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                                  BRB No. 98-0555


THURMAN R.  KOCH                             )
                                             )
          Claimant-Petitioner                )    DATE ISSUED:   12/28/1998

                                             )
     v.                                      )
                         )
BAROID DRILLING FLUIDS                       )
                         )
          and                      )
                         )
LIBERTY MUTUAL INSURANCE      )
COMPANY                            )         
          Employer/Carrier-             )
          Respondents                        )    DECISION and ORDER
                                             
     Appeal of the Decision and Order of James W.  Kerr, Jr., Administrative
     Law Judge, United States Department of Labor.

     John A.  Keller (The Keller Firm), Mandeville, Louisiana, for claimant.

     Jason B. Boudreaux and Michael  J. Remondet (Jeansonne & Remondet),
     Lafayette, Louisiana, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (96-LHC-2146) of Administrative Law
Judge James W.  Kerr,  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).

     On August 10, 1994, claimant injured his neck while working for employer  as
a crewman.  On August 15, 1994, Dr. Budden, an orthopedic surgeon, diagnosed a
cervical strain and recommended physical therapy.  When Dr. Budden re-evaluated 
claimant on August  24, 1994, he found his entire physical examination to be
objectively normal, and opined that claimant could work as long as he was not
required  to perform heavy lifting.  A cervical MRI was performed which was normal,
as were  x-rays.  On October 5, 1994, Dr. Budden noted that claimant informed him
that he was practically back to normal, and had arranged to return to work on
October 13, 1994.  At that time, Dr. Budden released claimant to return to work
without restrictions.  CX-10 at 8.

     Claimant thereafter performed  his usual work duties from October 13, 1994,
until March or April 1995.  At that time, claimant stopped working, allegedly due
in part to pain from the work injury, but also to take care of  his wife, who was
bedridden because she was pregnant with twins.  After leaving employer, claimant
went to work in his father's restaurant as a manager, where he also had to wash
dishes and bus tables.  Although claimant alleged that he remained symptomatic
throughout  the entire period in which he worked, Tr.  at 47-48, the record is
devoid of evidence that he sought any medical attention until August 16, 1995.  At
that time, claimant came under the care of Dr. Cenac, a Board-certified  orthopedic 
surgeon,  who opined that claimant was temporarily disabled due to residuals from
his work injury.  Based on Dr. Cenac's recommendation,  claimant stopped working.
A cervical  myelogram performed showed a small diffuse bulge at C2-C3 which was
ultimately determined not to be a surgical lesion.  Thereafter, claimant was
evaluated by a number of physicians, including Drs. Ponder, Trahant, and
Montgomery, who could find nothing objective to explain claimant's  continuing
complaints of pain, noting that he exhibited a normal range of motion, normal test
results, and a normal neurological exam. 

     Employer  voluntarily  paid temporary total disability compensation  from
August  11, 1994, until October 13, 1994, when claimant  returned to his usual work
for employer.  On November 15, 1995, claimant filed a claim for additional
temporary disability, CX-14 at 3, and  employer received  notice of the claim on
November 20, 1995, CX-14 at 4, 6.  On June 13, 1996, employer filed its initial
Notice of Controversion, it which it  disputed liability on the basis that claimant 
had filed a Jones Act suit against employer.  On April 18, 1997, shortly before the
scheduled hearing, employer filed a second controversion.  Claimant objected that
employer's submission of the second controversion was  untimely, and argued that
he accordingly was entitled to the disability claimed up to that time.  As of the
time of the initial hearing on April 24, 1997, claimant's status under the Act was
no longer at issue.  Inasmuch, however, as employer asserted  that it had only
become aware that claimant was seeking temporary disability benefits one week
previously and requested the opportunity to have an independent medical exam
performed by Dr. Montgomery,  the administrative law judge continued the hearing
over claimant's objection until September  5, 1997.  In addition, contemporaneous
with  the time of the initial hearing, employer agreed to accept liability for past
due medical expenses.

