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                                 BRB No. 91-1279

CHARLES M. OREAR                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
TODD PACIFIC SHIPYARDS                  )    
CORPORATION                             )    DATE ISSUED:   06/28/1995
                                        )
     and                                )
                                        )
AETNA CASUALTY & SURETY                 )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Petitioners                   )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )    DECISION AND ORDER

     Appeal of the Decision and Order and Order Denying Motion for
     Reconsideration of James J. Butler, Administrative Law Judge, United
     States Department of Labor.

     Mary Alice Theiler (Theiler, Douglas, Drachler & McKee), Seattle,
     Washington, for claimant.

     Russell A. Metz (Metz & Frol), Seattle, Washington, for
     employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order and Order Denying Motion for
Reconsideration (89-LHC-224) of Administrative Law Judge James J. Butler awarding
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 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 worked as a painter for employer and frequently came into contact
with solvents and epoxy-based paints.  Claimant became sensitized to epoxy paint
and suffered allergic reactions, and as a result cannot work with epoxy paints or
solvents.  Employer accommodated claimant's sensitivity by providing work that did
not involve the use of epoxy paint from the date of the initial reaction in July
1980.  On July 12, 1985, claimant was laid off as part of a general reduction in
force.  Claimant returned to work as part of a recall on September 11, 1985, but
was refused work by employer on October 4, 1985, because of his inability to work
with epoxy paint.  On September 26, 1985, claimant filed a claim for a loss in
earning capacity as a result of injurious exposure to epoxy paints and solvents. 
Claimant has worked as a warehouseman and counterperson for Keyston Brothers since
September 1, 1987.

     In his Decision and Order, the administrative law judge found that claimant's
date of injury is October 4, 1985, inasmuch as until this date, claimant's problems
with epoxy paint had not adversely affected his earning capacity since his
sensitivity was accommodated by employer.  Therefore, the administrative law judge
found that the claim filed on September 26, 1985, was timely pursuant to Section
13 of the Act, 33 U.S.C. §913.  The administrative law judge applied the
Section 20(a) presumption, 33 U.S.C. §920(a), to both the epoxy paint and
solvent sensitivities, and found that the unrebutted evidence establishes the
existence of a work-related impairment.  The administrative law judge rejected
evidence of alternate employment presented by employer and found that claimant's
current job as a warehouseman at Keyston Brothers is the most representative of his
post-injury earning capacity.  Finally, the administrative law judge found that
claimant's condition reached maximum medical improvement as of September 28, 1982. 
Thus, the administrative law judge awarded permanent total disability benefits from
October 1985 to September 1987 and permanent partial disability benefits
thereafter.[1]   33 U.S.C. §908(a), (c)(21). 
Subsequently, the administrative law judge denied employer's Motion for
Reconsideration.

     On appeal, employer contends that the administrative law judge erred in
finding that the claim for benefits was timely filed pursuant to Section 13. 
Employer also contends that the administrative law judge erred in finding that
claimant suffered a loss in wage-earning capacity, or alternatively, that
claimant's current job is most representative of his true earning capacity. 
Further, employer contends that the administrative law judge erred in awarding
permanent total disability benefits from October 1985 through September 1987, and
in admitting claimant's exhibits 33 through 42 into the record.  Claimant responds,
urging affirmance of the administrative law judge's Decision and Order.

     Initially, employer contends that the administrative law judge erred in
finding that the claim was timely filed pursuant to Section 13.  Employer, citing
Thorud v. Brady Hamilton Stevedore Co., 18 BRBS 232 (1986), alleges that
claimant became aware of the true nature of his condition, knew his ability to work
was impaired and that his condition was related to his employment at least by
September 28, 1982, when Dr. Townes told him to minimize his exposure to toxic
solvents.[2]    The administrative law judge found
that until October 4, 1985, claimant's problems with epoxy paint had not adversely
affected his earning capacity since his sensitivity was accommodated by employer,
and thus the claim filed on September 26, 1985, was timely filed.

