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                                     BRB No. 01-0458
                                         
DALE CARR                               )
                                        )
          Claimant-Petitioner           )
                                        )
       v.                               )
                                        )
CARGILL, INCORPORATED                   )    DATE ISSUED:   02/07/2002
2002
                                        )
       and                              )
                                        )
CRAWFORD & COMPANY                      )
                                        )
          Self-Insured                  )
          Employer/Administrator-       )    
          Respondents                    )   DECISION and ORDER

     Appeal of the Decision and Order of James W. Kerr, Jr., Administrative
     Law Judge, United States Department of Labor.

     Daniel E. Becnel, III, LaPlace, Louisiana, for claimant.

     George J. Nalley, Jr. and Christopher J. Stahulak, Metairie, Louisiana,
     for employer/administrator.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (00-LHC-1241) 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 administrative law judge's
findings of fact and conclusions of law if they are supported by substantial
evidence, rational, and in accordance with law.  33 U.S.C. §921(b)(3);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

     Claimant injured his back during the course of his employment for employer on
January 16, 1998.  Claimant returned to work the next day, and he received his
regular wages from employer until March 29, 1998, when claimant stopped working.
Employer also paid claimant compensation for temporary total disability, 33 U.S.C.
§908(b), from February 4 to 17, 1998, and from July 16 to 26, 1998.  Claimant
has not returned to work since March 29, 1998.  Claimant alleged that he is unable
to work due to his back injury.

     In his decision, the administrative law judge found that claimant established
invocation of the Section 20(a) presumption, 33 U.S.C. §920(a), linking
claimant's back condition to his employment, and that employer failed to rebut the
presumption.  The administrative law judge found that claimant's back condition
reached maximum medical improvement on July 24, 1998, without any residual
impairment.  The administrative law judge concluded that claimant is not entitled
to any compensation after claimant last worked for employer on March 29, 1998. 
Accordingly, the administrative law judge denied the claim for compensation under
the Act. 

     On appeal, claimant challenges the administrative law judge's denial of
compensation benefits after March 29, 1998.  Claimant also seeks payment of medical
bills incurred for treatment with Drs. Waguespack and Murphy, and with St. James
Parish Hospital, and reimbursement of his travel expenses for medical treatment. 
Employer responds, urging affirmance.   

     We initially address the administrative law judge's finding that claimant's
back condition reached maximum medical improvement on July 24, 1998, and that
claimant did not have any loss of wage-earning capacity thereafter.  Claimant
contends the administrative law judge erred by rejecting objective evidence of
disability, the medical opinions of his treating physicians, and claimant's
testimony as to his back condition.   Claimant bears the burden  of establishing the nature and
extent of his work-related disability. See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989);
Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1985).

     In the instant case, the administrative law judge credited the opinions of
Drs. Fraiche, Griffith, Hatcher, Mitchell, and Schumacher, and Mr. Melacon, a
physical therapist, to find that as of July 24, 1998, claimant had no physical
restrictions from the work injury, and thus, sustained no loss of wage-earning
capacity due to his back condition.   Specifically,   Dr. Fraiche initially treated
claimant's back injury, and Mr. Melacon administered physical therapy from January
through March 1998.  Their reports note claimant's history of lessening subjective
complaints and their objective findings showing improvement of claimant's back
condition.  EXS 5, 7.   Dr. Griffith, an orthopedist, examined claimant in January,
February, and April 1998.  Dr. Griffith reported in April that claimant's exam was
"grossly inconsistent" with his subjective complaints.  EX 6 at 3.  Dr. Schumacher
similarly diagnosed low back symptoms without supporting objective evidence.  EX
9 at 2.   Dr. Mitchell, a neurologist, had claimant undergo an MRI and myelogram;
thereafter, he opined on July 24, 1998, that claimant could return to work without
restrictions.  EXS 7 at 5; 34 at 15-17.  Dr. Hatcher, a urologist, found no
objective evidence to substantiate claimant's complaints of urinary frequency and
burning.  EX 8.   The administrative law judge rejected claimant's testimony
regarding his physical condition based on inconsistent statements by claimant, a
surveillance tape that showed claimant is more active in walking and driving than
he admits, and the testimony of both a private investigator, Mr. Miceli, and
claimant's supervisor, Mr. Leeth, regarding their observations of claimant's
physical activity.  The opinion of Dr. Waguespack, that claimant is unable to work
because of radiculopathy at L4-5, was rejected based on the opinion of Dr.
Mitchell, that this condition is clinically insignificant, and the opinions of Drs.
Mitchell and Griffith, that claimant's complaints are not supported by objective
findings.  Moreover, the administrative law judge rejected the opinions of Drs.
Waguespack, Murphy, Clifton, and Bourgeois because they were based upon claimant's
subjective complaints, which the administrative law judge found were not credible.

