Skip to page content
Benefits Review Board
Bookmark and Share

                                   BRB No. 86-1685

LAURON D. CHENOWETH                     )
          Claimant-Petitioner           )
     v.                                 )
CHICAGO GRAIN TRIMMERS                  )    DATE ISSUED:   03/28/1995
     and                                )
BITUMINOUS CASUALTY                     )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Robert G. Mahony, Administrative Law
     Judge, United States Department of Labor.

     Eugene F. Connell, Jr. (Eugene F. Connell, Jr. & Associates), Chicago,
     Illinois, for claimant.

     John A. Strobel (Braun, Lynch, Smith & Strobel, Ltd.), Chicago,
     Illinois, for employer/carrier.

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


     Claimant appeals the Decision and Order (85-LHC-2114) of Administrative Law
Judge Robert G. Mahony 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 was injured on October 21, 1976, during the course of his employment
with employer, when he fell on the deck of a grain barge.  The following day, after
experiencing swelling in his knees, claimant sought treatment at employer's clinic
and was thereafter sent to the hospital for further treatment.  Claimant was
diagnosed as suffering from an abrasion of his left knee and contusions of the
right knee and right shoulder; x-rays revealed no fractures, but did detect cervical spondylosis.  Claimant subsequently complained
of headaches, pain in his lower back, neck, arms and hands.[1]   Employer voluntarily paid claimant temporary total disability
compensation from October 22, 1976 through December 16, 1976, at which time Dr.
Stamler opined that claimant could return to work.  33 U.S.C. §908(b). 
Claimant thereafter filed a claim under the Act seeking continuing total disability
benefits.  Claimant has not returned to work since the October 1976 incident.[2]  

     Claimant appeared at the formal hearing before the administrative law judge
without the assistance of counsel.  In his Decision and Order, the administrative
law judge invoked the presumption contained in Section 20(a) of the Act, 33 U.S.C.
§920(a), but found rebuttal of that presumption established based on the
opinions of Drs. Stamler, Schafer, Weiner and Matz, who stated that claimant's
various complaints are unrelated to the October 1976 work-incident.  After
reviewing the record as a whole, the administrative law judge credited the opinions
of these physicians over those of Drs. Chuman and Fischer[3]  to find that while claimant suffers from numerous ailments, none of
these ailments is related to the October 1976 injury.  Next, the administrative law
judge found that claimant's work-related knee injury had resulted in no neurologic
disability.  Accordingly, the administrative law judge denied benefits.    

     On June 23, 1986, claimant filed a Notice of Appeal, pro se, with the
Board.  BRB No. 86-1685.  Claimant thereafter filed a petition for modification
with the administrative law judge.  The Board issued an Order on March 30, 1988,
wherein it dismissed claimant's appeal and remanded the case to the administrative
law judge for modification proceedings.  Pursuant to claimant's request for
modification, the administrative law judge admitted additional documents into
evidence, but in an Order dated July 5, 1988, found that claimant established
neither a mistake in fact nor a change in conditions within the meaning of Section
22 of the Act, 33 U.S.C. §922.  The administrative law judge thus denied
claimant's petition for modification.

     Thereafter, claimant, now with the benefit of counsel, filed an appeal of the
administrative law judge's Order Denying Petition for Modification.  BRB No. 89-1349.  In an Order dated November 7, 1990, the Board acknowledged this appeal and
granted claimant's request to reinstate his appeal of the administrative law
judge's initial Decision and Order denying benefits.  BRB No. 86-1685.  By letter
dated December 19, 1990, claimant requested that the Board dismiss his appeal of
the administrative law judge's Order Denying Petition for Modification; the Board
granted claimant's motion and dismissed this appeal on March 1, 1991. 

     On appeal of the original decision, claimant contends that the administrative
law judge committed several prejudicial errors when conducting the formal hearing
which denied claimant a fair and equitable hearing on the merits of his case; these
errors, claimant asserts, mandate a reversal of the administrative law judge's
Decision and Order denying benefits.  Employer responds, urging affirmance of the
administrative law judge's decision.

