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                                  BRB Nos.  91-2150
                                     and 91-2150A

MAURICE THOMPSON                        )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
PADUCAH MARINE WAYS                     )    DATE ISSUED:   01/30/1995
                                        )
     and                                )
                                        )
MIDLAND INSURANCE COMPANY               )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )    DECISION AND ORDER

     Appeal of the Decision and Order on Remand of Lawrence E. Gray,
     Administrative Law Judge, United States Department of Labor.

     J. William Phillips, Murray, Kentucky, for claimant.

     William E. Pinkston (Denton & Keuler), Paducah, Kentucky, for
     employer/carrier.

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

     PER CURIAM:

     Claimant appeals, and employer cross-appeals, the Decision and Order on Remand
(85-LHC-426) of Administrative Law Judge Lawrence E. Gray 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).

     This case is before the Board for a second time.  While employed by employer
as a welder, claimant suffered injuries to his back in 1972, 1976, 1978 and 1979. 
After each injury, claimant received medical treatment and was later released to
return to work.  Claimant continued to experience soreness in his back but maintained his job with
employer until he was laid-off in 1983.  Employer subsequently closed down its
operation. Claimant worked at other employment until January 1984, when his back
pain increased and he was unable to carry on any further work or household
activities.  Dr. Marrese diagnosed a  herniated disc as a result of the job
injuries of 1976 and 1978, and performed a partial hemilaminectomy in September
1984.  Claimant filed this claim for temporary total disability benefits on June
12, 1984, alleging that his back problems are causally related to the back injuries
he suffered at work.

     In his original Decision and Order, the administrative law judge found that
employer failed to rebut the Section 20(a), 33 U.S.C. §920(a), presumption
that there is a causal relationship between claimant's 1978 injury and his work. 
The administrative law judge concluded that claimant was temporarily totally
disabled from January 28, 1984, and continuing, as a result of the work-related
injury of July 1978 as aggravated by the September 1979 injury.  The administrative
law judge further found that the claim was timely filed, that claimant's average
weekly wage at the time of his 1983 employment was $322.59, and further ordered
employer to pay claimant's medical expenses.

     Employer appealed this decision to the Board.  In its Decision and Order, the
Board affirmed the administrative law judge's finding that the claim was timely
filed, but vacated the administrative law judge's average weekly wage determination
and remanded for a determination of claimant's average weekly wage based on his
wages at the time of injury.  The Board also vacated the administrative law judge's
order that employer pay for claimant's medical services, and remanded the case for
further findings on this issue inasmuch as the administrative law judge did not
consider whether claimant complied with the requirements of Section 7(d) of the
Act, 33 U.S.C. §907(d). Thompson v. Paducah Marine Ways, BRB No. 86-1905 (March 31, 1989).

     The Board denied employer's motion for reconsideration of the holding that the
claim was timely filed.  The Board granted claimant's motion for reconsideration
of the issues of the determination of time of injury for purposes of calculating
average weekly wage and whether claimant complied with the requirements of Section
7(d), but affirmed its decision. Thompson v. Paducah Marine Ways, BRB No.
86-1905 (Nov. 28, 1989) (order en banc).  The Board held that since claimant
sought benefits for disability as of June 12, 1984, due to traumatic injuries
rather than to an occupational disease, and since the administrative law judge
determined that claimant suffered a work-related injury on July 11, 1978, which was
aggravated by a September 10, 1979, injury, on remand, the administrative law judge
should base his determination of claimant's average weekly wage as of September 10,
1979, the date of claimant's last work-related injury which aggravated his
condition.  In addition, the Board declined to consider the significance of
claimant's correspondence with employer in 1984, as the administrative law judge
had not considered whether the requirements of Section 7(d) were met.
     On remand, the administrative law judge found that the uncontroverted evidence
establishes claimant's average weekly wage on September 10, 1979, as $263.02.
See Decision and Order on Remand at 1; Emp. Ex. 4.  The administrative law
judge also found that employer had authorized medical attention for the September
1979 injury, that claimant's wife telephoned a request for permission for
examination and treatment by Dr. Marrese in 1984, and that employer's silence was,
in effect, a refusal or neglect to provide treatment.[1] 

