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                                 BRB Nos. 87-766
                                   and 87-766A

FRANCIS HICKS                           )
          Claimant-Petitioner           )
          Cross-Respondent              )
       v.                               )
NORTHWEST MARINE                        )
IRON WORKS                              )    DATE ISSUED:   01/24/1995
       and                              )
SAIF CORPORATION                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION and ORDER

     Appeals of the Decision and Order of Steven E. Halpern, Administrative
     Law Judge, United States Department of Labor.

     Robert K. Udziela (Pozzi, Wilson, Atchison, O'Leary & Conboy), Portland,
     Oregon, for claimant.

     Ruth M. Cinniger, Portland, Oregon, for employer/carrier.

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


     Claimant appeals and employer cross-appeals the Decision and Order (86-LHC-1749) of Administrative Law Judge Steven E. Halpern 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).

     The facts of this case are not in dispute.  Claimant injured his back, neck,
and right arm and shoulder in a work-related incident on September 29, 1979. 
Employer voluntarily paid temporary total disability benefits from September 30,
1979, through May 1, 1982.  On December 29, 1982, the parties entered into a
Section 8(i), 33 U.S.C. §908(i) (1982), settlement for $10,300, plus future
medical expenses, which the district director approved. Jt. Ex. 6.  In November
1985, claimant's treating physician noted a distinct worsening in the condition of
claimant's arm and shoulder.  Jt. Exs. 8-9.  Based on this opinion, claimant filed
a motion for modification pursuant to Section 22 of the Act, 33 U.S.C. §922,
requesting medical benefits and additional temporary total disability benefits. 
Employer controverted the claim on February 12, 1986; however, on January 14, 1987,
one week prior to the hearing, employer conceded its liability for continuing
medical benefits.

     The administrative law judge issued a decision based on the record evidence. 
He held that: the 1984 Amendments to the Act do not apply to this case; the
settlement under Section 8(i) is not subject to modification pursuant to Section
22; claimant is not entitled to additional temporary total disability benefits; and
employer is liable for claimant's medical benefits and for an attorney's fee of
$1,078.13.  Decision and Order at 1-2.  Claimant appeals the administrative law
judge's denial of additional benefits, and employer responds, urging affirmance.
BRB No. 87-766.  In its cross-appeal, employer challenges the award of an
attorney's fee, and claimant responds, urging affirmance.  BRB No. 87-766A.

     Claimant initially contends that the 1979 settlement can be modified pursuant
to Section 22 of the Act.  It is well-established, however, that a settlement in
accordance with pre-Amendment Section 8(i) is not subject to Section 22
modification. Downs v. Texas Star Shipping Co., Inc., 18 BRBS 37 (1986),
aff'd sub nom. Downs v. Director, OWCP, 803 F.2d 193, 19 BRBS 36 (CRT) (5th
Cir. 1986); Lambert v. Atlantic & Gulf Stevedores, 17 BRBS 68 (1985); see
also 33 U.S.C. §922 (1988).  Because a Section 8(i) settlement constitutes
the final disposition of the 1979 claim in this case, the administrative law judge
appropriately determined that it is not subject to modification under Section 22,
and we affirm his finding. See Lambert, 17 BRBS at 70.

     Next, claimant contends he is entitled to additional temporary total
disability benefits because his continued employment aggravated the condition of
his arm and shoulder, which were initially injured in 1979.  In support of his
argument, claimant cites Director, OWCP v. General Dynamics Corp. [Morales],
769 F.2d 66, 17 BRBS 130 (CRT) (2d Cir. 1985), and Del Vacchio v. Sun
Shipbuilding & Dry Dock Co., 16 BRBS 190 (1984), which explain the aggravation
rule.  Under the aggravation rule, if an employment injury aggravates, accelerates,
or combines with a pre-existing impairment to produce a disability greater than
that which would have resulted from the employment injury alone, the entire
resulting disability is compensable. Port of Portland v. Director, OWCP, 932
F.2d 836, 24 BRBS 137 (CRT) (9th Cir. 1991); Strachan Shipping Co. v. Nash,
782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en banc).  A work-related
aggravation of a pre-existing injury is compensable in itself under the Act and is
considered a new injury. Del Vacchio, 16 BRBS at 193; Chiarella v.
Bethlehem Steel Corp., 13 BRBS 91 (1981).  However, if a condition is the
natural progression or unavoidable result of the initial injury, then the resulting
disability is not separately compensable as a new injury but is considered part and
parcel of the initial injury. See generally Foundation Constructors, Inc. v.
Director, OWCP [Vanover], 950 F.2d 621, 25 BRBS 71 (CRT) (9th Cir. 1991).  As
claimant and employer resolved the original claim for compensation via a Section
8(i) settlement, employer cannot now be held liable for any condition which is
considered to be the result of the natural progression of the original injury. 
Consequently, the issue presented by claimant is whether his 1985 arm/shoulder
condition is the result of the natural progression of his 1979 injury or whether
it is due to a work-related aggravation and, therefore, is a new compensable

