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                                 BRB No. 92-1336


CHESTER COLEMAN                         )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
BUNGE CORPORATION                       )    DATE ISSUED:   04/28/1995
                                        )
     and                                )
                                        )
INA/CIGNA                               )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order and Supplemental Decision and Order
     Awarding Attorney Fees of Ben H. Walley, Administrative Law Judge,
     United States Department of Labor.

     William S. Vincent, Jr., New Orleans, Louisiana, for claimant.

     Kathleen K. Charvet (McGlinchey, Stafford, Cellini & Lang), New Orleans,
     Louisiana, for employer/carrier.

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

     PER CURIAM:

     Employer appeals the Decision and Order  and Supplemental Decision and Order
Awarding Attorney Fees (90-LHC-3250, 91-LHC-1437) of Administrative Law Judge Ben
H. Walley 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 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).

     On December 2, 1988, while in the course of his employment with employer,
claimant injured his right hand while attempting to free a hose.  Thereafter, on
September 14, 1989, claimant again injured his right hand as well as his back while
unlocking latches on the top of a barge.  In his Decision and Order, the
administrative law judge initially found that claimant established his prima
facie case, and that causation had been established for the injuries to claimant's hand and back based upon the record as a whole.  Next, the
administrative law judge determined that claimant was entitled to an award under
Section 8(c)(1), 33 U.S.C. §908(c)(1), for the first injury to his right hand
which resulted in a 15 percent impairment, to be followed by a period of temporary
total disability compensation from April 20 to April 24, 1990, 33 U.S.C.
§908(b).  The administrative law judge further found that claimant was
entitled to no compensation for the second injury to his right hand, as it had
completely resolved without any loss of work, and that, as claimant remains
temporarily totally disabled as a result of his back condition, he is entitled to
temporary total disability compensation from April 25, 1990, and continuing.  The
administrative law judge further found that claimant's average weekly wage for
compensation purposes was $413.41 at the time of his first injury and $432.40 at
the time of his second injury, that claimant was entitled to reimbursement for the
medical expenses of Drs. Stokes, Tamimie, Espenan, Adatto, Mimeles, Aprill, Beecher
and Johnston, and that employer was not entitled to relief under Section 8(f) of
the Act, 33 U.S.C. §908(f).

     On appeal, employer challenges the administrative law judge's findings
regarding both the existence of a work-related back condition and causation. 
Additionally, employer contends that the administrative law judge erred in
calculating claimant's average weekly wage for both injuries, in failing to address
its evidence regarding the issue of suitable alternate employment, in holding
employer liable for certain medical expenses, and in determining that employer is
not entitled to relief pursuant to Section 8(f).  Lastly, employer challenges the
fee awarded to claimant's counsel by the administrative law judge.  Claimant
responds, urging affirmance.

                           I. Causation  

     Employer initially contends that the administrative law judge erred in finding
that claimant established the existence of a back injury.  We disagree.  Claimant
has the burden of proof to establish the existence of an injury or harm and that
working conditions existed that could have caused the injury or harm in order to
establish his prima facie case.[1]   See
Volpe v. Northeast Marine Terminals, 14 BRBS 17 (1981), rev'd on other
grounds, 671 F.2d 697, 14 BRBS 538 (2d Cir. 1982).  Claimant need not show that
he has suffered a specific injury; rather, claimant need only establish some
physical harm, i.e., that something has gone wrong with the human frame.
See Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989).  In the instant case,
the administrative law judge's finding that claimant established the existence of
a low back condition is supported by substantial evidence.  Specifically, the
administrative law judge relied on claimant's testimony regarding the pain he
experienced following the work accident and the testimony of Drs. Phillips and Aprill that claimant's CT scan
suggested a herniation of the L4-5 disc.  Thus, as something has gone wrong within
claimant's frame, we affirm the administrative law judge's finding that claimant
has established the existence of an injury. See id.

     Employer next challenges the administrative law judge's finding of causation.
In establishing that an injury arises out of his employment, claimant is aided by
the Section 20(a), 33 U.S.C. §920(a), presumption which applies to the issue
of whether an injury is causally related to his 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).  Once the Section 20(a) presumption is invoked, the burden
shifts to employer to rebut the presumption with substantial evidence. See James
v. Pate Stevedoring Co., 22 BRBS 271 (1989).  If employer meets its burden, the
administrative law judge must then resolve the causation issue based on the record
as a whole. See Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 24 BRBS 46
(CRT)(5th Cir. 1990).  

