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                                     BRB No. 00-1054


AUDAZ F. REYES                          )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
ANTILLEAN SHIPPING                      )    DATE ISSUED:   07/20/2001
                                             2001 
CORPORATION                             )
                                        )
     and                           )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION, LIMITED                    )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order on Bifurcated Hearing and the Order on
     Reconsideration of Thomas M. Burke, Associate Chief Administrative Law
     Judge, United States Department of Labor.

     Howard L. Silverstein and Marc R. Silverstein (Silverstein and
     Silverstein), Miami, Florida, for claimant.

     Lawrence B. Craig, III and Frank J. Soli (Valle & Craig, P.A.), Miami,
     Florida, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order on Bifurcated Hearing and the Order
on Reconsideration (99-LHC-169) of Associate Chief Administrative Law Judge Thomas
M. Burke 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).

     In 1988, claimant underwent a triple  by-pass operation after suffering a
heart attack.  On February 17, 1997, claimant underwent a second heart procedure
during which time a stent was placed in his left coronary artery.  On March 11,
1997, while working for employer as a carpenter, claimant cut his left thumb on a
saw blade, for which he received stitches.  The following day, March 12, 1997,
claimant returned to work for employer whereupon claimant once again cut himself
while operating a saw.  This time, claimant cut his left ring and small fingers. 
Claimant testified that while traveling to the hospital following this second
incident he began to experience chest pain, for which he took a nitoglycerin pill. 
This second injury ultimately resulted in the amputation of a part of claimant left
ring finger.  Claimant testified that he subsequently began to experience instances
of  chest pain and depression for which he sought medical care.  On May 30, 1997,
claimant underwent  cardiac catheterization which revealed a re-stenosis in
claimant's left coronary artery.  On June 1, 1997, coronary artery by-pass surgery
was performed on claimant in order to correct the identified re-stenosis.       

     At the formal hearing before the administrative law judge, the parties agreed
to bifurcate claimant's claim.  As employer conceded  that claimant had sustained
work-related injuries to his left hand, the only issues adjudicated at that time
involved the alleged causal relationship between claimant's employment and his
cardiac condition and the presence of a work-related psychological condition. 
Following this hearing, the record was held open solely for the purpose of
submitting the curriculum vitae of Dr. Sayfie.  Claimant thereafter
submitted a post-trial brief in which he cited, for the first time, various medical
journal articles for the dual purposes of supporting his medical witnesses and
impeaching employer's medical witness.  Employer  responded to this brief by filing
a motion to strike all references to the medical articles cited by claimant.  The
administrative law judge granted employer's motion, thereby striking the disputed
references to articles from claimant's brief.

     In his Decision and Order, the administrative law judge found, based upon the
medical opinion of Dr. Jarrett,  that claimant is not suffering from a disabling
depression arising from his work-related hand injuries.  Additionally, the
administrative law judge concluded that the record did not support a finding that
claimant's hand injuries caused or accelerated the subsequent re-stenosois of his
left coronary artery.   Accordingly, the administrative law judge denied claimant's
request for disability benefits.  Claimant's motion for reconsideration was denied
by the administrative law judge.

     On appeal, claimant challenges the administrative law judge's denial of his
claim.  Additionally, claimant avers that the administrative law judge erred in
striking from his brief the references to the medical articles to which employer
objected.  Employer responds, urging affirmance of the administrative law judge's
decision in its entirety.

     Claimant initially contends that the administrative law judge erred when, in
his Order Granting Motion to Strike, he struck references to various medical
articles cited in claimant's brief.  We disagree.  The administrative law judge
rendered this decision  based  upon his findings that, as  claimant conceded that
the articles in question were easily ascertained, those articles could have been
located prior to the hearing and that claimant failed to properly introduce the
disputed medical articles into the record.  Thereafter, in his Order on
Reconsideration, the administrative law judge reaffirmed this evidentiary ruling,
stating that the medical articles relied upon by claimant could not be considered
as they had not been formally admitted into the record.

     An administrative law judge has great discretion concerning the admission of
evidence and any decisions regarding the admission or exclusion of evidence are
reversible only if arbitrary, capricious, or an abuse of discretion. See Ezell
v. Direct Labor, Inc., 33 BRBS 19 (1999);  Raimer v. Willamette Iron & Steel
Co., 21 BRBS 98 (1988).  In the instant case, the administrative law judge's
reasons for excluding from consideration the medical articles cited by claimant
after the record had been closed are rational.  Specifically, while claimant
contends that the medical articles are supportive of its medical witnesses,
claimant thereafter asserts that those same articles impeach the credibility of
employer's chief medical witness.  Claimant, however, at no time requested that the
record be reopened for the admission of these articles nor did claimant provide
these articles in their entirety.  Rather, claimant provided in his brief his
summary of the articles' contents.  In rejecting claimant's argument that his
summaries should be considered, the administrative law judge determined that
claimant had been afforded ample opportunity to be heard and that to consider
evidence presented in a closing brief would violate employer's due process rights. 
See Order on Reconsideration.   Thus, the administrative law judge's
decision to strike the citations to medical articles from claimant's post-hearing
brief  is not arbitrary, capricious or an abuse of discretion, and claimant has not
met his burden in this regard. See Smith v. Ingalls Shipbuilding Div., Litton
Systems Inc., 22 BRBS 46 (1989)(party seeking to admit evidence must exercise
due diligence in developing its claim prior to hearing).  

