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                                 BRB No. 99-0339

JAMES LIVAS                             )
          Claimant-Petitioner           )
     v.                                 )
COMAR INDUSTRIES                        )    DATE ISSUED:   12/15/1999
     and                                )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Stuart A. Levin,  Administrative Law Judge, United States
     Department of Labor.

     James Livas, Schriever, Louisiana, pro se.

     Richard W. Withers (Sharp & Gay, P.A.), Jacksonville, Florida, for employer/ carrier.

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


     Claimant, appearing without legal representation, appeals the Decision and Order (94-LHC-177) of
Administrative Law Judge Stuart A. Levin 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).  In reviewing an appeal where claimant is not represented by counsel, the Board will review the
administrative law judge's findings of fact and conclusions of law in order to determine whether they are
rational, supported by substantial evidence, and in accordance with law; if so, they must be affirmed.  33
U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359

     This case is before the Board for the second time.  To recapitulate, on May 8, 1989, while working for
employer as a welder, claimant fell fifteen feet onto a barge, injuring his left knee, right knee, and right ankle.
Claimant received treatment for these injuries by Dr. El-Bahri, who found that claimant reached maximum
medical improvement  on February 23, 1990, and rated him as having a 20 percent permanent impairment of
the left knee.   Employer voluntarily paid temporary total disability from the date of injury until the date of
maximum medical improvement, and  permanent partial disability under the schedule thereafter consistent with
Dr. El-Bahri's impairment rating. See 33 U.S.C. §908(c)(2), (19).  Claimant, who also
alleged that he injured his lower back in the May 1989 work accident,  sought continuing temporary total
disability benefits or, alternatively, permanent total disability compensation under the Act. In addition, claimant
argued that employer erred in refusing to authorize additional medical treatment for his back condition.

      In the initial Decision and Order, Administrative Law Judge Robert G. Mahony denied the contested
medical benefits as unnecessary, and found that claimant did not establish that he suffered a back injury. Judge
Mahony further determined that, as claimant's only work-related injury was to his left knee and employer
established the availability of suitable alternate employment through the testimony of its vocational expert, Mr.
Albert, claimant's recovery under the Act was limited to the permanent partial disability compensation under
the schedule previously paid to claimant by employer. 

     Claimant appealed the administrative law judge's denial of his claim for total disability benefits to the
Board.  The Board vacated Judge Mahony's decision, holding that his adoption of employer's proposed
Decision and Order, virtually in its entirety, resulted in a decision which reflected a selective analysis of the
evidence and conclusory findings and was therefore not in compliance with the Administrative Procedure Act,
5 U.S.C. §557(c)(3)(A).  Accordingly, the case was remanded for further consideration. See Livas
v. Comar Industries, BRB No. 97-440 (Oct. 15, 1997)(unpublished).

     On remand, Administrative Law Judge Stuart A. Levin (the administrative law judge) found claimant
entitled to the Section 20(a), 33 U.S.C. §920(a), presumption, which he further found that employer
rebutted.  In analyzing the record as a whole, the administrative law judge found that claimant failed to meet
his burden of proving that his back symptomatology is related to his May 8, 1989, work injury.  Alternatively,
the administrative law judge found that claimant failed to establish a loss of wage-earning capacity, as he is
capable of returning to his usual employment as a welder or to comparable employment.  Accordingly, the
administrative law judge denied claimant's request for ongoing compensation benefits.

     On appeal, claimant, without the assistance of counsel, challenges the denial of his claim.[1]   Employer responds, urging affirmance.

     It is claimant's burden to prove the existence of an injury or harm and that a work-related accident occurred
or that working conditions existed which could have caused the harm in order to establish a prima facie
case. See U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631
(1982).  Where, as in the instant case, claimant has established his prima facie case, Section 20(a) of the
Act, 33 U.S.C. §920(a),  provides him with a presumption that his condition is causally related to his
employment; the burden then shifts to employer to rebut the presumption by producing substantial evidence that
claimant's condition was neither caused nor aggravated by his employment. See American Grain
Trimmers, Inc. v. Director, OWCP, 181 F.3d 810, 33 BRBS 71 (CRT)(6th Cir.
1999)(en banc); Swinton v. J. Frank Kelley, Inc., 554 F.2d 1075, 4 BRBS
466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).  If the administrative law judge finds the
Section 20(a) presumption rebutted, it drops from the case. Universal Maritime Corp. v. Moore,
126 F.2d. 256, 31 BRBS 119 (CRT)(4th Cir. 1997).  The administrative law judge then must weigh all the
evidence and resolve the issue of causation on the record as a whole with claimant bearing the burden of
persuasion. See Director, OWCP, v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43

     In the instant case, the administrative law judge invoked the Section 20(a) presumption but found that
the record evidence was sufficient to rebut it.  Specifically, the administrative law judge determined that
employer established rebuttal of the Section 20(a) presumption based upon the opinion of Dr. Lenger, who
opined that claimant's back symptomatology is not related to his work injury, the normal back examinations
conducted by Dr. Scharf in May 1990 and Dr. McAuley in September 1990, a normal x-ray of claimant's back
taken in May 1989, and a June 1989 MRI, which was interpreted as showing no significant abnormalities. As
the unequivocal opinion of Dr. Lenger, as supported by the objective tests of record, constitutes substantial
evidence sufficient to rebut the presumption, we affirm the administrative law judge's finding that the Section
20(a) presumption is rebutted. See Phillips v. Newport News Shipbuilding & Dry Dock
Co., 22 BRBS 94, 96 (1988). 

     In addressing the record as a whole, the administrative law judge initially found that claimant's subjective
complaints are without credibility and, accordingly, he declined to credit the medical evidence which relied
upon claimant's account of his symptoms.  Thereafter, the administrative law judge credited the reports of Drs.
Scharf, Fillingham, Witter and Lenger, which noted that claimant's complaints were not consistent with their
findings; in this regard, the administrative law judge found that the aforementioned physicians' opinions were
supported by excerpts from the reports of Drs. El-Bahri, McAuley, Scharf, Harris and Berwick.  Finally, the
administrative law judge credited surveillance videotapes, which he found exhibited  evidence of claimant's
proclivity to exaggerate his back symptoms and which undermine the opinion of any physician who relied on
claimant's subjective complaints in rendering an evaluation of his condition.  Lastly, the administrative law
judge found no objective medical evidence in 1989 to  indicate that claimant injured his back as a result of the
May 8, 1989, work-incident. Thus, as claimant produced no affirmative medical evidence linking his present
medical condition to his May 1989 work-incident, the administrative law judge concluded that causation was
not established based upon the record as a whole.   It is well-established that an administrative law judge is
entitled to weigh the medical evidence and draw his own inferences therefrom and is not bound to accept the
opinion or theory of any particular medical examiner. See Todd Shipyards Corp. v. Donovan, 300
F.2d 741 (5th Cir. 1962).  In the instant case, the administrative law judge's credibility determinations are
rational; accordingly, we affirm the administrative law judge's determination that claimant's present back
condition is unrelated to his May 1989, work-accident.

     Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)Claimant also contends that he was not paid all of the benefits for his permanent partial knee impairment that employer had asserted it voluntarily paid. The Board will not address an issue raised for the first time on appeal. Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339, 346 (1988). We note that this issue should be initially presented to the district director. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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