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                                BRB Nos. 97-1511, 
                               99-1063 and 99-1063A

MICHAEL BROWN                           )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
AVONDALE INDUSTRIES,                    )    DATE ISSUED:   07/07/2000

INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Petitioner              )    DECISION and ORDER

     Appeals of the Decision and Order Denying Compensation Benefits, Order
     Denying Claimant's Motion for Reconsideration, Decision and Order on
     Section 22 Modification and Order Denying Petitions for Reconsideration
     of Richard D. Mills, Administrative Law Judge, United States Department
     of Labor.

     Pat Byrne Whiteaker, Brookhaven, Mississippi, for claimant.

     Christopher M. Landry, Metairie, Louisiana, for self-insured employer.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Denying Compensation Benefits and
Order Denying Claimant's Motion for Reconsideration, and claimant appeals, and
employer cross-appeals, the Decision and Order on Section 22 Modification and Order
Denying Petitions for Reconsideration  (94-LHC-863) of Administrative Law Judge
Richard D. Mills 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, who worked as a fiberglass laminator for employer, suffered a work-related injury to his lower back on June 10, 1991, after lifting a five-gallon jug. 
He was unable to continue his work for employer thereafter.  After conservative
treatment, claimant underwent a discectomy at the L4-5 level in April 1992, but
continued to complain of pain in his back and right leg.  He filed a claim under
the Act seeking temporary total disability compensation.  33 U.S.C. §908(b). 
Employer voluntarily paid temporary total disability benefits from June 21, 1991
until March 2, 1993, and from October 25, 1994 until June 26, 1996.

     In his initial Decision and Order Denying Benefits, issued on April 7, 1997,
the administrative law judge found that claimant established a prima facie
case of total disability.  He further found that claimant reached maximum medical
improvement on December 20, 1992, based on the opinion of Dr. Bazzone, the
physician who performed claimant's surgery.  The administrative law judge next
found that employer established the availability of suitable alternate employment
beginning on March 5, 1993, by virtue of four truck driving positions and a route
sales driver position which the administrative law judge found were within
claimant's physical limitations.  After finding that the alternate employment
exceeded claimant's pre-injury wage-earning capacity, the administrative law judge
determined that claimant was not entitled to any further compensation, but found
that claimant was entitled to medical benefits under Section 7 of the Act, 33
U.S.C. §907.  In an order denying claimant's motion for reconsideration, the
administrative law judge found that claimant contacted few of the 24 jobs listed
in employer's job survey, and thus, reaffirmed his determination that employer
established the availability of suitable alternate employment.  Additionally, the
administrative law judge reaffirmed his finding that the opinion of Dr. Davis, that
claimant was not capable of any employment, was outweighed by the contrary medical
evidence. 

     Thereafter, claimant appealed the administrative law judge's decisions to the
Board.  After the notice of appeal was filed, however, claimant filed a motion to
re-open the record with the district director based on new medical evidence.  In
an Order dated November 25, 1997, the Board construed claimant's motion to re-open
the record as a request for modification, and remanded the case for modification
proceedings, which occurred before the administrative law judge on October 15,
1998.  On April 19, 1999, the administrative law judge issued his Decision and
Order on Section 22 Modification, wherein the administrative law judge found
claimant's back condition had worsened based on the results of a discogram
administered on August 15, 1997, and thus, that claimant established a change in
condition.  Relying on Dr. Whitecloud's opinion that claimant requires surgery and
is unable to return to gainful employment, the administrative law judge awarded
claimant temporary total disability compensation retroactive to August 25, 1997,
the date Dr. Whitecloud reviewed the discogram findings.  The administrative law
judge further found that claimant was entitled to reimbursement for the treatment
rendered by Dr. Whitecloud commencing on September 17, 1997, and all reasonable and
necessary treatment as suggested by claimant's physicians, but denied reimbursement
for the treatment rendered by Drs. Whitecloud, Aprill and Tim Jackson prior to that
date as claimant failed to seek authorization for their treatments.  In a
subsequent order, the administrative law judge denied both employer's and
claimant's motions for reconsideration.

