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                                    BRB No. 00-1017

WILLIAM G. PRICE                        )
                                        )    
          Claimant                      )
     v.                                 )
                                        )
METROPOLITAN STEVEDORE                  )    DATED ISSUED:   July 16, 2001
COMPANY                                 )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )
                                        )
CRESCENT WHARF &                        )                                  
WAREHOUSE COMPANY/                      )
STEVEDORING SERVICES                    )
OF AMERICA                              )
                                        )
     and                                )
                                        )
HOMEPORT INSURANCE                      )
COMPANY                                 )
                                        )
          Employer/Carrier-             )         
          Respondents                   )
                                        )
CRESCENT CITY MARINE WAYS               )
& DRY DOCK COMPANY                      )
                                        )
     and                                )
                                        )
SAIF CORPORATION                        )
                                        )
          Employer/Carrier-             )         
          Respondents                   )
                                        )
MARINE TERMINALS CORPORATION            )
                                        )
     and                                )

PASHA MARITIME SERVICES                 )
                                        )
     and                                )
                                        )
STATE COMPENSATION                      )
INSURANCE FUND                          )
                                        )
          Employers/Carrier-            )
          Respondents                   )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Paul A. Mapes, 
     Administrative Law Judge, United Sates Department of Labor.

     Robert E. Babcock (Babcock & Company), Lake Oswego, Oregon, for
     Metropolitan Stevedore Company.

     Eric A. Dupree and Christopher M. Galichon (Dupree Galichon &
     Associates), San Diego, California, for Crescent Wharf & Warehouse
     Company/Stevedoring Services of America and Homeport Insurance Company.

     Norman Cole, Salem, Oregon, for Crescent City Marine Ways & Dry Dock
     Company and SAIF Corporation.

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

     PER CURIAM:

     Metropolitan Stevedore Company (Metropolitan) appeals the Decision and Order
Awarding Benefits (99-LHC-2826, 99-LHC-2827) of Administrative Law Judge Paul A.
Mapes 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.  33 U.S.C. §921 (b)(3); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).  

     The sole issue presented by this appeal is whether the administrative law
judge erred in finding Metropolitan to be the employer liable for the payment of
compensation benefits to claimant for disability resulting from cumulative
bilateral knee trauma sustained in the course of claimant's longshore employment.
Claimant worked as a mechanic for twenty-one years for Marine Terminals, during
which time he began to experience difficulties with his knees.  After Marine
Terminals closed its San Diego facilities in 1986 or 1987, claimant began to obtain
longshore jobs from his union hiring hall's Hold Board.  Because some of these jobs
exacerbated claimant's knee problems, claimant transferred to the hiring hall's
Lift Board in 1990, where he could obtain employment in a less strenuous job as a
forklift operator for longshore employers. See Tr. at 58-62.  Claimant's
knee problems continued, however, and were treated by his private health care
provider, Kaiser Permanente (Kaiser). See Tr. at 62-64; CXS 4, 5, 6, 7.  On
September 23, 1993, Kaiser orthopedic surgeon Dr. Simpson, having noted that
claimant's x-rays revealed medial joint line collapse and varus alignment, reported
that claimant would need a total bilateral knee replacement when he felt ready to
undergo such surgery.  CX 9.  At the recommendation of his physicians at Kaiser,
claimant elected to have a series of cortisone injections in an attempt to postpone
surgery for as long as possible. See Tr. at 64-65; CX 10, 11, 12, 13, 14. 
Thereafter, claimant's knee pain continued to worsen and claimant advised a Kaiser
orthopedic surgeon, Dr. Williams, on December 16, 1994, that he was ready to
undergo bilateral knee replacement surgery.[1]  
See Tr. at 67-68; CX 15.  Claimant's knee surgery was not scheduled until
after his Kaiser physicians ascertained that his cardiac status was stable enough
for him to undergo such surgery. See Tr. at 69; CX 16.  During an April 18,
1995, appointment with Dr. Williams, claimant signed a consent form for a bilateral
total knee replacement to be performed on April 24, 1995.  During that visit, Dr.
Williams conducted a pre-operative physical examination and interpreted x-rays as
showing bilateral genu varum, complete loss of medial joint line space with
secondary flattening, sclerosis, and other osteoarthritic changes.
[2]   CX 17.  Claimant's last day of employment before
his surgery was April 22, 1995, when he worked for Metropolitan as a forklift
operator.  PAX 7 at 53.  In testifying regarding his work duties on April 22,
claimant stated that he used gas and brake pedals to operate the forklift and
mounted and dismounted the forklift between 6 to 12 times during his eight-hour
shift.  He further testified, as to his April 22 workday, that his knee condition
worsened as the day wore on.[3]   See Tr.
at 73-75; CCMX 2 at 26.  On April 24, 1995, Dr. Williams performed bilateral total
knee replacement surgery; Dr. Williams stated that his surgical observations were
consistent with the April 18, 1995 x-ray findings.  CX 18; PAX 4 at 23-24.

