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                                 BRB No. 97-0636


MIGUEL BELTRAN                          )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
OCEANIC STEAMSHIP COMPANY               )    DATE ISSUED:   01/27/1998

                                        )
     and                                )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION LIMITED                     )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER


     Appeal of the Decision and Order - Awarding Benefits of Donald W.
     Mosser, Administrative Law Judge, United States Department of Labor.

     Ileana Marcos (Marcos & Rothman, P.A.), Miami, Florida, for claimant.

     Lawrence B. Craig III and Frank J. Sioli (Valle & Craig, P.A.), Miami,
     Florida, for employer/carrier.

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

     SMITH, Administrative Appeals Judge:

     Employer appeals the Decision and Order - Awarding Benefits (95-LHC-2433) of
Administrative Law Judge Donald W. Mosser 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 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 suffered a cerebrovascular incident, specifically a stroke, while
working for employer as a lander on March 23, 1993; he has not returned to work
since that time.  The issues before the administrative law judge were whether
claimant's condition was causally related to his employment and the computation of
his average weekly wage for compensation purposes.

     In his Decision and Order, the administrative law judge found that claimant,
based upon his diagnosed condition and the work which he was performing shortly
before he suffered his stroke, was entitled to invocation of the Section 20(a), 33
U.S.C. §920(a), presumption.  The administrative law judge next found that
employer failed to rebut this presumption; accordingly, as it is uncontested that
claimant is incapable of returning to gainful employment, the administrative law
judge awarded claimant permanent total disability compensation.[1] 

     Employer now appeals, challenging the administrative law judge's determination
that its evidence is insufficient to establish rebuttal of the Section 20(a)
presumption.  Claimant responds, urging affirmance of the administrative law
judge's decision.

     Once, as in the instant case, 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 or aggravated by his employment. See Brown
v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22 (CRT)(11th Cir.
1990); Manship v. Norfolk & Western Railway Co., 30 BRBS 175 (1996).  It is
employer's burden on rebuttal to present specific and comprehensive evidence
sufficient to sever the causal connection between the injury and  the employment.
See Peterson v. General Dynamics Corp., 25 BRBS 71 (1991), aff'd sub nom.
Ins. Co. of North America v. U.S. Dept. of Labor, 969 F.2d 1400, 26 BRBS 14
(CRT)(2d Cir. 1992), cert. denied, 113 S.Ct. 1253 (1993); see also
Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C.Cir.), cert.
denied, 429 U.S. 820 (1976).   Where aggravation of a pre-existing condition
is at issue, employer must establish that work events neither directly caused the
injury nor aggravated the pre-existing condition resulting in injury. See, e.g.,
Cairns v. Matson Terminals, 21 BRBS 252 (1988).   In establishing rebuttal of
the presumption, however, proof of another agency of causation is not necessary.
See Stevens v. Todd Pacific Shipyards, 14 BRBS 626 (1982)(Kalaris, J.,
concurring and dissenting), aff'd mem., 722 F.2d 747 (9th Cir. 1983),
cert. denied, 467 U.S. 1243 (1984).  Rather, the testimony of a physician
that no relationship exists between an injury and a claimant's employment is
sufficient to rebut the presumption. See Kier v. Bethlehem Steel Corp., 16
BRBS 128 (1984).  If the administrative law judge finds that the Section 20(a)
presumption is rebutted, he must weigh all of the evidence and resolve the
causation issue based on the record as a whole.  See Devine v. Atlantic
Container Lines,  G.I.E., 23 BRBS 270 (1990).  

     We affirm the administrative law judge's finding that employer failed to rebut
the Section 20(a) presumption.  The administrative law judge's finding is supported
by the record, as he rationally found the opinion of Dr. Sayfie, upon whom employer
relies in support of its contention of error, insufficient to rebut the
presumption.  The administrative law judge specifically addressed  Dr. Sayfie's
testimony that it was his opinion within a reasonable degree of medical certainty
that claimant's stroke was not caused by his work, but he concluded that the
doctor's testimony did not rebut the Section 20(a) presumption after review of his
entire testimony.  The administrative law judge found that Dr. Sayfie's "further
explanatory testimony regarding the matter is more equivocal than his ultimate
conclusion," and that Dr. Sayfie did not unequivocally rule out the possibility
that claimant's employment had an aggravating effect on his condition.   Decision
and Order at 8.  In this regard, the administrative law judge found that Dr. Sayfie
acknowledged the absence of other risk factors such as hypertension, which could
have caused claimant's stroke, and concluded that his testimony en toto
supports the conclusion reached by Dr. Linden that no one actually knows why
claimant's stroke occurred when it did.[2]    Dr.
Sayfie in fact conceded during his deposition testimony that, at times, he was
required to hypothesize regarding claimant and that, although it is his opinion
that claimant's employment more likely did not cause his stroke than that it did,
it was possible that such a causal connection existed.    See EX 1 at 31-33. 


