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                                   BRB Nos. 92-2217
                                     and 92-2217A

EDWIN CAIRNS                            )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
MATSON TERMINALS,                       )    DATE ISSUED:   05/20/1994
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Petitioner              )    DECISION and ORDER

     Appeals of the Decision and Order After Second Remand of James J.
     Butler, Administrative Law Judge, United States Department of Labor.

     William Patrick Muldoon (Pranin & Muldoon), Wilmington, California, for
     claimant. 

     Jack Williams, Glendale, California, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals and employer cross-appeals the Decision and Order After
Second Remand (83-LHC-1488) of Administrative Law Judge James J. Butler denying
benefits 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 third time that this case has been appealed to the Board.  To
briefly recapitulate, claimant, on September 16, 1981, suffered chest pains, and
allegedly a heart attack, while in the course of his employment for employer. 
Claimant did not return to work following this incident.  In his first Decision and
Order denying benefits dated October 2, 1984, the administrative law judge found
that any heart attack occurring on September 16, 1981 did not arise out of
claimant's employment, and denied benefits.  Claimant then appealed the
administrative law judge's decision to the Board.  See Cairns v. Matson
Terminals, Inc., 21 BRBS 252 (1988).  The Board reversed the administrative law
judge's determination that causation with regard to claimant's chest pains had not
been established, holding that claimant established that his chest pains arose out
of and in the course of his employment with employer as a matter of law.  The Board
therefore remanded the case for the administrative law judge to determine the
nature and extent of disability caused by claimant's work-related chest pains. 
Additionally, the administrative law judge was instructed on remand to specifically
determine whether claimant sustained a myocardial infarction on September 16, 1981
and, if he did, to determine whether that infarction was related to claimant's
employment considering the applicability of the Section 20(a), 33 U.S.C.
§920(a), presumption.  21 BRBS at 254-257.

     On remand, the administrative law judge reopened the record to accept medical
reports from Drs. Goldfarb and Dolan.  In a Decision and Order After Remand dated
July 27, 1989, the administrative law judge determined that claimant did not
sustain either a myocardial infarction as a result of work activity on September
16, 1981, or a disability as a result of chest pains "allegedly" experienced on
that date; claimant's claim for benefits was thus denied.  Claimant again appealed
to the Board. See Cairns v. Matson Terminals, Inc., BRB No. 89-2843 (Jan.
28, 1992)(unpublished).  In its second decision, the Board first held that the
administrative law judge's failure to address all the record evidence regarding
claimant's inability to return to work due to his work-related chest pains
compelled remand.  Noting that its prior holding that claimant's chest pains were
employment-related constituted the law of the case, the Board additionally held
that an award to claimant of total disability compensation for at least the period
of his initial hospitalization for chest pains is justified.  The Board further
held that the administrative law judge's mischaracterization of the relevant
medical evidence regarding the alleged occurrence of a work-related myocardial
infarction also compelled remand.  The Board therefore vacated the administrative
law judge's denial of benefits and remanded the case for consideration of the
evidence relevant to the issue of nature and extent of disability caused by
claimant's chest pains, for consideration of the evidence as to whether claimant
sustained a myocardial infarction, and, if necessary, a determination, pursuant to
Section 20(a), as to whether that infarction was caused by claimant's employment. 
Additionally, the administrative law judge was instructed to consider claimant's
entitlement to Section 7, 33 U.S.C. §907, medical benefits and to a Section
14(e), 33 U.S.C. §914(e), assessment. See Cairns, supra, slip op. at
4-6.

     In his Decision and Order After Second Remand dated June 30, 1992, the
administrative law judge, without adhering to the Board's previous rulings in this
case or following the Board's instructions on remand, denied claimant's claim for
benefits solely on his determination that claimant's underlying coronary heart
disease is unrelated to his employment. 

