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                                 BRB No. 98-0726

                                         
LEE F. ANTHONY                          )
                                        )
               Claimant-Petitioner      )    DATE ISSUED:   02/22/1999

                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER


     Appeal of the Decision and Order and Order Denying Claimant's Motion for
     Reconsideration of Fletcher E. Campbell, Jr., Administrative Law Judge,
     United States Department of Labor.  

     Gregory E. Camden (Rutter & Montagna, L.L.P.), Norfolk, Virginia, for
     claimant.

     Benjamin M. Mason (Mason & Mason, P.C.), Newport News, Virginia, for
     self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order and Order Denying Claimant's Motion
for  Reconsideration (96-LHC-1464) of Administrative Law Judge Fletcher E.
Campbell, Jr., awarding benefits 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 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, while working as a structural welder for employer, sustained an
injury to his right knee on October 18, 1988, as a result of his tripping over some
trash and having his right knee hit the head of a bolt.  Dr. Shall opined that
claimant initially reached maximum medical improvement with regard to the knee
injury as of July 31, 1990, with a 15 percent permanent partial impairment to his
right leg, which subsequently increased to a 20 percent impairment as of November
15, 1995.  Claimant's Exhibit (CX) 1-1, 1-9.  Claimant also has received treatment
for his knee injury from Dr. Trengove-Jones, and over the course of time has
undergone six surgeries to his right knee. 

     On August 30, 1991, claimant began working for Alpha Omega Security (Alpha)
as an armed guard, walking patrols at various locations; he continued to work in
this capacity up to the time of the hearing.[1]  
Meanwhile, claimant stated that he first noticed sharp pains running through his
lower and middle back sometime after his third knee surgery on March 16, 1990, but
prior to the time he began working for Alpha.  Hearing Transcript (HT) at 46-51. 
Claimant stated that his back problems increased as he became more active at Alpha, 
HT at 23-24, 51, and he estimated that he has had to leave his work assignment with
Alpha due to back pain on fewer than ten occasions.  HT at 42-43.  During the
course of treatment for claimant's knee injury, Dr. Shall also provided treatment
for claimant's back pain.  Specifically, Dr. Shall prescribed physical therapy,
performed an MRI on claimant's back and referred him to Dr. Lewis for a
neurological evaluation in June, 1993.[2]   In
addition, Dr. Shall opined, by letter dated December 20, 1995, that claimant's
injury of October 18, 1988, and subsequent treatment of his right knee injury
possibly contributed to his back problems, stating that "the use of crutches and
canes and prolonged limping over the years due to his right knee injury may, in
fact, have exacerbated [his] back pain."  CX 1-1.  Additionally, Dr. Peach, whom
claimant engaged for evaluation of his back pain in June 1994, ultimately agreed
that claimant's "difficulty with ambulation secondary to his knee problems is the
probable cause of his chronic musculoligamentous low back pain."  CX-5-2.  
Claimant filed the instant claim for compensation based on his alleged work-related
back injury.

     In his decision, the administrative law judge initially determined that
claimant is entitled to the Section 20(a) presumption, 33 U.S.C. §920(a), with
regard to his back condition and that employer could not establish rebuttal
thereof.  Accordingly, the administrative law judge concluded that claimant's back
pain is causally related to his on-the-job accident on October 18, 1988.  The
administrative law judge then determined that while claimant suffers from a
temporary partial impairment from his back injury, he has failed to show any loss
of wage-earning capacity and is not entitled to any additional compensation for his
back injury since his restrictions have not limited his employment in any way not
already limited by his scheduled knee injury.[3] 
 The administrative law judge, however, determined that claimant is entitled to all
reasonable and necessary medical benefits associated with his back injury.  With
regard to claimant's knee injury, the administrative law judge found that
claimant's condition reached permanency as of August 6, 1990, when Dr. Shall
assigned a 15 percent impairment rating, which was increased to a 20 percent
impairment rating on November 15, 1995, and accordingly, awarded claimant permanent
partial disability benefits for his knee condition pursuant to the schedule based
upon the 20 percent disability to claimant's right lower extremity.  The
administrative law judge subsequently issued an Order Denying Claimant's Motion for
Reconsideration.

     On appeal, claimant challenges the administrative law judge's findings that
he reached maximum medical improvement from his right knee injury as of August 6,
1990, that he has not as yet reached maximum medical improvement with regard to his
back condition, and that he is limited to his recovery under the schedule where he
has suffered an additional disability due to his back injury.  Employer responds,
urging affirmance. 