     In his appeal of the Decision and Order Denying Compensation Benefits and
Order Denying Claimant's Motion for Reconsideration (the 1997 decisions), BRB No.
97-1511, claimant challenges the administrative law judge's finding that claimant
reached maximum medical improvement on December 20, 1992, arguing that he has
remained temporarily totally disabled since the date of his accident and was under
no obligation to seek alternate employment after December 20, 1992.  Claimant
further argues that the administrative law judge erred in finding that employer
established suitable alternate employment and that claimant did not diligently seek
employment.  Employer responds, urging affirmance.  In his appeal of the Decision
and Order on Section 22 Modification and Order Denying Petitions for
Reconsideration (the 1999 decisions), BRB No. 99-1063, claimant contends that the
administrative law judge's retroactive reinstatement of benefits on August 25, 1997
was arbitrary, and reiterates his argument that he is entitled to temporary total
disability compensation from the date of the accident.  Employer has filed a cross-appeal of the administrative law judge's 1999 decisions, BRB No. 99-1063A,
challenging the administrative law judge's award of benefits on modification. 
Specifically, employer contends that the administrative law judge erred in finding
a change in condition, asserting that the medical evidence since 1997 merely
reiterates the results of prior evaluations.  In an Order issued on September 22,
1999, the Board consolidated claimant's appeals of the administrative law judge's
1997 and 1999 decisions, BRB Nos. 97-1511 and 99-1063, with employer's appeal of
the 1999 decisions, BRB No. 99-1063A, for purposes of decision.

     We first address the arguments raised by claimant in his appeal of the
administrative law judge's 1997 decisions, BRB No. 97-1511.  Claimant initially
contends that the administrative law judge erred in finding that claimant reached
maximum medical improvement on December 20, 1992.  Specifically, claimant argues
that his April 1992 discectomy did not significantly improve his condition, and
that Dr. Bazzone's opinion that claimant reached maximum medical improvement on
December 20, 1992, is contrary to the objective evidence, as well as his own
earlier opinion that further surgery may be needed.

     The determination of when maximum medical improvement is reached is primarily a question of fact based on
medical evidence. Eckley v. Fibrex & Shipping Co., Inc., 21 BRBS 120 (1988); Ballesteros v. Willamette W.
Corp., 20 BRBS 184 (1988).  A claimant's condition may be considered permanent when it has continued for a lengthy
period and appears to be of lasting and indefinite duration, as opposed to one in which recovery merely awaits a normal
healing period. Watson v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394 U.S. 976
(1969).  A finding of fact establishing the date of maximum medical improvement must be affirmed if it is supported by
substantial evidence. See Mason v. Bender Welding & Machine Co., 16 BRBS 307 (1984).

     In his 1997 decision, the administrative law judge initially determined that
claimant reached maximum medical improvement on December 20, 1992, based on the
opinion of Dr. Bazzone, who performed claimant's surgery. See 1996 Emp. Ex.
10.  The administrative law judge found this to be the most accurate date as the
evidence showed that claimant had recovered from his surgery by this time, that no
subsequent therapy, injections or rest alleviated claimant's complaints of pain,
and that no physician advocated further surgery.[1] 
 See 1997 Decision and Order at 12.  Claimant, on appeal, points to a June
19, 1992, note from Dr. Bazzone in which he requested further myelographic studies
and considered whether additional surgery should be performed.  However, after
further studies were performed, Dr. Bazzone opined on August 6, 1992 that
claimant's disc effects were less severe than prior to the surgery, and concluded
that further surgery was not necessary. See 1996 Emp. Ex. 10.  Claimant
further avers that the administrative law judge erred in discrediting claimant's
subjective complaints of pain subsequent to December 20, 1992.  However, even if
the administrative law judge had made a contrary finding regarding claimant's
complaints, it would not conflict with his finding that claimant reached permanency
on that date. See, e.g., Ezell v. Direct Labor, Inc., 33 BRBS 19 (1999). 
As the record contains substantial evidence to support the administrative law
judge's determination that claimant reached maximum medical improvement on December
20, 1992, we affirm that finding. See Cooper v. Offshore Pipelines Int'l,
Inc., 33 BRBS 46 (1999); Ezell, 33 BRBS at 19; Delay v. Jones
Washington Stevedoring Co., 31 BRBS 197 (1998).

     Claimant next argues that the administrative law judge erred in not initially
awarding  total disability compensation.[2]  
Specifically, claimant asserts that the administrative law judge erred in failing
to address the totality of the evidence regarding claimant's capacity to perform
suitable alternate employment.  Claimant alternatively argues that if suitable
alternate employment is established, he met his burden of showing that he
diligently yet unsuccessfully searched for employment, and therefore, he should be
entitled to total disability under the Act.  For the reasons that follow, we vacate
the administrative law judge's denial of permanent total disability compensation
and remand the case for reconsideration.  

