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EDGAR PAZ                               )    BRB No. 91-1387
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INTERNATIONAL TRANSPORTATION            )
SERVICES                                )    
                                        )
     and                                )
                                        )
NATIONAL UNION FIRE                     )
INSURANCE COMPANY                       )
                                        )
          Employer/Carrier-             )
          Petitioners                   )
                                        )
STEVEDORING SERVICES OF                 )    DATE ISSUED:   05/26/1995
AMERICA                                 )
                                        )
     and                                )
                                        )
EAGLE PACIFIC INSURANCE GROUP           )
                                        )
          Employer/Carrier-             )
          Respondents                   )
                                        )
EDGAR PAZ                               )    BRB No. 91-2112
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INTERNATIONAL TRANSPORTATION            )
SERVICES                                )
                                        )
     and                                )
                                        )
NATIONAL UNION FIRE INSURANCE           )
COMPANY                                 )
                                        )
          Employer/Carrier-             )
          Respondents                   )

STEVEDORING SERVICES OF                 )
AMERICA                                 )
                                        )
     and                                )
                                        )
EAGLE PACIFIC INSURANCE GROUP           )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeals of the Decision and Order Awarding Benefits and Order for Fees
     of Henry B. Lasky, Administrative Law Judge, United States Department of
     Labor, and the Recommendation of the Claims Examiner of Linda Myer,
     District Director, United States Department of Labor.

     Richard Mark Baker, Long Beach, California, for claimant.

     James P. Aleccia (Mullen & Filippi), Long Beach, California, for
     International Transportation Services and National Union Fire Insurance
     Company.

     Gretchen Guzman, Seal Beach, California, for Stevedoring Services of
     America and Eagle Pacific Insurance Company.

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

     PER CURIAM:

     International Transportation Services (ITS) appeals the Decision and Order
Awarding Benefits and the Order for Fees (90-LHC-989, 990, 89-LHC-2449) of
Administrative Law Judge Henry B. Lasky, and claimant appeals the Recommendation
of the Claims Examiner (OWCP No. 18-32668) of District Director Linda Myer,
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).  An attorney's fee award
will not be disturbed on appeal unless it is shown to be arbitrary, capricious, an
abuse of discretion, or not in accordance with law. Muscella v. Sun Shipbuilding
& Dry Dock Co., 12 BRBS 272 (1980).

     Claimant suffered a work-related injury on November 7, 1986 while working for
ITS as a marine clerk when he fell approximately 18 inches, landing on the right
side of his head and back.  Claimant complained of dizziness and pain in his neck
radiating down to his right shoulder and right leg and was diagnosed as suffering
from post-traumatic head injury syndrome, strain of his cervical and lumbar spine,
right ankle strain and increased hypertension.  ITS voluntarily paid claimant
temporary total disability compensation from November 8, 1986 through April 10,
1987.  33 U.S.C. §908(b).  In April 1987, after being released to return to
work by Dr. Styner with the restrictions of no heavy lifting, repetitive bending
or stooping, claimant commenced employment as a marine clerk with Stevedoring
Services of America (SSA) and worked without incident through July 2, 1987. 
Claimant testified that, while at home on July 5, 1987, he experienced intense
lower back pain, such that he was unable to return to work on July 7, 1987. 
Instead, claimant was hospitalized for four days, and thereafter remained out of
work until November 23, 1987, when he again returned to work as a marine clerk with
SSA.  Claimant, who was diagnosed as suffering from cervical and lumbar
radiculopathy and degenerative disc disease, testified that following his return
to work he continued to experience back pain and, on July 28, 1988, stopped working
due to that pain. 

     Claimant subsequently filed a claim for benefits under the Act against ITS
seeking permanent total disability compensation.  33 U.S.C. §908(a). 
Additionally, claimant filed a protective claim against SSA.  In his Decision and
Order, the administrative law judge credited claimant's testimony and the opinion
of Dr. Miller, who stated that claimant's back condition was due to the natural
progression of his degenerative arthritis which was aggravated by his 1986 injury
at ITS, and was not due to cumulative trauma while working for SSA, in determining
that ITS was the employer responsible for the payment of claimant's benefits. 
Next, the administrative law judge found that claimant is incapable of resuming his
usual employment duties, and that ITS had not established the availability of
suitable alternate employment.  Thus, the administrative law judge awarded claimant
temporary total disability compensation from November 8, 1986, through April 10,
1987, and from July 8, 1987, through November 23, 1987, and permanent total
disability compensation thereafter, as well as medical benefits and interest. 
Lastly, the administrative law judge found that ITS was entitled to relief pursuant
to Section 8(f) of the Act, 33 U.S.C. §908(f).    

