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                                 BRB No. 01-0481


ROBERT E. MILLER                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
AVONDALE INDUSTRIES,                    )
INCORPORATED                            )    DATE ISSUED:   02/20/2002
                                             
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of C. Richard Avery,
     Administrative Law Judge, United States Department of Labor.

     J. Paul Demarest and Seth H. Schaumburg (Favret, Demarest, Russo &
     Lutkewitte), New Orleans, Louisiana, for claimant.

     Joseph J. Lowenthal, Jr., and Michelle A. Bourque (Jones, Walker,
     Waechter, Poitevent, CarrŠre & DenŠgre, L.L.P.), New Orleans, Louisiana,
     for employer.

     Before:    DOLDER, Chief Administrative Appeals Judge, McGRANERY and
     HALL, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order on Remand (97-LHC-2898) 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 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).

     This case is before the Board for a second time.  To briefly recapitulate the
facts, claimant worked as a welder at employer's shipyard.  On January 26, 1996,
claimant fell through a hole on the deck of a vessel and landed on his tail bone. 
He suffered a comminuted fracture of his T12 vertebrae with compromise of the
spinal canal and fractures of the eight and ninth ribs.  Claimant underwent surgery
to repair the fractured vertebrae, and rods were surgically placed on both sides
of claimant's spine.  Claimant continued to complain of pain, but, following a year
of treatment, claimant's orthopedic surgeon, Dr. Butler, stated that there was
nothing further he could offer claimant to relieve the pain.  Claimant then sought
treatment from a neurosurgeon, Dr. Provenza, who in turn referred claimant to a
pain management specialist, Dr. Gupta.  In addition, claimant sought psychiatric
care for treatment of depression due to the ongoing chronic pain.  Claimant has not
returned to work and sought total disability benefits under the Act.

     In his original Decision and Order, the administrative law judge found that
claimant had not reached maximum medical improvement and that he was temporary
totally disabled.  In addition, the administrative law judge found employer liable
for claimant's medical expenses, including those of Drs. Provenza and Gupta. 
Employer appealed this decision to the Board.  On appeal, the Board affirmed the
administrative law judge's finding that claimant is temporarily totally disabled.
Miller v. Avondale Industries, Inc., BRB No. 98-1444 (Aug. 5, 1999).  The
Board, however, held that the administrative law judge did not determine whether
claimant's cervical complaints, for which he was receiving treatment from Drs.
Provenza and Gupta, are work-related and, thus, whether the past or future
treatment offered by these physicians was and is necessary and reasonable for
claimant's work-related injuries.[1]    Id. 

     On remand, the administrative law judge found that, after weighing the
evidence as a whole, the evidence is sufficient to establish that claimant's
cervical symptoms are related to the accident at work on January 25, 1996, and that
the past and future treatment of Drs. Provenza and Gupta was and is reasonable and
necessary for claimant's work-related condition.  Therefore, the administrative law
judge found that employer is liable for medical treatment provided for claimant's
cervical symptoms.

     On appeal, employer contends that the administrative law judge erred in
finding claimant's cervical complaints to be work-related, noting that claimant did
not begin to complain of problems with his cervical spine until a year and a half
after the accident,  following three incidents for which he sought emergency room
treatment.  Employer also contends that the administrative law judge erred in
failing to give determinative weight to the opinions of Drs. Butler and Russo. 
Employer lastly contends that the treatment provided by Drs. Provenza and Gupta was 
unauthorized and was  not necessary or  reasonable for claimant's injury.  Claimant
responds, urging affirmance of the administrative law judge's decision.

     Once, as here, the Section 20(a) presumption is invoked, employer may rebut
it by producing substantial evidence that claimant's employment did not cause,
accelerate, aggravate or contribute to his injury.  Conoco, Inc. v. Director,
OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); American
Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 
1999), cert. denied, 120 S.Ct. 1239 (2000); Swinton v. J. Frank Kelly,
Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820
(1976).  In its original decision, the Board held that the opinion of Dr. Butler
is sufficient to establish rebuttal of the Section 20(a) presumption, as he stated
that claimant's cervical complaints are not related to the January 1996 work
injury. Miller, slip op. at 4.   Therefore, the presumption no longer
applies, and the administrative law judge was instructed on remand to weigh the
competing evidence as a whole, with claimant bearing the burden of persuasion.
Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th Cir.
1997); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS
43(CRT) (1994).

