Skip to page content
Benefits Review Board
Bookmark and Share




                                 BRB No. 98-0732

                                         
J. B. MARTIN                            )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
MARINE TERMINALS CORPORATION            )    DATE ISSUED:   02/18/1999    
   
                                        )
     and                                )
                                        )         )
MAJESTIC INSURANCE COMPANY              )
                                        )
          Employer/Carrier-             )
          Petitioners                   )         )    DECISION and ORDER

          Appeals of the Decision and Order on Remand of Alfred Lindeman,
     Administrative Law Judge, United States Department of Labor.

          Dorsey Redland, San Francisco, California, for claimant.

          Judith A. Leichtnam (Laughlin, Falbo, Levy & Moresi), San Francisco,
     California, for employer/carrier.  

          Before:  HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order on Remand (90-LHC-863) of
Administrative Law Judge Alfred Lindeman 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 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).

     This is the second time this case is before the Board.  Claimant injured his
back, left elbow and left shoulder while working for employer as a general laborer
on December 18, 1987.  Claimant has not worked since that date.  Employer
voluntarily paid claimant temporary total disability benefits at a weekly rate of
$616.96 from December 19, 1987, through April 20, 1988, and from July 5, 1988
through April 28, 1989.  In the first Decision and Order in the instant case,
Administrative Law Judge James J. Butler found that the December 1987 injury
aggravated claimant's underlying back condition and that claimant reached maximum
medical improvement on December 28, 1990.  Relevant to the instant case, Judge
Butler also found that claimant could perform two cashier jobs identified by
employer's vocational consultant, Sylvia Oberti, in her March 30, 1990 report, and
therefore, that employer established the availability of suitable alternate
employment.  Thus, Judge Butler awarded claimant temporary partial disability
benefits from March 30, 1990 through December 27, 1990, and permanent partial
disability benefits from December 28, 1990, and continuing.  33 U.S.C.
§908(c)(21), (e).  Judge Butler further found  that claimant had not met his
burden of establishing entitlement to past medical expenses, but awarded claimant
future medical expenses pursuant to 33 U.S.C. §907.

     On appeal, the Board, inter alia, vacated Judge Butler's finding that
employer established suitable alternate employment, as he did not consider whether
the commuting distance to the cashier jobs affected the suitability of these jobs. 
The Board instructed that if, on remand, it is found that claimant can perform the
cashier jobs, the issue of whether claimant exercised due diligence in pursuing
alternate work must be addressed.  With regard to the issue of medical expenses,
the Board vacated Judge Butler's finding that the two medical bills for which
claimant sought reimbursement, those of Drs. Sclamberg and Blackwell, were
insufficiently specific to support an order of payment, noting that each bill
listed a date of a service, a brief description of the service, and the fee for
each service.  The Board ordered reconsideration of the issue of employer's
liability for past medical expenses, instructing that, on remand, the record may
be reopened to obtain additional information to make specific calculations.
Martin v. Marine Terminals Corp., BRB Nos. 92-1893/A (Sept. 26,
1995)(unpublished).

     Due to Judge Butler's retirement, the instant case was assigned to
Administrative Law Judge Alfred Lindeman (the administrative law judge), who,
pursuant to the agreement of the parties, decided the issues on remand on the
existing record and the briefs on remand.  In his Decision and Order on Remand, the
administrative law judge found that claimant is capable of driving the commuting
distances to the service station cashier positions, as the administrative law judge
found that both distances could reasonably be driven in less than one hour and
claimant indicated to employer's vocational counselor, Ms. Oberti, that he can
drive for up to one hour at a time.  Thus, the administrative law judge found that
employer established suitable alternate employment.  Thereafter, the administrative
law judge determined that claimant was reasonably diligent in his attempt to secure
a job, and therefore found that claimant established entitlement to permanent total
disability under the Act.  33 U.S.C. §908(a).  Lastly, the administrative law
judge found that the medical bills of Drs. Sclamberg and Blackwell were
sufficiently specific to support an award of past medical expenses, and found
employer liable for $2,210.44 in medical expenses for treatment provided by Dr.
Blackwell, and $1,461.93 for treatment by Dr. Sclamberg, as well as interest on the
payments due to these physicians.