     Section 13(b)(2) requires a claim for compensation, in a case involving an
occupational disease, to be filed within two years after the employee's awareness
of the relationship between the employment, the disease, and the disability.  33
U.S.C. §913(b)(2)(1988).  The regulations provide that the time limitations
do not begin to run until the employee is disabled.  20 C.F.R. §702.222(c). 
The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction the
present case arises, has held that the limitations period of Section 13 does not
begin to run until the employee becomes aware "that his injury has resulted in the
impairment of his earning power." Abel v. Director, OWCP, 932 F.2d 819, 821,
24 BRBS 130, 134 (CRT)(9th Cir. 1991), citing Todd Shipyards Corp. v. Allan,
666 F.2d 399, 14 BRBS 427 (9th Cir. 1982), cert. denied, 459 U.S. 1034
(1982); see also Newport News Shipbuilding & Dry Dock Co. v. Parker, 935
F.2d 20, 24 BRBS 98 (CRT)(4th Cir. 1991); Argonaut Insurance Co. v.
Patterson, 846 F.2d 715, 21 BRBS 51 (CRT)(11th Cir. 1988); Bechtel
Associates, P.C. v. Sweeney, 834 F.2d 1029, 20 BRBS 49 (CRT)(D.C. Cir. 1987). 
Furthermore, the Ninth Circuit has held that an employee is not "injured for the
purposes of the statute of limitations until `he [becomes] aware of the full
character, extent and impact of the harm done to him.' " J.M. Martinac
Shipbuilding v. Director, OWCP, 900 F.2d 180, 183, 23 BRBS 127, 129 (CRT)(9th
Cir. 1990)(quoting Allan, 666 F.2d at 401, 14 BRBS at 429).  Thus, in order
to be "aware" of his disability, the employee must be aware that his work-related
disease has caused a loss in wage-earning capacity.[3]   See generally Love v. Owens-Corning Fiberglas Co., 27 BRBS 148
(1993).

     In the instant case, the administrative law judge found that when one becomes
sensitized to the use of epoxy paint, he can no longer work with these substances. 
Decision and Order at 2.  Claimant, however, was accommodated with a job involving
non-epoxy paint for a number of years and had no actual loss in wages.  We affirm
the administrative law judge's finding that as claimant was assigned non-epoxy work
by employer, his disability did not affect his wage-earning capacity until October
4, 1985, when employer refused to rehire him due to his sensitivity. Love,
27 BRBS at 152.  Although he was initially laid off for reasons other than his
sensitivity to epoxy paint and solvents, he was not hired back as a part of the
recall due to his sensitivity.  Moreover, the Board has held that as the holding
in Thorud was based on its specific facts, and did not involve either
Section 12 or 13, it does not support the proposition that mere awareness of
potential future loss in wage-earning capacity will trigger the statute of
limitations under those sections. Love, 27 BRBS at 153-154.  Thus, we hold
that claimant did not become aware that his injury resulted in the impairment of
his earning power prior to October 4, 1985, the first date he was refused
employment due to his condition, and we affirm the administrative law judge's
finding that the claim was timely filed. Abel, 932 F.2d at 821, 24 BRBS at
134 (CRT).

     We also reject employer's contention that the administrative law judge erred
in finding that claimant suffered a loss in wage-earning capacity.  Employer
alleges that claimant had no loss as he continued to work at the shipyard for three
years with no loss in income, he left the shipyard for reasons unrelated to his
allergic condition, and he applied for and received unemployment compensation
stating that he was willing and able to perform work as a painter.

