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                                 BRB No. 99-0353

JUDITH MERRITT                          )
          Claimant-Petitioner           )    
     v.                                 )
U.S. NAVY EXCHANGE                      )    DATE ISSUED:   12/22/1999
     and                                )
CRAWFORD & COMPANY                      )
          Employer/Administrator-       )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order - Denying Benefits of Edward C. Burch,
     Administrative Law Judge, United States Department of Labor.

     Judith Merritt, Oak Harbor, Washington, pro se.

     Russell A. Metz (Metz & Associate, P.S.), Seattle, Washington, for
     employer/ administrator.

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


     Claimant, without the assistance of counsel, appeals the Decision and Order -
Denying Benefits (97-LHC-2864) of Administrative Law Judge Edward C. Burch 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., as
extended by the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171
et seq. (the Act).  In an appeal by a claimant who is not represented by
counsel, the Board will review the administrative law judge's findings of fact and
conclusions of law to determine 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 was working at an espresso stand on March 25, 1995, at a  Navy
Exchange, when her right hand became numb and she dropped a pitcher of steaming
milk. She consulted Dr. Lycksell, who thought there were three possible causes of
claimant's complaints: arthritis, a neck problem, or carpal tunnel syndrome.
Claimant was subsequently diagnosed with carpal tunnel syndrome.  She underwent two
carpal tunnel releases in the summer of 1995.  Employer paid temporary total
disability benefits from April 14, 1995, through October 4, 1995, when claimant
returned to work with a lifting restriction.

     Claimant was moved among different departments upon her return. Emp. Ex. 11
at 27.   She alleges that her condition improved until February 1996 when she was
assigned to work at the "Classic Six" snack bar in Hangar 6, where she had to do
lifting, stocking and putting supplies away.  Emp. Ex. 11 (Claimant's Deposition)
at 27-28.  She developed numbness going up her arm, which she attributed to the
aftermath of the carpal tunnel surgery and which gradually got worse and went up
into her shoulder.  Emp. Ex. 2 at 9.  Claimant sought treatment from various
doctors to whom she complained of pain in her wrists, forearms, neck and shoulders. 
She was off work from July 8, 1996, until Dr. Lycksell released her to work for
four to six hours per day with a 25-pound lifting restriction on November 7, 1996. 
Employer laid claimant off on November 21, 1996, because she could not perform the

     Claimant filed "An Associates Notice of Injury" on February 21, 1997, and
listed pain to her right hand, right arm, shoulder and neck, and listed the date
of injury as "approx. March 1996."  Emp. Ex. 1 at 5.  Claimant filed a claim with
the Department of Labor on April 2, 1997, stating "Still having problems in 1996
from original problem in 1995."  Emp. Ex. 1 at 1.  Claimant sought temporary total
disability compensation from November 21, 1996, to June 1, 1998, and medical,
retraining, and other expenses.  At the hearing, the parties agreed that all
benefits related to the carpal tunnel syndrome have been paid.[1]   The administrative law judge found that claimant
was aware of a work-related injury in her neck and back in July 1996.  He found
that her claim was timely filed under Section 13(a), 33 U.S.C. §913(a).  He
then found that as her February 21, 1997, notice to employer was given more than
30 days after the date of awareness, it was untimely under Section 12(a), 33 U.S.C.
§912(a), and that the failure to give timely notice was not excused under
Section 12(d), 33 U.S.C.§912(d).  The administrative law judge then concluded,
in the alternative, that even if claimant established a prima facie case
with regard to causation, there was sufficient evidence to rebut the prima
facie case, and upon weighing the evidence as a whole, claimant failed to prove
by a preponderance of the evidence that any alleged pain in her neck or back
constituted a compensable injury.  The administrative law judge therefore denied

     On appeal, claimant, representing herself, challenges the administrative law
judge's denial of  her claim for disability and medical benefits.  Employer
responds, urging affirmance of the denial of the claim.

