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                                  BRB No. 00-0557      

THOMAS MAYS                        )
          Claimant-Respondent      )
     v.                       )
AVONDALE INDUSTRIES      )    DATE ISSUED:   07/11/2001 
          Self-Insured             )
          Employer-Petitioner      )    DECISION and ORDER

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

     Jeffery Favors (Law Offices of Martin, Shepherd & Favors), New Orleans,
     Louisiana, for claimant.
     Christopher M. Landry (Blue Williams, L.L.P.), Metairie, Louisiana, for
     self-insured employer.

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


     Employer appeals the Decision and Order on Remand Awarding Benefits (96-LHC-0677)
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. (the Act).   Claimant, while
working for employer on March 18, 1991, sustained a blow to the head and a fracture
of the right cheek when he was kicked during an altercation.  Claimant was
initially treated at West Jefferson Hospital by Dr. McKeon, who performed surgery
for claimant's injuries on March 20, 1991.  Claimant was referred to Dr. Leftwich,
an ophthalmologist, for additional treatment for his sight-related problems.  After
treating claimant in March and April 1991,  Dr. Leftwich concluded that there was
no disability from an ophthalmic standpoint.  Claimant thereafter sought additional
medical treatment because of continued pain and trouble with his eyesight, and his
attorney at that time referred him to Dr. Sabatier, who initially treated claimant
on April 9, 1991.   Claimant returned to both Drs. Sabatier and McKeon for
additional examinations.  On May 29, 1991, Dr. McKeon stated that claimant could
return to work on a restricted basis as of the date of his last examination, April
12, 1991.  On July 12, 1991, Dr. McKeon filled out a work restriction form,
indicating that claimant could continuously sit, walk, lift, bend, squat, climb,
kneel, twist and stand, and restricting claimant's lifting to a maximum of 75
pounds.  Following his final examination of claimant on July 15, 1991, Dr. Sabatier
concurred with Dr. McKeon's work restrictions, and informed claimant via a letter
dated  August 5, 1991, that he would not participate in further examinations. 

     Claimant sought a change in physicians from employer, based on his move from
Marrero, Louisiana, to Mer Rouge, Louisiana.  Claimant testified that he requested
the change on the same day that he saw Dr. McKeon, May 5, 1991,  and was granted
the request by employer's workers' compensation specialist, Ms. Smith, as long as
he sought treatment by a specialist. Tr. at 82-92.  Ms. Smith's records however
indicated that the request took place on July 2, 1991, and that claimant's request
had been denied.  RX-11 at 107.   In any event, claimant sought additional
treatment with Dr. Patterson, a family practitioner near Mer Rouge, on June 14,
1991, and continued treatment with Dr. Patterson through 1995.  Subsequent to
August 6, 1991, claimant also sought treatment for his physical complaints from Dr.
Hubli, and underwent pain treatment at the Louisiana State University (LSU) Medical
Center.  Claimant also sought psychiatric treatment for depression from Drs. Ware,
Stephens, Baker, and Roniger, commencing in February 1992.

     Employer voluntarily paid claimant temporary total disability compensation and
medical expenses from the date of injury until August 6, 1991, at which time
claimant did not comply with employer's request that he return to work immediately
based on his release to work by Drs. McKeon and Sabatier,  RX-11 at 103.   Claimant
subsequently sought disability compensation and medical expenses.

     In his initial decision, the administrative law judge determined, based on the
opinions of Dr. McKeon, who found claimant's only physical restriction to be a 75
pound lifting restriction,  Dr. Leftwich, who found no disability from an
ophthalmic standpoint, and Dr. Ware, who concluded that claimant suffered no
psychological disability, that claimant was able to perform his usual work as a
welder, and thus is not entitled to any additional disability benefits.  The
administrative law judge further determined that claimant is not entitled to
reimbursement for the medical treatment procured after August 6, 1991, on the
rationale that such treatment was unauthorized.  In reaching this conclusion, the
administrative law judge found the notations in Ms. Smith's logs more persuasive
than the contrary testimony of claimant, and thus found that claimant  requested
a change in physicians pursuant to Section 7(c)(2) of the Act, 33 U.S.C. 
§907(c)(2), on July 2, 1991, and that his request was denied.   The
administrative law judge additionally determined that claimant failed to show good
cause for the request and that he had not been denied additional treatment.