     Thereafter, claimant's counsel filed a fee petition for work performed before
the administrative law judge in which he requested a fee of $19,987.50,
representing 133.25 hours of legal services performed at an hourly rate of $150. 
Employer filed objections to the fee request.  In a supplemental decision, the
administrative law judge considered employer's objections, reduced the number of
hours sought by counsel to 131.25, and awarded claimant's counsel an attorney's fee
of $19,687.50.

     On appeal, ITS challenges the administrative law judge's determination that
it is the employer responsible of the payment of claimant's benefits.  In a
supplemental appeal, ITS contends that the attorney's fee awarded to claimant's
counsel by the administrative law judge is excessive.  Claimant and SSA respond,
urging affirmance of the administrative law judge's award of benefits.[1] 

     ITS, on appeal, contends that the administrative law judge erred in
determining that it is the employer responsible for the payment of claimant's
benefits.  In support of this contention, ITS, after acknowledging that claimant
suffered a work-related injury to his back on November 7, 1986, while working for
it, asserts that the administrative law judge erred in failing to find that
claimant's present back condition was caused by either a new injury or an
aggravation of his prior back injury while working for SSA in 1987 and 1988.  Thus,
ITS avers that SSA is the responsible employer.  We disagree.  

     In allocating liability between two successive employers in cases involving
traumatic injury, the employer at the time of the original injury remains liable
for the full disability resulting from the natural progression of that injury.
See Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS
71 (CRT)(9th Cir. 1991); Kooley v. Marine Industries Northwest, 22 BRBS 735
(1981).  If, however, claimant sustains a subsequent injury which aggravates,
accelerates or combines with claimant's prior injury, thus resulting in claimant's
disability, then the subsequent injury is the compensable injury and the subsequent
employer is liable for the entire disability. See Kelaita v. Director, OWCP,
799 F.2d 1308 (9th Cir. 1986).  The aggravation rule applies even if the claimant
does not incur the greater part of his injury with the subsequent employer. See
generally Port of Portland v. Director, OWCP, 932 F.2d 836, 24 BRBS 137
(CRT)(9th Cir. 1991).

     In the instant case, the administrative law judge, in finding that claimant's
present back condition is due to the natural progression of his degenerative
arthritis and his 1979 and 1986 work-injuries, credited the opinion of Dr. Miller
over that of Dr. Craemer, and furthermore, credited claimant's testimony regarding
the history he gave to Dr. Craemer.  Dr. Craemer, who allegedly acted as an Agreed
Medical Examiner,[2]  examined claimant in April,
June, September and October 1987, and February 1990.  In his June 5, 1987 report,
Dr. Craemer reported that claimant did not feel that his 1986 injury aggravated his
1979 back injury.[3]   ITS Ex. 18 at 292. 
Thereafter, in a report dated September 11, 1987, Dr. Craemer stated that claimant
had been performing strenuous work for one month prior to July 2, 1987, and started
having back pain. Id. at 304; Tr. at 109.  Claimant, however, denied making
these statements to Dr. Craemer.  Tr. at 44-45, 83.  Dr. Craemer ultimately
diagnosed a "[h]yperextension ligamentous low back sprain with right
radiculopathy," see ITS Ex. 18 at 308, and attributed claimant's current
lower back condition to his bending activities while employed at SSA.  Tr. at 111,
118-120.

      Dr. Miller examined claimant on December 12, 1989; in his subsequent report,
Dr. Miller noted that claimant specifically denied that he was doing strenuous work
prior to his July 1987 hospitalization, and that claimant was merely a marine
clerk.[4]   Dr. Miller rejected Dr. Craemer's
opinion that a new, specific injury occurred on July 2, 1987.  Diagnosing cervical
and lumbar osteoarthritis, Dr. Miller opined that nothing specifically had 
occurred to claimant on July 2, 1987 and July 28, 1988, but that claimant's present
lower back condition was caused when the 1986 injury had deteriorated.[5]   SSA Ex. W at 110-111.

     The administrative law judge rejected Dr. Craemer's opinion as biased,
contrary to claimant's credible testimony regarding his work duties and symptoms,
and inconsistent with the other medical evidence of record.[6]   While the administrative law judge noted that there were some
inconsistencies in Dr. Miller's report, he found his report to be consistent with
claimant's testimony and his opinion the most credible.  Moreover, the
administrative law judge credited claimant's testimony that he did not perform
strenuous activities while working for SSA, that he never told Dr. Craemer he
performed such duties, and that he did not suffer any injury while working for SSA.
See Decision and Order at 6, 11-12.  Thus, the administrative law judge
found that claimant did not suffer an aggravation of his back condition while
working for SSA.