     On appeal, claimant first assigns error to the administrative law judge's
failure to find claimant to be permanently totally disabled due to his chest pains,
noting that the Board remanded this case only for the administrative law judge to
determine nature and extent of disability, not to determine whether the chest pains
were work-related.  Claimant also contends that the administrative law judge erred
in failing to find that claimant sustained an employment-related myocardial
infarction.  In its cross-appeal, employer urges affirmance of the administrative
law judge's Decision and Order After Second Remand in its entirety.  Specifically,
employer challenges the Board's prior two decisions holding as a matter of law that
claimant established a causal relationship between his chest pains and his
employment,  contending that it has rebutted the Section 20(a) presumption that
claimant's injury, whether or not a myocardial infarction, arose out of his
employment.  

     As an initial matter, we hold that the administrative law judge erred when he
once again failed to comply with the Board's remand order.  Section 802.405(a) of
the regulations governing the operations of the Board provides that "[w]here a case
is remanded, such additional proceedings shall be initiated and such other action
shall be taken as is directed by the Board."  20 C.F.R. §802.405(a).
See Obert v. John T. Clark and Son of Maryland, 23 BRBS 157 (1990);
Randolph v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 443 (1989). 
The Board's January 28, 1992 decision remanding this case to the administrative law
judge explicitly stated that the holding in our first decision, that claimant
established a causal relationship between his chest pains and his employment,
constitutes the law of the case. See slip op at 5. See also Dixon v. John
J. McMullen and Associates, Inc., 19 BRBS 243 (1986).  Thus, in reconsidering
the issue of the causation of claimant's chest pain, the administrative law judge
ignored the Board's directive to consider only the nature and extent of disability
caused by claimant's work-related chest pain.  Moreover, the administrative law
judge failed to follow the Board's dictate to specifically address all of the
record evidence in determining whether claimant did, in fact, sustain a myocardial
infarction, and if he did, to apply the Section 20(a) presumption in determining
whether that myocardial infarction was employment-related.  Finally, the
administrative law judge denied medical benefits and a Section 14(e) assessment on
the basis that claimant's chest pains are not employment-related, a finding
directly counter to the Board's previous holdings that claimant's chest pains are
employment-related as a matter of law.  Thus, we are compelled by the
administrative law judge's failure to follow the directives set forth in the
Board's January 28, 1992 decision to vacate the administrative law judge's Decision
and Order After Second Remand and remand the case once again for proper
consideration of the record evidence in accordance with the Board's previous
directives. See Obert,  23 BRBS at 157; Randolph, 22 BRBS at 443.[1] 

     In its January 28, 1992 decision remanding the case for the administrative law
judge to determine the nature and extent of disability caused by claimant's work-related chest pains, the Board expressly instructed the administrative law judge
to discuss the relevant medical evidence of record not previously addressed by the
administrative law judge; specifically, the administrative law judge was to analyze
and discuss the opinions of Drs. Fawell, Magnusson and Scott, and the records of
claimant's hospitalization for chest pains.  Moreover, the Board specifically
instructed the administrative law judge to consider the applicability to the
instant case of the rationale of Crum v. General Adjustment Bureau, 738 F.2d
474, 16 BRBS 115 (CRT)(D.C. Cir. 1984). See  Board's January 28, 1992
Decision, slip op. at 4-5.  On remand, however, the administrative law judge failed
to discuss either this medical evidence or the applicability of the circuit court's
decision in Crum that if work-related chest pains are determined to be of
an indefinite duration, an award of permanent disability may be appropriate.[2] 

     Thus, on remand, the administrative law judge is to consider the issue of the
nature and extent of disability caused by claimant's work-related chest pains; the
administrative law judge must consider all the medical evidence relevant to this
issue as specified in the Board's January 28, 1992 decision and, additionally, the
administrative law judge must consider the applicability of the ruling in
Crum to the case at bar.

