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                                 BRB No. 89-1949

NADINE BOONE                            )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   06/29/1995
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )    DECISION and ORDER

     Appeal of the Decision and Order and Order on Motion for Reconsideration
     of Michael P. Lesniak, Administrative Law Judge, United States
     Department of Labor.

     P. Scott De Bruin (Patten, Wornom & Watkins), Newport News, Virginia,
     for claimant. 

     James M. Mesnard (Seyfarth, Shaw, Fairweather & Geraldson), Washington,
     D.C., for self-insured employer.

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

     BROWN, Administrative Appeals Judge:

     Employer appeals the Decision and Order and Order on Motion for
Reconsideration (80-LHC-1281) of Administrative Law Judge Michael P. Lesniak
denying modification 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 case involves a request for modification of an administrative law judge's
decision.  Claimant was employed by employer as a grinder in a submarine from
December 1975 until September 1979, during which time she was exposed to dust,
powder and smoke.  In July 1978, she was first seen by Dr. Graham, a cardiovascular
and thoracic surgeon, with complaints of cough, intermittent hoarseness and an
episode of chest pain.  Dr. Graham stated she most likely had sarcoidosis, a
disease of unknown etiology, but said that without further tests, he could not rule out other conditions.  Claimant testified that
after 3 weeks of welding on a submarine beginning in July 1979, she began
experiencing shortness of breath and dizziness.  1981 Tr. at 137.  Claimant
returned to Dr. Graham in September 1979, complaining of shortness of breath,
cough, choking and mucous condition.  Dr. Graham found a restrictive lung
impairment and advised claimant to move to a cleaner environment because the
pollutants she was exposed to on the job might worsen her pulmonary condition. 
Claimant was unable to find a job in a cleaner environment with employer and was
therefore terminated by employer for personal medical reasons on September 20,
1979.  In April 1980, claimant found employment as a nuclear medical technician at
a hospital, receiving a lower salary than she earned with employer.  Claimant last
saw Dr. Graham in April 1980, at which time she was symptom-free.  

     Claimant sought compensation under the Act.  During an April 1981 hearing,
claimant testified that she was feeling fine and that her symptoms had gone away. 
In January 1982, at a subsequent hearing, claimant submitted two x-rays that showed
the continued presence of the disease; however, claimant stated that she still felt
well and had not seen a doctor for pulmonary problems since April 1980. See
1982 Decision and Order at 6.  In his decision, Administrative Law Judge Chao
initially invoked the Section 20(a) presumption, found it was not rebutted and thus
held claimant's sarcoidosis was related to her employment.  He denied benefits,
however, on the basis of Dr. Graham's testimony that claimant had not suffered from
her earlier symptoms since April 1980; thus, the administrative law judge held that
claimant failed to prove that she was disabled due to her work-related disease. 
Claimant appealed the denial of benefits; employer initially cross-appealed, but
withdrew its appeal.  The sole issue presented on appeal thus involved the extent
of disability.  The Board vacated the administrative law judge's finding that
claimant is not disabled and remanded the case for the administrative law judge to
consider the extent of claimant's disability.   Boone v. Newport News
Shipbuilding & Dry Dock Co., 21 BRBS 1 (1988).  On June 21, 1988, Judge Chao
issued a Supplemental Decision and Order Upon Remand consistent with the parties'
stipulations, awarding claimant temporary total disability compensation from
September 21, 1979, to August 28, 1980; permanent partial disability compensation
with a weekly compensation rate of $50.98 from August 29, 1980, until October 30,
1980; and, thereafter, permanent partial disability at a weekly rate of $36.64. 
Employer was found to be entitled to relief pursuant to Section 8(f) of the Act,
33 U.S.C. §908(f).  This decision was not appealed.