     It is well-established that, in arriving at his decision, the administrative
law judge is entitled to evaluate the credibility of all witnesses and to draw his
own inferences and conclusions from the evidence.  See Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 373 U.S. 954
(1963); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  In
the instant case, the administrative law judge considered the record as a whole,
and concluded that claimant did not sustain any loss of wage-earning capacity after
July 24, 1994, when Dr. Mitchell released claimant to return to work without any
restrictions.  On the basis of the record before us, the administrative law judge's
conclusion is rational and supported by substantial evidence. See Cordero v. Triple
A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); Todd
Shipyards Corp.  v. Donovan, 300 F.2d 741 (5th Cir. 1962); Gacki v. Sea-Land
Services, Inc., 33 BRBS 127 (1998).  Accordingly, we affirm the administrative
law judge's denial of compensation after July 24, 1998.

     We next address claimant's challenge to the administrative law judge's denial of compensation from March
29 to July 23, 1998.  We agree that this finding cannot be affirmed as the administrative law judge did not render
any findings of fact with respect to claimant's ability to work during this period.  Whereas the administrative law
judge credited specific medical evidence supporting his finding that claimant did not sustain a loss of wage-earning
capacity after July 24, 1998, the administrative law judge's decision contains no rationale for his conclusion that
claimant is not entitled to any compensation after March 29, 1998, when claimant stopped working for employer. 
Moreover, the evidence credited by the administrative law judge to find that claimant had no loss of
wage-earning capacity after July 24, 1998, does not unequivocally support a denial
of compensation between March 29 and July 24, 1998.  For example, Dr. Mitchell
testified that claimant was restricted from returning to work while  undergoing
neurological evaluation from May 1 to July 23, 1998.  EX 34 at 21-22.   Dr.
Fraiche, after releasing claimant to return to work without restrictions on March
5, 1998, re-imposed work restrictions on March 24, 1998, of no climbing, bending,
stooping, prolonged standing or walking, and lifting over 75 pounds.[1]   EX 4.  Given this record, we are unable to affirm the denial of
compensation between March 29 and July 24. See generally  Barren Creek Coal Co. v. Witmer, 111 F.3d
352, 356 (3d Cir. 1997).  Because the administrative law judge must in the first instance evaluate the evidence regarding
claimant's ability to work during the period in question, we vacate the administrative law judge's denial of compensation
from March 29 to July 23, 1998, and remand this case to the administrative law judge for reconsideration of this issue.  
See 5 U.S.C. §557(c)(3)(A); McCurley v. Kiewest Co., 22 BRBS 115 (1989).

     On remand, the administrative law judge also must address claimant's assertion that employer is responsible for the
payment of medical bills claimant submitted into evidence at the hearing, CXS 3-5, for treatment rendered by Drs.
Waguespack and Murphy, and that provided by St. James Parish Hospital.[2]   33 U.S.C. §907(a); see Ballesteros v. Willamette W.
Corp., 20 BRBS 184 (1988).

     Accordingly, the administrative law judge's denial of benefits from March 28
through July 24, 1998 is vacated, and the case is  remanded for further findings
consistent with this opinion.  In all other respects, the administrative law
judge's Decision and Order is affirmed.

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1)We note that the record contains evidence that claimant's usual employment with employer was actually available to him after he stopped working. Employer submitted evidence reflecting that it had written to Dr. Waguespack, stating that light duty work would be provided and that it would try to accommodate claimant's restrictions. EX 29. Claimant's supervisor, Mr. Leeth, testified that he repeatedly attempted to contact claimant after he quit working, to tell claimant that employer had work available. Tr. at 118-122, 140-142. Back to Text
2)Whereas claimant raised payment for medical treatment as an issue in his pre-hearing statement, claimant failed to raise before the administrative law judge reimbursement of his travel expenses for medical treatment. Accordingly, as claimant may not raise this issue for the first time on appeal, we will not address claimant's contention. See generally Boyd v. Ceres Terminals, 30 BRBS 218 (1997). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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