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                                   BRB No. 92-2553

ROBERT LAKE                             )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
M. P. HOWLETT,                          )
INCORPORATED                            )    DATE ISSUED:   05/30/1995
                                        )
          Self-Insured                  )    
          Employer-Respondent           )    DECISION AND ORDER

     Appeal of the Decision and Order - Denying in Part and Granting in Part
     Benefits of Frank D. Marden, Administrative Law Judge, United States
     Department of Labor.

     Michael E. Glazer (Israel, Adler, Ronca & Gucciardo), New York, New
     York, for claimant.

     Michael N. Cotignola (Kalmus & Martuscello), Berkeley Heights, New
     Jersey, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order (90-LHC-1609) of Administrative Law
Judge Frank D. Marden 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).

     On August 3, 1988, claimant sustained injuries to his right shoulder, left
hand, and right ankle when, while working as a foreman for employer, he slipped on
a greasy walkway. Claimant was taken to the Bayonne Hospital emergency room
immediately thereafter where ice pack treatment was administered, his ankle was
bandaged, and he was provided with crutches. On September 12, 1988, claimant
sustained further injuries to his head, neck and back when he tripped and fell
while using his crutches.  Employer voluntarily paid claimant temporary total
disability compensation based on a compensation rate of $531.37 from August 4, 1988 until December 8, 1988.  Claimant sought additional temporary total
disability benefits from December 9, 1988, until January 25, 1989, and scheduled
permanent partial disability compensation for his left wrist and right ankle
injuries pursuant to Section 8(c)(3), (4) of the Act.  33 U.S.C. §908(c)(3),
(4).

     Agreeing with claimant that the injuries he sustained as a result of the
second fall were a natural and unavoidable consequence of the initial work injury,
the administrative law judge awarded claimant the additional temporary total
disability benefits he sought based on a compensation rate of $531.37.  The
administrative law judge denied claimant compensation for his left wrist and ankle
injuries, however, finding that he had not introduced credible evidence of
compensable permanent physical impairment. 

     Claimant appeals both the administrative law judge's denial of permanent
partial disability benefits and his calculation of the applicable average weekly
wage.[1]   Employer responds, urging affirmance.

     In the present case, claimant introduced the testimony of Drs. Margolies and
Kneller in support of his permanent partial disability claims.  Dr. Margolies,
claimant's treating physician, opined that claimant exhibited a 25 percent
permanent partial disability of the right ankle and a 15 percent impairment of the
left wrist.  Dr. Kneller found a 25 percent impairment of both claimant's right
ankle and his left wrist.  After considering Dr. Margolies' opinion, the
administrative law judge reasonably rejected it, finding that Dr. Margolies' method
of disability assessment, based on a combination of the American Medical
Association Guides to the Evaluation of Permanent Impairment (3d ed. rev.
1990) (AMA Guides) and other factors, was unduly subjective. In so
concluding, the administrative law judge noted that his method allowed for a
finding of disability in the absence of permanent physical impairment[2]  contrary to the concept of scheduled disability
under the Act.[3]   The administrative law judge
also rejected Dr. Kneller's testimony as subjective.  He noted that Dr. Kneller
also employed a hybrid AMA Guides and "other factors" method of disability
assessment and more importantly failed to specify the "other factors"  he relied
upon in making his assessments of disability.  Claimant avers that the
administrative law judge erred in failing to accord determinative weight to Dr.
Margolies' opinion in light of his status as treating physician.  The
administrative law judge, however, may accept or reject all or any part of any
testimony according to his judgment. Avondale Shipyards, Inc. v. Kennel, 914
F.2d 88, 24 BRBS 46 (CRT) (5th Cir. 1990); Thompson v. Northwest Enviro
Services, 26 BRBS 53, 61 (1992); Wheeler v. Interocean Stevedoring,
Inc., 21 BRBS 33 (1988). Inasmuch as the administrative law judge acted within
his discretion in rejecting the medical opinions of Drs. Margolies and Kneller, the
only medical evidence indicative of permanent impairment to claimant's wrist, his
denial of benefits under Section 8(c)(3) for the wrist injury is affirmed.[4]  