     In adjudicating a claim, an administrative law judge is not bound to accept
the opinion or theory of any particular medical examiner. See Todd Shipyards
Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962).  Rather, the administrative law
judge is entitled to evaluate the credibility of all witnesses and draw his own
inferences from the evidence. See John W. McGrath Corp. v. Hughes, 289 F.2d
403 (2d Cir. 1961).  Thus, as the administrative law judge's decision to credit the
opinion of Dr. Miller over the contrary opinion of Dr. Craemer is rational, see
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978),
cert. denied, 440 U.S. 911 (1979), we affirm his finding that claimant's
back condition is due to the natural progression of the 1986 work-injury which he
sustained while working for ITS, and that claimant sustained no aggravation of his
back condition during his subsequent employment with SSA.  Accordingly, we affirm
the administrative law judge's finding that ITS is the employer responsible for the
payment of the compensation benefits awarded to claimant, as that finding is
supported by substantial evidence and is in accordance with law. 

     Lastly, ITS challenges the attorney's fee awarded to claimant's counsel by the
administrative law judge.  Specifically, ITS contends that the administrative law
judge erred in approving the 28 hours requested by claimant's counsel for the
research and writing of claimant's joinder of SSA's motion for summary judgment,
and 17.5 hours for preparing claimant's opposition to ITS's motion for summary
judgment.  ITS asserts that these services were unnecessary and duplicative of the
services performed by SSA's counsel, and that, therefore, the fee award approved
by the administrative law judge should be reduced by 45.5 hours.[7]   The administrative law judge, after noting that
ITS had set forth specific objections to the number of hours requested by
claimant's counsel for certain services, thereafter reduced the number of hours
requested by counsel by 2 hours.  ITS's assertions on appeal are insufficient to
meet its burden of proving that the administrative law judge abused his discretion
in this regard; thus, we decline to further reduce or disallow the hours approved
by the administrative law judge. See Maddon v. Western Asbestos Co., 23 BRBS
55 (1989); Cabral v. General Dynamics Corp., 13 BRBS 97 (1981).  We
therefore affirm the attorney's fee awarded to claimant's counsel by the
administrative law judge.

     Accordingly, the Decision and Order Awarding Benefits and the Order for Fees
of the administrative law judge are affirmed.

     SO ORDERED.


                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)In a letter dated March 20, 1993, claimant's counsel notified the Board of claimant's intention to withdraw his appeal of the Recommendation of the Claims Examiner, BRB No. 91-2112. We hereby grant claimant's withdrawal request and dismiss his appeal in BRB No. 91-2112. 20 C.F.R. §802.401(a). Back to Text
2)On January 29, 1990, ITS's counsel sent an ex parte letter to Dr. Craemer prior to claimant's scheduled examination with the physician on February 6, 1990. Counsel gave an overview of claimant's medical history, and requested that Dr. Craemer give his opinion regarding the causation and extent of claimant's disability. Counsel also stated: "I would like to mention that our client is potentially looking at a permanent total disability claim; therefore, as you can see your medical findings pertaining to whether or not Mr. Paz sustained a new injury on July 3, 1987 and July 28, 1988 are most important." SSA Ex. Y at 131. Back to Text
3)In June 1979, claimant sustained an injury to his back when a 300 pound sack fell and struck him in the back. Back to Text
4)As a marine clerk, claimant's job was to facilitate the delivery of cargo by checking the paperwork and assigning the cargo to the proper truck line. This required him to drive around the terminal in an electric car. ITS Ex. 23 at 14-15. Claimant testified that while working for SSA, this work was a lot "easier" for him. Id. at 13. Back to Text
5)In November 1987 and August 1988, Dr. Jaffin also reported that claimant suffered no new injuries since his 1986 injury at ITS. SSA Exs. O, P. Dr. Conley reported no new injuries in November 1988. SSA Ex. U. Back to Text
6)The administrative law judge noted that Dr. Craemer did not examine claimant's lower back in April and June 1987, see Tr. at 107-108, 142-143, even though claimant complained of lower back pain to Dr. Craemer. ITS Ex. 18 at 285, 292. While Dr. Craemer insisted that claimant told him his lower back pain was the same as it always was, see Tr. at 142-143, other physicians reported that claimant's lower back pain had steadily worsened since the 1986 injury. See SSA Exs. C at 9 (Dr. London), E at 15 (Dr. Styner), J at 45 (Dr. Chua). Back to Text
7)ITS does not challenge the hourly rate requested by counsel and approved by the administrative law judge. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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