     On appeal, employer challenges the administrative law judge's award of
permanent total disability compensation to claimant.  Specifically, employer
contends that the administrative law judge erred in determining that claimant
diligently sought employment post-injury.  In addition, employer asserts that the
administrative law judge improperly awarded medical expenses and interest for the
services of Drs. Sclamberg and Blackwell, as it alleges it paid the medical bills
to these physicians in 1989 and 1991.  Claimant responds, urging affirmance of the
administrative law judge's decision.

     We first consider employer's contention that the administrative law judge
erred in awarding claimant permanent total disability compensation.  Where, as in
the instant case, claimant is incapable of resuming his usual employment duties
with employer, claimant has established a prima facie case of total
disability; the burden then shifts to employer to establish the availability of
suitable alternate employment within the geographic area where claimant resides,
which claimant, by virtue of his age, education, work experience and physical
restrictions, is capable of performing. Hairston v. Todd Shipyards Corp.,
849 F.2d 1194, 21 BRBS 122 (CRT)(9th Cir. 1988); Bumble Bee Seafoods v.
Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir. 1980); Hooe v. Todd
Shipyards Corp., 21 BRBS 258 (1988).  On remand, the administrative law judge
found that the driving distances from claimant's residence to the two service
station cashier jobs identified by Ms. Oberti were 23.3 miles and 17.3 miles
respectively.  Having determined that claimant is capable of driving these
commuting distances, the administrative law judge found that employer met its
burden of establishing suitable alternate employment. See Decision and Order
on Remand at 4.  As this finding is not challenged on appeal, it is affirmed.

     Where an employer shows the availability of suitable alternate employment,
claimant can nevertheless establish entitlement to total disability benefits if he
demonstrates  that he diligently tried and was unable to secure such employment.
See Edwards v. Director, OWCP, 999 F.2d 1374, 1376 n.2, 27 BRBS 81, 84 n.2
(CRT)(9th Cir. 1993), cert. denied, 114 S.Ct. 1539 (1994); Palombo v.
Director, OWCP, 937 F.2d 70, 73, 25 BRBS 1, 5-8 (CRT)(2d Cir. 1991);
Martiniano v. Golten Marine Co., 23 BRBS 363, 366 (1990).  Claimant does not
have to seek the exact jobs identified by employer to establish due diligence.
See Palombo, 937 F.2d at 74, 25 BRBS at 8 (CRT). 

     Contrary to employer's contention, there is substantial evidence in support
of the administrative law judge's conclusion that claimant diligently, though
unsuccessfully, attempted to secure employment post-injury.  Specifically, in
addressing this issue, the administrative law judge relied on claimant's testimony
that he unsuccessfully applied for work with 24 prospective employers from April
16 to October 18, 1990, in job areas such as security guard, parking attendant, gas
station attendant, restaurant helper and light janitorial work.  Cl. Ex. 25.  The
administrative law judge acknowledged claimant's testimony that he sent resumes and
job applications, made follow-up phone calls, and that he searched for a job so he
could support his family, though his efforts were unsuccessful.  Tr. at 80, 82-83,
136.  Finding that the jobs claimant inquired about were within the purview of his
employment opportunities identified by employer, the administrative law judge thus
concluded that claimant demonstrated that he had been diligent in his attempt to
secure available employment, and as his attempts were unsuccessful, that claimant
is entitled to permanent total disability benefits.