     The administrative law judge's denial of scheduled benefits for claimant's
ankle injury is also affirmed.  After considering the evidence relating to
claimant's ankle condition, including the medical opinions of Drs. Margolies and
Kneller previously discussed, the administrative law judge found the opinions of
Drs. Leonardt and Zaresky most persuasive.  The administrative law judge noted that
their opinions that claimant had no objective evidence of residual permanent
impairment was corroborated by that of Dr. Baghal, claimant's treating orthopedist,
who similarly found no swelling, tenderness or limitation of motion when he
examined claimant on December 5, 1988.  The administrative law judge also
considered claimant's testimony regarding his weakness, occasional pain and
problems moving his ankle, and rationally found it insufficient to support a
finding of permanent partial disability.  The medical opinions of Drs. Leonardt and
Zaresky provide substantial evidence to support the administrative law judge's
denial of permanent partial disability benefits for claimant's ankle injury.  As
claimant has failed to raise any reversible error made by the administrative law
judge in evaluating the conflicting evidence and making credibility determinations,
this finding is affirmed.[5]   See
generally Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); Uglesich v. Stevedoring Services of America, 24 BRBS 180 (1991).  
     

     Claimant also challenges the administrative law judge's calculation of his
average weekly wage, stating only that the average weekly wage should be
established at a minimum of $989.79.  Claimant offers no argument in support of
this figure, nor does he assert specific error in the administrative law judge's
calculation.  We decline to address claimant's contention, as it was not adequately
briefed. West v. Washington Metropolitan Area Transit Authority, 21 BRBS
125, 127 n.3 (1988); Carnegie v. C & P Telephone Co., 19 BRBS 57, 58-59
(1986); 20 C.F.R. §802.211(b). 

     Accordingly, the administrative law judge's Decision and Order - Denying in
Part and Granting in Part Benefits is affirmed.

     SO ORDERED.


                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         JAMES F. BROWN
                         Administrative Appeals Judge

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Footnotes.


1)Although claimant also argues on appeal that the evidence shows that the injuries he sustained as a result of his September 12, 1988 fall are compensable, the administrative law judge awarded claimant the additional temporary total disability compensation he sought in connection with that injury. Back to Text
2)On deposition, Dr. Margolies acknowledged that, under his method of disability evaluation, he would still assess some degree of permanent disability in the absence of permanent physical impairment. CX 12 at 76-77. Back to Text
3)The Act does not require impairment ratings based on medical opinions using the criteria of the AMA Guides except in cases involving compensation for hearing loss and voluntary retirees. See 33 U.S.C. §§908(c)(13)(E), (b), 902(10). An administrative law judge may consider a variety of medical opinions and observations in addition to claimant's description of symptoms and physical effects of his injury in assessing the extent of claimant's disability. Pimpinella v. Universal Maritime Services, Inc., 27 BRBS 154 (1993). There is no disability under the schedule, however, in the absence of permanent physical impairment. Compensation for loss or partial loss of use under the schedule is based on the degree of permanent impairment proportionately applied to the number of weeks in the schedule. See generally Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 14 BRBS 363 (1980). Back to Text
4)We note that the administrative law judge considered claimant's testimony that his wrist was in "pretty good shape now," Transcript at 38, and rationally determined that this testimony was not supportive of his permanent disability claim. Back to Text
5)Although claimant asserts that the administrative law judge erred in failing to resolve factual doubt in his favor, the United States Supreme Court recently determined that the "true doubt rule" is invalid because it conflicts with Section 7(c) of the Administrative Procedure Act, 5 U.S.C. §556(d). Director, OWCP v. Greenwich Collieries, ___ U.S. ___, 114 S.Ct. 2251, 28 BRBS 43 (CRT) (1994). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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