     On appeal, claimant contends that the administrative law judge erred in
determining the date of injury for purposes of calculating his average weekly wage. 
Employer responds, urging affirmance of the administrative law judge's finding on
this issue.  On cross-appeal, employer contends that the administrative law judge
erred in finding employer liable for payment of claimant's medical bills.  Claimant
responds, urging affirmance.

     Claimant contends that the administrative law judge erred in determining the
date of injury for purposes of calculating his average weekly wage.  Specifically,
claimant contends that herniation of a disc is not an accidental injury, but an
occupational disease, and that his last date of employment, September 30, 1983,
prior to his awareness of the true nature of his condition, i.e., that he
has an herniated disc due to the work injuries, should be considered the time of
injury for average weekly wage purposes.  We decline to address this contention,
as the Board's Order on Reconsideration held the time of injury for average weekly
wage purposes to be September 10, 1979.  That decision is the law of the case, and
we need not reexamine this issue. See Wayland v. Moore Dry Dock, 25 BRBS 53
(1991); Brocklehurst v. Giant Food, Inc., 22 BRBS 256 (1989).

     Moreover, subsequent to the issuance of the Board's Order on Reconsideration
in this case, in addressing a case in which the claimant had suffered a number of
work-related back injuries and was eventually diagnosed as suffering from lumbar
stenosis, the Board reversed an administrative law judge's holding that lumbar
stenosis is an occupational disease. Steed v. Container Stevedoring Co., 25
BRBS 210 (1991).  The Board held that the work-related walking and standing that
aggravated the claimant's lumbar stenosis were not peculiar to claimant's
employment, and held that as a matter of law, the claimant sustained a gradual
work-related accidental injury.[2]    See
Steed, 25 BRBS at 215; see also Gencarelle v. General Dynamics Corp.,
22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS 13 (CRT)(2d Cir. 1989).

     In the present case, the administrative law judge awarded claimant temporary
total disability benefits based on injuries to claimant's back suffered as a result
of a work-related incident on July 11, 1978, as aggravated by the work-related
injury on September 11, 1979. Based on the foregoing case law, we reaffirm the
Board's holding that this is a claim for a traumatic injury rather than an
occupational disease and that the time of injury for purposes of average weekly
wage is the date of claimant's last work-related injury which aggravated his
condition, September 10, 1979.[3]   See
generally Steed, 25 BRBS at 215.  Moreover, claimant does not contest
the administrative law judge's finding that his average weekly wage on September
10, 1979, was $263.02, and thus, we affirm the administrative law judge's finding
that claimant's temporary total disability benefits should be based on the average
weekly wage of $263.02.  

     On cross-appeal, employer contends that the administrative law judge erred in
finding employer liable for payment of claimant's medical treatment with Dr.
Marrese.  The administrative law judge found on remand that Employer's First Report
of Injury dated September 11, 1979, indicates that medical attention was authorized
for the injury that occurred on that date.  Emp. Ex. 4.   The administrative law
judge also found that James Causey, the general superintendent and general manager
of the company at all relevant times, testified that claimant's wife had called in
1984 to tell the company that claimant was going to see the physician whose fees
are in controversy.  The administrative law judge rejected employer's contention
that the nature of this call was to serve merely as notification and not as an
attempt to seek employer's permission, and he found that employer did not act upon
this information.  The administrative law judge found that employer's silence was,
in effect, a refusal or neglect to provide treatment, and he held employer liable
for the services of Dr. Marrese.