     On April 26, 1988, employer filed a petition for modification, asserting a
mistake of fact regarding the administrative law judge's findings of causation and
disability, and a change of condition regarding claimant's disability and wage-earning capacity.  In support of its petition, employer submitted the June 29,
1988, medical report of Dr. Shaw, along with that physician's subsequent
correspondence, in which Dr. Shaw opined that claimant's sarcoidosis is not work-related, that claimant may return to her former employment without any work
restrictions regarding exposure to dust, fumes or activity and that, if necessary,
claimant may wear a respirator to protect her lungs from significant dust exposure. 
Emp. Exs. 6, 8. 
     In his Decision and Order on modification, Administrative Law Judge Lesniak
determined that employer had not rebutted the presumption at Section 20(a) with
regard to the work-relatedness of claimant's sarcoidosis.  Alternatively, the
administrative law judge credited the opinions of Drs. Graham and Ross and found
that claimant's work exposure to inhalation hazards would constitute a work-related
injury, as it would add another irritant to an abnormal lung and thus aggravate
claimant's lung symptomatology.  Next, the administrative law judge found
insufficient change in claimant's lung condition to warrant terminating her
benefits.  The administrative law judge rejected Dr. Shaw's opinion and found that
a return to work and exposure to inhalation hazards would aggravate claimant's
pulmonary condition.  Finally, the administrative law judge determined that
employer did not establish a change in claimant's wage-earning capacity. 
Accordingly, employer's petition for modification was denied.  Employer's
subsequent motion for reconsideration was granted, but the relief requested was
denied.

     On appeal, employer challenges the administrative law judge's findings
regarding causation and the extent of claimant's disability, as well as the
administrative law judge's denial of the relief requested in its motion for
reconsideration.  Claimant responds, urging affirmance.

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions.  Modification of a prior decision is permitted
at any time prior to one year after the last payment of compensation or the
rejection of the claim, based on a mistake of fact in the initial decision or a
change in claimant's condition.[1]   See
Metropolitan Stevedore Co. v. Rambo, ___ U.S. ___, 63 U.S.L.W. 4548 (U.S. June
12, 1995);  Fleetwood v. Newport News Shipbuilding & Dry Dock Co., 776 F.2d
1225, 18 BRBS 12 (CRT)(4th Cir. 1985); Finch v. Newport News Shipbuilding & Dry
Dock Co., 22 BRBS 196 (1989).  A party requesting modification due to a change
in condition has the burden of showing the change in condition.  See,
e.g., Winston v. Ingalls Shipbuilding, Inc., 16 BRBS 168 (1984). 
Additionally, the administrative law judge has broad discretion to correct mistakes
of fact "whether demonstrated by wholly new evidence, cumulative evidence, or
merely further reflection on the evidence initially submitted." See O'Keeffe v.
Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971), reh'g denied, 404
U.S. 1053 (1972); Wynn v. Clevenger Corp., 21 BRBS 290 (1988).  

     We first address employer's contention that it established a mistake of fact
in the causation finding.  Employer asserts that Administrative Law Judge Lesniak
erred in discrediting Dr. Shaw's June 1988 opinion that claimant's sarcoidosis is
not work-related and that claimant's pulmonary condition would not be aggravated
by her exposure to dust and fumes at employer's facility.  In establishing that an
injury arises out of her employment, a claimant is aided by the Section 20(a)
presumption which applies to the issue of whether an injury is causally related to
employment activities.  33 U.S.C. §920(a); Perry v. Carolina Shipping
Co., 20 BRBS 90 (1987).  Once 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 her employment. Sam v.
Loffland Brothers Co., 19 BRBS 228 (1987).  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
Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985).

     Employer alleges that the opinion of Dr. Shaw is sufficient to establish that
claimant's pulmonary condition would not be aggravated by her exposure to dust and
fumes at employer's facility, and that claimant's sarcoidosis is not work-related. 
In addressing the issue of causation, however, the administrative law judge
credited the opinions of Drs. Graham and Ross from the initial proceedings in this
case and concluded that claimant's pulmonary condition would be aggravated by her
exposure to dust and fumes at employer's facility.  Claimant initially experienced
symptomatology relating to a lung condition while employed at the shipyard; her
symptoms ceased when she left the shipyard after Dr. Graham advised her to seek
employment in a cleaner environment.  Decision and Order at 6.  Dr. Graham
recommended in 1979 that claimant be placed in an environment where she would not
be exposed to inhalation hazards.  Dr. Graham testified in the initial proceedings
that exposure to inhalation hazards would not necessarily advance claimant's
sarcoidosis but would add another irritant to an otherwise abnormal lung.  The
administrative law judge credited this opinion, finding that Dr. Ross was
essentially in agreement with Dr. Graham regarding the deleterious effects of
continued exposure in creating additional impairments which could increase
symptomatology. See Decision and Order at 7-8.  The administrative law judge
acknowledged that Dr. Shaw's 1988 opinion was sent to Dr. Graham in 1989, that Dr.
Graham initially refused to comment because he had not seen claimant since 1980 and
that he wrote a letter dated March 3, 1989, stating he did not feel the need to see
claimant as she had been seen by Dr. Shaw, a reputable pulmonologist, on whose
opinion the employer's counsel could rely.  EMX 9.  The administrative law judge
gave no weight to this letter, finding it was a "product of Employer's aggressive
defense as opposed to reliance upon Dr. Graham's independent judgment."  Decision
and Order at 9.

