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                                 BRB No. 91-1699

MYRA SNAZA                              )
                                        )    
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
HUSKY TERMINALS                         )    DATE ISSUED:   06/27/1995
                                        )
     and                                )
                                        )
AIG/NATIONAL UNION                      )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order - Awarding (Medical) Benefits and
     Decision on Petition for Reconsideration of Alfred Lindeman,
     Administrative Law Judge, United States Department of Labor.

     William D. Hochberg (Levinson, Friedman, Vhugen, Duggan & Bland),
     Seattle, Washington, for claimant.

     Arthur R. Chapman (Lane, Powell, Spears, Lubersky), Seattle, Washington,
     for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order - Awarding (Medical) Benefits and
Decision on Petition for Reconsideration (87-LHC-2103) of Administrative Law Judge
Alfred Lindeman 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 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).  
     Claimant injured her lower back on February 4, 1988, when she slipped and fell
while in the course of her employment with employer.  Claimant returned to work
after a few days, but she was forced to stop working on February 18, 1988, due to
lower back pain.  Claimant again resumed working on July 15, 1988, until August 8,
1988, when she again stopped working due to lumbar pain.  Claimant subsequently
returned to her longshore employment on December 9, 1988.  Employer voluntarily
paid compensation for temporary total disability from February 18 to July 14, 1988,
and from August 8 to December 8, 1988.  33 U.S.C. §908(b).  Since her return
to work, claimant has had numerous work-related  incidents while working for
different employers.  These subsequent incidents resulted in lumbar pain and
occurred in December 1988, late April or early May 1989,  August 1989, and June,
July, and October 1990.   

     At the formal hearing on January 9, 1991, employer challenged its continuing
liability for compensation and medical benefits to claimant after claimant returned
to work on December 9, 1988.  Employer contended that the subsequent work-related
incidents sustained by claimant were intervening causes of claimant's chronic
lumbar pain.  In support of her contention that she is entitled to compensation for
periods of temporary total and temporary partial disability, claimant asserted that
her back disability is related to her February 4, 1988, work injury.  The parties
also disputed the proper average weekly wage upon which compensation benefits were
to be calculated, although they stipulated that the applicable average weekly wage
is either $687.37 or $618.08. See 33 U.S.C. §910.  Finally, the parties
requested that the administrative law judge resolve the issue of various unpaid
medical bills. See 33 U.S.C. §907.

     The administrative law judge initially addressed the average weekly wage
issue, finding that claimant worked substantially the whole year prior to the
February 4, 1988, work injury, and that her work was permanent and steady rather
than seasonal, intermittent, part-time or discontinuous.  Accordingly, the
administrative law judge concluded that claimant's average weekly wage is $618.08,
pursuant to Section 10(a), 33 U.S.C. §910(a), based on her wages during the
52 weeks preceding her injury.  Regarding claimant's back disability, the
administrative law judge determined that employer rebutted the Section 20(a), 33
U.S.C. §920(a), presumption that claimant's disability is related to the
February 4, 1988, work injury, due to the occurrence of subsequent work-related
back injuries.  Thereafter, the administrative law judge found, based on the record
as a whole, that claimant's back symptoms after the December 31, 1988, work
incident were related to the February 4, 1988, injury because the lumbar pain
experienced after working that day arose without any particular injurious movement
and within only a few weeks after her return to work.  The administrative law judge
next found, however, that claimant's subsequent episodes of increased
symptomatology, commencing with an incident in late April or early May 1989, were
the result of intervening work-related causes or new injuries.  Accordingly, he
found that employer's liability under the Act ended at that time.  Alternatively,
the administrative law judge found that claimant failed to establish any loss of
wage earning capacity due to the February 1988 injury after her return to work in
December 1988; thus, claimant was denied additional compensation after December 9,
1988, the date upon which she returned to work.  Lastly, the administrative law
judge determined that employer is liable for claimant's reasonable medical expenses
only until the aggravating injury at work in April or May 1989.  

     Claimant moved for reconsideration of the administrative law judge's Decision
and Order.  In his Decision on Petition for Reconsideration, the administrative law
judge restated his finding that claimant's average weekly wage at the date of
injury is $618.08, pursuant to Section 10(a).  On appeal, claimant challenges the
administrative law judge's findings regarding causation, extent of disability,
average weekly wage and her entitlement to medical benefits.  Employer responds,
urging affirmance.[1] 

     Claimant initially contends that the administrative law judge erred by failing
to apply the Section 20(a) presumption and by finding that claimant's ongoing
lumbar symptomatology is due to subsequent intervening work injuries rather than
to the work injury of February 4, 1988.  In support of her contentions, claimant
asserts that the uncontradicted evidence of record establishes that her back
disability is due to the natural progression of the February 4, 1988, work injury. 
Moreover, claimant argues that the evidence establishes that the subsequent work
incidents were temporary flare-ups that were solely attributable to her February
4, 1988, injury rather than the cause of any cumulative back trauma.