     In the instant case, the administrative law judge found that since claimant
established his prima facie case he was entitled to the Section 20(a)
presumption, that employer subsequently established rebuttal of the presumption,
but that based upon the record as a whole claimant established that his low back
condition is causally related to his September 14, 1989, work accident. 
Specifically, the administrative law judge relied on the medical opinions of Drs.
Phillips, Aprill and Tamimie over the opinion of Dr. Espenan, who he found to be
less qualified than the other physicians, and Drs. Mimeles and Johnston who,
although asserting the lack of a back problem, recommended further testing to
determine the condition of claimant's back.  In challenging this determination,
employer  contends that the medical evidence and testimony provides substantial
evidence that claimant's back condition is not related to his work accident.  It
is well-established, however, that, as the administrative law judge is entitled to
evaluate the credibility of all witnesses, including doctors, and is not bound to
accept the opinion or theory of any particular medical examiner, he may draw his
own inferences and conclusions from the evidence. See Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962);
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  In this case,
the administrative law judge's decision to credit the opinions of Drs. Phillips,
Aprill and Tamimie, in determining that claimant's back condition is related to his
work accident, is rational and within his authority as factfinder. See generally
Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1988).   Accordingly, we
affirm the administrative law judge's determination that claimant has established
a causal relationship between his back condition and his employment, as that
finding is supported by substantial evidence. See Cordero v. Triple A Machine
Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S.
911 (1979).

                    II. Suitable Alternate Employment  

     Where claimant is unable to perform his usual employment, claimant has
established a prima facie case of total disability, thus shifting the burden
to employer to demonstrate the availability of suitable alternate employment that
claimant is capable of performing. See P & M Crane Co. v. Hayes, 930 F. 2d
424, 24 BRBS 116 (CRT)(5th Cir. 1991).  In order to meet this burden, employer must
show that there are jobs reasonably available in the geographic area where claimant
resides which claimant is capable of performing based upon his age, education, work
experience and physical restrictions which he could realistically secure if he
diligently tried. See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d
1031, 14 BRBS 156 (5th Cir. 1981); Southern v. Farmers Export Co., 17 BRBS
64 (1985).

     Employer contends that the administrative law judge erred in failing to
address its evidence that suitable alternate employment existed within claimant's
restrictions both at its facility and in the local area.  Employer, in support of
its position, submitted into evidence the testimony of Ms. Murrell, a vocational
rehabilitation counselor, who opined that light duty work was available within
claimant's restrictions both at employer's facility and in the local area.  The
administrative law judge, however, determined that claimant remained temporarily
totally disabled based upon a finding that all of the physicians who examined
claimant were in agreement that further diagnostic testing was needed so that an
accurate determination could be rendered regarding claimant's back condition. 
Pursuant to this determination, the administrative law judge declined to address
employer's evidence regarding the availability of suitable alternate employment. 
We hold that the administrative law judge committed no reversible error in this
regard.  Specifically, without a definitive diagnoses of claimant's back condition,
the administrative law judge could not determine if claimant is physically capable
of performing any positions established as available by employer. See generally
P & M Crane Co., 930 F.2d at 431, 24 BRBS at 122 (CRT); Villasenor v. Marine
Maintenance Industries, Inc., 17 BRBS 99 (1985).  We therefore affirm the
administrative law judge's determination that claimant remains temporarily totally
disabled.

                    III. Average Weekly Wage

     Employer next challenges the administrative law judge's calculation of
claimant's average weekly wage at the time of his first injury, contending that the
administrative law judge, although citing to Section 10(c) of the Act, effectively
used Section 10(a) when making that calculation.  Additionally, employer asserts
that the administrative law judge erred in accepting its LS-202 calculation of
claimant's average weekly wage at the time of his second injury.

     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.  

     The object of Section 10(c) is to arrive at a sum that reasonably represents
a claimant's annual earning capacity at the time of his injury. See
Empire United Stevedores & Signal Administration, Inc. v. Gatlin, 936 F.2d
819, 25 BRBS 26 (CRT)(5th Cir. 1991); Richardson v. Safeway Stores, Inc.,
14 BRBS 855 (1982).  It is well-established that an administrative law judge has
broad discretion in determining an employee's annual earning capacity under Section
10(c). See Bonner v. National Steel & Shipbuilding Co., 5 BRBS 290 (1977),
aff'd in pert. part, 600 F.2d 1288 (9th Cir. 1979).  As actual earnings are
not controlling, the administrative law judge may take into consideration in making
his computation time lost due to a layoff. See Holmes v. Tampa Ship Repair and
Dry Dock Co., 8 BRBS 455 (1978).  The Board will affirm an administrative law
judge's determination of claimant's average weekly wage under Section 10(c) if the
amount represents a reasonable estimate of claimant's annual earning capacity at
the time of the injury. See Hicks v. Pacific Marine & Supply Co.,
Ltd., 14 BRBS 549 (1981).      