     Claimant's initial allegation of prejudice by the administrative law judge
concerns the following statement the administrative law judge made at the hearing: 
"Whether you cannot go back to work I really cannot decide that as far as the
medical aspects of it go." See Tr. at 65.  Claimant argues that this
statement indicates that the administrative law judge pre-judged the merits of his
case without any review of the medical evidence; thus, claimant asserts, had the
administrative law judge not made this pre-judgment, the issue of claimant's
ability to return to work would be central to the final decision.  We disagree with
claimant's interpretation of this remark.  Our review of the transcript of the
formal hearing indicates that the administrative law judge's comment was made
during a colloquy concerning the extent of claimant's disability, and was
specifically made in response to claimant's assertion before the administrative law
judge that "I am never going to go back to work again . . ." See Tr. at 65. 
Moreover, in his decision, the administrative law judge did set forth and discuss
the various medical opinions of record prior to determining that claimant had
sustained no neurologic disability to his knee and that claimant's numerous non-knee conditions were not causally related to his work-injury.  Accordingly, as the
administrative law judge subsequently addressed the evidence of record, the
administrative law judge's comment does not indicate that he pre-judged claimant's

     Next, claimant asserts that the administrative law judge accepted employer's
mischaracterization of Dr. Chuman as an osteopath, and denied claimant the right
to rebut this "misstatement."[4]   This argument
itself is a misstatement of the proceedings before the administrative law judge. 
Contrary to claimant's assertion on appeal, the record fails to indicate that he
was "cut off" from "rebutting" employer's statement that Dr. Chuman was an
osteopath. See Tr. at 51-52.  Moreover, claimant appears to state that Dr.
Chuman is an osteopath.[5]   Id. at 26. 
Although employer's attorney objected to the admission of Dr. Chuman's 1985 report,
the administrative law judge admitted that report into the record, see Cl.
Ex. 5, and fully considered this report in his decision.  Accordingly, as claimant
has set forth no reversible error made by the administrative law judge in
evaluating the medical evidence of record, this contention is rejected.[6] 

     Next, claimant asserts that the administrative law judge erred in allowing
employer's counsel to examine Veteran's Administration medical records offered into
evidence by claimant, in refusing to receive those documents into evidence, and in
permitting employer's counsel to cross-examine claimant using those records.  We
disagree.  A review of the hearing transcript reveals that claimant attempted to
submit various Veteran's Administration records into evidence, some of which pre-dated the 1976 accident and some of which concerned treatment subsequent to the
1976 accident.  After reviewing the documents, the administrative law judge did not
deem them relevant. See Tr. at 19-20.   The administrative law judge
subsequently handed these documents to employer's counsel and stated "if there['s]
anything you think is relevant in these records I will let you bring it out."
Id. at 21.  Thereafter, employer's counsel questioned claimant about
psychiatric treatment claimant received by the Veteran's Administration between
1977 and 1980, and other treatment for other internal problems such as impotence.
Id. at 44.  Except for one Veteran's Administration document concerning
claimant's discharge from the armed services due to a back injury, see Cl.
Ex. 9, the above referenced Veteran's Administration documents were not admitted
into evidence.

     Section 702.338 of the regulations states that an administrative law judge has
the duty to inquire fully into matters at issue and receive into evidence all
relevant and material testimony and documents; the hearing may be reopened to hear
such evidence. See  20 C.F.R. §702.338; see generally Williams v.
Marine Terminals Corp., 14 BRBS 728 (1981).  The Board has interpreted these
provisions as affording administrative law judges considerable discretion in
determinations pertaining to the admissibility of evidence. See Wayland v. Moore
Dry Dock, 21 BRBS 177 (1988).  Such determinations may be overturned only if
they are arbitrary, capricious or an abuse of discretion. See generally Chavez
v. Todd Shipyards Corp., 24 BRBS 71 (1990), rev'd on other grounds
sub nom. Chavez v. Director, OWCP, 961 F.2d 1409, 25 BRBS 134 (CRT)(9th Cir.
1992).  In the instant case, claimant makes no argument on appeal as to how these
documents were supportive of his claim for ongoing disability compensation.  In
addition, the questions employer's counsel asked concerning these documents were
not relevant to the case.  Thus, we cannot say that the administrative law judge
acted arbitrarily or abused his discretion in not admitting these documents into
the record.  

     Claimant next contends that when he tried to explain the facts concerning his
service- related injuries, he was cut off by the administrative law judge, who
stated that he "had another case around 3:30." See Tr. at 33.  We reject
this argument, as claimant was not prejudiced, since, in fact, the administrative
law judge did allow claimant to testify about his service injuries. See Tr.
at 31-33.  