     Section 20(a) of the Act, 33 U.S.C. §920(a), provides claimant with a
presumption that her disabling condition is causally related to her employment if
she shows that she suffered a harm and that employment conditions existed or an
accident occurred which could have caused, aggravated, or accelerated the
condition. See James v. Pate Stevedoring Co., 22 BRBS 271 (1989).  Because
it is undisputed that claimant suffered a harm, i.e., a back injury, and
that the work accident occurred, claimant is entitled to the presumption. See
Cairns v. Matson Terminals, Inc., 21 BRBS 252 (1988).

     Once claimant has invoked the presumption, the burden shifts to employer to
rebut the presumption with specific and comprehensive evidence sufficient to sever
the causal connection between the injury and the employment. See Swinton
v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert.
denied, 429 U.S. 820 (1976).  If the administrative law judge finds the Section
20(a) presumption is rebutted, he must weigh all the evidence and resolve the
causation issue based on the record as a whole. See Devine v. Atlantic Container
Lines, G.I.E., 23 BRBS 279 (1990).

     If claimant sustains a subsequent injury, an employer can establish rebuttal
of the Section 20(a) presumption by producing substantial evidence that claimant's
condition was caused by the subsequent event; in such a case, employer must
additionally establish that the first work-related injury did not cause the second
injury. See, e.g., Kelaita v. Director, OWCP, 799 F.2d 1308, 1310-1311 (9th
Cir. 1986).  Employer is liable for the entire disability if the second injury is
the natural and unavoidable result of the first injury.  Where the second injury
is the result of an intervening cause, however, employer is relieved of liability
for that portion of disability attributable to the second injury. Bass v.
Broadway Maintenance, 28 BRBS 11 (1994).  The United States Court of Appeals
for the Ninth Circuit, within whose jurisdiction the instant case arises, has
defined the aggravation rule as follows:

     If the disability resulted from the natural progression of a prior
     injury and would have occurred notwithstanding the subsequent injury,
     then the prior injury is compensable and accordingly, the prior employer
     is responsible.  If, on the other hand, the subsequent injury
     aggravated, accelerated or combined with claimant's prior injury, thus
     resulting in claimant's disability, then the subsequent injury is the
     compensable injury, and the subsequent employer is responsible.

Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 624, 25 BRBS
71, 75 (CRT)(9th Cir. 1991), quoting Kelaita, 799 F.2d at 1311.  

     We agree with claimant that the administrative law judge erred when, in
considering the issue of causation, he failed to analyze the evidence of record
pursuant to the relevant legal standard regarding aggravation and natural
progression.  In considering this issue, the 
the administrative law judge, without reference to the medical testimony of record,
initially determined that the Section 20(a) presumption was rebutted by the
occurrence of work-related incidents subsequent to December 1988. See
Decision and Order at 5.  The mere occurrence of subsequent injuries, however, is
not sufficient to rebut the presumption.  Rather, in order to rebut the
presumption, employer must produce substantial evidence that the disability is the
result of the subsequent event. See James, 22 BRBS at 271.  Our review of
the voluminous record in this case indicates the existence of medical testimony
which, if credited by the administrative law judge, would support a finding that
claimant's disability is due to aggravations occurring after the 1988 injury.  We
therefore vacate the administrative law judge's finding of rebuttal, and we remand
the case for consideration of whether the medical evidence employer has produced
constitutes substantial evidence that claimant's condition was caused by a
subsequent event which was not the natural and unavoidable result of her February
1988 work injury. See Foundation Constructors, Inc., 950 F.2d at 621, 25
BRBS at 71 (CRT); Wright v. Connolly-Pacific Co., 25 BRBS 161 (1911),
aff'd mem. sub nom. Wright v. Director, OWCP, No. 92-70045 (9th Cir.
Oct. 6, 1993).   

     Moreover, we note that the administrative law judge, upon finding that the
Section 20(a) presumption was rebutted, concluded without specifically crediting
any of the medical testimony of record that claimant's post-December 1988 symptoms
were the result of intervening causes or new injuries.  Prior to rendering this
conclusion, the administrative law judge stated that his 

     task is complicated somewhat by the use of the terms `aggravation' and
     `exacerbation' by the medical practitioners whose reports and testimony
     are of record, because it is difficult to determine whether the terms
     were used in the sense that would satisfy the definition of a new injury
     under the Act, [cite omitted], or in a sense that meant the subsequent
     `flare-ups' were the `natural or unavoidable result' of the February
     1988 injury, [cite omitted].  

