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                                 BRB No. 99-0381

JASON DAY                               )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                        )
INSPECTORATE AMERICA                    )
CORPORATION                             )    DATE ISSUED:   07/25/2000

                                        )
     and                                )    
                                        )
NATIONAL UNION FIRE INSURANCE           )
COMPANY OF PITTSBURGH                   )    
                                        )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
     Law Judge, United States Department of Labor.  

     Stephen M. Vaughn (Mandell & Wright), Houston, Texas, for claimant.

     John H. Hughes (Allen & Gooch), Lafayette, Louisiana, for
     employer/carrier.

     Before: BROWN and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order (1997-LHC-1710) of Administrative Law
Judge Lee J. Romero, Jr., 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).


     Claimant alleged that he suffered an injury to his back on October 27, 1996,
when he slipped from a ladder and fell to the deck of a barge.   Claimant
immediately informed a co-worker that he had injured his back; he then reported the
alleged incident to employer's dispatcher, Mr. Walden, and to his supervisor, Mr.
Godinich.  That same day, claimant was admitted to the hospital with back pain. 
Claimant was initially prescribed Flexeril, and later Soma, in an effort to
alleviate his pain; these prescriptions  prevented claimant from operating a motor
vehicle.  Subsequently, an MRI revealed a questionable disc herniation, while a
discogram revealed an abnormality at L4-5, L5-S1, and an annular tear at that
level.  In November 1996, employer allegedly offered claimant light-duty
employment. On November 18, 1996, as claimant did not "call-in" to his supervisor
within a prescribed period, employer considered claimant to be "self-terminated." 
   Claimant has since commenced employment for other employers.

     In his Decision and Order, the administrative law judge concluded, based upon
the testimony of claimant, that claimant established the existence of working
conditions which could have caused his present back condition, that claimant was
therefore entitled to the Section 20(a), 33 U.S.C. §920(a), presumption, and
that employer failed to rebut the same; accordingly, the administrative law judge
found causation established.  Next, the administrative law judge determined that
claimant was incapable of resuming his usual employment duties, but that claimant's
post-injury employment between October 10, 1997 and February 14, 1998, and February
18, 1998 through the  date of the hearing, established the availability of suitable
alternate employment and a post-injury wage-earning capacity.  Accordingly, the administrative law judge
awarded claimant temporary total disability benefits during the periods of October
27, 1996 through October 8, 1997, and February 15, 1998  through February 17, 1998,
 and temporary partial disability benefits during the period October 9, 1997
through February 14, 1998, as well as medical benefits, interest, and an attorney's
fee. See 33 U.S.C. §§907, 908(b), (e).

     On appeal, employer contends that the administrative law judge erred in
finding that an accident or injury occurred during the course of claimant's
employment.[1]    Employer additionally challenges
the administrative law judge's determination regarding the reason for claimant's
termination in November 1996.   Claimant responds, urging affirmance.

     Employer initially challenges the administrative law judge's determination
that claimant established the existence of a work-related accident or injury which
could have caused his present back condition.  It is well-established that claimant
bears the burden of proving the existence of an injury or harm and that a work-related accident occurred or that working conditions existed which could have
caused the harm in order to establish his prima facie case. See Gooden
v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59 (CRT)(5th Cir. 1998); Bolden
v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996).  It is claimant's burden to
establish each element of his prima facie case by affirmative proof. See
Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989); see also
Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43 (CRT)(1994). 


     In the instant case, employer does not dispute that claimant has suffered a
harm, i.e., an injury to his back, but argues that claimant failed to
establish the existence of a work incident which could have caused that condition. 
 In raising this contention, employer states that the incident at issue was not
witnessed, that the laws of gravity and physics preclude claimant from falling as
he asserts, that claimant had experienced back pain prior to the date of the
alleged incident, and that claimant consistently denied, but now concedes, that he
sustained a work-injury prior to the incident at issue in the instant case.  In
addressing this issue, the administrative law judge found that claimant's failure to
acknowledge a prior work-event, his alleged inconsistent statements rendered upon
his arrival at the hospital on October 27, 1996, and employer's witnesses
statements regarding claimant's alleged pre-existing back pain do not prove that
claimant did not suffer or incur a harm to his body on October 27, 1996. See
Decision and Order at 22-23.  Regarding employer's assertion that claimant's
version of the alleged accident is implausible, the administrative law judge
specifically found that claimant provided definitive testimony with respect to his
back condition.  Moreover, the administrative law judge found that claimant's
testimony throughout the hearing was generally unequivocal and credible, that
claimant sustained objective symptoms for which he was treated, and that claimant
was thereafter diagnosed with disc abnormalities and a questionable herniated disc. 
Thus, in concluding that claimant affirmatively established the existence of
working conditions which could have caused his harm, the administrative law judge
specifically addressed and rejected each of employer's contentions, and relied upon
claimant's testimony that he suffered a work-related injury on October 27, 1996,
when he slipped off of a ladder and fell to the deck of a barge  while working for
employer.

