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