     In his Decision and Order, the administrative law judge denied the claim for
additional disability compensation, finding that as of the time claimant returned
to work for employer on October 13, 1994, he was capable of performing his usual
work, and crediting evidence indicating that he had recovered from the work
injury.[1]   The administrative law judge further
determined that claimant's actual earnings in that employment reasonably
represented his wage-earning capacity considering his age, physical condition, 
lack of work restrictions and work history.  In so concluding, he noted that there
was no evidence that claimant was only able to perform this work because of
employer's beneficence, and inferred that as claimant had performed his former work
successfully without medical attention from October 1994 until March April 1995, 
he was not working in pain and only through extraordinary effort.  The
administrative law judge further concluded that when claimant stopped working for
employer in 1995, he did so voluntarily and not because of the effects of his work
injury.  Inasmuch as employer voluntarily paid claimant temporary total disability
compensation from August 11, 1994 until October 13, 1994, when he returned to his
prior work, the administrative law judge determined that claimant had been fully
compensated for his work-related injury and denied the claim for additional
disability benefits accordingly.  Claimant's claim for  reimbursement of  $918 for
an MRI performed by Houma Radiological Associates in August 1995 and  for various
medications  prescribed by Dr. Cenac was also denied by the  administrative law
judge, who  found that these bills, which  were incurred after claimant reached
maximum medical improvement and had returned to work, were not compensable because
the evidence did not establish that they were related to claimant's work injury. 
Claimant appeals the denial of his claim for disability  and medical benefits. 
Employer  responds, urging affirmance. 

     Claimant initially argues that fundamental fairness dictates that employer be
held liable for the  disability benefits claimed from August 16, 1995 until  April 
18, 1997 because the administrative law judge erred in overruling his objection to
employer's untimely filing of its April 18, 1997, controversion.  We disagree.  
In the present case, the administrative law judge clearly acted within his
discretionary authority in allowing employer's April 18, 1997, controversion to be
introduced into evidence;  contrary to claimant's assertions, the fact that this
filing may not have been  timely under Section 14 of the Act, 33 U.S.C. §914,
is irrelevant to its admissibility and does not, in any event, automatically
entitle claimant to the claimed disability compensation. See generally Picinich
v. Seattle Stevedore Co., 19 BRBS 63 (1986);  20 C.F.R. §702.338.  

     Claimant further argues  that employer should be held liable for  the
aforementioned benefits because the administrative law judge erred in continuing
the hearing.  The administrative law judge found that the hearing should be
continued based on employer's  assertion that it had only been made aware that
temporary disability was in issue when it received Dr. Cenac's April 11, 1997
report.  As claimant notes, however, it is evident  from the face of his November
15, 1995, claim form and from other correspondence of record which employer
received from the district director which predated Dr. Cenac's report that
temporary disability was at issue.  Although, the administrative law judge's
rationale for continuing the hearing thus appears to be unsupported by the record,
this fact amounts to no more than harmless error, and simply does mandate that
claimant be awarded the compensation he seeks. 

     We also reject claimant's argument that the administrative law judge erred in
failing to find that he remained temporarily totally disabled either through the
date of hearing,  alternatively until July 8, 1997, when he underwent an
independent medical examination at employer's request by Dr. Montgomery, or until
June 20, 1997, when Dr. Trahant, a psychiatrist/neurologist,  indicated that
following work hardening claimant could return to work.  The burden is upon
claimant to establish the nature and extent of his disability.  In order to
establish a prima facie case of total disability, claimant must prove
that he is unable to perform his usual pre-injury employment. Trask v.
Lockheed Shipbuilding & Construction Co., 17 BRBS 56 (1985).

