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                                 BRB No. 90-2122

RAFAEL TRIGUERO                         )
          Claimant-Petitioner           )
       v.                               )
                                        )    DATE ISSUED:   03/30/1995
CORPORATION                             )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Following Remand of Julius A. Johnson,
     Administrative Law Judge, United States Department of Labor.

     Philip J. Rooney and Angelo C. Gucciardo (Israel, Adler, Ronca, &
     Gucciardo), New York, New York, for claimant.

     Celestino Tesoriero (Grainger & Tesoriero), New York, New York, for
     self-insured employer.

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


     Claimant appeals the Decision and Order Following Remand (83-LHC-2782) of
Administrative Law Judge Julius A. Johnson 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).

     This is the second time this case has come before the Board.  To briefly
reiterate the facts of this case, claimant was injured during the course of his
employment as a hustler-driver on January 5, 1982, when the container his truck was
pulling toppled, rocking the cab of the truck.  Claimant suffered a cut to his
eyebrow/forehead, and a compressed disc at L1. Cl. Exs. 1, 3-4; Tr. at 42-43. 
Employer paid temporary total disability benefits from January 6 through November
1, 1982, when claimant attempted to return to work.  Tr. at 4, 28.  Upon the
cessation of benefits, claimant filed a claim for permanent total disability and
disfigurement benefits.  33 U.S.C. §908(a), (c)(20).

     The administrative law judge discussed all of the evidence of record and
credited the opinion of Dr. Kapland.  He determined that claimant does not have a
disability resulting from his 1982 back injury; however, he awarded claimant
medical benefits and $1,000 in disfigurement benefits because of the resulting
ptosis (drooping eyelid) and scar over his eyebrow. Decision and Order at 8, 10-11. 
The administrative law judge then denied claimant's motion for reconsideration.
Order dated June 11, 1985.

     Claimant appealed these decisions to the Board.  The Board determined that the
administrative law judge erred in analyzing the medical evidence and it remanded
the case for further evaluation regarding the extent of claimant's disability.[1]   Triguero v. Universal Maritime Service
Corp., BRB No. 85-1752 (Oct. 31, 1988) (unpublished).  On remand, the
administrative law judge reaffirmed Dr. Kapland's credibility and found that
claimant is not permanently totally disabled from his 1982 back injury but that
some partial impairment remains.  Decision and Order Following Remand at 5.  Thus,
the administrative law judge concluded that claimant can presently return to his
usual work but that the remaining partial impairment may affect his future
earnings, and he awarded claimant permanent partial disability benefits for a 25
percent loss in wage-earning capacity. Id. at 8.

     Claimant appeals the administrative law judge's decision on remand, contending
he erred in denying the claim for permanent total disability benefits.  In support
of his argument, claimant incorporates his previous brief before the Board and
relies on the findings of a 1983 CT scan and on the opinion of his treating
physician, Dr. Farber.  He argues that he cannot return to his usual work and that
employer has not established the availability of suitable alternate employment. 
Employer responds, urging affirmance of the administrative law judge's decision.

     To establish a prima facie case of total disability under the Act, a
claimant must show that he is unable to return to his usual employment due to his
work-related disability. Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242
(1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir.
1990).  Once a claimant makes such a showing, an employer may prove that the
claimant is only partially disabled by establishing the availability of other jobs
the claimant can realistically secure and perform given his age, education,
physical restrictions and vocational history. New Orleans (Gulfwide) Stevedores
v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).  If the claimant fails
to establish a prima facie case of total disability, or if the employer
establishes the availability of suitable alternate employment, the claimant may be,
at most, partially disabled. See, e.g., Container Stevedoring Co. v. Director,
OWCP, 935 F.2d 1544, 24 BRBS 213 (CRT) (9th Cir. 1991); Dove v. Southwest
Marine of San Francisco, Inc., 18 BRBS 139 (1986).   

     In this case, claimant testified that he cannot return to his usual longshore
work.  Dr. Farber, relying on a June 1983 CT scan interpreted by Dr. Sibley,
reported that claimant's united fracture at L1 had separated and that there was
some slight encroachment upon the spinal canal.  Based on claimant's statements
concerning his inability to lift heavy items and on these findings, Dr. Farber
concluded that claimant should consider another occupation. Cl. Exs. 1, 6.  To the
contrary, employer presented the opinions of Drs. Kapland and Rosenblum,
specialists in orthopedics and neurology, respectively.  Dr. Rosenblum, in July
1982, found that claimant had no neurological dysfunction and released claimant to
return to his usual work when he was cleared by an orthopedic surgeon.  Emp. Ex.
5.  Dr. Kapland, in September 1982, and again in February 1983 based on a September
1982 CT scan, found that claimant has a healing united fracture at L1 with no
muscle spasm, no atrophy, and no intrusion into the spinal canal.  Emp. Exs. 1-3. 
Although he stated that claimant has a residual partial disability, he concluded
that claimant has a high earning capacity and can return to longshore work. Emp.
Exs. 1-2.  Further, at the hearing, Dr. Kapland testified that claimant's November
1982 attempt to return to work would not cause a united fracture to separate;
therefore, he refused to accept the validity of the 1983 CT scan findings because
the discrepancies between the 1982 and the 1983 scans were inexplicable.  Tr. at

     The administrative law judge credited Dr. Kapland's opinion, which he noted
was bolstered by Dr. Rosenblum's opinion, over those of Drs. Farber and Sibley and
determined that claimant can return to his usual work.  Additionally, he questioned
the reliability of the 1983 CT scan because of its inconsistency with the 1982 scan
and because the report was written in indefinite terms.  The administrative law
judge also discredited Dr. Farber's opinion because, as of July 1983, Dr. Farber
still wanted further consultations. Decision and Order Following Remand at 3-6. 
Questions of witness credibility are for the administrative law judge as the trier-of-fact, Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v. Hughes,
289 F.2d 403 (2d Cir. 1961), and the administrative law judge rationally credited
the opinions of Dr. Kapland and determined that claimant is not totally disabled.
See Chong, 22 BRBS at 245.  As claimant failed to establish a prima
facie case of total disability, the burden of showing the availability of
suitable alternate employment did not shift to employer, and, contrary to
claimant's contention, employer did not fail to satisfy its burden. See Peterson
v. Washington Metropolitan Area Transit Authority, 13 BRBS 891, 897 (1981). 
Therefore, we reject claimant's contention that he is permanently totally disabled,
and, because neither claimant nor employer challenges the award of permanent
partial disability benefits, we affirm the administrative law judge's award of
permanent partial disability benefits. See generally LaFaille v. Benefits Review
Board, 884 F.2d 54, 22 BRBS 108 (CRT) (2d Cir. 1989); see also Crawford v.
Director, OWCP, 932 F.2d 152, 24 BRBS 123 (CRT) (2d Cir. 1991). 

     Accordingly, the administrative law judge's Decision and Order Following
Remand is affirmed.

                                        BETTY JEAN HALL, Chief
                                        Administrative Appeals Judge

                                        NANCY S. DOLDER
                                        Administrative Appeals Judge

                                        REGINA C. McGRANERY
                                        Administrative Appeals Judge

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1)The administrative law judge's award of disfigurement benefits was not challenged on appeal. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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