     Claimant initially argues that the administrative law judge erred in finding
that he reached maximum medical improvement with regard to his knee injury as of
August 6, 1990, as Dr. Shall's deposition testimony establishes that claimant did
not reach maximum medical improvement with regard to his knee condition until May
1997.  Claimant also argues that the administrative law judge erred in ruling that
his back condition had not yet reached a state of permanency. 

     Permanent disability is one that has continued for a lengthy time and appears
to be of lasting or indefinite duration, as opposed to one that merely awaits a
normal healing period.  Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th
Cir. 1968), cert. denied, 394 U.S. 976 (1969).  While an administrative law
judge may rely on a physician's opinion to establish the date of maximum medical
improvement, he need not look only for a statement regarding maximum improvement,
but he may use the date the doctor assessed the claimant with an impairment rating,
as that may be sufficient evidence of permanency. Sketoe v. Dolphin Titan
Int'l, 28 BRBS 212 (1994) (Smith, J., dissenting on other grounds).

     In the instant case, the administrative law judge determined that claimant's
right knee condition reached maximum medical improvement as of August 6, 1990, when
Dr. Shall first assigned a 15 percent impairment rating.   As claimant notes, Dr.
Shall did opine in his deposition that claimant reached maximum medical improvement
with regard to his right knee in May 1997,  following his most recent surgery on
January 21, 1997.  Joint Exhibit (JX) 2 at 6-7.  However, Dr. Shall also noted that
"there were other dates of what you would call maximum medical improvement and then
recurrence," as "the nature of [claimant's] knee is that he would do well for a
while and then return."  JX 2 at 7.  Dr. Shall further opined that after his
recovery from the January 21, 1997, surgery claimant's work restrictions reverted
back to those set out in May 1995.  JX 2 at 11. While claimant experienced periodic
bouts of pain which were relieved by surgery, the condition of his knee, after
recovery from surgery, remained relatively the same with the exception that
claimant's impairment rating was increased by Dr. Shall to 20 percent on November
15, 1995, demonstrating deterioration rather than improvement in claimant's
condition.  Consequently, we affirm the administrative law judge's finding that
claimant reached maximum medical improvement for his right knee as of August 6,
1990, as the evidence of record shows that the condition of claimant's right knee
has essentially remained unchanged since that date. See Diosdado v. Newpark
Shipbuilding & Repair, Inc., 31 BRBS 70 (1997); see generally McKnight v.
Carolina Shipping Co., 32 BRBS 165 (1998).   

     With regard to claimant's back condition, there is no medical evidence to
support claimant's contention that his back condition reached maximum medical
improvement as of May 5, 1995.  First, while Dr. Shall acknowledged that claimant
did not have any physical restrictions as a result of his back injury until May 5,
1995, his opinion is insufficient to establish that claimant's back injury has
reached the point of maximum medical improvement.  As the administrative law judge
found, Dr. Shall explicitly testified that because of insufficient testing he was
unable to determine whether or not claimant had reached maximum medical improvement
with regard to his back.  In addition,  the administrative law judge found that Dr.
Trengove-Jones continued to treat claimant's back condition subsequent to May 5,
1995, and the record establishes that Dr. Trengove-Jones noted, as of February 9,
1996, that claimant's "back is giving him considerable problems and this may
require surgical attention in the future."  CX 4-3.  We therefore affirm the
administrative law judge's determination that claimant's disability resulting from
his back injury remains temporary in nature. See generally Louisiana Ins.
Guaranty Ass'n v. Abbott, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir. 1994),
aff'g 27 BRBS 192 (1993).

     Claimant lastly asserts that the administrative law judge erred in ruling that
Potomac Electric Power Co. v. Director, OWCP [PEPCO], 449 U.S. 268,
14 BRBS 363 (1980), applies in the instant case to limit claimant's recovery to the
scheduled compensation award for his knee injury. Claimant argues that the
PEPCO decision did not reach cases, like the instant one, involving a
claimant who suffers a scheduled injury and a non-scheduled injury and asserts that
the Board's decision in Bass v. Broadway Maintenance, 28 BRBS 11 (1994),
which is more on point, dictates that claimant is entitled to an award of temporary
partial disability benefits as he has clearly established a causal relationship
between his back injury and the October 18, 1988, accident and has demonstrated the
requisite loss in wage-earning capacity as a result of his back injury. 

