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                                 BRB No. 92-2046 

GERALD L. KIRKLAND                      )
          Claimant-Petitioner           )
     v.                                 )
JACKSONVILLE SHIPYARDS,                 )    DATE ISSUED:   06/29/1995
INCORPORATED                            )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order and Denial of Motion for
     Reconsideration of George A. Fath, Administrative Law Judge, United
     States Department of Labor.

     John E. Houser, Thomasville, Georgia, for claimant.

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


     Claimant appeals the Decision and Order and Denial of Motion for
Reconsideration (90-LHC-1713) of Administrative Law Judge George A. Fath 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 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 worked for employer as a rigger from 1957 until August 13, 1984, when
he slipped, injuring his wrist, arm and shoulder.  Dr. Espinoza, the shipyard's
attending physician, who saw claimant the following day, described claimant's
injury as "contusion right hand, strain right shoulder."  Emp. Ex. I at 172.  He
further listed findings of "[t]enderness localized on the 4th and 5th fingers - no
clinical evidence of fracture - also complaining of right scapular cervical pain." 
Id. at 173.  Claimant thereafter saw various physicians, including Dr.
Kleinhans, a hand surgeon, who diagnosed a chip fracture of the dorsum of
claimant's right wrist.  In March 1985, Dr. Kleinhans performed limited carpal
fusion surgery on claimant's right wrist, as a result of which claimant developed
a wound infection.  In July 1988, Dr. Kleinhans performed a full wrist fusion. 
Claimant attempted unsuccessfully to 
return to work several times since his surgery.  Employer voluntarily paid claimant
temporary total disability compensation from August 14, 1984, through April 5,
1987, and from July 14, 1988, through November 1, 1989.  Employer also voluntarily
paid claimant permanent partial disability compensation under Section 8(c)(3) of
the schedule, 33 U.S.C. §908(c)(3), based on Dr. Kleinhans' November 28, 1989,
assessment that claimant sustained a 32 percent permanent impairment of the hand.
See Emp. Ex. B at 39.

     The administrative law judge denied the claim for permanent partial disability
compensation under Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), finding
the evidence of record insufficient to establish that claimant had any residual
shoulder or neck impairment. The administrative law judge further determined that
inasmuch as claimant's work-related hand injury did not preclude him from
performing his usual work, he was not entitled to permanent total disability
compensation and was limited to the scheduled benefits for a 32 percent hand
impairment pursuant to Section 8(c)(3) of the Act, which he had already been paid.
33 U.S.C. §908(c)(3).  Because claimant was only partially disabled and had
been fully compensated for his scheduled disability, the claim for additional
disability benefits was denied.  The administrative law judge denied claimant's
motion for reconsideration.

     On appeal, claimant initially contends that the administrative law judge erred
in finding that he had no residual impairment of his neck and shoulders due to the
August 13, 1984, work injury. Claimant argues that while the administrative law
judge found that claimant did not complain about his shoulder and neck pain until
1986, Dr. Espinoza, the shipyard doctor, recorded the day after the accident that
claimant sustained a right shoulder strain and was complaining of right scapular
cervical pain.  Claimant further contends that, according to Dr. Kleinhans,
claimant had pain which radiated into the neck, and that Dr. Kleinhans requested
a second opinion to determine whether claimant might have cervical root
compression, as this was not his specialty.  Claimant also alleges that in October
1989 Dr. McAuley recorded cervical area complaints, and wrist pain which radiated
proximately into claimant's right shoulder.  Employer has not responded to this