     On remand, the administrative law judge found that the evidence supports the
conclusion that "a causal relationship exists between [c]laimant's cervical
symptoms and his accident of January 25, 1996...."  Decision and Order on Remand
at 5.  He found that the evidence is not inconsistent with a finding that claimant
could have sustained a cervical injury in the work accident that was not
immediately recognized.  The administrative law judge based this finding on the
fact that claimant presented to Dr. Butler with a severe back injury and was
treated for a fractured vertebrae in the thoracic spine.  He observed that while
Dr. Butler surgically repaired claimant's fracture, he did not explore other
potential problems in claimant's spine in spite of claimant's continued complaints
of back pain.  However, when claimant was seen by Dr. Provenza, he was diagnosed
with possible cervical stenosis and suspected thoracic lumbar neurology.  Dr.
Provenza recommended further testing, i.e., a myelogram,  in light of the
"perceived severity of [claimant's] trauma," in order to evaluate the cervical
region in reference to the work injuries to the thoracic and lumbar region.  In
addition, Dr. Provenza referred claimant to Dr. Gupta, a pain management
specialist, who applied trigger point injections in the affected region, which
provided claimant with some relief.  The administrative law judge did not find it
persuasive that claimant did not complain of neck symptoms immediately following
the work accident, as claimant continuously complained of back pain and the
approach taken by Drs. Provenza and Gupta appeared to address that pain.  

     Employer contends that the administrative law judge erred in relying on the
opinions of Drs. Provenza and Gupta as they did not have claimant's full medical
history following the work accident.  In this regard, employer contends that
claimant's cervical complaints are due to an intervening event.  Specifically,
employer contends that claimant visited the emergency room three separate times
prior to his first complaints referable to his cervical area, and that Drs.
Provenza and Gupta were unaware of these emergency room visits.[2]   However, claimant explained that after the rods
were inserted to stabilize his spine, he went to the hospital to be examined if he
felt that there could be a problem with the rods, and the  administrative law judge found
that the records from those hospital visits do not indicate that claimant had
suffered an injury to his cervical area or had any complaints consistent with a
cervical injury.  H. Tr. at 47.  Employer is relieved of liability for disability
attributable to an intervening cause. See generally Bludworth Shipyard, Inc. v.
Lira, 700 F.2d 1046, 15 BRBS 120(CRT) (5th Cir. 1983).  Employer, however,
bears the burden of establishing an intervening cause, see, e.g., Plappert v. Marine Corps
Exchange, 31 BRBS 13, aff'd on recon. en banc, 31 BRBS 109 (1997), and the administrative
law judge here properly found that the emergency room reports do not establish that
claimant aggravated or reinjured his condition on these occasions.  We affirm this
finding as it is rational and supported by the evidence of record, and thus we
reject employer's contention that claimant's cervical symptoms are due to an
intervening cause. See generally Jones v. Director, OWCP, 977 F.2d 1106, 26
BRBS 64(CRT) (7th Cir. 1992); see generally Arnold v. Nabors Offshore Drilling,
Inc., 35 BRBS 9 (2001).  Moreover, Dr. Provenza's ignorance of the specific
visits to the emergency room does not undermine his opinion as there is no evidence
that claimant suffered any residual effects from the  incidents, and, after Dr.
Provenza had the opportunity to look at the emergency room records, he stated that
no cervical condition was noted therein.

     Contrary to employer's next contention, the administrative law judge is not
required to give greater weight to the opinions of Drs. Russo and Butler based on
their superior credentials,  or because they examined claimant closest in time to
his January 25, 1996 accident. See generally Pimpinella v. Universal Maritime
Service Inc., 27 BRBS 154 (1993).  The administrative law judge found that the
fact that claimant did not complain of cervical pain to Dr. Russo or Dr. Butler was
not dispositive.  Indeed, claimant did not complain of pain in the cervical region
to Dr. Provenza; rather, Dr. Provenza noted that claimant had symptoms, including
arm weakness and pain, that were consistent with a cervical problem.  C. Ex. 2 at
10.  Dr. Provenza suspected that claimant had thoracic lumbar neurology with
possible cervical stenosis, and he recommended further tests to determine if the
condition existed.  He stated that he wanted to examine claimant's cervical
complaints in light of the severity of claimant's injury to the lumbar and thoracic
regions.  Thus, the administrative law judge concluded that it was in pursuit of
treatment for claimant's continuing, generalized, work-related back pain that Dr.
Provenza wanted to explore the relationship between claimant's cervical spine and
his thoracic and lumbar pain. Id. at 5.

