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                                BRB No. 97-799


PAULETTE GRACE NESBITT              )
                                        )
          Claimant-Respondent           )
                                        )    
     v.                                 )
                                        )
DEPARTMENT OF NAVY, CBC                 )    DATE ISSUED:   01/26/1998 
                                        )
     and                                )
                                        )
INSURANCE COMPANY OF NORTH              )
AMERICA                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )    DECISION and ORDER


     Appeal of the Decision and Order on Modification of C. Richard Avery,
     Administrative Law Judge, United States Department of Labor.

     Bobby G. O'Barr, Biloxi, Mississippi, for claimant.

     Elisa A. Roberts (Hamilton, Westby, Marshall & Antonowich, L.L.C.),
     Atlanta, Georgia, for employer/carrier.  

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

     PER CURIAM:

     Employer appeals the Decision and Order on Modification (92-LHC-3404) of
Administrative Law Judge C. Richard Avery 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., as extended by the Nonappropriated Fund
Instrumentalities Act, 5 U.S.C. §8171 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 injured her lower back while working as a bartender for employer as
a result of a slip and fall on May 31, 1985.  In his initial Decision and Order,
the administrative law judge awarded claimant temporary total disability benefits
from June 21, 1985, and continuing.  Upon employer's motion for modification, the
administrative law judge found that claimant is entitled to continuing permanent
total disability benefits from January 14, 1994, the date claimant reached maximum
medical improvement, as employer did not establish suitable alternate employment. 
The administrative law judge granted employer relief from continuing compensation
liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f).  

     On appeal, employer challenges the administrative law judge's denial of its
motion to compel a medical examination and his finding that employer did not
establish suitable alternate employment.  Claimant responds in support of the
administrative law judge's decision.  

     Employer first contends that the administrative law judge erred in denying its
motion to compel a medical examination.  We reject this contention.  The
administrative law judge denied employer's motion to compel a medical examination
after finding the motion untimely and noting that if he allowed employer to have
the examination performed,  claimant's counsel would seek to cross-examine the
doctor who performed it, and the parties would end up trying the case post-hearing,
which he was unwilling to permit.  Tr. at 29-31.  After a review of the record, we hold
that the administrative law judge did not abuse his discretion in denying
employer's motion to compel. See Martiniano v. Golten Marine Co., 23 BRBS
363 (1990).

     The record supports the administrative law judge's finding that employer had
ample opportunity to request a medical examination before the eve of the hearing. 
Employer was  aware that claimant's ability to return to work was the determinative
issue in the modification proceedings inasmuch as employer filed the motion for
modification alleging claimant was no longer totally disabled.  The case was
referred to the Office of Administrative Law Judges in October 1995.  Claimant was
deposed on November 20, 1995, and at that time stated she could not go back to work
because of her back injury.  Cl. Ex. 9 at 31; Emp. Ex. 1 at 31.  The notice of
hearing was sent  to the parties on March 19, 1996, and required them to exchange
exhibits and witness lists not later than 10 days before the hearing.  The notice
stated that failure to comply with these provisions may result in exclusion of the
exhibits and of the testimony of witnesses.  Employer deposed Dr. Longnecker,
claimant's treating physician of 20 years, on March 25, 1996; he stated that
claimant currently is not able to work.  Cl. Ex. 2 at 29; Emp. Ex. 3 at 29.  Employer
sent a notice to claimant on July 11, 1996, almost four months after Dr.
Longnecker's deposition, scheduling a medical examination for July 23, 1996, two
days  prior to the hearing; claimant's counsel instructed her not to attend this
examination.  The administrative law judge denied employer's verbal motion to
compel claimant to attend the examination in a telephonic conference with the
parties on July 17, 1996.  Employer filed a written motion to compel on July 24,
1996, which was denied on the following day, at the hearing.  Tr. at 29-31.  Given
that employer had several months after Dr. Longnecker's deposition to arrange its
own examination of claimant, the administrative law judge's finding that employer's
attempt to have claimant examined on the eve of the hearing was untimely thus is
rational, and his denial of employee's motion to compel does not constitute a abuse
of discretion. Martiniano, 23 BRBS at 363; see also Durham v. Embassy
Dairy, 19 BRBS 105 (1986).  Consequently, we affirm the administrative law
judge's denial of employer's motion to compel a medical examination.[1]     

     Employer next contends that the administrative law judge erred in finding that
it did not establish suitable alternate employment.  Once claimant establishes that she is
unable to perform her usual work, the burden shifts to employer to demonstrate the availability of realistic job
opportunities within the geographic area where claimant resides, which claimant, by virtue of her age, education,
work experience, and physical restrictions, is capable of performing. New Orleans (Gulfwide) Stevedores
v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).

     After determining that claimant established her prima facie case of
total disability, the administrative law judge rationally found that employer did
not establish suitable alternate employment.  The administrative law judge 
discredited the labor market survey of employer's vocational expert, Mr. Carlisle,
because it was based on claimant's "light to sedentary" work restrictions imposed by Dr. Longnecker before
claimant attempted to return to work in November 1993.  Decision and Order on Modification at
9-10; Tr. at 68-92.  The administrative law judge reasoned that while the work
restrictions might have been pertinent at the original 1993 hearing, claimant's
attempt to work in November 1993 and Dr. Longnecker's subsequent testimony that
claimant is unable to work in any capacity superseded claimant's earlier work
restrictions.  Cl. Ex. 2 at 22-24, 29-30.  

     Dr. Longnecker's opinion that claimant is unable to work at all supports the
finding that she cannot perform alternate employment. Lostaunau v. Campbell
Industries, Inc., 13 BRBS 227 (1981), rev'd on other gounds sub nom.
Director, OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th
Cir. 1982), cert. denied, 459 U.S. 1104 (1983).   We, therefore, affirm the
administrative law judge's finding that employer did not establish suitable
alternate employment and his award of permanent total disability benefits.[2] 

          Accordingly, the administrative law judge's Decision and Order on
Modification is affirmed.  

     SO ORDERED.

                                                                           
         
                         ROY P. SMITH 
                         Administrative Appeals Judge



                                                                           
         
                      JAMES F. BROWN
                         Administrative Appeals Judge



                                                                           
         
                      NANCY S. DOLDER                                   Administrative Appeals Judge 


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Footnotes.


1)Moreover, despite employer's assertion to the contrary, the administrative law judge was not required to grant its motion to compel pursuant to 20 C.F.R. §§702.409 and 702.410, as these sections outline the procedures to be followed when an independent medical examination is scheduled by a district director. No such independent medical examination was scheduled in this case. Back to Text
2)We note that, contrary to employer's assertion, the administrative law judge did not find claimant totally disabled based solely on her complaints of pain. See generally Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78 (CRT)(5th Cir. 1991). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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