     Under Section 12(a), 33 U.S.C. §912(a), an employee in a traumatic injury
case is required to notify the employer of her work-related injury within 30 days
after the date of injury or the time when the employee was aware, or in the
exercise of reasonable diligence or by reason of medical advice should have been
aware, of the relationship between her injury and employment, and that the injury
will affect her earning capacity.  See Bath Iron Works Corp. v. Galen, 605
F.2d 583, 585, 10 BRBS 863, 865-66 (1st Cir. 1979); cf. Paducah Marine
Ways v. Thompson, 82 F.3d 130, 134, 30 BRBS 33, 35 (CRT)(6th Cir.
1996)(interpreting identical language of Section 13).  In the absence of evidence
to the contrary, it is presumed pursuant to Section 20(b) of the Act, 33 U.S.C.
§920(b), that employer has been given sufficient notice under Section 12.
See Kashuba v. Legion Insurance Co., 139 F.3d 1273, 32 BRBS 62 (CRT) (9th
Cir. 1998), cert. denied, 119 S.Ct. 866 (1999); Lucas v. Louisiana
Insurance Guaranty Association, 28 BRBS 1, 4 (1994). 

     The failure to provide timely notice pursuant to Section 12(a) will bar a
claim unless such failure is excused under Section 12(d), 33 U.S.C.
§912(d)(1988).  Section 12(d)(2) provides that failure to give such notice
does not bar a claim if employer has not been prejudiced by the delay.
Kashuba, 139 F.3d 1273, 32 BRBS 62(CRT).  Prejudice under Section 12(d)(2)
may be established where employer provides substantial evidence that due to
claimant's failure to provide timely written notice, it was unable to effectively
investigate the claim to determine the nature and extent of the illness or to
provide medical services. Kashuba, 139 F.3d at 1275, 32 BRBS at 64(CRT);
Bustillo v. Southwest Marine, Inc., 33 BRBS 15, 16 (1999).  A conclusory
allegation of prejudice is not sufficient. Id.; see also I.T.O.  Corp.
v. Director, OWCP, 883 F.2d 422, 22 BRBS 126 (CRT)(5th Cir. 1989).

     The administrative law judge found that claimant began developing pain in her
hands, arm, and neck in February or March 1996, but was not at that time aware that
this was a new injury unrelated to the carpal tunnel syndrome.  He found that
claimant became aware of a work-related injury in her neck and back in July 1996, 
based on the medical reports of Dr. Semon, Dr. McCutchan, and Dr. Haller, but did
not give notice until February 1997.  

     The administrative law judge found  that employer was prejudiced by this late
notice, because it was unable to investigate the circumstances of claimant's
alleged work-related injury, or to provide medical treatment and disability
benefits through its workers' compensation insurer.  The administrative law judge's
stated reason is conclusory.  He cites no evidence and accepts at face value
employer's unsupported assertion that it was prejudiced by its inability to conduct
proper discovery immediately after the injury and to supervise claimant's medical
care.  Employer does not allege, however, that the medical care she received in the
months between her date of awareness and the date she gave notice was
inappropriate. See Bustillo, 33 BRBS at 17. Contrary to employer's
assertion, the facts are thus distinguishable from those in Kashuba, where
employer did not receive notice of the claim until four months after the alleged
injury and nearly six weeks after claimant  had surgery of which employer had no
knowledge.  139 F.3d at 1276, 32 BRBS at 64 (CRT).  Employer's
unsubstantiated assertion that it could not investigate crucial details surrounding
the alleged injury which would enable it to sever any presumed connection between
the injury and employment is also unpersuasive in view of the lack of evidence to
support it. Bustillo, 33 BRBS at 17.  Moreover, the administrative law judge
noted evidence of claimant's doctor informing employer's medical services
consultant of claimant's condition and her work restriction. See Decision
and Order at 6; Emp. Ex. 3 at 17.  Employer therefore had an opportunity to
participate in claimant's medical care.  Further, the hearing in this case was held
on April 7, 1998.  Employer therefore had over one year after it received formal
notice to generate medical evidence in support of its position. See Steed v.
Container Stevedoring Co., 25 BRBS 210, 217 (1991). As employer fails to
support its generalized assertion of prejudice, we reverse the administrative law
judge's determination that claimant's failure to give timely notice is not excused
pursuant to Section 12(d)(2).  Consequently, we reverse his determination that
Section 12 bars claimant's claim.