     The administrative law judge concluded that even if claimant's underlying lung
condition was not work-related, the opinions of Drs. Graham and Ross were most
reasonable and "thus, the aggravation of claimant's symptomatology would be her
compensable injury."  Decision and Order at 10.  The administrative law judge could
properly credit these opinions. See Todd Shipyards Corp. v. Donovan, 300
F.2d 741 (5th Cir. 1962); Wheeler v. Interocean Stevedoring, Inc., 21 BRBS
33 (1988).   Any error committed by the administrative law judge in finding the
opinion of Dr. Shaw insufficient to rebut the Section 20(a) presumption is
harmless, inasmuch as the administrative law judge's finding that causation is
established by the credible evidence of aggravation of claimant's pulmonary
condition in the record as a whole is rational and supported by substantial
evidence.[2]   See Thompson v. Lockheed
Shipbuilding & Construction Co., 21 BRBS 94 (1988).  The finding of a causal
relationship based on aggravation of symptomatology is also consistent with law.
Crum v. General Adjustment Bureau, 738 F.2d 474, 16 BRBS 115 (CRT)(D.C. Cir.
1984).   We, therefore, affirm the administrative law judge's finding of a causal
relationship between claimant's pulmonary symptomatology and her employment at
employer's facility. 

     Employer next contends the administrative law judge erred by finding that
claimant remains permanently partially disabled, and thus entitled to benefits
based on a loss of wage-earning capacity. See 33 U.S.C. §908(c)(21),
(h).  Specifically, employer, relying on the opinion of Dr. Shaw, contends that
claimant is capable of returning to her former employment duties without work
restrictions.  Alternatively, employer relies on Dr. Shaw's opinion that claimant's
lung impairment does not prevent her from wearing a respirator at work.  Lastly,
employer asserts that claimant's testimony of expected future wages as a real
estate agent establish that she no longer has a loss of wage-earning capacity.

     The Board has held that the standard for determining disability is the same
during Section 22 modification proceedings as it is during initial adjudicatory
proceedings under the Act. See Vasquez v. Continental Maritime of San Francisco,
Inc., 23 BRBS 428, 431 (1990).  In the instant case, employer submitted the
report of Dr. Shaw, who opined that claimant could return to work without
restrictions in support of its petition for modification.  The administrative law
judge considered this opinion but found insufficient evidence of change in
claimant's physical condition to warrant terminating benefits.  The administrative
law judge first found that claimant's condition had improved by the time of her
testimony in the initial hearings in 1981 and 1982, when she revealed that her
symptoms had ceased after she left the shipyard, a fact which she confirmed in her
subsequent testimony in 1989.   Thus, the administrative law judge concluded there
had been no change in how claimant felt since leaving the shipyard.  The
administrative law judge further found Dr. Shaw's opinion to be insufficient to
rebut the Section 20(a) presumption, noting the doctor had found the disease still
present, describing it as "inactive and slightly improving."  Decision and
Order at 9 (quoting EMX 6, p.2, emphasis in Decision and Order).  The
administrative law judge then relied upon the prior testimony of Drs. Graham and
Ross to conclude that the greater weight of the evidence indicated that exposure
to hazardous inhalants would irritate claimant's abnormal lung condition.  The
administrative law judge stated that he was unimpressed with Dr. Graham's most
recent remarks, as previously discussed.  We hold that the administrative law judge
committed no reversible error in weighing the evidence regarding the alleged change
in claimant's physical condition.  Therefore, his rejection of Dr. Shaw's opinion
that claimant could return to work without restrictions is affirmed.  Moreover, the
administrative law judge's decision to deny termination of benefits is consistent
with law; the Act does not require an employee to remain in a hazardous environment
risking more severe pulmonary problems. Crum, 738 F.2d at 479, 16 BRBS at
125 (CRT); Bath Iron Works Corp. v. White, 584 F.2d 569, 574, 8 BRBS 818,
823 (1st Cir. 1978).  

