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                                   BRB No. 92-0611


JAMES F. CASEY                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
SEA-LAND SERVICES,                      )    DATE ISSUED:   05/31/1995
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision on Stipulations of the Parties Following Remand
     of Vivian Schreter-Murray, Administrative Law Judge, United States
     Department of Labor.

     Michael G. Gerson (Boxer, Elkind & Gerson), Oakland, California, for
     claimant.

     Frank B. Hugg (Law Offices of Frank B. Hugg), San Francisco, California,
     for self-insured employer. 

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

     PER CURIAM:

     Claimant appeals the Decision on Stipulations of the Parties Following Remand
(89-LHC-739, 89-LHC-740) of Administrative Law Judge Vivian Schreter-Murray
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
Longshore 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 is the second time that this case has been before the Board.  The facts
are not in dispute.  On May 5, 1983, claimant sustained a work-related injury to
his lower back while employed as a container mechanic for employer.  Claimant
received temporary total disability compensation from May 6, 1983, through June 13,
1983, as well as medical expenses.  He subsequently returned to work.  On May 3,
1987, claimant sustained injuries to his back, wrist and ankles while lifting a
sledgehammer during the course of his employment.  Claimant stopped working on May 5, 1987, allegedly due to cumulative
stress on his back associated with his work duties, but he returned to his usual
job on June 23, 1988.   Claimant sought temporary total disability compensation
under the Act from May 5, 1987 through June 23, 1988, and permanent partial
disability benefits based on a loss in his wage-earning capacity thereafter. In the
alternative, claimant argued that he was entitled to a de minimis award.  

     In her initial Decision and Order, the administrative law judge denied the
claim, finding that the alleged May 1987 accident did not occur and that claimant
sustained no permanent disability due to any work-related injury or aggravation. 
Claimant appealed the denial of benefits.  In its decision, the Board found that
the administrative law judge acted within her discretion in rejecting claimant's
testimony regarding the occurrence of a work-related accident on May 1987. Casey
v. Sea-Land Services, Inc., BRB No. 89-3766 (Apr. 30,
1991)(unpublished).  The Board agreed with claimant, however, that the
administrative law judge erred in failing to consider whether claimant was entitled
to compensation on a cumulative trauma theory, and remanded for her to do so,
noting that this theory had been raised in claimant's pre-trial brief and that
there was medical evidence in the record to support it.  The Board also vacated the
administrative law judge's finding that claimant was not disabled and remanded for
her to consider claimant's entitlement to disability benefits subsequent to May 5,
1987.  The Board rejected claimant's argument that he was entitled to a de
minimis award, as well as the contention that under Section 3(e), 33 U.S.C.
§903(e)(1988), employer is precluded from crediting the permanent partial
disability benefits it paid under the California workers' compensation statute
against its liability for temporary total disability under the Longshore Act.  The
Board held that if benefits were awarded on remand, employer was entitled to credit
both the temporary total and permanent partial disability benefits paid under the
state act against the benefits owed under the Longshore Act based on the Section
3(e) credit for benefits resulting from the same injury.

     On remand, the parties entered into joint stipulations which were accepted by
the administrative law judge in her Decision and Order.  The parties agreed that
claimant was entitled to temporary total disability compensation under the Act due
to cumulative injury from May 5, 1987 through June 23, 1988, at a compensation rate
of $483.29, for a total of $28,514.00.  The parties also stipulated that the
California Workers' Compensation Appeals Board awarded temporary total disability
for the same 59 weeks in the amount of $13,216.00, and that employer was entitled
to a Section 3(e) credit for these payments. In addition, the parties stipulated
that claimant had been awarded permanent partial disability in the amount of
$10,770.00 for a 24 percent permanent partial disability under the permanent
disability rating system of the California Labor Code.  The only remaining issue
before the administrative law judge was whether employer was entitled to offset the
permanent partial disability benefits awarded by the State against the temporary
total disability benefits owed under the Longshore Act under Section 3(e).  The
administrative law judge determined that employer was entitled to a Section 3(e)
credit for the state permanent partial disability compensation inasmuch as the
disability arose from the same injury which formed the basis for the Longshore
claim.  Claimant appeals the administrative law judge's determination that employer is entitled to a Section 3(e) credit for
the state permanent partial disability award.  Employer responds, urging
affirmance. 

     The administrative law judge's finding that the state award of permanent
partial disability is subject to employer's Section 3(e) credit is affirmed. 
Section 3(e) provides that employer is entitled to a credit for any amounts paid
for the same injury, disability or death for which benefits are claimed under any
other workers' compensation law or the Jones Act, 46 U.S.C. §688.  Although
claimant argues that the administrative law judge erred in allowing this credit
because the state award of permanent partial disability, which commenced on June
26, 1988, did not overlap the temporary total disability benefits awarded under the
Longshore Act, the administrative law judge correctly recognized that this fact was
not determinative.  While employer may receive a credit where the state payments
are for the same disability being claimed under the Longshore Act, it may also
receive a credit for state payments where, as here, such payments are for the same
injury; Section 3(e) is written in the disjunctive. See Shafer v. General
Dynamics Corp., 23 BRBS 212, 213-214 (1990); Garcia v. National Steel &
Shipbuilding Co., 21 BRBS 314 (1988). In any event, the Board fully considered
and rejected this argument in rendering its initial decision in this case and the
Board's prior determination that employer is entitled to a Section 3(e) credit for
both the temporary total and permanent partial disability benefits paid under the
California workers' compensation statute is the law of the case. See Wayland v.
Moore Dry Dock, 25 BRBS 43 (1991); Bruce v. Bath Iron Works Corp., 25
BRBS 157 (1991).[1] 

     Accordingly, the administrative law judge's Decision on Stipulations of the
Parties Following Remand is 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 rule of "law of the case" is a discretionary rule of practice based upon sound policy that when a case is on its second appeal, an appellate body will adhere to its original decision, unless there has been a change in the underlying factual situation, intervening controlling authority demonstrates that the initial decision was erroneous, or the first decision was clearly erroneous and allowing it to stand would result in manifest injustice. See Jones v. U.S. Steel Corp., 25 BRBS 355, 359 (1992). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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