Decision and Order at 5.  The record in this case contains the opinions of
approximately ten physicians, each of whom addressed the issue of whether
claimant's post-December 1988 injuries were either intervening events or were the
natural and unavoidable result of her February 1988 injury.  Accordingly, should
the administrative law judge on remand determine that employer has rebutted the
presumption, he must consider and discuss all of the medical evidence relevant to
the issue of causation, make appropriate findings based on the relevant law and
evidence, and give an explanation of the reasons for that determination.[2]   See Ballesteros v. Willamette Western
Corp., 20 BRBS 184 (1988).    

     Claimant next contends that the administrative law judge erred in determining
her average weekly wage at the time of her injury.  Specifically, claimant argues
that the administrative law judge erred in utilizing Section 10(a), rather than
Section 10(c), of the Act to calculate claimant's average weekly wage.  We
disagree.  In the instant case, the parties stipulated that claimant's average
weekly wage, if Section 10(a) is applicable, is $618.08, or, if Section 10(c) is
applicable, is $687.37. 

     Section 10, 33 U.S.C. §910, sets forth three alternative methods for
determining claimant's average annual wage, which is then divided by 52 pursuant
to Section 10(d), 33 U.S.C. §910(d), to arrive at an average weekly wage. 
Sections 10(a) and (b), 33 U.S.C. §910(a), (b), are the statutory provisions
relevant to a determination of an employee's average annual wages where an injured
employee's work is regular and continuous.  The computation of average annual
earnings must be made pursuant to Section 10(c), 33 U.S.C. §910(c), if
subsections (a) or (b) cannot be reasonably and fairly applied.    

     Section 10(a) is to be applied when an employee worked "substantially the
whole of the year" immediately preceding her injury.  33 U.S.C. §910(a);
see Gilliam v. Addison Crane Co., 21 BRBS 91 (1988).  The Board has held
that "substantially the whole of the year" refers to the nature of claimant's
employment. See Duncan v. Washington Metropolitan Area Transit Authority,
24 BRBS 133 (1990).  In the instant case, after noting that claimant's status had
changed from that of a casual laborer to that of a "B" man on March 23, 1987, the
administrative law judge found that claimant had worked as a "B" man for 45 weeks
during that year preceding her injury, and concluded that claimant's employment was
steady and continuous; the administrative law judge thus determined that claimant's
average weekly wage at the time of her injury should be calculated pursuant to
Section 10(a) of the Act.  As the administrative law judge's determination on this
issue accords with law, we hold that the administrative law judge committed no
error in utilizing Section 10(a) to calculate claimant's average weekly wage at the
time of her injury. See id.

     Lastly, claimant challenges the administrative law judge's denial of her claim
for temporary total and partial disability benefits subsequent to December 8, 1988. 
Pursuant to Section 8(e) of the Act, 33 U.S.C. §908(e), an award for temporary
partial disability is based on the difference between claimant's pre-injury average
weekly wage and his post-injury wage-earning capacity. See Hogan v.
Schiavone Terminal, Inc., 23 BRBS 290 (1990). In the instant case, the
administrative law judge found, based upon the totality of the record, that
claimant did not sustain a loss of wage-earning capacity after her return to work
on December 9, 1988, and that, accordingly, claimant was entitled to no
compensation subsequent to that date.  Specifically, after determining that
claimant worked more hours in 1989, 1473.5, than she worked in 1987, 1205.25, the
administrative law judge found that  claimant's earnings during 1989 computed to
an average weekly wage of $749.89, which is greater than the average weekly wage
of $618.08 at the date of her injury in February 1988.  Claimant, on appeal, does
not challenge these computations; accordingly, we affirm the administrative law
judge's determination that claimant sustained no loss of wage-earning capacity
subsequent to her return to work on December 9, 1988, and his consequent denial of
temporary partial disability compensation, as his finding is supported by
substantial evidence. See generally Anderson v. Todd Shipyards Corp., 22
BRBS 20 (1989).  If, on remand, the administrative law judge finds that claimant's
back pain after April 1989 is work-related, he may reconsider whether claimant is
entitled to specific periods of temporary total disability compensation.

     Accordingly, the administrative law judge's findings regarding causation are
vacated, and the case is remanded for reconsideration consistent with this opinion. 
In all other respects, the administrative law judge's Decision and Order - Awarding
(Medical) Benefits and Decision on Petition for Reconsideration 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)By Board Order issued March 20, 1992, employer's Motion for an Order of Voluntary Dismissal of its Cross-Appeal, BRB No. 91-1699A, was granted. See 20 C.F.R. §802.401. Back to Text
2)Should the administrative law judge on remand conclude that claimant's post-April 1989 symptomatology is related to her February 1988 injury, he must then determine whether employer is liable for medical benefits subsequent to April 1989. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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