     Initially, we agree with employer's contention that the authorization dated
1979 was for a specific event and did not continue indefinitely.  Employer has a
continuing obligation to pay an injured employee's medical expenses. Colburn v.
General Dynamics Corp., 21 BRBS 219 (1988).  Once claimant has made his
initial, free choice of a physician, he may change physicians only upon obtaining
prior written approval of the employer, carrier or district director.  33 U.S.C.
§907(c)(2); 20 C.F.R. §702.406.  Employer is ordinarily not responsible
for the payment of medical benefits if claimant fails to obtain the required
authorization. See 20 C.F.R. §702.421.   However, failure to obtain
authorization for a change can be excused where employer has effectively refused
claimant further medical treatment. Pirozzi v. Todd Shipyards Corp., 21 BRBS
294 (1988)(Feirtag, J., dissenting on other grounds). See Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1988); 33 U.S.C. §907(d)(1)(A).

     In the present case, claimant was released from the care of his treating
physician, Dr. Campbell, two weeks after the September 1979, work-related back
injury.  Claimant did not seek medical attention again until 1984, this time with
Dr. Marrese.  Although employer did authorize treatment for the September 1979
injury, see Emp. Ex. 4, we hold that this authorization applies to
claimant's initial free-choice physician, Dr. Campbell, and we reverse the
administrative law judge's finding that the authorization broadly covers any and
all subsequent treatment that claimant may seek for the 1979 work injury.

     However, the record also contains evidence that claimant's wife called Mr.
Causey to tell him that claimant was going to seek treatment from Dr. Marrese for
his back condition, prior to his appointment with the physician in 1984.[4]   Tr. at 120.  This call was made after claimant
no longer worked for employer.  The administrative law judge rejected employer's
contention that this telephone call was merely informational and held that this
call was an "inartful" request for permission.  We affirm the administrative law
judge's finding as the administrative law judge is entitled to evaluate the
credibility of witnesses and to draw rational inferences from the evidence
presented. See generally Sprague v. Director, OWCP, 688 F.2d 862, 15 BRBS
11 (CRT)(1st Cir. 1982).  Therefore, we affirm the administrative law judge's
finding that claimant sought employer's permission before being treated by Dr.
Marrese, and that employer's silence was, effectively, a refusal of further medical
treatment. See generally Parklands, Inc. v. Director, OWCP, 877 F.2d 1030,
22 BRBS 57 (CRT) (D.C. Cir. 1989).  Moreover, inasmuch as employer does not contest
that the services were necessary, we affirm the administrative law judge's finding
that employer is liable for the services provided by Dr. Marrese. See
Anderson, 22 BRBS at 20.

     Accordingly, the Decision and Order on Remand of the administrative law judge
awarding benefits is affirmed.

     SO ORDERED.


                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge


                                                                        

                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.


1)The administrative law judge also found that claimant's request for permanent benefits must be made in a petition for modification pursuant to Section 22 of the Act, 33 U.S.C. §922. Back to Text
2)Generally, there are two characteristics of an occupational disease: 1) an inherent hazard of continued exposure to conditions of a particular employment; and 2) gradual rather than sudden onset. 1B A. Larson, Workmen's Compensation Law §41.31 (1987); Gencarelle v. General Dynamics Corp., 22 BRBS 170 (1989). The United States Court of Appeals for the Second Circuit has essentially broken the first element into two subelements - "hazardous conditions" that are "peculiar to" one's employment as opposed to other employment generally. Gencarelle v. General Dynamics Corp., 892 F.2d 173, 23 BRBS 13 (CRT) (2d Cir. 1989). Back to Text
3)Cf. Johnson v. Director, OWCP, 911 F.2d 247, 24 BRBS 3 (CRT)(9th Cir. 1990), cert. denied, 111 S.Ct. 1582 (1991) (Ninth Circuit holds average weekly wage should be calculated at the time of manifestation in latent traumatic injury cases). Back to Text
4)Mr. Causey testified that he thereafter called "Mr. Brown" and informed him of the telephone call. Tr. at 120. It appears that Mr. Brown worked for employer's carrier, Midland Insurance Company. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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