Skip to page content
Benefits Review Board
Bookmark and Share

                                 BRB No. 98-0742

MOHAMMED S. KHALIL                      )
          Claimant-Petitioner           )    DATE ISSUED:   02/23/1999
     v.                                 )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order-Award of Benefits and Partial Rejection
     of Claim of Edward Terhune Miller, United States Department of Labor.

     Neil J. Fagan, Columbia, Maryland, for claimant.

     Richard W. Scheiner (Semmes, Bowen & Semmes), Baltimore, Maryland, for
     self-insured  employer. 

     Before:  SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge. 


     Claimant appeals the Decision and Order-Award of Benefits and Partial
Rejection  of  Claim (94-LHC-3207) of Administrative Law Judge Edward Terhune
Miller 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).

     Claimant  sustained a work-related  injury to his right little toe on August
31, 1992, which resulted in his assignment to  light office work for approximately
two months, until October 26, 1992.  The parties stipulated that claimant lost no
time from work. The administrative law judge accepted the parties' stipulation that
claimant's work injury  resulted  in a two percent  loss of the right  foot under
the schedule  set forth in  Section 8(c)(4) of the Act, 33 U.S.C.

      Thereafter, claimant returned to his usual employment, with  no work
restrictions, and was so performing at the time of the hearing.  Claimant
nevertheless alleged entitlement to additional benefits under the schedule for
injuries to his right ankle and knee which he averred occurred in the work
accident.  After consideration of the evidence, the administrative law judge found
claimant entitled to invocation of the presumption of Section 20(a) of the Act, 33
U.S.C. §920(a), but the administrative law judge found further that employer
produced sufficient evidence to establish rebuttal concerning claimant's alleged
knee injury.  Thus the administrative law judge weighed the evidence as a whole and
concluded that the right knee injury alleged by claimant is not work-related. 
Moreover, the administrative law judge found that based on the evidence as a whole,
claimant failed to establish any impairment to his ankle and denied claimant
permanent partial disability benefits for his right knee and ankle.[2] 

     On appeal, claimant contends that the administrative law judge erred in
failing to award him permanent partial disability for his alleged work-related 
injuries to his ankle and knee.  Employer responds, urging affirmance.

     If claimant establishes his prima facie  case, by establishing
the existence of a bodily harm and an accident or working conditions that could
have caused the harm, Section 20(a) of the Act provides claimant with a presumption
that his condition is causally related to his employment. See Kelaita v. Triple
A Machine Shop, 13 BRBS 326 (1981); see also Merrill v. Todd Pacific
Shipyards Corp., 25 BRBS 140 (1991).  Once the Section 20(a) presumption is
invoked, the burden shifts to employer to rebut the presumption with substantial
evidence that claimant's condition was not caused, contributed to or aggravated by
his employment. See Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS
119 (CRT)(4th Cir. 1997); Bridier v. Alabama Dry Dock & Shipbuilding
Co., 29 BRBS 84 (1995).   It is employer's burden on rebuttal to present
specific and comprehensive evidence to sever the causal connection between the
injury and employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4
BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976);  see generally
Weber v. Seattle Crescent Container Corp., 19 BRBS 146 (1986).  If  the
administrative law judge finds that the Section 20(a) presumption is
rebutted, he must weigh all the evidence and resolve the causation issue based on
the record as a whole.  Universal Maritime, 126 F.3d at 262-263, 31 BRBS at
123 (CRT); see also Del Vecchio v. Bowers, 296 U.S. 280 (1935).

     Claimant contends the administrative law judge erred in finding the Section
20(a) presumption rebutted and in  crediting the opinion of Dr. Kan over that of
Dr. Lippman.  Dr. Kan was retained by the Department of Labor  to reconcile the
conflicting opinions of employer's expert, Dr. Wenzlaff, and claimant's  doctor,
Dr. Lippman. See 33 U.S.C. §907(e); EX 42.  Dr. Wenzlaff opined that
claimant had no disability  to the little toe or right foot as a result of the
August 31, 1992 accident, and that he had not examined claimant's right knee
because he had not complained about it.  Dr. Lippman, claimant's consulting
physician, stated that based on  assigned AMA guidelines, in addition to claimant's
two percent impairment of the foot, claimant sustained a 22 percent  impairment of
the ankle, a 24 percent impairment of the knee, and an additional ten percent
impairment of  the lower extremity because of pain, loss of endurance, and loss of

     The administrative law judge invoked the Section 20(a) presumption based on
claimant's complaints of pain to the knee and ankle, and the occurrence of the
accident at work on August 31, 1992.  The administrative law judge found, however,
that employer established  rebuttal of the presumption  based on  Dr. Kan's
opinion.  The administrative law judge then found Dr. Kan's opinion entitled to the
greatest weight because of his exceptional professional credentials, appropriate
examination, and review of claimant's medical records.  EX 48.