     In this case, Dr. Whitney originally diagnosed tendinitis in claimant's right
shoulder. Jt. Ex. 1.  In November 1985, he diagnosed a probable tear in the rotator
cuff in the same shoulder, which "may relate to . . . the previous injury to his
shoulder plus some degenerative progression change." Jt. Ex. 8 at 17.  The doctor
notified employer's carrier of this condition, and in his notification letter he
referred to the condition as a "progressive aggravation" which dates back to the
1979 injury because of the type of pain claimant suffers, because claimant has not
fully recovered from his 1979 problems, and because claimant's condition "has been
aggravated and made worse due to some of his activities in the meantime and
particularly brush picking." Jt. Ex. 9.  Based on Dr. Whitney's conclusions and on
the parties' joint statement of facts, which refers to Dr. Whitney's medical
reports, claimant asserts that his injury has been aggravated by his continued
employment.  The administrative law judge rejected claimant's argument, stating:

     That the arm/shoulder injury sustained by claimant on September 29, 1979
     has worsened by natural progression does not resurrect the settled
     claim, and such aggravation as may have occurred in claimant's post
     settlement employment as a brush picker (Joint Ex. 8, 9), evidently for
     an employer other than respondent, is not respondents' liability.

Decision and Order at 2.

     Contrary to the administrative law judge's statement, there is no evidence of
record that claimant was working for another employer as of the date Dr. Whitney
stated claimant's condition was worsening.  The only evidence concerning how the
alleged aggravation may have occurred is Dr. Whitney's report which states that
claimant worked as a brush picker. Jt. Exs. 8-9.  Therefore, the administrative law
judge erred in attributing "such aggravation as may have occurred" to an anonymous
employer.  Additionally, he did not determine the cause of claimant's 1985
condition, and in fact described it as both a "natural progression" and an
"aggravation." See Decision and Order at 2.  Because claimant's potential
entitlement to benefits rests on whether his current condition is due to a "natural
progression" or an "aggravation," the administrative law judge must make this
determination.  Accordingly, we vacate the denial of benefits, and we remand the
case for the administrative law judge to ascertain whether claimant's condition was
aggravated by his continued employment. See Merrill v. Todd Pacific Shipyards
Corp., 25 BRBS 140 (1991).  If claimant has sustained an aggravation, then he
may be entitled to additional benefits; if not, then the Section 8(i) settlement
constitutes the final disposition of the original claim for benefits, which
includes the natural progression of claimant's condition, and, as there has been
no second injury, employer cannot be held liable for additional disability
compensation. See generally Port of Portland, 932 F.2d at 836, 24 BRBS at
137 (CRT); Poole v. Ingalls Shipbuilding, Inc., 27 BRBS 230 (1993).

     In its cross-appeal, employer contends the administrative law judge erred in
awarding claimant's counsel an attorney's fee for work performed after January 14,
1987.  Specifically, employer argues it is not liable for any fee generated after
that date, pursuant to Section 28(b), 33 U.S.C. §928(b), as the controversy
over medical benefits was settled on January 14, 1987, when it conceded liability,
and the only issue remaining for the hearing was the Section 22 issue which it
succeeded in defending.  Thus, employer maintains that claimant's counsel's efforts
failed to produce additional benefits for claimant after January 14, 1987.

     Under Section 28 of the Act, approved fees must be reasonably commensurate
with the necessary work performed.  33 U.S.C. §928; 20 C.F.R. §702.132. 
An employer may be held liable for an attorney's fee under Section 28(a), 33 U.S.C.
§928(a), when it controverts an aspect of the claim and the claimant
thereafter employs an attorney in the successful prosecution of the claim. See
National Steel & Shipbuilding Co. v. U.S. Department of Labor, 606 F.2d 875,
11 BRBS 68 (9th Cir. 1979); Mobley v. Bethlehem Steel Corp., 20 BRBS 239
(1988), aff'd, 920 F.2d 558, 24 BRBS 49 (CRT) (9th Cir. 1990); Powers v.
General Dynamics Corp., 20 BRBS 119 (1987); 20 C.F.R. §702.134(a). 
Because employer controverted this claim, and claimant thereafter established his
entitlement to medical benefits, Section 28(a), and not Section 28(b), controls
whether claimant's counsel is entitled to a fee payable by employer.  However, in
view of the fact that claimant's success before the administrative law judge
initially was limited to his obtaining medical benefits and, in view of our
decision to remand the case for the administrative law judge to ascertain whether
claimant is entitled to additional disability compensation, we vacate the fee
award.  On remand, the administrative law judge must reconsider counsel's fee
petition and the objections thereto in light of his decision on the merits.[1] 

     Accordingly, the administrative law judge's denial of additional disability
benefits and his fee award are vacated, and the case is remanded for further
consideration in accordance with this opinion.  In all other respects, the Decision
and Order is affirmed.


                                        ROY P. SMITH
                                        Administrative Appeals Judge

                                        NANCY S. DOLDER
                                        Administrative Appeals Judge

                                        REGINA C. McGRANERY
                                        Administrative Appeals Judge

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1)In awarding counsel's fee, the administrative law judge must consider claimant's degree of success in prosecuting the claim, Bullock v. Ingalls Shipbuilding, Inc., 27 BRBS 90 (1993) (en banc) (Brown and McGranery, JJ., concurring and dissenting), modified on other grounds on recon. en banc, 28 BRBS 102 (1994), and he also should consider the date employer conceded liability for medical expenses, Cahill v. International Terminal Operating Co., Inc., 14 BRBS 483 (1981). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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