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                                 BRB No. 99-1132

ANTHONY R. GRAYER                       )
                                        )
          Claimant-Petitioner           )
                                        )
       v.                               )
                                        )
KELLY AIR FORCE BASE                    )    DATE ISSUED:   07/27/2000
                                        )
     and                                )
                                        )
AIR FORCE INSURANCE FUND                )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of James W. Kerr, Jr., Administrative
     Law Judge, United States Department of Labor.

     Anthony R. Grayer, San Antonio, Texas, pro se.

     David J. Christenson (Office of Legal Counsel Air Force Services
     Agency), San Antonio, Texas, for employer/carrier.

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

     PER CURIAM:

     Claimant, without the assistance of counsel,  appeals the Decision and Order
(98-LHC-1018) of Administrative Law Judge James W. Kerr, 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., as extended by the
Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq. (the Act).  In an appeal by a claimant
without representation, we will review the administrative law judge's decision to determine if the findings of fact and
conclusions of law are supported by substantial evidence, are rational, and are in accordance with law.  33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 20 C.F.R.
§§802.211(e), 802.220.  If they are, they must be affirmed.
 
     Claimant sustained injuries to his left knee and lower back on November 18,
1994, while working as a purchasing agent for employer at Kelly Air Force Base, San
Antonio, Texas.  On November 24, 1994, Dr. Smith diagnosed a left knee strain with
joint effusion and a lumbar spine strain, prescribed medicine, removed claimant
from work with an anticipated  return of December 5, 1994, and referred him for
physiotherapy.  Dr. Wilson, on April 26, 1995, diagnosed a lumbar strain and
symptoms of a medial meniscal tear in the left knee.  Arthroscopic surgery on
claimant's left knee was performed on May 23, 1995.  On October 4, 1995, Dr. Wilson
assigned claimant a five percent whole person impairment rating based solely on his
left knee, and released him to return to light duty work for two months and to
regular duty thereafter.

     Dr. Wilson subsequently diagnosed a herniated disc at L5-S1, and on January
31, 1996, opined that claimant reached maximum medical improvement with regard to
his back, assigned a seven percent permanent impairment for that condition, fitted
claimant with a back brace and released claimant to return to light duty work with
restrictions.  Claimant next saw Dr. Wilson on May 8, 1997, with continued
complaints of pain in his left knee and back.  Dr. Wilson opined that if the knee
complaints persisted he would perform another arthroscopic procedure of the left
knee.  As for claimant's back, the doctor recommended continued conservative
treatment and referred claimant to physical therapy.

     Meanwhile, claimant returned to light duty work in October 1995, but was
terminated in March 1996, as a result of downsizing.  Claimant remained unemployed
until April 1997, when he began part-time work as a convenience store clerk,
working about 20 hours a week.  He stated that full-time work was available there,
but that he could not work the required split schedule.  He also testified that he
owns a catering business and a neighborhood bar, Club Supreme, where he works about
40 hours a week in the evenings.  Additionally, claimant noted that he has obtained
seasonal employment at Christmas time, as a mail carrier.

     Employer paid periods of temporary total disability benefits and a scheduled
permanent partial disability award as a result of claimant's left knee injury.[1]   In April 1997, claimant sought additional
permanent partial disability benefits after his lay-off since he has not returned
to full duty work and thus is unable to earn wages at his pre-injury level.


     In his decision, the administrative law judge determined that claimant's claim
was untimely filed pursuant to Section 13 of the Act, 33 U.S.C. §913.[2]   Alternatively, he determined that claimant did
not sustain any loss in wage-earning capacity following his termination from
employer. Lastly, the administrative law judge determined that claimant is entitled
to continued medical benefits for his work-related injuries.  

     On appeal, claimant, representing himself, challenges the
administrative law judge's denial of benefits.  Employer has not responded to this
appeal.

