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                                  BRB No. 97-205

ARTIS MOSS                              )
          Claimant-Petitioner           )
       v.                               )
MAERSK STEVEDORING COMPANY              )    DATE ISSUED:   01/16/1998
       and                              )
LAMORTE BURNS (WEST),                   )
INCORPORATED                            )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order - Denying Benefits of Ellin M. O'Shea,
     Administrative Law Judge, United States Department of Labor.

     Derek B. Jacobson (McGuinn, Hillsman & Palefsky), San Francisco,
     California, for claimant.

     Laura G. Bruyneel (Mullen & Filippi), San Francisco, California, for

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


     Claimant appeals the Decision and Order - Denying Benefits (95-LHC-912) of
Administrative Law Judge Ellin M. O'Shea 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, are rational, and are 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 was injured on June 8, 1993, during the course of his employment with
employer.  He was hired to drive trucks from the Army base to the docks for
transport on ships.  He slipped and fell, injuring his shoulder and back, while
running to catch the return bus.  Emp. Ex. 122; Tr. at 322.  According to claimant
and his treating physician, Dr. Kucera, claimant was unable to work until September
1993, when Dr. Kucera released him to return to work but restricted him from
lifting over 50 pounds.  Claimant stated he was able to drive a forklift for only
three hours before his back pain prevented him from continuing.  Claimant has not
worked since then.  Cl. Ex. 2; Tr. at 352-353.  Claimant received temporary total
disability benefits from employer for the period between June 8, 1993 and December
16, 1994, and  filed a claim for permanent total disability benefits under the Act.

     After discussing the evidence of record, the administrative law judge found
that claimant failed to satisfy his burden of establishing a prima facie
case of total disability.  Crediting employer's witnesses over claimant and his
witnesses, the administrative law judge found that claimant was capable of
returning to his usual work as a tractor and lift driver as of December 16, 1993. 
Therefore, she denied the claim for benefits.  Decision and Order at 10-11, 14-16. 
Claimant appeals the denial of benefits, contending he is permanently totally
disabled and cannot return to any work.  Employer responds, urging affirmance of
the administrative law judge's decision.[1] 

     Claimant specifically contends the administrative law judge erred in rejecting
the testimony and evidence he submitted and in crediting employer's witnesses and
evidence.  Employer argues in response that the decision is supported by
substantial evidence.  Under the Act, claimant has the burden of proving the nature
and extent of his disability.  Trask v. Lockheed Shipbuilding & Construction
Co., 17 BRBS 56 (1985).   Claimant must establish a prima facie case of
total disability by proving his work injury prevents him from performing his usual
work. Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th
Cir. 1980).  If claimant meets his burden, then employer has the burden of coming
forth with evidence of the availability of suitable alternate employment, thereby
establishing that claimant's disability is, at most, partial.  Hairston v. Todd
Shipyards Corp., 849 F.2d 1194, 21 BRBS 122 (CRT)(9th Cir. 1988); Bumble Bee
Seafoods, 629 F.2d at 1327, 12 BRBS at 660.

     In this case, there is substantial evidence to support the administrative law
judge's determination that claimant is capable of returning to his usual work. 
Although Dr. Kucera believed claimant cannot return to his usual work, and he
imposed permanent restrictions on claimant, including no repetitive bending, no
prolonged sitting or jarring of the spine, and no lifting over 50 pounds, Tr. at
92-94, Dr. Palmer testified that claimant has fully recovered from his work injury
and can return to his tractor driver job without restrictions.  Tr. at 539, 543,
560.  Further, although a September 1993 MRI revealed a disc herniation at L2-3,
Dr. Palmer stated that such objective finding was not pertinent to claimant's
problems because his symptoms are not compatible with the symptoms which would be
caused by an L2-3 herniation.  Tr. at 535-536, 549.

     In addition to the conflicting medical evidence, there is conflicting lay
testimony concerning claimant's ability to perform his usual work.  Mr. Stauber,
employer's vocational consultant, who studied the duties of a tractor driver by
riding with other drivers and videotaping his experience, reported that he believed
claimant could return to his regular job even in light of the restrictions imposed
by Dr. Kucera.  Tr. at 477-479, 481-483.  In contrast, a union representative, Mr.
Romero, and claimant's vocational consultant, Mr. Morris, stated that the tractor
driver position is considered heavy work and supported claimant's conclusion that
he cannot return to his regular job as a tractor driver.  Cl. Ex. 8; Tr. at 32-33,

     The administrative law judge expressly credited the opinions of Dr. Palmer and
Mr. Stauber over those of claimant's witnesses, finding their opinions to be better
reasoned.  Decision and Order at 10, 15.  It is within the discretionary powers of
the administrative law judge to determine the credibility of witnesses and to
evaluate and draw inferences from the medical evidence of record. Johnson v.
Director, OWCP, 911 F.2d 247, 24 BRBS 3 (CRT) (9th Cir. 1990), cert.
denied, 499 U.S. 959 (1991); Goldsmith v. Director, OWCP, 838 F.2d 1079,
21 BRBS 30 (CRT) (9th Cir. 1988); Calbeck v. Strachan Shipping Co., 306 F.2d
693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath
Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  Additionally, the administrative
law judge may find, as she did here,  that claimant can return to his usual work
despite his complaints of pain. Peterson v. Washington Metropolitan Area Transit
Authority, 13 BRBS 891 (1981).  Inasmuch as the administrative law judge's
finding that claimant can return to his usual work is rational and supported by
substantial evidence, we  reject claimant's contention of error, and we affirm the
denial of benefits. Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242
(1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir.

     Accordingly, the administrative law judge's Decision and Order denying
benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

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1)On September 17, 1997, the Board dismissed the appeal in this case due to the failure of the district director to forward the record. The case was reinstated on the Board's docket by Order of December 11, 1997. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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