     In its January 28, 1992 decision, the Board further held that the
administrative law judge mischaracterized the cardiac conference report and
hospital records in his discussion of the evidence regarding the alleged occurrence
of a myocardial infarction; accordingly, the case was remanded for reconsideration
of whether an infarction was sustained, whether any infarction was related to
claimant's employment pursuant to the Section 20(a) presumption, and the nature and
extent of any resulting disability. See slip op. at 2-4.  On remand, the
administrative law judge failed to make a definitive finding as to whether a
myocardial infarction did, in fact, occur; rather, the administrative law judge
characterized claimant's condition as an "unconfirmed" infarction. See
Decision and Order After Second Remand at 1, 2.  This failure by the administrative
law judge to follow the Board's specific and unequivocal directives on remand
requires the Board to once again instruct the administrative law judge on remand
to definitively consider the issue of the occurrence of a myocardial infarction. 
If the administrative law judge finds an infarction occurred, he must consider the
relevant aggravation principles in analyzing causation under Section 20(a). 
Finally, if he finds that the occurrence of a work-related myocardial infarction
is established, he must determine the nature and extent of any resulting
disability.  

     Claimant also challenges the administrative law judge's failure to award
medical benefits commencing with claimant's September 16, 1991 hospital admission
for work-related chest pains and the administrative law judge's denial of a Section
14(e) assessment.  In its January 28, 1992 decision, the Board held that claimant
had established a prima facie case for compensable medical treatment based
on his hospitalization for work-related chest pains and remanded the case for a
determination of whether claimant has complied with the requirements of Section 7. 
The Board further remanded for a determination of whether employer is liable for
a Section 14(e) assessment. See Board's January 28, 1992 Decision, slip op
at 5-6.  In light of our previous discussion regarding claimant's chest pains, we
hold that the administrative law judge erred in basing his summary denial of both
medical benefits and a Section 14(e) assessment on his conclusion that claimant's
chest pains are solely related to his non-industrial coronary condition. 
Accordingly, on remand, the administrative law judge must reconsider claimant's
entitlement to medical benefits and a Section 14(e) assessment pursuant to the
directives set forth in our January 28, 1992 decision; in this regard, the
administrative law judge's findings must be consistent with the Board's previous
rulings that claimant has established a prima facie case for medical
benefits and has established entitlement, at minimum, to temporary disability
benefits for the period of his initial hospitalization for chest pains.

     Lastly, we note that employer, in its cross-appeal, provides no persuasive
argument for overturning the Board's January 28, 1992 ruling that its August 31,
1988 holding that claimant's chest pains are employment-related constitutes the law
of the case. See January 28, 1992 Decision, slip op. at 5.  We therefore
reaffirm our previous two decisions ruling that claimant has established that his
chest pains are employment-related as a matter of law.[3]   See Leone v. Sealand Terminal Corp., 19 BRBS 100, 101 (1986).
     Accordingly, the administrative law judge's Decision and Order After Second
Remand is vacated and the case is remanded for further proceedings in accordance
with this opinion.

     SO ORDERED.



                                                                        

                         NANCY S. DOLDER, Acting Chief
                         Administrative Appeals Judge  



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)We would order the case assigned to another administrative law judge on remand given Administrative Law Judge Butler's repeated failure to comply with the Board's remand instructions in this case; we note, however, that the necessity for such an order is obviated by Administrative Law Judge Butler's retirement from service as an administrative law judge. Back to Text
2)It is noted that, pursuant to the Board's January 28, 1992 decision, the administrative law judge should have awarded, at a minimum, temporary total disability benefits for the period claimant was initially hospitalized for his chest pains. See Board's January 28, 1992 Decision, slip op. at 5. Back to Text
3)While we need not revisit our previous causation determination, we note that the administrative law judge's analysis is contrary to the well-established rule that the underlying condition need not have been caused by the employment; rather, aggravation of a pre-existing condition or of symptoms of the underlying condition constitutes an injury. See, e.g., Care v. Washington Metropolitan Area Transit Authority, 21 BRBS 248, 250 (1988); Crum v. General Adjustment Bureau, 783 F.2d 474, 16 BRBS 115 (CRT)(D.C. Cir. 1984). Moreover, contrary to the administrative law judge's expressed concern that employer not be burdened with the residuals of a non-industrial condition, it is well-established that employers accept their employees with the frailties that predispose them to injury. See, e.g., Vandenberg v. Leicht Material Handling Co., 11 BRBS 164, 169 (1979). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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