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                                 BRB No. 00-1008

DAVID C. AUFANG                         )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
TACOMA BOATBUILDING COMPANY             )    DATE ISSUED:   07/09/2001
                                             
                                        )
     and                                )
                                        )
PACIFIC MARINE INSURANCE                )
COMPANY                                 )
                                        )
     and                                )
                                        )
LIBERTY NORTHWEST INSURANCE             )
COMPANY                                 )
                                        )
          Employer/Carriers-            )
          Respondents                   )    
                                        )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS,               )
UNITED STATES DEPARTMENT            )
OF LABOR                                                   )
                                                                       )
          Party-in-Interest            )     DECISION and ORDER

     Appeal of the Decision and Order After Remand of Edward C. Burch,
     Administrative Law Judge, United States Department of Labor.

     James R. Walsh, Lynwood, Washington, for claimant.

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

     Claimant appeals the Decision and Order After Remand (89-LHC-1218,1219) of
Administrative Law Judge Edward C. Burch 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 (1969); 33 U.S.C.
§921(b)(3).

     This case is before the Board for the fourth time. Claimant, a welder-fitter,
sustained a work-related back injury in 1982.  He settled his claim for
compensation for this injury pursuant to an approved Section 8(i), 33 U.S.C.
§908(i), settlement.  In 1983, claimant returned to modified duty work for employer.  Claimant sustained
additional injuries to his back while performing modified work in incidents occurring in January 1984, and on January 21,
1985, and May 15, 1985.  In July 1985, claimant was terminated as part of a general reduction-in-force.  Upon recalling its
employees in November 1985, employer advised claimant that modified work was no longer available for him and thus
claimant did not return to work at that time.  Claimant returned to work for employer on July 1, 1986.  On July 7, 1986,
while carrying a flat bar on his shoulder, claimant experienced sharp back pain.  Claimant has not returned to work since
that day.  Pacific Marine Insurance Company (Pacific Marine) was employer's insurance company from the date of
claimant's initial 1982 back injury until February 28, 1986.[1]   Thereafter, Liberty
Northwest Insurance Company (Liberty Northwest) assumed insurance coverage for employer. 

     Claimant filed a claim for benefits under the Act, contending that he was permanently totally disabled as a result
of his July 1986 injury, while Liberty Northwest was on the risk.  Claimant additionally raised claims for the injuries
occurring in 1984 and 1985, while Pacific Marine was on the risk.   In his Decision and Order, Administrative Law Judge
James J. Butler denied the claim on the ground that claimant did not sustain a work-related injury in July 1986; Judge Butler
declined to address the previous incidents.  On claimant's appeal, the Board vacated the denial of benefits and remanded
the case for consideration of the issue of whether claimant sustained a work-related aggravation of his pre-existing back
condition in July 1986. Aufang v. Tacoma Boatbuilding Co., BRB No. 90-1776 (Jan. 26, 1994)(unpub.).

     On remand, Administrative Law Judge Edward C. Burch (the administrative law judge) determined that claimant
suffered a work-related injury on July 7, 1986, but that claimant is not permanently and totally disabled as a result of that
injury.  Accordingly, claimant's claim for permanent total disability benefits was denied, but claimant was awarded 
temporary total disability benefits for the period between July 8, 1986 and July 16, 1986.

     Claimant appealed and Liberty Northwest cross-appealed this decision.  Claimant did not file a Petition for Review
and brief in support of his appeal, but filed a motion to remand the case to the administrative law judge for
adjudication of his claim for disability compensation arising out of the work incidents which he alleged occurred prior to
1986. Claimant stated that although he had argued before the administrative law
judge  that the July 7, 1986, incident rendered him permanently totally disabled,
he had alternatively and consistently argued that he was permanently totally
disabled as a result of a 1985 injury while in employer's employ.   In reply to
Liberty Northwest's response to the motion to remand, claimant stated he
"respectfully advise[s] that Liberty Northwest should be dismissed in this matter
on appeal and on Claimant's Motion for Remand.  Liberty Northwest correctly points
out that the claimant does not dispute Judge Burch's findings insofar as the
claimant and Liberty Northwest are concerned."

     By Order dated November 19, 1996, the Board granted claimant's motion to
remand this case to the administrative law judge for consideration of his claim for
compensation arising out of injuries occurring prior to July 1986.  The Board dismissed
claimant's appeal with prejudice based on his representation that he did not wish to challenge the administrative
law judge's findings with regard to any disability for which Liberty Northwest could be liable.  Subsequently, the Board
decided Liberty Northwest's cross-appeal on the merits, and affirmed the administrative law judge's award of temporary
total disability benefits for the period between July 8, 1986 and July 16, 1986. Aufang v. Tacoma Boatbuilding Co.,
BRB No. 96-696A (Feb. 26, 1997)(unpub.).

     On remand, the administrative law judge denied the claim for disability arising out of the alleged incidents occurring
prior to 1986, stating that no claim for such incidents was before him as they were considered and denied by Judge Butler
in the initial proceedings.  Claimant appealed, contending he is permanently and totally disabled as a result of the 1984 and
1985 injuries.[2]   The Board vacated the denial of benefits, and remanded the case
to the administrative law judge for further findings.  Aufang v. Tacoma Boatbuilding Co., BRB No. 98-1401 (July 22, 1999) (unpub.).

     On remand, the administrative law judge awarded claimant temporary total disability
benefits from January 22 to January 27, 1985, and from November 13, 1985 to June 30, 1986.   Claimant appeals the
decision, contending he is permanently totally disabled as a result of his injury of July 7, 1986.  Claimant notes that his
treating physician, Dr. Reese, states that the injury of July 7, 1986, permanently worsened and aggravated his condition 
and resulted in his total disability.  No response briefs have been filed. 

     We reject claimant's contention.  Claimant previously appealed the
administrative law judge's finding that he is not permanently totally disabled as
a result of the July 7, 1986, injury.  Rather than proceed with this appeal,
however, claimant elected to seek benefits for injuries occurring prior to July 7,
1986.  Claimant specifically stated that he was forgoing any further claim against
Liberty Northwest for the injury of July 7, 1986.  As a result, the Board
dismissed, with prejudice, claimant's appeal of the finding that he  is not
permanently totally disabled as a result of the July 7, 1986, injury, and
subsequently, Liberty Northwest was dismissed as a party to these proceedings.
See Board Order dated Nov. 19, 1996, and n. 2, supra. Claimant cannot
now attempt to resurrect his claim for permanent total disability for the July 7,
1986 injury.  Inasmuch as claimant does not contest any of the findings in the
administrative law judge's Decision and Order After Remand, this decision is
affirmed. 
          Accordingly, the administrative law judge's Decision and Order After Remand
is affirmed.      

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge

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Footnotes.


1) 2Both Tacoma Boatbuilding Company and Pacific Marine Insurance Company are now defunct. Back to Text
2) 2Liberty Northwest responded that claimant's appeal did not involve its period of coverage of employer. The administrative law judge found that Liberty Northwest had no responsibility in this matter and, accordingly, dismissed Liberty Northwest with prejudice. The Board stated that the dismissal of Liberty Northwest was consistent with its previous determination that Liberty Northwest's liability was finally established, due to claimant's decision, in effect, to abandon any further claim against Liberty Northwest. The Board accordingly granted Liberty Northwest's motion to be dismissed as a party to the action. Aufang v. Tacoma Boatbuilding Co., BRB No. 98-1401 (July 22, 1999) (unpub.), slip op. at 5 n.6. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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