     Lastly, contrary to claimant's assertion on appeal, there is no indication
that the administrative law judge committed prejudicial error in the conduct of the
hearing.  In fact, a review of the transcript reveals that he did afford claimant
an opportunity to present his claim.  The administrative law judge admitted all of
the documentation submitted by claimant which he deemed relevant, see Tr.
at 53, and allowed claimant to testify fully about his 1976 accident and his
subsequent physical condition.  While claimant now states that by appearing pro
se he could not get a fair hearing, thus placing the blame for claimant's
pro se status on the administrative law judge, the transcript clearly
reveals that the administrative law judge questioned claimant as to his efforts at
securing counsel and whether claimant wished to proceed without the benefit of
counsel, to which claimant replied that he would proceed without representation and
that he "had very bad luck with attorneys . . . " See Tr. at 3.  Thus, the
administrative law judge showed concern that claimant was appearing without the
assistance of counsel; claimant's pro se appearance was voluntary and well
within his rights.

     In the instant case, neither the record nor transcript of the hearing
evidences any bias or prejudice on the part of the administrative law judge. 
Inasmuch as adverse rulings alone are insufficient to establish bias by an
administrative law judge, see Raimer v. Willamette Iron & Steel Co., 21 BRBS
98 (1988), we hold that the administrative law judge committed no prejudicial error
in the conduct of the hearing below. See also Olsen v. Triple A Machine Shops,
Inc., 25 BRBS 40 (1991) aff'd mem. sub nom. Olsen v. Director, OWCP,
Nos. 91-70642, 92-70444 (9th Cir. June 15, 1993).

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


                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document


1)Claimant testified that he has experienced pain in his lower back since 1950, when he fell down a flight of stairs while in the military. Tr. at 29. He stated that this incident aggravated a back condition he had suffered after a truck accident in 1947 while stationed on Guam. Tr. at 31-32. Back to Text
2)Claimant was subsequently diagnosed as suffering from degenerative disc disease and underwent a laminectomy for this condition in February 1982. Back to Text
3)Dr. Fischer concluded in 1985 that there was a causal connection between claimant's state of ill being and the October 21, 1976 accident. Cl. Ex. 8. Back to Text
4)Claimant attempted to attach Dr. Chuman's qualifications to his brief before the Board. Claimant cites to no evidence, nor does claimant contend on appeal, that the misstatement of Dr. Chuman's qualifications resulted in the administrative law judge's having committed reversible error when he declined to credit that physician. Back to Text
5)The legend which appears on Dr. Chuman's October 25, 1985 letter states: "Olympia Fields Osteopathic Medical Center." Cl. Ex. 5. Back to Text
6)The medical evidence can be summarized as follows. Dr. Stamler found no residual impairment of claimant's left knee. He stated in December 1976 that the degenerative changes in claimant's lower back existed "for some time," and there is no causal connection between claimant's shoulder pain, arm weakness and finger numbness, and his cervical spine changes. Cl. Ex. 4. The physician opined in 1978 that claimant's complaints arise from a functional disorder not brought about by the accident on October 21, 1976. Id. Dr. Schafer, who performed claimant's laminectomy, stated in 1981 that claimant's medical records consistently trace claimant's back problems to the 1940's when he injured himself in the service. Dr. Schafer was unable to find anything in his records "which correlates to something that may have occurred on October 21, 1976." He was therefore unable to verify whether the current problems related to such an incident. Emp. Ex. 7. Dr. Weiner stated in his November 1, 1979 report that claimant's headaches "on use of his hands are not in any way related to the injury sustained on October 21, 1976 . . . I do not believe there is any neurological disability related to his shoulder, arm, or leg." Emp. Ex. 2. In his review of claimant's medical records, dated November 20, 1985, Dr. Matz sharply criticized Dr. Chuman's finding that claimant is suffering from an extensive disease of the nervous system, and that by history and appearance, these changes have been present since 1976. See Cl. Ex. 5. Dr. Matz pointed out that Dr. Chuman never stated what the disease of the nervous system was, or presented documentation to show how it was present since 1976. Dr. Matz stated that it was conceivable that through natural progression claimant may end up with neurological involvement, either of his spinal cord or nerve roots, but that this did not imply that a causal connection existed between a 1976 work incident and any clinical manifestations in 1985. Emp. Ex. 9. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document