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                                 BRB No. 92-766 

CHARLES J. FERRELL, JR.                 )
          Claimant-Petitioner           )
     v.                                 )
AND DRY DOCK COMPANY                    )    DATE ISSUED:   01/30/1995
          Self-Insured                  )
          Employer-Respondent           )    DECISION AND ORDER

     Appeal of the Decision and Order of Richard K. Malamphy, Administrative
     Law Judge, United States Department of Labor.

     Robert J. Macbeth, Jr. (Rutter & Motagna), Norfolk, Virginia, for

     Shannon T. Mason, Jr. and Benjamin M. Mason, Newport News, Virginia, for
     self-insured employer.

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


     Claimant appeals the Decision and Order (90-LHC-3111) of Administrative Law
Judge Richard K. Malamphy denying 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).

     Claimant, a shipfitter for employer, first reported an injury to his back on
December 14, 1982, and was diagnosed with lower back strain in December 1982 and
November 1986.  Claimant also visited the shipyard clinic with complaints of back
pain in February and September 1987. In addition, claimant had suffered a series
of left knee problems since 1983.  In the present case, claimant alleges that on
July 3, 1989, he injured his back and left knee in a work-related incident. 
Claimant was working on the ballast tanks of a submarine when he contends he bumped
his knee, and either simultaneously, or soon thereafter, strained his back. 
Claimant sought benefits for either a new or aggravating injury to his left knee
and back.
     The administrative law judge found that claimant had neither suffered a new
injury on July 3, 1989, nor aggravated his existing knee and back conditions. 
Thus, benefits were denied.

     Claimant contends that the administrative law judge erred in failing to apply
the Section 20(a) presumption, 33 U.S.C. §920(a), and in failing to find that
the claimant sustained work-related injuries on July 3, 1989.  Employer responds,
urging affirmance of the administrative law judge's decision as it is supported by
substantial evidence.

     Claimant contends on appeal that the administrative law judge erred in finding
the evidence insufficient to establish that claimant suffered an injury or an
aggravation of a pre-existing condition on July 3, 1989.  We disagree.  Section
20(a) of the Act aids a claimant in proving that his injury is work-related. 
However, in order to invoke the Section 20(a) presumption, claimant must show that
he sustained a harm, and that either an accident occurred or working conditions
existed which could have caused the harm. Kelaita v. Triple A Machine Shop,
13 BRBS 326 (1981).  The Section 20(a) presumption does not aid claimant in
establishing these elements of his prima facie case.  See generally
Martin v. Kaiser Co., Inc., 24 BRBS 112 (1990).  

     In the present case, the administrative law judge concluded that claimant did
not suffer a new or aggravated back and left knee injury on July 3, 1989, based on
his finding that no accident occurred on that day, and that claimant demonstrated
no bodily harm.  The administrative law judge stated that the only evidence of the
occurrence of an accident consisted of claimant's testimony, which the
administrative law judge discredited due to lack of corroboration.  Although
claimant asserts that a co-worker witnessed the accident, he did not produce this
witness at the hearing.  Moreover, the administrative law judge noted that
claimant's testimony that he told his supervisor of the accident is not supported
by employer's records.

     In addition, the administrative law judge found that the medical evidence does
not independently support claimant's assertion that he sustained a harm.  In
weighing the medical evidence, the administrative law judge gave greatest weight
to the opinion of Dr. Lenthall, inasmuch as he examined claimant within one week
of the alleged accident.  Dr. Lenthall originally opined on July 11, 1989, that
claimant suffered a lumbar strain, but had no evidence of a new knee injury.  Emp.
Ex. 3.  His diagnosis of back strain was based upon the history given by claimant. 
Following an examination on July 12, 1989, however, he concluded that the physical
findings indicated intentional deception on the part of claimant as to the
condition of his back.[1] 
     Credible complaints of subjective symptoms and pains can be  sufficient to
establish the element of physical harm. See generally Cairns v. Matson
Terminals, Inc., 21 BRBS 252 (1988).  However, the administrative law judge in
the present case did not find claimant's testimony to be credible.  He found that
the claimant intentionally deceived Dr. Lenthall, and denied his previous long
history of back problems.  Moreover, the administrative law judge rationally
credited the testimony of Dr. Lenthall. See generally Pittman v. Mechanical
Contractors, Inc., 35 F.3d 122, 28 BRBS 89 (CRT) (9th Cir. 1994).  Inasmuch as
the administrative law judge thoroughly reviewed the evidence of record, and
claimant has raised no error committed by the administrative law judge in weighing
the conflicting evidence and making credibility determinations, see generally
John W. McGrath v. Hughes, 289 F.2d 403 (2d Cir. 1961), we affirm the
administrative law judge's finding that an accident did not occur on July 3, 1989,
causing claimant to suffer a new harm or an aggravation of his previous conditions. 
The Section 20(a) presumption therefore is inapplicable. Hartman v. Avondale
Shipyard, Inc., 23 BRBS 201 (1990), vacated on other grounds on recon.,
24 BRBS 63 (1990).

     Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.


                      JAMES F. BROWN
                         Administrative Appeals Judge

                                   NANCY S. DOLDER
                                   Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)Claimant also was examined on August 22, 1989 by Dr. White, who concluded that claimant suffered a contusion of the left knee with previous existing knee discomfort. Emp. Ex. 4. In a report dated August 8, 1989, following an examination of claimant's back, Dr. Prillaman noted that the objective findings were normal and the only diagnosis he could make was mild strain of the lumbosacral spine. Emp. Ex. 5. The administrative law judge gave greater weight to the opinion of Dr. Lenthall inasmuch as he examined claimant closer in time to the alleged accident. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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