     The Supreme Court held in PEPCO that a permanent partial disability
resulting from an injury to a member listed under the schedule requires an award
of benefits pursuant to the schedule.  It rejected the notion that Section
8(c)(21), 33 U.S.C. §908(c)(21), offers a claimant an alternative measure of
compensating an injury covered by the schedule. PEPCO, 449 U.S. at 268, 14
BRBS at 363; see also Turney v. Bethlehem Steel Corp., 17 BRBS 232, 234
(1985).  In Bass, the Board held that if a claimant sustains a harm to a
body part not specified in the schedule as a result of an injury to a scheduled
member, he may also receive benefits under Section 8(c)(21) for the consequential
injury in addition to the benefits under the schedule for the initial injury.
Bass, 28 BRBS at 17-18.  Pursuant to Frye, if two injuries are then
being compensated separately, any loss of wage-earning capacity due to the
scheduled injury must be factored out of the Section 8(c)(21) award. Frye v.
Potomac Electric Power Co., 21 BRBS 194 (1988).

     We agree that the administrative law judge must reconsider claimant's
entitlement to disability benefits pursuant to Bass.  In order to be
entitled to an award of partial disability benefits under the Act, 33 U.S.C.
§§908(c)(21), (e), claimant must first establish that he cannot return
to his regular or usual employment due to his work-related injury. See generally
Green v. I.T.O. Corp. of Baltimore, 32 BRBS 67, 69 (1998).  It is undisputed
in this case that claimant is unable to perform his usual job as a structural
welder, Decision and Order at 3, and the administrative law judge found that
claimant does have restrictions due to his back injury.  Decision and Order at 9. 
If the restrictions due to his back injury preclude his return to his former
employment and impede his ability to perform alternate work, then claimant is
entitled to partial disability benefits for any loss in wage-earning capacity due
to his restricted ability to perform other jobs.  The case must be remanded for the
administrative law judge to determine whether claimant's back injury limited his
ability to work and, if so, to determine the extent of claimant's loss in wage-earning capacity due to his back. Green, 32 BRBS at 67; Frye, 21 BRBS
at 197.  If claimant has a loss in wage-earning capacity, he is entitled to
concurrent awards of compensation under both Section 8(e) and the schedule at
Section 8(c)(2).[4]   Id.

     Accordingly, the administrative law judge's denial of disability compensation
for claimant's back injury is vacated, and the case is remanded for further
consideration consistent with this opinion.  In all other respects, the
administrative law judge's decisions are affirmed. 

     SO ORDERED.    



                                                                           
       
                         ROY P. SMITH                                      Administrative Appeals Judge                                                     
                 



                                                                           
        
                         JAMES F. BROWN
                         Administrative Appeals Judge   



                                                                          
                                                                                 
 
                         REGINA C. McGRANERY
                         Administrative Appeals Judge   

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Footnotes.


1)Employer terminated claimant on November 7, 1992, after he had been absent from work for 30 continuous months. Claimant has worked regularly as a security guard since August 30, 1991, with the exception of time off for surgery and the requisite recovery periods. Back to Text
2)Dr. Lewis initially opined that claimant's low back appears to be soft tissue pain and probably is a strain, and suspected that it occurred as a result of his use of crutches and canes. CX 6. Dr. Lewis however subsequently noted that he did not understand claimant's pain disorder as he found no evidence of radiculopathy and the MRI on his lumbar spine performed in 1991 was normal. Dr. Lewis did though prescribe medication for claimant's soft tissue back pain. Back to Text
3)The administrative law judge specifically noted that since claimant has been compensated for his initial knee injury under the schedule, 33 U.S.C. §908(c)(2), any loss of wage-earning capacity due to this scheduled injury must be factored out before an award for his unscheduled back injury may be ordered. See Decision and Order at 9. Back to Text
4)The purpose of the Board's holding in Frye, regarding "factoring out" the effect of a scheduled injury is to avoid double recovery and requires simply that restrictions due to the knee not be considered in addressing any limitations on claimant's employability. For example, if a claimant has limitations due to a back injury which preclude some types of jobs and restrictions due to a knee which eliminate others, the job limitations due to the knee should not be considered. There is no danger of double recovery, however, if claimant's back injury alone could cause the entire loss in wage-earning capacity; claimant is entitled to benefits for the full loss in wage-earning capacity due to his back condition even if his right knee injury alone also resulted in restrictions, Green, 32 BRBS at 69. A schedule award for the knee alone cannot fully compensate claimant for the loss in earning capacity due to his back. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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