     In the instant case, after considering the relevant evidence of record, 
the administrative law judge found that as of October 13, 1994, claimant was
capable of performing his usual work.  In so concluding, he noted that  on
October 5, 1994, Dr. Budden released claimant to work without restrictions.
Moreover, he noted that although claimant alleged that upon returning to
work he remained symptomatic and went to see a doctor, no evidence was
submitted to support this assertion.  Rather, the administrative law judge
found that claimant  did not seek any medical treatment prior to seeing Dr.
Cenac in August 1995, that all of claimant's objective testing  was  normal,
and  that  no credible   evidence had been submitted to substantiate his
claim of continual pain or establish that he was incapable of performing his
usual work.  While recognizing that Dr. Cenac opined that claimant remained
temporarily disabled through the time of the hearing, the administrative law
judge found  his conclusions in this regard questionable in light of the
negative objective medical evidence and examinations of  the other
physicians of record.  In addition, the administrative law judge found
claimant's testimony regarding his pain symptoms to be self-serving and not
supported by the facts.  In discrediting claimant's testimony, the
administrative law judge explicitly noted that  he found it "interesting"
that claimant, who alleged that he quit working for  employer in March or
April 1995 in part due to pain, thereafter went to work at his father's
restaurant washing dishes and busing tables,  and did not go to see a
physician until he went to see Dr. Cenac in August 1995. 

       It is claimant's position that the administrative law judge's finding that
claimant was no longer disabled as of October 13, 1994 is in error because none of
the physicians of record, including employer's physician, Dr. Montgomery, opined
that he was exaggerating or malingering.  Moreover, claimant avers that there can
be no finding that he is not totally disabled until such time that he undergoes the
work hardening program recommended by Dr. Trahant, the functional capacity
evaluation recommended by Drs. Cenac and Montgomery, or they have definitively
released him to return to work.  We disagree.  It is solely within the
discretion of  the administrative law judge as the trier-of-fact to weigh
the relevant evidence. 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).   Based on his discrediting
of claimant's and Dr. Cenac's testimony, the absence of objective medical evidence
to substantiate claimant's  complaints, and the fact that claimant actually
performed his former work duties successfully from October 1994 until March or
April 1995 and  thereafter performed other strenuous work at his father's
restaurant without requiring medical attention, the administrative law judge
rationally concluded that claimant could  perform his usual work duties as of the
time he returned to work for employer on October 13, 1994.  Inasmuch as the
administrative law judge's finding that claimant could perform his usual work is
rational and supported by substantial evidence, we affirm his denial of claimant's
claim for disability benefits.[2] 

     Claimant's argument that the administrative law judge erred in failing to find
that he is  entitled to reimbursement of  $918 for the MRI performed by Houma
Radiological Associates in August 1995, and  for various medications prescribed by
Dr. Cenac is similarly rejected.  Based on the same evidence he relied upon in
concluding that claimant was no longer disabled as of October 13, 1994, the
administrative law judge rationally inferred that claimant was not entitled to
reimbursement of these expenses because as of the time they were incurred, 
claimant had recovered from his work injury.  Inasmuch as the administrative law
judge's finding that claimant failed to establish that the medical expenses in
question are related to his work injury is rational and supported by substantial
evidence, his determination that these medical benefits are not compensable is
affirmed.[3]   See 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).

     Claimant next argues that even if the administrative law judge properly
determined that he was no longer disabled after October 1994, he is nonetheless
entitled to additional  compensation because employer's voluntary payments were
based on an incorrect average weekly wage.  Claimant maintains that although
employer voluntarily paid temporary total disability benefits between April 11,
1994, and October 13, 1994, based on an average weekly wage of $308.86, the
testimony of employer's service center manager,  Gary Humble, establishes that
claimant's annual earning capacity at the time of injury was $23,500 per year or
$451.92 week, which would entitle him to an additional $95.38 for those nine weeks
or a total of an additional  $858.42.  As the question of whether claimant was
entitled to additional compensation prior to October 13, 1994, was raised below but
not adjudicated by the administrative law judge, we remand the case for him to
address this issue. 