     Claimant thereafter appealed the administrative law judge's denial of
disability compensation and medical expenses incurred since August 6, 1991.  In its
decision dated May 3, 1999, the Board initially affirmed the administrative law
judge's denial of disability benefits, and the finding that employer refused
claimant's request to change physicians.  Mays v. Avondale Industries, Inc., BRB No. 98-1084 (May 3, 1999)(unpub.).  The Board held, however, that the administrative law judge's analysis regarding the
compensability of the medical expenses incurred by claimant since August 6, 1991, was flawed as he denied the claim for
said benefits based on  his finding that claimant's care was unauthorized, without considering the reasonableness or
necessity of the treatment.[1]   Id.  Accordingly, as the record
revealed that claimant underwent treatment for his work-related injury after August
6, 1991,[2]   the Board vacated the administrative
law judge's denial of medical benefits incurred thereafter, and remanded the case
for consideration of the necessity and reasonableness of the medical expenses
sought by claimant. Id. 

     On remand, the administrative law judge found that because qualified
physicians indicated that claimant's treatment subsequent to August 6, 1991, was for a work-related
condition, the treatment is reasonable and necessary, and thus compensable under the Act.  Accordingly, the administrative
law judge awarded medical benefits for the treatment procured by claimant subsequent to August 6, 1991, at the LSU
Medical Center and with Drs. Patterson, Hubli, Ware, Stephens, Baker, and Roniger.  Moreover, the administrative law
judge determined that employer also is liable for future treatment resulting from claimant's work-related injury.

     Employer appealed the administrative law judge's Decision and Order on Remand.  By Order dated April 3, 2000,
the Board dismissed employer's appeal as untimely.  Upon employer's motion for reconsideration, the Board reinstated
employer's appeal on the docket in an order dated June 5, 2000.  By Order dated October 13, 2000,
the Board denied claimant's request for remand for modification but stated that
employer's appeal would be expedited.  Nonetheless, the case file was inadvertently
misplaced.  Pursuant to the terms of Pub. L. No. 106-554, 114 Stat. 2763, the Board should have issued its decision
in this case on or before June 4, 2001, within one year of the reinstatement of the appeal on June 5, 2000.[3]   Accordingly, the administrative law judge's Decision and Order on Remand
Awarding Benefits is deemed affirmed as of June 5, 2001.[4]    See 33 U.S.C.
§921(c); 20 C.F.R. §802.406.  In addition, our review of employer's contentions
regarding the administrative law judge's decision supports the conclusion that it
must be affirmed on the merits as well.

     Employer argues that, contrary to the administrative law judge's decision,
claimant is not entitled to reimbursement of the medical expenses which he incurred
after August 6, 1991, as they were neither reasonable nor necessary for the
treatment of his work-related injury.  Specifically, employer asserts that as Drs.
McKeon, Sabatier, and Leftwich all determined, as of August 6, 1991, that claimant
was capable of full work and suffered from no physical or psychological disability,
it is clear that claimant was not in need of any additional treatment.  In
addition, employer argues that no treating physician of record after August 6,
1991, issued a specific finding that treatment was necessary nor did any physician
subsequently contradict the conclusions of Drs. McKeon, Sabatier, and Leftwich
regarding claimant's physical and psychological conditions.[5] 

     In his decision, the administrative law judge initially determined from the
record that Dr. Patterson first examined claimant for complaints of facial pain in
June and July of 1991, and at that time diagnosed claimant as experiencing residual
headaches and pain from his work-related accident.  In addition, the administrative
law judge found that Dr. Patterson stated that claimant was suffering some
depression related to his facial injury.  The administrative law judge also found
that on subsequent visits from January 1992 through November 1996, Dr. Patterson
predominantly treated claimant for facial pain.[6] 
 Moreover, the administrative law judge found that the evidence establishes that
claimant was also treated at LSU Medical Center for his facial injuries.  He
therefore concluded that the evidence of record establishes that claimant's
treatment by Dr. Patterson and LSU Medical Center was reasonable and necessary and
related to his compensable injury.  Similarly, the administrative law judge found
that claimant's treatment for facial pain and decreased vision by Dr. Hubli, which
included two surgeries, was reasonable and necessary, and emanated from claimant's
work-related injury.