     Claimant filed a claim under the Act  against Metropolitan for disability due
to cumulative trauma to both knees.  MSX 1, 2, 3.  Subsequently, claimant filed
additional claims against Crescent Wharf, Marine Terminals, Pasha Maritime Services
(Pasha), and Crescent City Marine Ways (Crescent City).[4]   SSAX 6; CCMX 37, 38.

     In his Decision and Order Awarding Benefits, the administrative law judge
initially determined that claimant was entitled to invocation of the Section 20(a),
33 U.S.C. §920(a), presumption that he suffered a work-related injury while
employed by Metropolitan on April 22, 1995, and that Metropolitan rebutted the
presumption with the opinion of Dr. London.  Decision and Order at 9.  Upon
consideration of the record as a whole, the administrative law judge concluded that
claimant established that he suffered an injury during the course of his employment
with Metropolitan on April 22, 1995.  Decision and Order at 9-10.  The
administrative law judge next determined that claimant's employment with
Metropolitan on April 22 aggravated his prior knee condition to result in his
disability, and, accordingly, found Metropolitan to be the responsible employer. 
Decision and Order at 10-12.  Next, the administrative law judge found that
claimant was entitled to temporary total disability benefits from April 24, 1995
through November 5, 1995,  33 U.S.C. §908(b), and to permanent partial
disability benefits commencing February 29, 1996,  33 U.S.C. §908(c)(2), (19). 
Having found Metropolitan entitled to Section 8(f),  33 U.S.C. §908(f), relief
from continuing compensation liability, the administrative law judge ordered
Metropolitan to pay claimant temporary total disability benefits from April 24,
1995 through November 5, 1995, and permanent partial disability benefits commencing
February 29, 1996 and for the following 104 weeks, as well as any future injury-related
medical expenses.  Lastly, the administrative law judge ordered the Special Fund to
pay claimant permanent partial disability benefits beginning 104 weeks from
February 29, 1996, and for the following 109.12 weeks.

     On appeal, Metropolitan challenges the administrative law judge's
determination that it is the responsible employer.  Crescent Wharf and Crescent
City have each filed response briefs, urging affirmance of the administrative law
judge's responsible employer determination.