     In order to constitute substantial evidence for rebuttal of Section 20(a), a
doctor's opinion must be credible; where it is rationally discredited by the
administrative law judge, an opinion cannot rebut Section 20(a).[3]    Sinclair v. United Food & Commercial
Workers, 23 BRBS 148, 154-155 (1989).  Thus, the Board has held that an
administrative law judge may find that a doctor's opinion is insufficient to rebut
where it is not well-reasoned or lacks a proper foundation. Hampton v. Bethlehem
Steel Corp., 24 BRBS 141 (1990).  As the administrative law judge here
rationally discredited Dr. Sayfie's conclusion that claimant's stroke was not
caused by his employment, it cannot rebut Section 20(a).  Moreover, as the
administrative law judge fully considered Dr. Sayfie's testimony, it would be an
impermissible reweighing of the evidence for the Board to disturb the
administrative law judge's findings on this issue, and we decline to do so. 
Accordingly, we hold that, as the administrative law judge's decision accurately
reflects the evidence of record, the administrative law judge acted within his
authority as trier-of-fact in finding Dr. Sayfie's opinion insufficient to meet
employer's burden of presenting specific and comprehensive evidence establishing
the back of a causal relationship between claimant's stroke and his employment. 
We therefore affirm the administrative law judge s finding that employer failed to
rebut the Section 20(a) presumption.  In the absence of other evidence of record
severing the connection between claimant's stroke and his employment, claimant has
established that his stroke is work-related. See Clophus v. Amoco Production
Co., 21 BRBS 261 (1988). 

     Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is affirmed.

     SO ORDERED.


                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge

     I concur:

                                                                         

                         NANCY S. DOLDER
                         Administrative Appeals Judge


     BROWN, Administrative Appeals Judge, dissenting

     I respectfully dissent from my colleagues' decision to affirm the
administrative law judge's determination that employer failed to rebut the Section
20(a), 33 U.S.C. §920(a), presumption.  I would reverse the administrative law
judge's finding that employer failed to establish rebuttal of the Section 20(a)
presumption, hold that employer established rebuttal based upon the opinion of Dr.
Sayfie as a matter of law, and remand the case to the administrative law judge for
reconsideration of the issue of causation within the parameters enunciated by the
Supreme Court in Director, OWCP v. Greenwich Collieries, 521 U.S. 267, 28
BRBS 43 (CRT)(1994).

     A physician's medical opinion is sufficient to establish rebuttal if it is
specific and comprehensive. See Neeley v. Newport News Shipbuilding & Dry Dock
Co., 19 BRBS 138 (1986).  Moreover, in establishing rebuttal of the
presumption, proof of another agency of causation is not necessary. See Stevens
v. Todd Pacific Shipyards, 14 BRBS 626 (1982)(Kalaris, J., concurring and
dissenting) aff'd mem., 722 F.2d 747 (9th Cir. 1983), cert. denied,
467 U.S. 1243 (1984).  In the instant case, in a letter dated May 1, 1995, Dr.
Sayfie stated that it was his opinion that there was no association between the
work claimant was performing on March 23, 1993, and the cardiovascular process
which caused his stroke, see JX 2; moreover, on deposition, Dr. Sayfie
reiterated his opinion that claimant's employment duties did not have a causative
effect on his stroke. See EX 1 at 18-19, 32.  Although, on cross-examination, Dr. Sayfie stated that "anything is possible," see id. at 32-33, this admission does not undermine that physician's conclusion so as to render
his opinion insufficient to rebut the Section 20(a) presumption.  A statement that
"anything is possible" has no probative value.  Dr. Sayfie's correspondence and
deposition testimony clearly established that it is his opinion, within a
reasonable degree of medical certainty, that claimant's March 23, 1993, stroke was
not related to his employment activities on that day.  This physician further
stated that he did not believe claimant's work had a causative effect on his
stroke, see id.  at 18; Dr. Sayfie's statements regarding "no association"
and "no causative effect" appear to be all inclusive and thus supportive of an
opinion that claimant's work did not aggravate his condition.   Accordingly, I
believe that this opinion is sufficient to establish that claimant's work did not
cause or aggravate his condition.  Inasmuch as the opinion of Dr. Sayfie is
sufficient to sever the presumed causal link between claimant's employment duties
and his stroke, I would reverse the administrative law judge's finding that
employer failed to rebut the Section 20(a) presumption.

     Moreover, in finding Dr. Sayfie's opinion insufficient to establish rebuttal,
I believe that the administrative law judge weighed the medical evidence and, in
effect, discounted Dr. Sayfie's opinion based upon the contrary testimony of  Dr.
Linden, who opined that  no one could establish a cause for claimant's stroke. 
This is error, as the weighing of evidence is to be done only after the
administrative law judge has found that a medical opinion, in and of itself,
establishes rebuttal.  Dr. Sayfie's opinion that claimant's work activities did not
result in his stroke, standing alone, establishes rebuttal and should not be found
to be insufficient at this time juncture merely because Dr. Linden states that it
is his opinion that it is impossible to determine the cause of claimant's stroke. 
 In this regard,  Dr. Linden's opinion that no one can establish the cause of
claimant's stroke does not necessarily render Dr. Sayfie's opinion that claimant's
work activities were not the cause equivocal.  For these reasons, I would hold that
the presumption has been rebutted as a matter of law, and I would remand the case
for the administrative law judge to weigh all of the evidence of record regarding
the issue of causation within the parameters of Greenwich Collieries.  



                                                                           
   
                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge determined that claimant's average weekly age was $975.26; this finding is not challenged on appeal. Back to Text
2)Dr. Sayfie did not examine claimant; rather, the physician rendered his opinion based upon a review of claimant's medical reports and evidence regarding claimant's work on the day of his stroke. Back to Text
3)The administrative law judge here properly evaluated the testimony of Dr. Sayfie, consistent with the "bursting bubble" theory, see Del Vecchio v. Bowers, 296 U.S. 280 (1938), and did not engage in impermissible weighing of the evidence. See Sinclair v. United Food & Commercial Workers, 23 BRBS 148, 154-155 (1989). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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