     We affirm the administrative law judge's finding that the Section 20(a)
presumption is rebutted.  In a report dated November 19, 1994, Dr. Kan stated that
after review of claimant's entire medical file of his treatment for the August 31,
1992, accident,  it is obvious from the record that claimant had no discernible
problem with the medial meniscus of his right knee, and therefore, Dr. Kan
concluded that although claimant demonstrated an internal derangement of the right
knee on the doctor's examination of June 24, 1994, this condition is obviously not
related to the injury that claimant sustained on August 31, 1992.[3]   EX 43 at 4.  This opinion is sufficient to sever
the presumed causal connection between claimant's knee condition and the work
accident. Universal Maritime, 126 F.3d at 262-263, 31 BRBS at 123 (CRT).

       Moreover, we affirm the administrative law judge's crediting of Dr.  Kan's
opinion over that of  Dr. Lippman.  Dr. Lippman's diagnosis was of  traumatic
injury, right lower extremity, with fracture of the  little toe,  strain of the
right ankle  with chronic symptoms, and contusion of the right knee both secondary
to the traumatic injury.  The administrative law judge rejected the assigned
percentage losses by Dr. Lippman because he did not provide any reasoning for his
disability assessment in view of essentially normal objective findings.[4]   Such a determination is within the
administrative law judge's discretion as the trier-of-fact. See Calbeck v.
Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372
U.S. 954 (1963); John W. McGrath v. Hughes, 289 F.2d 403 (2nd Cir. 1961). 
Consequently, we affirm, as supported by substantial evidence,  the administrative
law judge's weighing of the evidence as a whole to  find that claimant failed to
establish that his August 31, 1992, accident resulted in a compensable knee injury.

     Next, contrary to claimant's contention, the administrative law judge
rationally found that claimant has no work-related  impairment to his ankle.  The
administrative law judge found that the opinion of Dr. Folgeras that recorded
positive findings with respect to claimant's little toe, but no positive findings
with regard to the knee or ankle, supported an inference that claimant did not have
any ankle pain.  The administrative law judge found further that the opinion of Dr.
Folgeras is corroborated by  Dr. Kan's negative findings regarding the ankle and
the reports of the doctors from the Eastern Medical Center finding full mobility
and no swelling of the ankle.  As stated above, the administrative law judge did
not find credible Dr.  Lippman's assessment of impairment with respect to
claimant's ankle, and he declined to credit claimant's complaints of pain with
regard to his ankle given the absence of objective medical evidence of impairment. 
It is within the authority of the administrative law judge to weigh, evaluate and
draw inferences from the medical evidence of record. See generally Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962). As the Board may not
reweigh the evidence, and as his finding is supported by substantial evidence, we
affirm the administrative law judge's  finding that claimant failed to establish
a basis for an award of permanent partial disability benefits for his alleged ankle
injury as the result of his August 31, 1992 accident.

      Accordingly, the administrative law judge's Decision and Order-Award of
Benefits and Partial Rejection of Claim is affirmed.


                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. MCGRANERY
                         Administrative Appeals Judge

                         MALCOLM D. NELSON                                 Acting
Administrative Appeals Judge

To Top of Document


1) On February 13, 1998, at employer's request, the administrative law judge issued an order correcting the number of weeks for which benefits were awarded from 24.6 weeks, as stated in the original order, to 4.1 weeks. Back to Text
2)The administrative law judge found that claimant is entitled to medical benefits under Section 7 of the Act, 33 U.S.C. §907, for his toe injury, including safety shoes for work in an appropriately larger size to accommodate the malformation of claimant's toe. Back to Text
3)The administrative law judge found also that Dr. Kan's opinion established the most persuasive evidence of maximum medical improvement of the toe fracture and its sequelae as having occurred on June 24, 1994. Back to Text
4)The administrative law judge found that Dr. Wenzlaff's testimony and report are almost entirely lacking in credibility and exhibit a significant bias against claimant, as the administrative law judge found he seemed to have disregarded the x-ray evidence and the obvious malformation of claimant's toe described by most other doctors. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document