     The administrative law judge next determined, in the alternative, that the
claim would fail due to claimant's  failure to establish a prima facie case
that her neck and back conditions were causally related to her employment.  Section
20(a) of the Act, 33 U.S.C. §920(a), provides claimant with a presumption that
her condition is causally related to her employment if she shows that she suffered
a harm and that employment conditions existed or a work accident occurred which
could have caused, aggravated, or accelerated the condition. See Merrill
v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991); Gencarelle v. General
Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS 13
(CRT) (2d Cir. 1989).  Once claimant has invoked the presumption, the burden shifts
to employer to rebut the presumption with substantial evidence that the injury was
not caused by the employment. Conoco, Inc. v. Director, OWCP,   F.3d   ,
1999 WL 979694 (5th Cir. Nov. 12, 1999); Gooden v. Director, OWCP, 135 F.3d
1066, 32 BRBS 59 (CRT)(5th Cir. 1998).  If the presumption is rebutted, the
administrative law judge must weigh all the evidence and render a decision
supported by substantial evidence, with claimant bearing the burden of persuasion.
See Del Vecchio v. Bowers, 296 U.S. 280 (1935); see also Director, OWCP
v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (CRT) (1994).  In analyzing
whether claimant established the "harm" element of her prima facie case, the
administrative law judge relied on the following to find she did not: claimant's
failure to report pain in her neck or back to physicians until more than a year
after the initial incident at the Navy Exchange, negative x-rays, and the failure
of doctors to diagnose any specific industrial injury.

     We reverse the administrative law judge's finding in this respect.  The
administrative law judge noted claimant's uncontroverted deposition testimony that
she began to experience neck and shoulder pain during the early part of 1996, when
she began to use her hands more in a new job assignment.  This is sufficient to
establish the harm element of a prima facie case under Section 20(a), as it
establishes that something has gone wrong with the human frame. Wheatley v.
Adler, 407 F.2d 307 (D.C. Cir. 1968).  That the pain did not arise until one
year after claimant's carpal tunnel injury is not relevant to whether claimant has
a "harm."  The administrative law judge's reliance on negative x-rays also is
misplaced, as objective medical evidence is not required to establish a harm.
See Welch v. Pennzoil, 23 BRBS 395 (1990).  Furthermore, as the
administrative law judge notes, the medical reports in the record reference
claimant's complaints as well.  The fact that the physicians are unsure of the
reason for her pain does not negate its existence.  Moreover, claimant does not
have to establish the "industrial" nature of her injury, as the Section 20(a)
presumption serves to link her harm to her employment.[2]   See Brown v. I.T.T./Continental Baking Co., 921 F.2d 289, 24
BRBS 75 (CRT)(D.C. Cir. 1990).  Accordingly, we reverse the administrative law judge's
finding that the Section 20(a) presumption is not invoked, and hold that it is
invoked as a matter of law. See generally Hampton v. Bethlehem Steel Corp.,
24 BRBS 141 (1990).

     Next, as the administrative law judge's conclusion that even if claimant
established a prima facie case, the evidence is sufficient to establish
rebuttal of the Section 20(a) presumption, and that upon weighing the evidence as
a whole, claimant has failed to prove by a preponderance of the evidence that any
pain in her neck or back constituted a compensable injury, Decision and Order at
13 n.2, is conclusory and unexplained, it does not comply with the requirements of
the Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A). See
generally Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380
(1990); Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).  We,
therefore, must remand this case for necessary findings of fact on these issues,
as well as any other remaining issues, should the administrative law judge find a causal
relationship between claimant's injury and her employment established.

     Accordingly, the administrative law judge's findings that claimant's claim is
barred under Section 12 and that claimant did not establish invocation of the
Section 20(a) presumption are reversed.  The case is remanded for further
consideration consistent with this decision.


                           BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                           ROY P. SMITH
                         Administrative Appeals Judge

                           MALCOLM D. NELSON, Acting 
                         Administrative Appeals Judge

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1)At the hearing, the parties, i.e., claimant who was represented by a lay representative and employer's attorney, agreed (off the record), that they would proceed without live testimony, on the written record. Tr. at 14. Back to Text
2)The administrative law judge made no specific finding with regard to the "working conditions" prong of a prima facie case. The administrative law judge, however, did not discredit claimant's statement to Dr. Vatter that she had been doing relatively well until February 1996, when she switched her job and began doing more work with her hands. Decision and Order at 4. Claimant is not required to introduce affirmative evidence establishing that her work-related activities actually caused the harm alleged in order to invoke Section 20(a); she need only introduce evidence that it could have done so. See Brown v. I.T.T./Continental Baking Co., 921 F.2d 289, 24 BRBS 75 (CRT)(D.C. Cir. 1990); Hampton v. Bethlehem Steel Corp., 24 BRBS 141 (1990); Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990). The evidence presented in this case is sufficient to satisfy this limited burden. Ramey v. Stevedoring Services of America, 134 F.3d 954, 31 BRBS 206(CRT) (9th Cir. 1998). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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