Skip to page content
Benefits Review Board
Bookmark and Share



                                 BRB No. 98-0554
                                         

ANTHONY KENNISON                        )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   01/07/1999
                                        )
     v.                                 )
                                        )
RYAN-WALSH, INCORPORATED                ) 
                                        )
     and                                )
                                        )
HOMEPORT INSURANCE COMPANY              )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order and Decision on Claimant's Motion for
     Reconsideration of C. Richard Avery, Administrative Law Judge, United
     States Department of Labor.

     Harry C. Arthur, Houston, Texas, for claimant.

     Edward J. Patterson, III (Fulbright & Jaworski, L.L.P. ), Houston,
     Texas, for employer/carrier.

     Before:  SMITH, BROWN, and McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order and Decision on Claimant's Motion for
Reconsideration (96-LHC-1602) of Administrative Law Judge C. Richard Avery 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).

     On July 6, 1993, claimant injured the lower part of his back while lifting a
bale of cotton.  Subsequently, on May 24, 1995, claimant returned to work and,
while working  several hours loading 110 pound bags of beans in the hold of a
vessel, reinjured his back.  

     In his Decision and Order, the administrative law judge, based upon the
testimony of Dr. Lazarz, found that claimant reached maximum medical improvement
on October 14, 1996.  The administrative law judge noted that at the time of his
deposition on October 14, 1996, Dr. Lazarz stated that, although surgery was
recommended, claimant could lift between 10-20 pounds, and he released claimant to
light duty work.  In addressing the issue of the nature of claimant's disability,
the administrative law judge also noted that there was videotape evidence which
demonstrated that claimant could perform light duty work.   Accordingly, the
administrative law judge found claimant entitled to temporary total disability
compensation from May 24, 1995 to October 13, 1996, and permanent total disability
compensation from October 14, 1996 to May 9, 1997, the date upon which employer
established the availability of suitable alternate employment.  In denying
claimant's subsequent motion for reconsideration, the administrative law judge
stated that the rationale for his determining that claimant had reached maximum
medical improvement was previously stated, and that if surgery is later elected or
indicated, claimant's status could change, but until such an event occurs, the
evidence lends itself to the conclusion that claimant's medical condition had
plateaued, and that he was capable of working with restrictions.  

     On appeal, claimant challenges the administrative law judge's finding
regarding the nature of claimant's disability.  Employer responds, urging
affirmance.

     Claimant contends that the administrative law judge erred in determining that
claimant reached maximum medical improvement on October 14, 1996, the date on which
Dr. Lazarz released claimant for light duty work.  We agree.  It is well-established that a claimant is entitled to temporary disability benefits until he
reaches maximum medical improvement, the date of which is determined by medical
evidence.  A claimant has reached maximum medical improvement when he is no longer
undergoing treatment with a view toward improving his condition. See Louisiana
Ins. Guaranty Ass'n v. Abbott, 40  F.3d 122, 29 BRBS 22 (CRT) (5th Cir. 1994). 
Furthermore, the Board has held that, when addressing the permanency of claimant's
disability, the administrative law judge should discuss the medical opinions of
record rather than relying on the date claimant was able to return to work. See
Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988).

     In the instant case, the administrative law judge relied upon the deposition
testimony of Dr. Lazarz in concluding that claimant had reached maximum medical
improvement on October 14, 1996.[1]   Our review
of the record, however, reveals that when Dr. Lazarz was specifically asked at his
deposition if he felt that claimant had reached maximum medical improvement at this
time, he responded in the negative; moreover, Dr. Lazarz went on to recommend two
alternative surgical procedures which could benefit claimant. See CX-10 at
38.  Specifically, Dr. Lazarz stated that a laminectomy, or removal of the pressure
off the nerve, would render claimant capable of performing light work, whereas if
a fusion were added to this procedure, claimant would have the potential of doing
heavier work. Id.  Lastly, Dr. Lazarz's opinion that claimant could at this
time overcome the pain and discomfort that he presently experiences and return to
some type of gainful employment, see id. at 46, pertains to the issue of the
extent of claimant's disability and, thus, is insufficient to establish maximum
medical improvement.  Accordingly, based upon this credited and uncontroverted
testimony, we reverse the finding of the administrative law judge that claimant's
condition reached maximum medical improvement on October 14, 1996, and we modify
his decision to reflect that claimant is entitled to temporary total disability
through May 9, 1997. [2] 

     Accordingly, the administrative law judge's finding that claimant reached
maximum medical improvement on October 14, 1996 is reversed, and the administrative
law judge's decision is modified to provide that claimant's disability was
temporary in nature, continuing through May 9, 1997.  In all other respects, the
administrative law judge's Decision and Order and Decision on Claimant's Motion for
Reconsideration are affirmed.

     SO ORDERED.




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge




                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)In addressing this issue, the administrative law judge specifically declined to rely upon the opinions of Drs. Pennington and Andrew. See Decision and Order at 15. Back to Text
2)We note that claimant's brief statement that Dr. Lazarz did not indicate or imply that he was releasing claimant to light duty work does not rise to an adequately briefed challenge of the administrative law judge's finding that employer established suitable alternate employment as of May 9, 1997. See generally Shoemaker v. Schiavone and Sons, Inc., 20 BRBS 214 (1988). Therefore, the administrative law judge's decision to terminate claimant's benefits as of that date is affirmed. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document