     The post-injury wage-earning capacity of a partially disabled employee for
whom compensation is determined pursuant to Section 8(c)(21), 33 U.S.C.
§908(c)(21), is equal to his actual earnings if they fairly and reasonably
represent his wage-earning capacity.  33 U.S.C. §908(h).  The objective of the
inquiry concerning claimant's wage-earning capacity is to determine the post-injury
wage to be paid under normal employment conditions to claimant as injured. See
Long v. Director, OWCP, 767 F.2d 1578, 17 BRBS 149 (CRT)(9th Cir. 1985).  If
claimant's actual earnings do not fairly and reasonably represent his wage-earning
capacity, the administrative law judge may fix a reasonable wage-earning capacity
based on factors or circumstances such as the degree of physical impairment, his
usual employment, and the possible future effects of the disability. See Darcell
v. FMC Corp., Marine and Rail Equip. Div., 14 BRBS 294 (1981); Devillier v.
National Steel & Shipbuilding Co., 10 BRBS 649 (1979).

     In the instant case, claimant was provided employment as a shipyard painter
for three years following the diagnosis of his sensitivity to epoxy paint and
solvents with no loss in actual earnings.  However, following a general reduction
in force in July 1985, employer refused to rehire claimant on October 4, 1985, due
to his sensitivities.  As discussed earlier, in occupational disease cases, the
employee does not have an "injury" under the Act until he is aware of the
relationship between the disease, the disability and the employment. See
generally Harris v. Todd Pacific Shipyards Corp., 28 BRBS 254 (1994). 
Therefore, claimant's date of "injury" in this occupational disease claim would be
the date claimant became aware that his work-related disease has caused a loss in
wage-earning capacity, October 4, 1985.  Any wages earned prior to this date as a
painter at the shipyard are not relevant in determining claimant's post-injury
wage-earning capacity.

     We also reject employer's contention that claimant did not suffer a loss in
wage-earning capacity because he left the shipyard for reasons unrelated to his
allergy.  Although claimant did initially leave as part of a general reduction in
force, he attempted to return to work as part of a recall on October 4, 1985, but
was refused work because of his inability to work with epoxy paint.  In addition,
we reject employer's contention that the fact that claimant applied for and
received unemployment compensation on the basis that he was ready and able to work
as a painter is evidence that claimant did not suffer a loss in wage-earning
capacity.  The medical evidence includes reports by Drs. Townes, Daniel, and Petrie
advising claimant to avoid epoxy paint and solvents.  Emp. Exs. 5, 8.  The
administrative law judge found that the medical evidence and claimant's testimony
establishes that claimant's occupational skin disease restricts his employment. 
Therefore, we hold that claimant's registration for unemployment benefits is
insufficient to establish an alternative wage-earning capacity. See generally
Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989).

     Employer also contends that the administrative law judge erred in concluding
that it did not demonstrate an alternative wage-earning capacity based on evidence
provided by its vocational expert.  Specifically, employer contends that claimant
is capable of performing the positions of non-epoxy painter, warehouseman for a
pharmaceutical company, window washer, production line worker, and dispatcher.  

     The administrative law judge found that the painting jobs identified by the
rehabilitation counselor are inappropriate given claimant's inability to work with
solvents.  The administrative law judge also noted that claimant had attempted to
work as a painter in a residential or commercial capacity but his job performance
was not satisfactory.  The administrative law judge concluded this demonstrated
that claimant was insufficiently productive to be gainfully employed in the
residential or commercial non-epoxy painting industry.  Decision and Order at 8. 
Inasmuch as the medical evidence indicates that claimant has a sensitivity to
solvents, including paint thinners, as well as epoxy paints, and the administrative
law judge rationally found that claimant was not sufficiently productive in these
positions to be gainfully employed, we affirm the administrative law judge's
finding that the painting jobs identified by the vocational expert are insufficient
to establish an alternative earning capacity. See Uglesich v. Stevedoring
Services of America, 24 BRBS 180 (1991).

     The administrative law judge also found that the window washer position was
inappropriate given claimant's reaction to cleaning products and the requirement
that he work up to 14 stories above ground.  Given claimant's testimony that he has
had reactions to other irritants such as cleaning supplies, we affirm the
administrative law judge's finding that the window washer position is not
reasonable alternative evidence of claimant's wage-earning capacity. See
generally Todd Pacific Shipyards Corp. v. Director, OWCP, 913 F.2d 1426, 24
BRBS 25 (CRT)(9th Cir. 1990).