     Section 13(a) applies in cases involving traumatic injuries and requires that
a claimant file his claim for benefits within one year of the time he becomes
aware, or with the exercise of reasonable diligence should be aware, of the
relationship between his injury and his employment.  33 U.S.C. §913(a). See
Welch v. Pennzoil Co., 23 BRBS 395 (1990); Gregory v. Southeastern Maritime
Co., 25 BRBS 188 (1991).  For purposes of Section 13, claimant is not "aware"
until he knows, or has reason to know, that he has sustained a permanent injury
which is likely to impair his wage-earning capacity. See Ceres Gulf, Inc. v.
Director, OWCP [Fagan], 111 F.3d 17, 31 BRBS 21 (CRT)(5th Cir. 1997);
Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20, 24 BRBS 98
(CRT)(4th Cir. 1991); J.M. Martinac Shipbuilding v. Director, OWCP [Grage],
900 F.2d 180, 23 BRBS 127 (CRT) (9th Cir. 1990); Marathon Oil Co. v.
Lunsford, 733 F.2d 1139, 16 BRBS 100 (CRT) (5th Cir. 1984); see also Bath
Iron Works Corp. v. Galen, 605 F.2d 583, 10 BRBS 863 (1st Cir. 1979).  Under
Section 20(b), 33 U.S.C. §920(b), there is a presumption that the claim for
benefits was timely filed. Shaller v. Cramp Shipbuilding & Dry Dock Co., 23
BRBS 140 (1989).  In order to rebut the Section 20(b) presumption, employer must
establish that it complied with the requirements of Section 30(a) of the Act, 33
U.S.C. §930(a). See Nelson v. Stevens Shipping & Terminal Co., 25 BRBS
277 (1992)(Dolder, J., dissenting).

     In the instant case, the administrative law judge initially reviewed the
relevant dates in this case, noting that claimant sustained his work-related
injuries on November 18, 1994, that employer last paid benefits, a scheduled award
for permanent partial disability for claimant's knee, on January 18, 1996, and that
claimant's undated LS-203 claim form was received by the district director and
forwarded to employer on April 4, 1997.  He then concluded that there is no
evidence which could toll the statute of limitations.  Specifically, he found that
while Dr. Wilson's report, dated January 31, 1996, might arguably toll the statute
of limitations and extend the filing deadline to January 31, 1997, one year from
the date of that report, it did not make claimant's claim, filed on April 4, 1997,
timely.


     Dr. Wilson's report represents the first time that claimant was assigned a
permanent impairment rating for his back condition.  Given that opinion and
claimant's subsequent termination from his light duty work with employer on March
12, 1996, claimant knew, or had reason to know, that he had sustained a permanent
injury which is likely to impair his wage-earning capacity by that date, at the
latest. Grage, 900 F.2d at 180, 23 BRBS at 127 (CRT); Lunsford, 733
F.2d at 1139, 16 BRBS at 100 (CRT).  Thus, claimant was aware of the true nature
of his condition by March 12, 1996, Fagan, 111 F.3d at 17, 31 BRBS at 21
(CRT), but did not file his claim for additional benefits until April 4, 1997, more
than one year after this "awareness." Lunsford, 733 F.2d 1139, 16 BRBS 100
(CRT).  On these facts,  and as employer has complied with the requirements of
Section 30(a), Employer's Exhibit 1, we affirm the administrative law judge's
finding that the claim for additional compensation benefits is barred pursuant to
Section 13(a) of the Act.[3]   

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

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge




                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge




                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge


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Footnotes.


1)Specifically, employer paid temporary total disability benefits from November 21, 1994, to December 4, 1994, and from May 22, 1995, to October 9, 1995, and permanent partial disability for a 5 percent scheduled left knee injury from October 10, 1995, to January 18, 1996. Back to Text
2)Claimant appeared before the administrative law judge without representation. Back to Text
3)In light of our disposition, we need not consider the administrative law judge's alternative findings regarding claimant's disability. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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