     With regard to the psychological and psychiatric care provided by Drs. Ware,
Stephens, Baker and Roniger, the administrative law judge determined that all of
this treatment was reasonable and necessary and resulted from claimant's work
injury.  Specifically, the administrative law judge relied on Dr. Ware's opinion,
in February 1991, diagnosing claimant with adjustment disorder with depressed mood
secondary to trauma, as well as Dr. Baker's opinion in May 1995, relating, in part,
the kicking incident at work, i.e., claimant's work-related injury, to the
problems exhibited by claimant,[7]  to find that
the psychological and psychiatric care received by claimant was, contrary to
employer's contentions, related to his work-injury.  Similarly, given the extent of claimant's
condition, e.g., Dr. Stephens, in April  1993, ordered hospitalization of claimant for suicidal tendencies, the
administrative law judge found that the entirety of the treatment provided by Drs. Ware, Stephens, Baker and Roniger was
reasonable and necessary. 

     It is well-established that an administrative law judge is entitled to weigh the evidence and evaluate the credibility
of all witnesses, including doctors, and may draw his own conclusions from the evidence. Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961). 
Moreover, the Board may not re-weigh the evidence, but may assess only whether there is substantial evidence to support
the administrative law judge's decision.  Miffleton v. Briggs Ice Cream Co., 12 BRBS 445 (1980), aff'd,
No. 80-1870 (D.C. Cir. 1981). In the instant case, the administrative law judge's findings of fact and conclusions of law
are rational, supported by substantial evidence and in accordance with law.  Consequently, the administrative law judge's
award of medical benefits is likewise affirmable on the merits.

     Accordingly, the Decision and Order on Remand Awarding Benefits is affirmed. 

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         NANCY S. DOLDER
                         Administrative Appeals Judge

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1) 1Specifically, the Board observed that pursuant to Section 7(d) of the Act, 33 U.S.C. §907(d), once, as in the present case, it has been established that claimant sought, and was denied authorization, the question of reimbursement for treatment claimant subsequently procured on his own turns on whether the treatment was reasonable and necessary. Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); see also 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). Moreover, the Board stated that well-settled law establishes that Section 7, 33 U.S.C. §907, does not require that a work injury be economically disabling in order for claimant to be entitled to medical expenses. Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990); Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989); Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988). Back to Text
2) 2Specifically, the Board observed that the record indicates that claimant was under the care of Dr. Patterson after 1991, and that he was treated by Dr. Hubli commencing November 10, 1995, including undergoing facial surgery on two occasions; on February 22, 1996, he had an open reduction internal fixation of the depressed zygomatic arch fracture, and on November 13, 1997, a facial reconstruction with a demineralized bone graft. In addition, Dr. Hubli concluded in December 1997 that claimant may need additional surgery. CX-7 at 4, 5, 9, 31, 53, 57. The record also shows that claimant sought regular continued care for his facial injuries from Dr. Patterson and the LSU Medical Center. See CX-5. Furthermore, although the administrative law judge concluded that claimant suffered no psychological disability, he did not consider the reasonableness and necessity of the psychological care claimant sought from Drs. Ware, Baker, Stephens, and Roniger commencing February 1992. Back to Text
3) 3Pub. L. No. 106-554, 114 Stat. 2763, states in relevant part that "any decision pending a review by the Benefits Review Board for more than 1 year shall be considered affirmed by the Benefits Review Board on the 1-year anniversary of the filing of the appeal, and shall be considered the final order of the Board for purposes of obtaining a review in the United States courts of appeals." Back to Text
4) 4Pursuant to Section 21(c), 33 U.S.C. §921(c), a person adversely affected may appeal the Board's decision within 60 days "following the issuance of such Board order." See also 20 C.F.R. §802.410(a). Accordingly, employer has 60 days from June 5, 2001, in which to pursue any further appellate review. See Pub. L. No. 106-554, 114 Stat. 2763; Gooden v. Director, OWCP, 135 F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1998). Back to Text
5) 5Employer raises particular objections regarding the treatment rendered by Drs. Patterson, Ware and Stephens, but does not directly challenge the treatment for facial pain provided by the LSU Medical Center, the subsequent surgeries performed by Dr. Hubli, or the psychological treatment provided by Drs. Baker and Roniger. Employer specifically maintains that the majority of Dr. Patterson's treatment is not compensable as it is not related to claimant's work injury, and that neither Dr. Ware nor Dr. Stephens opined that the treatment provided to claimant was necessary to treat his work injury. Back to Text
6) 6In particular, the administrative law judge noted that although claimant was treated for other symptoms during some of his visits with Dr. Patterson, facial pain was stated consistently as a reason for the visit. Back to Text
7) 7The administrative law judge noted that although Dr. Baker admitted that there could be a non-trauma related source of a malingering component to claimant's problem, he related the kicking incident at work as a cause of claimant's psychological problems. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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