     Employer, however, also argued that claimant could return to work without
danger of hazardous exposure if she wore a respirator.  In its petition for
reconsideration, employer specifically requested that the administrative law judge
address the evidence which supported this contention.  The administrative law judge
summarily denied employer's motion "for the reasons set forth in claimant's
response." See Order on Motion for Reconsideration.  The administrative law
judge's reliance on claimant's response brief, and his failure to independently
analyze or discuss the relevant evidence and to identify the evidentiary basis for
his conclusion violates the Administrative Procedure Act, which requires that every
adjudicatory decision be accompanied by a statement of "findings and conclusions,
and the reasons or basis therefor, on all the material issues of fact, law or
discretion presented on the record."  5 U.S.C. §557(C)(3)(A); see
Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988).  In the instant
case, the record contains evidence which, if credited by the administrative law
judge, may support a finding that claimant is capable of resuming her employment
duties with employer if she wears a respirator.  Specifically, Dr. Shaw opined that
claimant's pulmonary condition does not prevent her from wearing a respirator, and
claimant's co-worker, Mr. Berry, testified that, after claimant stopped working for
employer, her former co-workers were fitted for respirators and that some employees
are required to wear respirators during the course of their employment.  Moreover,
the administrative law judge noted claimant's testimony that she feels well, she
has no present medical restrictions due to her pulmonary conditions, and she is not
taking any medication.  The administrative law judge's failure to consider the
evidence that claimant may be able to return to work without further injurious
exposure makes it impossible for the Board to apply its standard of review.  We
therefore vacate the administrative law judge's determination that claimant is
incapable of resuming her usual employment duties with employer, and we remand this
case for the administrative law judge to consider and discuss all of the evidence
relevant to this issue.  

     Lastly, employer contends that the administrative law judge erred in finding
that claimant continues to have a loss of wage-earning capacity due to her work
injury because the administrative law judge failed to rely upon claimant's
testimony that she hopes to earn $18,000 a year in the future as a real estate
agent.  We disagree.  In the instant case, the administrative law judge reasonably
declined to utilize the amount of income which claimant stated she hoped to earn
in the future when he discussed claimant's post-injury wage-earning capacity;
rather, the administrative law judge credited evidence that claimant presently
earns $2,000 a year, to support his finding that claimant's wage-earning capacity
had not improved.  We affirm the administrative law judge's decision to credit
claimant's present earnings, as it is rational and is in accordance with law.
See Seidel v. General Dynamics Corp., 22 BRBS 403, 405-406 (1989). 
Accordingly, the administrative law judge's conclusion that employer failed to
establish an increased earning capacity based on claimant's anticipated future earnings as a real estate agent is affirmed.

     Accordingly, the administrative law judge's determination regarding the extent
of claimant's disability is vacated, and the case is remanded for further
consideration consistent with this opinion.  In all other respects, the
administrative law judge's Decision and Order and Order on Motion for
Reconsideration are affirmed.

     SO ORDERED.

                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge


     I concur:                                                             
       
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



     DOLDER, Administrative Appeals Judge, concurring and dissenting:
     
     I agree with my colleagues' decision to affirm the administrative law judge's
findings that claimant sustained a work-related injury and that employer failed to
establish a change in claimant's loss of wage-earning capacity based upon
claimant's anticipated future earnings as a real estate agent.  I must respectfully
dissent, however, from their decision to vacate and remand this case for the
administrative law judge to address whether claimant could return to work if she
wore a respirator.  The administrative law judge, as is within his discretionary
authority as trier of fact, rationally credited the opinions of Drs. Graham and
Ross over the opinion of Dr. Shaw when deciding the issue of the extent of
claimant's disability.  As the administrative law judge could permissibly accord
Dr. Shaw's opinion, including his assessment that claimant could wear a respirator
at work, less weight, I would affirm the administrative law judge's opinion in all
respects, including the determination that claimant is incapable of resuming her
welding duties with employer, as that finding is supported by substantial evidence.




                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)In this case, employer raises a change in claimant's physical, as well as economic, condition and a mistake of fact regarding causation and claimant's disability. Back to Text
2)We thus need not address whether employer established a basis for modifying the prior finding that claimant's underlying condition of sarcoidosis was caused by the work environment. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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