     In the instant case, the administrative law judge, after initially noting that
the calculation of claimant's average weekly wage as of the time of his first
injury, December 2, 1988, should be made pursuant to Section 10(c), determined that
claimant had earned an average daily wage of $82.68 in the year preceding his
injury.  Next, the administrative law judge multiplied this average daily wage by
260, and thereafter divided this sum, $21,497.23, by 52. See 33 U.S.C.
§910(d).  The administrative law judge, after specifically stating that this
calculation best represented claimant's true earning capacity for his December 2,
1988 injury, thus found claimant's average weekly wage to be $413.41. See
Decision and Order at 24-25.  Although the calculation utilized by the
administrative law judge mirrors the calculation contained in Section 10(a) of the
Act, we note that the administrative law judge noted this similarity in
specifically finding that the calculation used best reflected claimant's earning
capacity.  We hold that the result reached by the administrative law judge  is
reasonable, supported by substantial evidence, and is consistent with the goal of
arriving at a sum which reasonably represents claimant's annual earnings at the
time of his injury. See Gatlin, 935 F.2d at 819, 25 BRBS at 26 (CRT);
Gilliam v. Addison Crane Co., 21 BRBS 91 (1988).  We therefore affirm the
administrative law judge's determination of claimant's average weekly wage at the
time of his December 2, 1988, injury.

     In determining claimant's average weekly wage at the time of his second
injury, September 14 1989, the administrative law judge found that the calculation
submitted by employer in its LS-202 best reflected claimant's true earning
capacity; thus, the administrative law judge concluded that claimant's average
weekly wage as of September 14, 1989, was $432.40.  Employer challenges the
administrative law judge's decision to accept its calculation, contending that
claimant bears the burden of establishing his earnings history and the average
weekly wage applicable at the time of his injury.  As employer has not challenged
the accuracy of its calculation of claimant's average weekly wage as of September
14, 1989, we hold that the administrative law judge committed no error in finding
that that calculation best reflected claimant's earning capacity at that time. 
Accordingly, we affirm the administrative law judge's determination of claimant's
average weekly wage as of September 14, 1989.

                    IV. Medical Expenses  

     Section 7, 33 U.S.C. §907, of the Act generally requires that claimant
receive authorization from employer prior to seeking medical help before employer
will be held liable for claimant's medical expenses.  Under Section 7(a) of the
Act, 33 U.S.C. §907(a), employer is responsible for claimant's medical
expenses that are related to his work injury.  Once employer refuses to provide
treatment or to satisfy claimant's request for treatment, claimant is released from
the obligation of continuing to seek employer's approval. Pirozzi v. Todd
Shipyards Corp., 21 BRBS 294 (1988).  Claimant then need only establish that
the treatment subsequently procured on his own initiative was necessary for the
injury in order to be entitled to such treatment at employer's expense. See
Roger's Terminal and Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS
79 (CRT)(5th Cir.), cert. denied, 479 U.S. 826 (1986).

     Initially, we reject employer's contention that it should not be held liable
for any treatment necessitated by claimant's back condition since that condition
is not related to claimant's employment.  As we have affirmed the administrative
law judge's finding of a causal relationship between claimant's back condition and
his employment, employer is responsible for claimant's medical expenses related to
that injury.  

     Alternatively, employer asserts that it should not be held liable for the
medical charges incurred by claimant as a result of treatment tendered by Drs.
Phillips and Adatto.[2]   In his decision, the
administrative law judge did not address the requirements of Section 7; rather,
without discussion, the administrative law judge summarily ordered employer to
reimburse claimant for any past medical expenses which he had incurred as a result
of his work-injuries, including the charges rendered by Drs. Phillips and Adatto. 
The administrative law judge's failure to discuss whether claimant complied with
the requirements of Section 7 of the Act, however, makes it impossible for the
Board to apply its standard of review. See Ballesteros v. Willamette Western
Corp., 20 BRBS 184 (1988).  Accordingly, we vacate the administrative law
judge's determination that employer is liable for the medical charges of Drs.
Phillips and Adatto, and we remand the case to the administrative law judge for
consideration and discussion as to whether claimant complied with the specific
requirements of Section 7 of the Act with regard to those two physicians. 