     The United States Court of Appeals for the Ninth Circuit, within whose
jurisdiction the instant case arises, has stated that the rule for determining
which employer is liable for the totality of claimant's disability in a case
involving cumulative traumatic injuries is applied as follows: if the disability
results from the natural progression of an initial injury and would have occurred
notwithstanding a subsequent injury, then the initial injury is the compensable
injury and accordingly the employer at the time of that injury is responsible for
the payment of benefits.  If, on the other hand, the subsequent injury aggravates,
accelerates, or combines with claimant's prior injury, thus resulting in claimant's
disability, then the subsequent injury is the compensable injury and the subsequent
employer is fully liable.  Foundation Constructors, Inc. v. Director, OWCP,
950 F.2d 621, 624,  25 BRBS 71, 75(CRT) (9th Cir. 1991); Kelaita v. Director,
OWCP, 950 F.2d 1308, 1311 (9th Cir. 1986); see also Buchanan v. Int'l
Transportation Services,  33 BRBS 32, 35 (1999), aff'd mem. sub nom. Int'l
Transportation Services v. Kaiser Permanente Hospital, Inc., No. 99-70631 (9th
Cir. Feb. 26, 2001); Steed v. Container Stevedoring Co., 25 BRBS 210,
219-220 (1991).  The Ninth Circuit has emphasized that a subsequent employer may be
found responsible for an employee's benefits even when the aggravating injury
incurred with that employer is not the primary factor in the claimant's resultant
disability. See Foundation Constructors, 950 F.2d at 624, 25 BRBS at
75(CRT); Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966);
see also Lopez v. Southern Stevedores, 23 BRBS 295, 297 (1990); Abbott
v. Dillingham Marine & Manufacturing Co., 14 BRBS 453, 456 (1981), aff'd
mem. sub nom. Willamette Iron & Steel Co. v. Director, OWCP, 698 F.2d 1235 (9th
Cir. 1982).

     In the instant case, Metropolitan contests its designation as the responsible
employer on the basis that there was no causal relationship between claimant's
employment with Metropolitan and the resultant disability for which claimant sought
compensation.[5]   Specifically, Metropolitan
argues that it cannot be held responsible for claimant's benefits in the case at
bar since any injury occurring during the course of claimant's employment with
Metropolitan did not hasten the date of claimant's knee replacement surgery, did
not alter the nature of the surgical procedure, did not lengthen the period of
post-surgical temporary disability, and did not increase the extent of claimant's
permanent partial disability.  In their respective response briefs, both Crescent
Wharf and Crescent City argue, to the contrary, that the administrative law judge
properly found Metropolitan to be the responsible employer on the basis of evidence
that claimant's work activities for Metropolitan on April 22, 1995, caused a
permanent increase in the extent of claimant's disability and need for surgery. 

     Initially, we note that Metropolitan, in order to meet its burden of
establishing that it is not the responsible employer, must prove that claimant's
disability is due solely to the natural progression of his initial injury. See
Buchanan, 33 BRBS at 36; see generally General Ship Service v. Director,
OWCP [Barnes], 938 F.2d 960, 25 BRBS 22(CRT)(9th Cir. 1991).  Thus, if the
evidence of record establishes that the injury or aggravation sustained in the
course of claimant's work for Metropolitan on April 22, 1995 contributed in some
way to claimant's resultant disability, Metropolitan would properly be found to be
the responsible employer. See Foundation Constructors, 950 F.2d at 624, 25
BRBS at 75(CRT); Independent Stevedore Co., 357 F.2d 812.

     In the case at bar, the administrative law judge, having weighed the relevant
evidence, credited the opinions of Drs. Levine, Greenfield and Williams that each
day of work by claimant, including his last day of employment on April 22, 1995,
caused some permanent loss of bone and cartilage from claimant's knees, thus
increasing claimant's varus deformity, or bowleggedness, and pain.  Decision and
Order at 9-10.  The administrative law judge also considered Dr. London's contrary
opinion that claimant's work activities after April 18, 1995, did not increase
claimant's pre-surgery impairment, but found it less persuasive than the opinions
of the aforementioned physicians.  In this regard, the administrative law judge was
not persuaded by Dr. London's opinion that the sclerotic condition of claimant's
knee bones as of April 18, 1995, would have prevented further bone erosion after
that date, as that opinion was contradicted by the testimony of Drs. Williams and
Levine that a depression had been carved into claimant's knee bones by the time of
his surgery and that even sclerotic bone can be worn away, increasing varus
deformity. Id. at 10.  The administrative law judge concluded that the
preponderance of the evidence establishes that a work-related aggravation of
claimant's knee condition on April 22, 1995 contributed to claimant's decreased
ability to ambulate and, thus, increased the extent of his disability. Id. 
Moreover, the administrative law judge, having credited the medical testimony of
record supporting the conclusion that the progressive loss of bone and cartilage
in claimant's knees increased his pain and that the timing of knee replacement
surgery is dependent on when the patient is no longer able to tolerate his pain,
[6]   concluded that the loss of bone that occurred
on claimant's last day of work with Metropolitan marginally increased his need for
surgery. Id.