     In adjudicating a claim, it is well-established that an administrative law
judge is entitled to evaluate the credibility of all witnesses; additionally, the
administrative law judge may 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); Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th Cir. 1962).  In the instant case, the administrative
law judge's specific findings that claimant unsuccessfully sought employment post-
injury in employment categories identified by employer, and that he additionally
attempted to secure a position available with other multiple employers, are
rational and supported by the record. Accordingly, we affirm the administrative law
judge's determination that claimant diligently tried and was unable to secure
employment post-injury, and his consequent award of continuing permanent total
disability benefits to claimant. See generally Edwards, 999 F.2d at
1374, 1376  n.2, 27 BRBS at 81, 84 n.2 (CRT).

     Lastly, we consider employer's contention with respect to its liability for
past medical expenses.  Section 7(a) of the Act, 33 U.S.C. §907(a), states
that "[t]he employer shall furnish such medical, surgical, and other attendance or
treatment . . . for such period as the nature of the injury or the process of
recovery may require."  In its initial decision, the Board vacated Judge Butler's
denial of reimbursement for past medical expenses, holding that the medical bills
of Drs. Sclamberg and Blackwell were sufficiently specific to permit an award of
medical expenses.  The Board instructed the administrative law judge to reconsider
employer's liability for these medical bills on remand, specifically noting that
the administrative law judge may reopen the record to obtain additional information
in order to calculate the amount of employer's liability. See Martin, slip.
op. at 6; 20 C.F.R. §702.338.  In his Decision and Order on Remand, the
administrative law judge acknowledged that counsel for the parties agreed that his
decision would be based on the existing record and their respective briefs.
See Decision and Order on Remand at 3.  Thereafter, the administrative law
judge found that the medical bills of Drs. Blackwell and Sclamberg were
sufficiently specific to support an award of past medical expenses, noting that
each itemized statement included dates, costs and descriptions of the medical
procedures provided. Id. at 5; Cl. Exs. 21-22.  Thus, the administrative law
judge determined that employer was liable for the treatment provided by Drs.
Blackwell and Sclamberg, as well as interest on the unpaid medical expenses,
pursuant to Hunt v. Director, OWCP, 999 F.2d 419, 27 BRBS 84 (CRT)(9th Cir.
1993).

     On appeal, employer challenges the administrative law judge's award of past
medical expenses and interest.  Specifically, employer contends that in its brief
before the administrative law judge on remand, it pointed out that the medical
bills of Drs. Blackwell and Sclamberg had been paid in 1989 and 1991, and
therefore, the issue of liability for past medical expenses was moot.  Moreover,
employer maintains that as it paid these medical expenses, an award of interest is
inappropriate.  

     In its initial decision, the Board instructed the administrative law judge to
reconsider employer's liability for past medical expenses, and the administrative
law judge complied with this instruction.  While employer had a full and fair
opportunity on remand to submit evidence with respect to the payment of the medical
bills of Drs. Blackwell and Sclamberg, it consented to having the administrative
law judge decide the issues on remand based on the existing record.  Without
additional evidence in the record, there was nothing on which the administrative
law judge could base a finding that the issue of past medical expenses was moot. 
A mere assertion in employer's brief to the administrative law judge, pointed out
in a footnote, see Employer's Brief to the Administrative Law Judge on
Remand at 3 n.1, is insufficient for the administrative law judge to make such a
finding.  As the administrative law judge discussed and analyzed all the relevant
evidence of record with respect the employer's liability for past medical expenses,
and as his decision is rational and comports with applicable law, we affirm the
administrative law judge's finding that employer is liable for the medical
treatment provided by Drs. Blackwell and Sclamberg, as well as interest on the
unpaid bills.[1]   See Hunt, 999 F.2d
at 418, 27 BRBS at 84; Ion v. Duluth, Missabe & Iron Range Ry. Co., 30 BRBS
75 (1997).

     Accordingly, the Decision and Order on Remand of the administrative law judge
is affirmed.

     SO ORDERED.       
     



                                                                                                      
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge

To Top of Document

Footnotes.


1)If payment of the medical bills of Drs. Blackwell and Sclamberg is pursued, and the evidence establishes that employer has in fact paid these bills, it could not be ordered to provide payment a second time, and employer's liability for interest with respect to these expenses would end at the time of payment. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document