     Where, as here, a claimant establishes that he is unable to perform his usual
employment duties due to a work-related injury, the burden shifts to employer to
demonstrate the realistic availability of jobs in the geographic area in which
claimant resides which he is, by virtue of his age, education, work experience, and
physical restrictions, capable of performing and for which he can compete and
reasonably secure. See P & M Crane Co. v. Hayes, 930 F.2d 424, 24 BRBS 116
(CRT), reh'g denied, 935 F.2d 1293 (5th Cir. 1991); New Orleans
(Gulfwide) Stevedores, Inc. v. Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir.
1981).  If employer establishes the availability of suitable alternate
employment, claimant nevertheless can prevail in his quest to establish total
disability if he demonstrates that he diligently tried and was unable to secure
such employment. Palombo v. Director, OWCP, 937 F.2d 70, 25 BRBS 1 (CRT)(2d
Cir. 1991); Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d
687, 18 BRBS 79 (CRT)(5th Cir.), cert. denied, 479 U.S. 826 (1986);
Martiniano v. Golten Marine Co., 23 BRBS 363 (1990).    

     In rendering his determination that employer established the availability
of suitable alternate employment,  the administrative law judge relied on the
opinions of Drs. Danielson and Russo that claimant is capable of light duty with
alternate sitting and standing, see 1996 Emp. Exs. 14, 23 at 31-32, 26 at
35, and found that these opinions outweighed the 1993 opinion of Dr. Davis that
claimant was not capable of employment, see 1996 Emp. Ex. 12.  The
administrative law judge further rejected the restrictions given by Dr. Bazzone. 
Dr. Bazzone restricted claimant from his usual employment for three months after
December 1992, and thereafter did not place any limitations on claimant, stating
that claimant's limitations should be governed by his own pain responses.
See 1996 Emp. Ex. 24 at 10, 16.  The administrative law judge rejected these
limitations as too reliant on claimant's subjective complaints.  Thereafter, the
administrative law judge found that employer established suitable alternate
employment on the basis of four truck driving positions and a route sales driver
position identified in its March 5, 1993, job market survey, finding that these
jobs fit the definition of light duty. See 1997 Decision and Order at 13.
Contrary to the administrative law judge's determination, however, both Drs.
Danielson and Russo limited claimant to alternate sitting and standing, and there
is no indication from employer's 1993 job market survey that the jobs listed would
allow claimant to do so.  While the administrative law judge found that the route
sales driver position would have offered more opportunities for standing, the
physical requirements of this job are not listed in the job survey.  Moreover, the
truck driving jobs required a specific type of license which claimant testified he
did not have, see 1996 Tr. at 74, and significantly, the report states that
it is based on Dr. Bazzone's limitations, which the administrative law judge
rejected, and incorrectly assumes that "no restrictions have been assigned to"
claimant. See 1996 Emp. Supp. Ex. 21 at 265.  As the available jobs
identified in employer's March 5, 1993, job market survey provide no means for
determining whether the duties involved are within the physical limitations imposed
on claimant by Drs. Danielson and Russo, we vacate the administrative law judge's
finding that employer established the availability of suitable alternate
employment. See Carlisle v. Bunge Corp., 33 BRBS 133 (1999).  On remand, the
administrative law judge must determine whether the jobs listed in the remaining
job market surveys submitted by employer, see 1996 Emp. Supp. 21, are within
the physical limitations imposed by Drs. Danielson and Russo.  If, on remand, the
administrative law judge determines that employer established the availability of
suitable alternate employment, he must make specific findings regarding the nature
and sufficiency of claimant's efforts to seek employment; we note that this inquiry
is not limited to diligence in seeking jobs identified by employer. See
Livingston v. Jacksonville Shipyards, Inc., 32 BRBS 123 (1998).   

     We now consider the issues raised in claimant's and employer's appeals of the
administrative law judge's 1999 decisions, BRB Nos. 99-1063 and 99-1063A.  On
appeal, claimant first contends that the administrative law judge's retroactive
reinstatement of temporary total disability benefits on August 25, 1997, was
arbitrary, and argues that he is entitled to temporary total disability
compensation from the date of the June 10, 1991, accident.  Employer asserts that
the administrative law judge erred in finding a change in condition, arguing that
the medical evidence since 1997 merely reiterates the results of prior evaluations. 

     Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based upon a mistake of fact in the initial decision or a change in
claimant's physical or economic condition. See Metropolitan Stevedore Co. v.
Rambo,  515 U.S. 291, 30 BRBS 1 (CRT)(1995).   It is well-established that the
party requesting modification due to a change in condition has the burden of
showing the change in condition. See, e.g., Vasquez v. Continental Maritime of
San Francisco, Inc., 23 BRBS 428 (1990). See also Rambo, 515 U.S. at
291, 30 BRBS at 1 (CRT).  Moreover, the applicable legal standards are the same
during Section 22 modification proceedings as during the initial adjudicatory
proceedings under the Act. See Rambo, 515 U.S. at 296, 30 BRBS at 3 (CRT);
Delay, 31 BRBS at 197; Vasquez, 23 BRBS at 431. 

     In the instant case, the administrative law judge relied on the reports of
Drs. Aprill and Whitecloud in finding that claimant established a change in his
physical condition. Comparing the results of a discogram administered on August 11,
1997, by Dr. Aprill with earlier objective tests, the administrative law judge
determined that the 1997 test showed a worsening of the disc at the L4-5 level.[3]   See 1999 Decision and Order at 9.  The
administrative law judge credited Dr. Whitecloud's opinion, based on the 1997
discogram, that claimant was a candidate for a fusion at the L4-5 level, and that
he was unable to return to any gainful employment until such operative
intervention. See 1998 Cl. Ex. 1 at 2.  In his Order Denying Petitions for
Reconsideration, the administrative law judge reaffirmed his finding that while
claimant has always had some abnormality at the L4-5 level, the 1997 discogram
showed new damage and deterioration.  The administrative law judge denied
claimant's contention that applying August 25, 1997, as the date to reinstate
benefits was arbitrary.  

     In adjudicating a claim, it is well-established that the administrative law
judge is entitled to weigh the evidence, and is not bound to accept the opinion or
theory of any particular witness; rather, the administrative law judge may draw his
own conclusions and inferences from the evidence. See Mijangos v. Avondale
Shipyards, Inc., 948 F.2d 941, 25 BRBS 78 (CRT)(5th Cir. 1991); Wheeler v.
Interocean Stevedoring, Inc., 21 BRBS 33 (1988).  Thus, the administrative law
judge's decision to credit the opinions of Drs. Aprill and Whitecloud is within his
authority as fact finder.  Moreover, as the evidence states that claimant needs
further surgery and is temporarily totally disabled, we affirm the administrative
law judge's determination that claimant established a change in his physical
condition, as it is supported by substantial evidence and reject employer's
contention to the contrary.  We also affirm the administrative law judge's award
of temporary total disability compensation retroactive to August 25, 1997, the date
the change in condition was established.  

     Lastly, claimant contends that the administrative law judge erred in denying
reimbursement for medical treatment rendered by Dr. Tim Jackson, and in denying
reimbursement for treatment rendered by Drs. Whitecloud and Aprill prior to
September 17, 1997, as employer had refused to approve referrals to these
physicians by Dr. Danielson.  Section 7(a) of the Act, 33 U.S.C. §907(a),
states that "[t]he employer shall furnish medical, surgical, and other attendance
or treatment for such period as the nature of the injury or the process of recovery
may require."  Thus, even where a claimant is not entitled to disability benefits,
employer may still be liable for medical benefits for a work-related injury. See
Ingalls Shipbuilding, Inc. v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14
(CRT)(5th Cir. 1993).  Section 7(d) of the Act, 33 U.S.C. §907(d), sets forth
the prerequisites for an employer's liability for payment or reimbursement of
medical expenses incurred by claimant.  The Board has held that Section 7(d)(1) of
the Act, 33 U.S.C. §907(d)(1), requires that a claimant request his employer's
authorization for medical services performed by any physician, including the
claimant's initial choice. See Maguire v. Todd Shipyards Corp., 25 BRBS 299
(1992); Shahady v. Atlas Tile & Marble, 13 BRBS 1007 (1981)(Miller, J.,
dissenting), rev'd on other grounds, 682 F.2d 968 (D.C. Cir. 1982), cert.
denied, 459 U.S. 1146 (1983).  Where a claimant's request for authorization is
refused by the employer, claimant is released from the obligation of continuing to
seek approval for his subsequent treatment and thereafter need only establish that
the treatment he subsequently procured on his own initiative was reasonable and
necessary for his injury in order to be entitled to such treatment at employer's
expense. See Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996); 
Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989).  An employer must
consent to a change of physician where claimant has been referred by his treating
physician to a specialist skilled in treating claimant's injury. See generally
Armfield v. Shell Offshore, Inc., 25 BRBS 303 (1992)(Smith, J., dissenting on
other grounds); Senegal v. Strachan Shipping Co., 21 BRBS 8 (1988); 20
C.F.R. §702.406(a).   However, where a claimant receives medical treatment
from his initial choice of physician, and employer does not refuse further
treatment from that authorized physician, employer is not required to consent to
a change of physicians where the treatment sought is duplicative of the treatment
he was already receiving. See Hunt v. Newport News Shipbuilding & Dry Dock
Co., 28 BRBS 364 (1994), aff'd mem., 61 F.3d 900 (4th Cir. 1995);
Senegal, 21 BRBS at 8.