     Further, the administrative law judge found the production line jobs and
dispatcher job identified in the labor market survey are outside of claimant's
manual dexterity capacity.  Contrary to employer's contentions, Dr. Doer examined
claimant on April 18, 1989, and found that claimant exhibited poor visual-spatial
organization and manipulation and concluded that claimant should avoid situations
where demands are made on speeded hand/eye coordination.  Cl. Ex. 10.  Dr. Townes
reported that claimant suffered general visual-spatial deficits and had
difficulties with attention and concentration consistent with exposure to toxic
solvents.  Emp. Ex. 5.  In addition, Janet Mott, claimant's rehabilitation
counselor, testified in a deposition dated November 14, 1989, that claimant's
manual dexterity was reduced.  Cl. Ex. 44 at 8, 13.  Inasmuch as employer has
raised no error committed by the administrative law judge in making credibility
determinations, we affirm the administrative law judge's finding that the
production line positions and the dispatcher position do not establish that
claimant had an alternative earning capacity.[4] 
 Uglesich, 24 BRBS at 183.

     Employer also contends that the position of warehouseman at a pharmaceutical
distributor paying more in 1985 dollars than his current position is evidence that
claimant has a higher post-injury wage-earning capacity than his current actual
wages demonstrate.  This position has similar physical requirements as the one
claimant currently performs, and the vocational counselor discussed claimant with
the potential employer who indicated claimant was competitive for the position. 
Emp. Ex. 10.16.  The administrative law judge did not address whether this position
would be appropriate for claimant or whether it establishes that claimant has a
greater earning capacity than that represented by his actual post-injury wages. 
Although the Ninth Circuit has not addressed employer's burden of proof for
purposes of establishing an alternative wage-earning capacity, the United States
Court of Appeals for the Fifth Circuit has held that for purposes of Section 8(h),
claimant's actual wages need not be utilized, even if the job is continuous and
stable, if employer presents other reliable evidence of a  higher wage-earning
capacity. Penrod Drilling Co. v. Johnson, 905 F.2d 84, 23 BRBS 108 (CRT)
(5th Cir. 1990).  As the position as a warehouseman for a pharmaceutical company
may be evidence that claimant is capable of earning wages higher than his actual
wages reflect, we vacate the administrative law judge's finding that claimant's
current position is representative of his true earning capacity and remand the case
for the administrative law judge to consider all relevant evidence and to make
findings regarding this position. See generally Hoodye v. Empire/United
Stevedores, 23 BRBS 341 (1990).

     Employer also contends that the administrative law judge erred in concluding
that claimant is entitled to permanent total disability benefits from October 1985
to September 1987.  The administrative law judge found that there was no evidence
of claimant's post-injury earning capacity prior to September 1, 1987, when
claimant got his current job.

     The Ninth Circuit has held that disability becomes partial rather than total
when suitable alternate employment is or was realistically available to the
employee but the change of status is not retroactive to the date of maximum medical
improvement. Stevens v. Director, OWCP, 909 F.2d 1256, 23 BRBS 89 (CRT)(9th
Cir. 1990), cert. denied, 498 U.S. 1073 (1991).  This does not prevent an
employer from establishing that there was suitable alternate employment available
at the time of maximum medical improvement, even several years after that point,
but employer needs to overcome the limitations of "retroactive" evidence.
Id., 909 F.2d at 1260, 23 BRBS at 95 (CRT); Jones v. Genco, Inc., 21
BRBS 12 (1988)(Board affirmed administrative law judge's finding that suitable
alternate employment existed in 1979 based on 1983 labor market survey and the fact
that rehabilitation specialist had met with employee in 1978-79 and offered to
place him in a job).