     After review of the administrative law judge's Decision and Order in light of
the record evidence, we affirm his denial of permanent partial disability
compensation under Section 8(c)(21), because his finding that claimant sustained
no residual shoulder or neck impairment is rational and supported by the record.
See O'Keeffe, 380 U.S. at 360.  Although Dr. Espinoza did relate shoulder
and cervical complaints immediately following the injury, the remaining medical
reports support the administrative law judge's assessment that these complaints
were not significant.   In his September 6, 1984, office notes following claimant's
initial visit, Dr. Kleinhans refers only to claimant's wrist injury, and he relates
the same information in a letter to Dr. Espinoza dated September 20, 1984.  As was
noted by the administrative law judge, claimant continued to see Dr. Kleinhans
thereafter every few weeks, but failed to mention any problems other than those
relating to his wrist or hand, until June 16, 1986.  Emp. Ex. B at 32. Thereafter,
with the exception of a June 24, 1986, letter from Dr. Kleinhans to employer's
claims department, in which Dr. Kleinhans attempted to explain why a second opinion
was needed to evaluate the possibility of cervical root compression, id. at
55, the record contains no other evidence documenting neck or shoulder complaints
or injury.  Contrary to claimant's contention, Dr. McAuley, who first saw claimant
on February 20, 1985, to render a second opinion as to whether claimant should
undergo wrist surgery, did not reference problems other than those relating to
claimant's wrist.  Although following claimant's second visit in October 1989, Dr.
McAuley did report claimant's complaint of pain radiating from his wrist into his
shoulder, this report contains no reference to shoulder or cervical complaints
independent of those directly related to the wrist injury.  Emp. Ex. F at 81-83. 
The reports of the other physicians of record also do not refer to problems other
than claimant's hand injury. See, e.g., Cl. Ex. P at 71; Tr. at 77. Inasmuch
as the administrative law judge's finding that claimant sustained no shoulder or
neck impairment is rational given the absence of supporting objective medical
evidence documenting cervical and shoulder complaints or injury in the record, his
denial of permanent partial disability benefits for these conditions under Section
8(c)(21) is affirmed. See generally Thompson v. Northwest Enviro Services,
Inc., 26 BRBS 53 (1992).

     The administrative law judge's finding that claimant is limited to permanent
partial disability compensation under the schedule for his hand injury also is
affirmed. Pursuant to Potomac Electric Power Co. v. Director, OWCP, 449 U.S.
268, 14 BRBS 363 (1980), where a claimant sustains injury to a body part falling
under the schedule, he is limited to an award under the schedule and cannot seek
a higher recovery under Section 8(c)(21).  The Supreme Court's decision in
Potomac Electric Power Co., however, does not apply where an employee who
sustains an injury to a scheduled member is permanently totally disabled.
Id., 449 U.S. at 277 n.17, 14 BRBS at 366-367 n.17; see Rivera v. United
Masonry, Inc., 24 BRBS 78, 81 (1990), aff'd 948 F.2d 774, 25 BRBS 51
(D.C. Cir. 1991). In order to establish a prima facie case of total
disability, claimant must establish an inability to return to his usual pre-injury
employment. See New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d
1031, 14 BRBS 156 (5th Cir. 1981).

     In limiting claimant to scheduled permanent partial disability compensation,
the administrative law judge determined that claimant failed to establish his
prima facie case. In so concluding, the administrative law judge noted that
Dr. Kleinhans had imposed a lifting restriction of ten pounds on claimant, and that
claimant stated that he cannot do anything which involves pushing and pulling. 
While recognizing that these activities are essential to the performance of
claimant's former job as a rigger, the administrative law judge determined, based
on surveillance evidence introduced by employer depicting claimant lifting 40-pound
bags of cow manure,  stacking firewood which he was selling beside the road, and
pushing a wheelbarrow, that the limitations and symptoms alleged by claimant do
not, in fact, exist.  The administrative law judge further determined that since
the restrictions which Dr. Kleinhans had imposed were based on misinformation he
received from the claimant, his opinion was not credible.  While claimant
challenges the administrative law judge's reliance on the surveillance evidence,
the administrative law judge acted within his discretion in crediting this evidence
over claimant's testimony and the restrictions imposed by Dr. Kleinhans. See
Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 24  BRBS 46 (CRT)(5th Cir. 1990); Cordero v. Triple A Machine Shop, 580 F.2d
1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979);
Wheeler v. Interocean Stevedoring Inc., 21 BRBS 33 (1988).  Because the
surveillance evidence introduced by employer provides substantial evidence to
support the administrative law judge's finding that claimant is capable of
performing his usual job duties, and claimant has failed to raise any error made
by the administrative law judge in evaluating the relevant evidence and making
credibility determinations, we affirm his denial of permanent total disability
compensation in this case. See generally Uglesich v. Stevedoring Services of
America, 24 BRBS 180, 183 (1991). 

     Accordingly, the administrative law judge's Decision and Order denying
additional compensation and Denial of Motion for Reconsideration are affirmed.



                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge


                         ROY P. SMITH
                         Administrative Appeals Judge


                         NANCY S. DOLDER
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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