     Claimant further asserts that inasmuch as employer had notice of the claim as
of November 1995 but did not file its notice of controversion until on or about
June 13,1996, if the Board reverses the administrative law judge and finds claimant
entitled to additional disability compensation, he is entitled to a 10 percent
penalty under Section 14(e) of the Act, 33 U.S.C.§914(e). Section 14(b) of
the Act provides that the first installment of compensation becomes due on
the fourteenth day after the employer has been notified pursuant to Section
12, 33 U.S.C. §912, or has knowledge of the injury.  33 U.S.C.
§914(b).  Section 14(d) sets forth the procedure for controverting the
right to compensation, providing that an employer must file a notice of
controversion on or before the fourteenth day after it has knowledge of the
injury.  33 U.S.C. §914(d); see also Spencer v. Baker Agricultural
Co., 16 BRBS 205 (1984).  Section 14(e) mandates that if an employer
fails to pay benefits in accordance with Section 14(b) or timely controvert
the claim in accordance with Section 14(d), then it shall be liable for a
10 percent penalty added to unpaid installments of compensation. Scott
v. Tug Mate, Inc., 22 BRBS 164 (1989); Frisco v. Perini Corp.,
14 BRBS 798 (1981).  In the present case, although employer was voluntarily
paying claimant compensation, as of October 13, 1994, it ceased its
voluntary payments.  Moreover, it is undisputed that on  November 20, 1995,
employer received notice of claimant's claim for  additional compensation,
but it did not make any additional payments or controvert the claim prior
to June 13, 1996.  Decision and Order at 2-3.  If  the administrative law
judge determines that claimant is entitled to  additional compensation on
remand due to employer's making voluntary payments based on  an incorrect
average weekly wage, claimant  is  entitled to an assessment on the overdue
compensation under Section 14(e). See Browder v. Dillingham Ship Repair,
25 BRBS 88, aff'g on recon. 24 BRBS 216 (1991). 

     Finally, claimant contends that inasmuch as his counsel filed a fee petition
with the administrative law judge and employer did not file any objections, if the
Board overturns the denial of benefits, it should award counsel the fee he
requested from the administrative law judge, and should remand the case for a
determination of his entitlement to additional fees and costs before the district
director.  Inasmuch as immediately prior to the hearing, employer agreed to pay
some of claimant's medical bills which it had disputed previously, claimant's
counsel was successful in establishing his right to additional compensation, and
is accordingly entitled to a fee payable by employer pursuant to Section 28(b), 33
U.S.C. §928(b). See generally Ingalls Shipbuilding, Inc. v. Director, OWCP
[Baker], 991 F.2d 163, 27 BRBS 14 (CRT)(5th Cir. 1993).  However, as the
Board's authority to award an attorney's fee is limited to that involving work
performed before it on appeal, we cannot award claimant the fee requested for work
performed before the administrative law judge.  In order to obtain a fee for work
performed at the other levels of the proceedings, counsel must request it from the
tribunal before whom the work was performed. See generally Smith v. Alter
Barge Line, Inc., 30 BRBS 87, 89 (1996); Lewis v. Todd Pacific Shipyards
Corp., 30 BRBS 154, 160 (1996).  On remand, the administrative law judge should
address counsel's fee petition.

     Accordingly, the case is remanded for the administrative law judge to
reconsider claimant's average weekly wage and entitlement to a Section 14(e)
penalty for benefits due prior to October 1994 consistent with this opinion.  In
all other respects, the administrative law judge's Decision and Order denying
benefits is affirmed.

     SO ORDERED.

                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                   
                         JAMES F.  BROWN
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D.  NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1) In so concluding, the administrative law judge noted that there was no objective evidence to account for claimant's continuing complaints of pain and that employer had demonstrated suitable alternate employment as of October 13, 1994, when Dr. Budden released him to work without restrictions and claimant returned to his usual work. Back to Text
2)Inasmuch as we affirm the administrative law judge's finding that claimant was not disabled after October 13, 1994, we need not address claimant's assertion that the administrative law judge erred in failing to find that the nature of his disability remained temporary up through the time of the hearing. Back to Text
3)Although claimant argues that at the hearing employer accepted liability for all past due medical benefits incurred through April 1997, and that the medical expenses at issue would be covered under this agreement, the administrative law judge acted within his discretion in inferring that these expenses were not "past due" as they were not shown to be related to claimant's work injury. Decision and Order at 13. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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