     In the instant case, the record contains letters by Dr. Danielson which refer
claimant to Dr. Joe Jackson, a neurologist, and to Dr. Timothy Jackson, an
orthopedist.[4]   The administrative law judge
credited the exchange of letters between Dr. Danielson and employer which mentioned
Dr. Joe Jackson, as he is referred to as a neurologist, and described the specific
treatment he could provide.  Finding that claimant failed to request authorization
for the treatment by Dr. Timothy Jackson, the administrative law judge denied
reimbursement for Dr. Timothy Jackson's treatment. See 1999 Decision at 10;
1998 Cl. Ex. 5 at 14-16.  Next, the administrative law judge considered claimant's
September 5, 1997 letter to employer, which requested authorization for surgery by
Dr. Whitecloud, a spine surgeon, see 1998 Cl. Ex. 10, as a request for a
change of physician, which was refused by employer on September 17, 1997.
See 1998 Emp. Ex. 9.  The administrative law judge then found that as
claimant did not seek authorization for the treatment of Drs. Tim Jackson,
Whitecloud and Aprill prior to September 1997, he denied reimbursement for their
treatment.

     We hold that the administrative law judge's denial of medical benefits cannot
be affirmed.  In his 1999 Decision and Order on Section 22 Modification, the
administrative law judge acknowledged that the record contained evidence of
employer's refusal to authorize treatment by physicians other than claimant's
treating physician, specifically citing Dr. Danielson's letter of November 27,
1995, wherein the physician references employer's refusal to authorize treatment
by Dr. Smith and Dr. Whitecloud. See 1998 Emp. Ex. 11 at 31; 1999 Decision
at 6 n.9.  However, the administrative law judge did not consider whether employer
refused to authorize treatment as early as 1995, in which case claimant is released
from the obligation to seek approval for subsequent treatment and need only
establish that the treatment he subsequently procured was reasonable and necessary
for his injury.  See Schoen, 30 BRBS at 112;  Anderson, 22 BRBS at
20.  Moreover, the administrative law judge made no findings as to whether Dr.
Danielson's referrals in 1995 were to specialists, and thus whether employer was
required to consent to the referrals.   See Armfield, 25 BRBS at 303;
Senegal, 21 BRBS at 8.  Based on the foregoing, the administrative law
judge's denial of reimbursement for treatment provided by Dr. Whitecloud prior to
September 17, 1997, and for treatment provided by Dr. Timothy Jackson and Dr.
Aprill, is vacated, and the case is remanded for reconsideration of this issue.

     Accordingly, with respect to the 1997 decisions, the administrative law
judge's denial of permanent total disability compensation is vacated, and the case
is remanded for reconsideration consistent with this opinion.  In all other
respects, the administrative law judge's 1997 Decision and Order Denying
Compensation Benefits and Order Denying Claimant's Motion for Reconsideration are
affirmed.  With respect to the 1999 decisions, the administrative law judge's
denial of reimbursement for medical expenses is vacated, and the case is remanded
for reconsideration.  In all other respects, the administrative law judge's 1999
Decision and Order on Section 22 Modification and Order Denying Petitions for
Reconsideration are affirmed.

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                   
                         JAMES F. BROWN
                         Administrative Appeals Judge


                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge further rejected the opinions of Drs. Danielson and Russo that claimant was temporarily disabled until 1996, as they were based chiefly on the subjective complaints of pain, which the administrative law judge found unreliable and inconsistent with the objective evidence. Back to Text
2)Even if claimant were only temporarily disabled, employer could establish suitable alternate employment, as this issue concerns the extent of claimant's disability and the same standards apply regardless of whether the nature of the disability is temporary or permanent. See Bell v. Volpe/Head Constr. Co., 11 BRBS 377 (1979). Back to Text
3) The administrative law judge found that the earlier evaluations showed "subtle posterior anular fissure," and "eccentric prominence of right posterolateral anulus" at the L4-5 level, while the 1997 exam showed "right posterolateral radial fissure" and a "concentric fissure of the outer anulus at the left posterolateral disc margin." See 1998 Cl. Ex. 1 at 6, 8. Back to Text
4)Dr. Danielson is a neurosurgeon. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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