     The labor market survey in the instant case identifies positions available at
the time the survey was compiled, January through April 1989.  The only evidence
of available alternate work between 1985 and 1987 is the vocational expert's
hearing testimony that the same kinds of jobs contained in his labor market survey
were as readily available in 1985 as they were in 1989.  The administrative law
judge found in the Order Denying Motion for Reconsideration that employer failed
to point to specific suitable alternate employment in the community which claimant
could reasonably obtain and hold if he diligently tried, and he thus reaffirmed his
finding that claimant was totally disabled from October 4, 1985 to September 1,
1987, when he found alternate work due to his own efforts.

     The Ninth Circuit has held that the pivotal fact indicating that a disability
has changed from total to partial must be proof of an actual job that the claimant
could have performed and realistically obtained if diligently sought.
Stevens, 909 F.2d at 1260, 23 BRBS at 94 (CRT).  Employer could meet the
burden of showing available alternate employment by presenting evidence of jobs
which, although no longer open when located and identified, were available during
time claimant was able to work. Id.  Inasmuch as there is no evidence of
actual jobs that were available prior to September 1987, we affirm the
administrative law judge's finding that claimant is entitled to permanent total
disability benefits from October 1985 through the first date alternate employment
was established in September 1987.


     Lastly, employer contends that the administrative law judge erred in admitting
medical journal articles submitted by claimant into evidence, assigning them very
little weight, see Tr. at 4-7, and then relying on them in his decision. 
Generally, the administrative law judge has great discretion concerning the
admission of evidence and is not bound by any formal rules.  Vonthronsohnhaus
v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1991).  Employer objects to the
following use of the journal articles:

     Epoxy paint has the capacity to "sensitize" a certain number of its
     users.  Once a person develops this allergic reaction, he will continue
     to react to the substance even with lower levels of exposure.  It is
     agreed among the medical experts that once sensitization occurs, all use
     of that substance by the exposed individual should cease.

Decision and Order at 2.  Employer states that administrative law judge did not
cite to evidence he relied on in making this statement, but use of the term
"medical experts" must mean the articles.

     Contrary to employer's contention, there is other evidence of record
supporting the administrative law judge's finding.  Claimant was advised by Drs.
Towne, Daniel and Petrie to avoid exposure to epoxy paint and solvents.  Emp. Exs.
5, 8.  Dr. Hackett testified in a deposition dated April 28, 1989, that once a
patient reacts to epoxy, he will react to it again if exposed to it.  Emp. Ex. 14
at 12.  The medical evidence of record supports the administrative law judge's
findings that once a person develops a sensitivity to epoxy paint, he will continue
to react to the substance even with lower levels of exposure, and that all use of
that substance by the exposed individual should cease.  Therefore, we hold that the
admission of the medical journal articles was harmless error, if any. See
generally Olsen v. Triple A Machine Shops, Inc., 25 BRB 40 (1991), aff'd
mem. sub nom., Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993).

     Accordingly, the finding that the wages paid in claimant's current position
are representative of his post-injury earning capacity 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 Denying
Motion for Reconsideration are affirmed.

     SO ORDERED.
                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge

                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge

                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge also awarded employer relief from continuing compensation liability pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f). Back to Text
2)The issue in Thorud involved determining the carrier responsible for the payment of benefits rather than whether Section 12 or Section 13 barred the claim. The Board held that although the claimant did not suffer an actual permanent loss of earnings until April 1980, he was warned of such disability in November 1979, and he was aware that if he continued working in grain dust his condition was likely to force his retirement, causing permanent economic harm. Thus, the Board held that although the claimant continued to work until April 1980, he was or should have been aware in November 1979 that his work-related condition had affected his ability to earn wages in this work. Thorud, 18 BRBS at 235. Back to Text
3)We reject employer's argument that the misdiagnosis and non-diagnosis cases should be distinguished on their facts from the present case. It does not matter whether a case involves a misdiagnosis, as the rule for triggering the statute of limitations is the same in all situations. See Gregory v. Southeastern Maritime Co., 25 BRBS 188 (1991). Back to Text
4)Inasmuch as we affirm the administrative law judge's rejection of the dispatcher position based on the administrative law judge's evaluation of claimant's physical capability, we need not address employer's arguments regarding the availability of the dispatcher position. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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