                          V. Section 8(f)

     Employer next contends that the administrative law judge erred in denying its
request for relief pursuant to Section 8(f) of the Act, 33 U.S.C. §908(f). 
We disagree.  In his decision, the administrative law judge awarded claimant
continuing temporary total disability benefits.  Section 8(f), however, does not
apply to temporary disability benefits. See Sizemore v. Seal and Co., 23
BRBS 101 (1989); 33 U.S.C. §908(f)(1); 20 C.F.R. §702.145(b). 
Accordingly, we affirm the administrative law judge's denial of Section 8(f) relief
to employer.

                    VI. Attorney Fee Award  

     Lastly, employer appeals the attorney fee awarded by the administrative law
judge to claimant's counsel.  The amount of an attorney's fee award is
discretionary and may be set aside only if the challenging party shows it to be
arbitrary, capricious, an abuse of discretion, or not in accordance with law.
See, e.g., Muscella v. Sun Shipbuilding & Dry Dock Co., 12 BRBS 272 (1980).

     Subsequent to the administrative law judge's award of benefits, claimant filed
a fee petition seeking $22,101.83, representing 159 hours of services at $125 per
hour, plus expenses of $2,236.83.  Employer filed objections to the fee request. 
After addressing employer's objections, the administrative law judge disallowed 34
of the hours requested by counsel, approved the hourly rate of $125 sought, and
thereafter awarded counsel a fee of $15,625, plus expenses in the amount of
$2,236.83.  

      Employer first contends that the lack of complexity of the instant case, as
well as the hourly rates customarily awarded in the area where this case arose,
mandates a reduction in the hourly rate awarded by the administrative law judge.[3]   An attorney's fee must be awarded in accordance
with Section 28 of the Act, 33 U.S.C. §928, and the applicable regulation,
Section 702.132, 20 C.F.R. §702.132, which provides that the award of any
attorney's fee shall be reasonably commensurate with the necessary work done, the
complexity of the legal issues involved and the amount of benefits awarded. See
generally Parrott v. Seattle Joint Port Labor Relations Committee of the Pacific
Maritime Ass'n, 22 BRBS 434 (1989).  In the instant case, the administrative
law judge implicitly accepted the hourly rate requested as being reasonable;
employer's mere assertion that the rate does not conform to reasonable and
customary charges is insufficient to meet employer's burden of proving that the
hourly rate awarded is excessive.  Accordingly, we affirm the hourly rate awarded
by the administrative law judge to claimant's counsel. See generally Welch v. Pennzoil Co., 23 BRBS 395 (1990).

     Employer additionally challenges the number of hours requested by claimant's
counsel and approved by the administrative law judge.  In considering counsel's fee
petition, the administrative law judge set forth employer's specific objections to
the number of hours requested by claimant's attorney and thereafter reduced the
number of hours requested by counsel by 34, a reduction of over 21 percent. 
Employer's assertions on appeal are insufficient to meet its burden of proving that
the administrative law judge abused his discretion in this regard; thus, we decline
to reduce or disallow the hours approved by the administrative law judge. See
Maddon v. Western Asbestos Co., 23 BRBS 55 (1989); Cabral v. General
Dynamics Corp., 13 BRBS 97 (1981).  Accordingly, we affirm the administrative
law judge's award of attorney fees.

     Accordingly, the administrative law judge's finding that employer is liable
for the medical expenses for claimant's treatment by Drs. Phillips and Adatto is
vacated, and the case is remanded to the administrative law judge for further
findings consistent with this opinion.  In all other respects, the Decision and
Order of the administrative law judge is affirmed.  The administrative law judge's
Supplemental Decision and Order Awarding Attorney Fees is also 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)Employer does not challenge the occurrence of the two work-related incidents which precipitated claimant's claim for benefits under the Act. Back to Text
2)We note that employer does not contest its liability for the charges rendered by the remaining physicians of record. Back to Text
3)We note that despite employer's contentions, this case involved numerous issues including, inter alia, the establishment of claimant's prima facie case, causation, nature and extent of disability, average weekly wage for two injuries, liability for medical expenses, suitable alternate employment and liability for attorney fees. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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