     It is well-established that, in arriving at his decision, the administrative
law judge is entitled to evaluate the credibility of all witnesses and to draw his
own inferences and conclusions from the evidence. See Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 371 U.S. 954
(1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962). 
Accordingly, the administrative law judge's credibility determinations are not to
be disturbed unless they are inherently incredible or patently unreasonable.
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978). 
In the instant case, the administrative law judge specifically set forth and
considered each of employer's concerns and concluded that claimant did, in fact,
sustain a work-related accident as described on October 27, 1996.  On the basis of
the record, the administrative law judge's decision to credit the testimony of
claimant is neither inherently incredible nor patently unreasonable; accordingly,
we affirm the administrative law judge's finding that claimant established his
prima facie case, and his consequent invocation of the Section 20(a)
presumption.  As his finding that employer did not rebut the presumption is not
challenged on appeal, the administrative law judge's finding that causation was
established is also affirmed.

     Lastly, employer asserts that the administrative law judge erred in addressing
the issue of whether claimant's discharge by employer in November 1996 was related
to his injury; specifically,  employer contends that the administrative law judge
implicitly raised sua sponte the issue of whether Section 49 of the Act, 33
U.S.C. §948a, is applicable to this case.  Claimant responds, stating that he
sought no remedy before the administrative law judge pursuant to Section 49 and
that the administrative law judge properly based his award of compensation to
claimant on claimant's inability to return to work.  For the reasons that follow,
we reject  employer's contentions of error.

     Section 49 of the Act prohibits an employer from discharging or discriminating
against an employee based on his involvement in a claim under the Act and if the
employee can show he is the victim of such discrimination he is entitled to
reinstatement and back wages.  To establish a prima facie case of
discrimination, a claimant must demonstrate that his employer committed a
discriminatory act motivated by discriminatory animus or intent. See Holliman
v. Newport News Shipbuilding & Dry Dock Co., 852 F.2d 759, 21 BRBS 124
(CRT)(4th Cir. 1988), aff'g 20 BRBS 114 (1987).  

     In the instant case,  however, claimant  at no time during the proceedings
below sought reinstatement and back wages based upon a claim  that his termination
by employer in November 1996 was in violation of Section 49 of the Act.  Rather,
claimant sought compensation benefits pursuant to his alleged inability to return
to his usual employment duties with employer. See Claimant's LS-18 dated
February 19, 1998; Hearing transcript at 14-21; Claimant's post-hearing brief.  In
addressing claimant's entitlement to compensation benefits, the administrative law
judge determined that claimant, due to the restrictions placed upon him as a result
of his use of prescription medications, was incapable of performing either his
usual employment duties or the modified work offered to him by employer since
claimant was incapable of operating a motor vehicle.  Thereafter, the
administrative law judge found that the post-injury employment positions obtained
by claimant constituted suitable alternate employment, and the administrative law
judge fashioned his ultimate awards of  temporary total and temporary partial
disability compensation based upon those findings. See Decision and Order
at 25-29.  Although, as employer avers, the administrative law judge also found
claimant to be entitled to compensation benefits because he was discharged for
reasons related to his injury, specifically claimant's failure to "call-in" during
the required period of time, the administrative law judge did not reference Section
49 in his decision, nor did he address claimant's possible  entitlement  to
reinstatement and back wages pursuant to that section of the Act.  Accordingly, as
claimant did not seek nor did the administrative law judge address claimant's
entitlement to relief pursuant to Section 49 of the Act, we reject employer's
allegation of error.  As employer does not contest the administrative law judge's
findings that claimant is incapable of resuming his usual employment duties with
employer or that claimant's post-injury employment established claimant's post-injury wage-earning capacity, we affirm the administrative law judge's award of
temporary total and temporary partial disability compensation to claimant based
upon those findings.

     Accordingly, the administrative law judge's Decision and Order is affirmed.

     SO ORDERED.



                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge


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Footnotes.


1)By Order dated April 28, 1999, the Board dismissed this appeal and remanded the case to the administrative law judge for consideration of claimant's request for modification. Following claimant's withdrawal of this request, employer moved for reinstatement of its appeal. By Order of April 6, 2000, the Board granted the request, reinstated the appeal and advised the parties that the one period for review would commence upon receipt of the record. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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