     The administrative law judge is entitled to draw his own inferences and
conclusions from the evidence, Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th  Cir. 1962),and
rational inferences supported by the record may not be set aside.  See Cardillo v. Liberty Mutual Ins. Co., 330 U.S.
469 (1997); Hullinghoist Industries, Inc. v. Carroll, 650 F.2d 750, 14 BRBS 373 (5th Cir. 1981), cert.
denied, 454 U.S. 1163 (1982).  Thus, as it is rational and supported by the opinion of Dr.
Provenza and the severe nature of claimant's work injury, we affirm the
administrative law judge's conclusion that the testing and treatment of claimant's
cervical complaints are related to the work injury on January 25, 1996.

     Employer also contends that claimant was not entitled to seek treatment from
Dr. Provenza and Dr. Gupta without employer's authorization.  The Board's prior
determination that claimant was released from the obligation of continuing to seek
approval for his subsequent treatment with Drs. Provenza and Gupta, as claimant's
request for authorization was denied, constitutes the law of the case. See
Miller, slip op. at 6; see generally Ion v. Duluth, Missabe & Iron Range Ry. Co., 32 BRBS
268 (1998).   Employer also contends that the treatment and tests recommended by Drs.
Provenza and Gupta are not reasonable or necessary.  Contrary to employer's
contention, however, Dr. Provenza did not state that the October 1996 myelogram
negated his recommendation for another thoracic and lumbar myelogram.  Rather, Dr.
Provenza stated that the myelogram was nearly a year old by the time claimant began
treatment with him, and that as the prior myelogram showed some abnormalities, it
would not be unreasonable to get an updated radiographic study. The administrative
law judge further found that the course of treatment provided by Drs. Provenza and
Gupta provided some relief, albeit temporary, for claimant's symptoms.  Therefore,
as employer has failed to raise any reversible error on appeal, we affirm the
administrative law judge's finding that the recommended treatment and tests are
reasonable and necessary, and thus, that employer is liable for this medical
care.[3]   See generally Schoen v. U.S. Chamber
of Commerce, 30 BRBS 112, 113 (1996).

     Accordingly, the Decision and Order on Remand of the administrative law judge
awarding medical benefits for claimant's cervical condition is affirmed.

     SO ORDERED.


                                                                   
                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge

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Footnotes.


1) 1The Board also held that as employer refused to pay for the treatment rendered by Drs. Provenza and Gupta, claimant was released from the obligation of continuing to seek approval for his subsequent treatment and thereafter was entitled to all reasonable and necessary medical benefits provided by these physicians associated with his work-related injuries. Miller, slip op. at 6. Back to Text
2) 2In July 1996, claimant was attacked at an ATM machine in an apparent robbery. He sought treatment at the emergency room, and was released with the diagnosis of chronic back pain. H. Tr. at 81-82. In addition, claimant went to the emergency room on October 11, 1996, after falling out of a car and was discharged against medical advice with a diagnosis of chronic back pain. See Emp. Ex. 7; H. Tr. 47. The records also indicate that claimant sought treatment at the emergency room on February 16, 1997, when he began having low back pain after playing ball with his son. Emp. Ex. 7; H. Tr. at 50. Claimant was released in good condition with a diagnosis of chronic low back pain. Back to Text
3) 3We also reject employer's contention that the administrative law judge's decision evidenced bias in claimant's favor. The administrative law judge found only that Dr. Butler stated he had nothing to offer claimant which would relieve claimant's continuing complaints of pain, and that Dr. Butler stated that seeking treatment elsewhere was an option, although unlikely to be beneficial to claimant. These statements fail to show that the administrative law judge was biased. See Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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