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                                    BRB No. 92-0327

TOK CHA BECKENDORF CHONG                )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
TODD PACIFIC SHIPYARDS                  )    DATE ISSUED:   05/26/1995
CORPORATION                             )
                                        )
     and                                )
                                        )
AETNA CASUALTY AND SURETY               )
COMPANY                                )
                                    )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of Henry B. Lasky,
     Administrative Law Judge, United States Department of Labor.

     James R. Walsh, Lynnwood, Washington, for claimant.

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

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

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand (85-LHC-1056) of
Administrative Law Judge Henry B. Lasky 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 applicable law. O'Keeffe v.
Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
§921(b)(3).

     This is the second time that this case has been before the Board.  Claimant
suffered three work-related back injuries on February 15, July 8 and December 22,
1980, while working for employer as a welder.  Employer voluntarily paid claimant
temporary total disability benefits for various periods.   Claimant was diagnosed
as having a herniated disc, and underwent a lumbar discectomy on September 18, 1981, for this condition. 
Thereafter, claimant filed a claim for reimbursement of medical expenses and
compensation for additional temporary total disability.  33 U.S.C. §§907,
908(b).  In his Decision and Order, the administrative law judge found that
claimant had not filed a timely claim for her first two injuries as required by the
provisions of Section 13(a) of the Act, 33 U.S.C. §913(a), and that a third
injury had not occurred.  He found in the alternative that even if the claim was
timely filed, claimant failed to establish entitlement to any additional temporary
total disability compensation from the date employer controverted the claim.  The
administrative law judge also found that claimant's acupuncture treatments
constituted unauthorized medical care under Section 7 and therefore denied the
claim for reimbursement of medical expenses.

     Claimant appealed the denial of her claim to the Board. Chong v. Todd
Pacific Shipyards Corp., 22 BRBS 242 (1989).  The Board reversed the
administrative law judge on the timeliness issue and held that, as a matter of law,
the reports of Dr. Chambers filed with the carrier from March 31, 1980 to May 6,
1982, particularly those of May 13, 1981, and March 25 1981, indicating the
existence of permanent disability resulting from claimant's work injury, constitute
timely claims. Id. at 244.  The Board, however, affirmed the administrative
law judge's determination that claimant is not entitled to temporary total
disability benefits in addition to those paid by employer.   Id. at 245. 
Additionally, the Board stated in a footnote that inasmuch as claimant failed to
present a specific argument in support of her claim for entitlement to medical
expenses, the Board declined to consider the issue.   Id. at 243 n.1.   

     Claimant appealed the Board's decision to the United States Court of Appeals
for the Ninth Circuit.  Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir.
1990)(table).   The court held that the Board correctly determined that substantial
evidence supported the administrative law judge's finding that claimant could
return to her usual employment despite a repetitive lifting restriction and that
therefore she was not entitled to further disability compensation from employer. 
The court also held that the Board correctly refused to consider claimant's claim
for reimbursement of past medical expenses. Chong, slip op. at 5-6.

     The court held, however, that the Board incorrectly declined to address the
issue of claimant's entitlement to future medical benefits as claimant had
presented a specific argument on this issue.  Specifically, the court remanded the
case for consideration of claimant's entitlement to continued supervised medical
treatment as recommended by Dr. Chambers until such time as she reaches medical
stability. Chong, slip op. at 6.  On July 15, 1991, the Board vacated in
relevant part its May 31, 1989, Decision and Order and remanded the case to the
administrative law judge for further proceedings consistent with the decision of
the Court of Appeals.



     In his Decision and Order on Remand, the administrative law judge found that
there is no credible evidence that claimant is in need of future medical care and
therefore denied benefits.  On appeal, claimant contends that the administrative
law judge erred in denying her continued supervised medical care as recommended by
Dr. Chambers.  Employer responds urging affirmance of the denial.

     We affirm the administrative law judge's denial of medical benefits.  On
August 26, 1985, Dr. Chambers, a neurological surgeon, recommended that claimant's
pain and hysterical overlay following her surgery could be overcome by managed
treatment at a pain clinic.  Cl. Ex. 1 at 23.  A claimant is entitled to medical
treatment for work-related conditions, and she establishes a prima facie
case for compensable medical treatment if a physician indicates treatment is
necessary for a work-related condition. See Turner v. The Chesapeake & Potomac
Telephone Co., 16 BRBS 255 (1984) (Ramsey, C.J., dissenting on other grounds). 
In evaluating the evidence, however, the fact-finder is entitled to weigh the
evidence and draw his own inferences from it and is not bound to accept the opinion
or theory of any particular witness. Todd Shipyards Corp. v. Donovan, 300
F.2d 741 (5th Cir. 1962).  It is within the discretion of the administrative law
judge to accept or reject all or part of any testimony according to his judgment.
Perini Corp. v. Heyde, 306 F. Supp. 1321 (D.R.I. 1969); see also Poole
v. National Steel & Shipbuilding Co., 11 BRBS 390 (1979).

     In the instant case, the administrative law judge concluded that there is no
credible evidence that claimant is in need of medical care for a work-related
psychological condition.  The administrative law judge credited the opinions of Dr.
Carter and the Orthopaedic Panel Consultants as the most reasonable and thorough
evaluations of claimant on this issue.  Dr. Carter stated that he did not believe
claimant would benefit from treatment at a pain clinic.  Tr. at 109.  Dr. Carter
did feel that claimant could benefit from "supportive therapy" for treatment of
emotional problems, which he nevertheless did not believe were related to or
causally connected in any way to claimant's 1980 industrial injury. Id. at
109, 111, 145; Emp. Ex. 22.  The 1982 Orthopaedic Panel report concluded that
claimant's personality disorders preceded her industrial injuries and did not
interfere with her rehabilitation from the work-related injury.  Dr. Hamm, the
psychiatrist on the 1982 Panel, did not believe claimant was suffering from a
psychiatric disorder and did not feel she would benefit from treatment at a pain
clinic.  Emp. Ex. 18.  The 1985 Panel report concluded that claimant's psychiatric
or emotional condition was an "hysterical-type" personality disorder which was not
industrially related and preceded the injuries.  Emp. Ex. 19.

     The administrative law judge rejected Dr. Chambers' conflicting opinion that
claimant required further treatment before she could return to work.  In viewing
the totality of the evidence, the administrative law judge concluded that
claimant's testimony and that of her treating physician, Dr. Chambers, who relied
on her subjective complaints of pain, are not credible in view of the conflicting
evidence.  As the administrative law judge's credibility determinations are
rational and within his discretion as the fact-finder, and the administrative law
judge's finding is supported by substantial evidence, we affirm the denial of medical benefits.[1]   See generally Cordero
v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert.
denied, 440 U.S. 911 (1979).

     Accordingly, the administrative law judge's Decision and Order on Remand
denying medical benefits is affirmed.

     SO ORDERED.



                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge                                          


                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)Inasmuch as the administrative law judge's ultimate conclusion is rational and supported by substantial evidence, any error in application of the presumption contained in Section 20(a) if the Act, 33 U.S.C. §920(a), is harmless. See generally Seaman v. Jacksonville Shipyards, Inc., 14 BRBS 148.9 (1981). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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