     The Board is not empowered to reweigh the evidence, but must accept the
rational inferences and findings of fact of the administrative law judge which are
supported by the record. See, e.g., Duhagon v. Metropolitan Stevedore Co.,
169 F.3d 615, 33 BRBS 1(CRT)(9th Cir. 1999); Burns v. Director, OWCP, 41
F.3d 1555, 29 BRBS 28(CRT)(D.C. Cir. 1994); Goldsmith v. Director, OWCP, 838
F.2d 1079, 21 BRBS 30(CRT)(9th Cir. 1988).  In this case, the administrative law
judge provided a rational basis for finding Dr. London's testimony less persuasive
than the opinions of Drs. Levine, Greenfield and Williams.  The credited opinions
of these physicians provide substantial evidence to support the administrative law
judge's ultimate determination that the employment-related aggravation suffered by
claimant on April 22, 1995, caused some increase, however minor, in the extent of
claimant's disability and need for surgery as of claimant's last date of employment
at Metropolitan. See Buchanan, 33 BRBS 32.  Thus, we reject Metropolitan's
argument  that neither of the aforementioned factual findings of the administrative
law judge is rational or supported by substantial evidence.[7]   
     We further reject Metropolitan's legal challenge to its designation as the
responsible employer, which is premised on its position that it cannot be held
liable for compensation since claimant's employment with Metropolitan did not
affect his post-surgery disability and claimant had elected to undergo the surgery
prior to this job.  The administrative law judge found that the weight of the
medical evidence supports Metropolitan's assertion that any aggravation that
occurred in the course of claimant's April 22, 1995 employment with Metropolitan
did not hasten claimant's surgery, lengthen his period of post-surgery temporary
disability, or increase the extent of claimant's permanent partial disability.  The
administrative law judge concluded nonetheless that this finding does not provide
a basis for relieving Metropolitan of liability for claimant's compensation. 
Decision and Order at 11-12.  We affirm the administrative law judge's conclusion
of law, as it is consistent with the applicable legal principles enunciated by the
Ninth Circuit with respect to cumulative traumatic injury cases.  The
administrative law judge correctly recognized that in cumulative traumatic injury
cases, the responsible employer is the employer at the time of the last injury to
contribute to the claimant's ultimate disability. See Decision and Order at
6-7; Foundation Constructors, 950 F.2d at 624, 25 BRBS at 75(CRT);
Kelaita, 799 F.2d at 1311. See also Steed, 25 BRBS at 219-220.  As
the aggravation sustained by claimant in the course of his employment with
Metropolitan on April 22, 1995, contributed to claimant's disability as of that
date, Metropolitan was properly found by the administrative law judge to be the
responsible employer.  The compensable injury forming the basis of the claim is the
last work-related injury to contribute to claimant's disability. See Steed,
25 BRBS at 220.

     Based on these findings, the administrative law judge properly rejected the
notion that the fact that the surgery was scheduled before claimant's April 22 job
with Metropolitan  meant that this work did not bear a "rational relationship" to
claimant's disability.  As the administrative law judge found, Metropolitan is
assuming that the surgery, rather than claimant's work injuries, caused his
disability.  In fact, claimant's knee replacement surgery actually reduced the
extent of his permanent disability, and the compensable residual disability can
only be attributed to the cumulative work injuries.  Decision and Order at 11.  The
administrative law judge correctly noted that had claimant elected to retire on
April 24, 1995, instead of undergoing surgery, Metropolitan, as claimant's employer
at the time of the last injury to contribute to claimant's disability, would have
been liable for claimant's compensation. See Decision and Order at 12.  We
agree with the administrative law judge's analysis and his conclusion that the fact
that claimant's disability following the knee replacement was not increased by
virtue of the work-related aggravation on April 22, 1995, is not determinative of
the responsible employer identification.  Whether or not surgery was performed,
claimant's disability as of his last day of employment on April 22, 1995, 
increased as a result of the aggravation to his knee condition that occurred on
that date. See Foundation Constructors, 950 F.2d at 624, 25 BRBS at 75(CRT);
Kelaita, 799 F.2d at 1311.  Thus, as the administrative law judge's
conclusion that Metropolitan is the responsible employer is supported by
substantial evidence and consistent with the applicable law governing the
responsible employer determination in cumulative traumatic injury cases, it is
affirmed. Id.

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

     SO ORDERED.
     


                                                                   
   			                 ROY P. SMITH
                        	         Administrative Appeals Judge



                                                                   
                         		NANCY S. DOLDER
                         		Administrative Appeals Judge



                                                                   
                         		MALCOLM D. NELSON, Acting
                         		Administrative Appeals Judge

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Footnotes.


1) 1Claimant continued to obtain jobs with various longshore employers through the hiring hall's Lift Board on a regular basis from 1990 up to the date of his knee surgery. See Tr. at 65-72. His last employer prior to his December 16, 1994, appointment with Dr. Williams, at which he expressed his desire for surgery, was Crescent Wharf & Warehouse Company (Crescent Wharf), which employed him as a lift truck operator on December 4, 1994. PAX 7 at 58. Back to Text
2) 2Claimant's last employer prior to his April 18, 1995 pre-operative examination and consent to surgery was Crescent Wharf, which employed him as a lift truck operator on April 17, 1995. PAX 7 at 53. Back to Text
3) 3Claimant also testified, regarding his work in general, that his knees usually hurt more by the end of each work day, and that his knee condition was progressively worsening. See Tr. at 73, 77. Back to Text
4) 4Following claimant's knee surgery, he was off work until November 8, 1995, when he returned to full-time longshore employment. See Tr. at 76; CCMX 1 at 7. He retired from longshore employment in January 1997. See CCMX 1 at 11; CCMX 43 at 162. Back to Text
5) 6Metropolitan argues, additionally, that the administrative law judge erred in failing to apply the last employer rule applicable to multiple, or cumulative, traumatic injury cases in a manner consistent with the Board's decision in Kuhnhausen v. Marine Terminals Corp., BRB Nos. 99-0782/A (April 20, 2000)(unpublished). Metropolitan's reliance on the unpublished Board decision in Kuhnhausen is misplaced, as that case turned on the administrative law judge's weighing of the specific evidence regarding the cause of claimant's disk herniation. Moreover, as the Board regards its unpublished decisions as lacking precedential value, such decisions generally should not be cited or relied upon by parties in presenting their cases. See Lopez v. Southern Stevedores, 23 BRBS 295, 300 n.2 (1990). Back to Text
6) 7The administrative law judge noted, in this regard, that even Dr. London conceded that pain is the most common indication for knee replacement surgery. Decision and Order at 10. Back to Text
7) 8We need not specifically address each of the arguments made in Metropolitan's reply brief regarding the administrative law judge's evaluation of the evidence inasmuch as the Board may neither substitute its views for those of the administrative law judge nor reweigh the evidence. See Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT)(9th Cir. 1999). Here, the administrative law judge acted within his prerogative in crediting one witness's testimony over that of another, the administrative law judge drew reasonable inferences from the testimony, and the administrative law judge's findings are supported by substantial evidence. Id. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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