     Claimant next avers that the administrative law judge erred in concluding that
claimant did not sustain a work-related psychiatric injury as a result of the two
injuries that he sustained to his hand on  March 11 and 12, 1997.  It is well-settled that a psychological impairment which is work-related is compensable under
the Act. See, e.g., American Nat'l Red Cross v. Hagen, 327 F.2d 559 (7th
Cir. 1967); Sewell v. Noncommissioned Officers' Open Mess, McChord Air Force
Base, 32 BRBS 134 (1998)(en banc)(Brown and McGranery, JJ., dissenting),
aff'g on recon. en banc 32 BRBS 127 (1997)(McGranery, J., dissenting);
see also Pietrunti v. Director, OWCP, 119 F.3d 1035, 31 BRBS 89 (CRT)(2d
Cir. 1997).  Furthermore, the Section 20(a), 33 U.S.C. §920(a), presumption
is applicable in psychological injury cases. Sewell, 32 BRBS at 135.  In
order to be entitled to invocation of the Section 20(a) presumption, claimant must
establish a prima facie case by showing that he suffered a harm and that
either a work-related accident occurred or that working conditions existed which
could have caused or aggravated the harm.[1]  
See U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S.
608, 14 BRBS 631 (1982); Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT)(4th
Cir. 1997); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996);  Sewell, 32 BRBS at 135. Although
it is claimant's burden to establish each element of his prima facie case by affirmative proof, see Kooley v.
Marine Industries Northwest, 22 BRBS 142 (1989); see also Director, OWCP v. Greenwich Collieries, 512
U.S. 267, 28 BRBS 43(CRT)(1994), claimant is not required to affirmatively prove that his working conditions in fact
caused the harm.  Rather, claimant need only establish that the working conditions or work-related accident could have
caused the harm alleged. See generally U.S. Industries/Federal Sheet Metal, Inc., 455 U.S. 608, 14 BRBS 631. 

     Once the Section 20(a) presumption is invoked, the burden shifts to employer to rebut the presumption with
substantial evidence that claimant's condition was not caused or aggravated by his employment.  See Brown v.
Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22(CRT)(11th Cir. 1990); Manship v. Norfolk & Western
Railway Co., 30 BRBS 175 (1996).  It is employer's burden on rebuttal to present substantial evidence sufficient to
sever the causal connection between the injury and the employment.  See Swinton v. J. Frank Kelly, Inc.,
554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976); see also Del Vecchio v.
Bowers, 296 U.S. 280 (1935); American Grain Trimmers, Inc. v. OWCP, 181 F.3d 810, 33 BRBS
71(CRT)(7th Cir. 1999); Duhagon v. Metropolitan Stevedore Co., 169 F.3d 615, 33 BRBS 1(CRT)(9th Cir. 1999);
Bath Iron Works Corp. v. Director, OWCP, 109 F.3d 53, 31 BRBS 19(CRT)(1st Cir. 1997); Devine v. Atlantic
Container Lines, G.I.E., 23 BRBS 279 (1990).   If the administrative law judge finds that the Section 20(a) presumption
is rebutted, he must weigh all of the evidence and resolve the causation issue based on the record as a whole. See
Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985); see also Greenwich Collieries, 512 U.S. 267,
28 BRBS 43(CRT).

     In the instant case, the administrative law judge concluded that claimant did
not sustain any disabling psychological injury as a result of his work-related
March 11 and 12, 1997, hand injuries.  In rendering this determination, the
administrative law judge relied upon the testimony of Dr. Jarrett who, after
examining claimant on February 9, 1999, opined that claimant was not suffering from
a disabling depression. See Emp. Ex. 17.  Dr. Jarrett conceded, however,
that claimant might have experienced transient feelings of depression and concern
following his March 1987 work-injuries, conditions which Dr. Jarrett described as
an adjustment disorder, but he determined that those feelings were "a passing
thing" and not a "long-term  trait." See Tr. at 95.  In contrast to the
opinion of Dr. Jarrett, Dr. Ojeda noted, on March 12, 1998, that claimant
demonstrated evidence of moderate depression, see Cl. Ex. 14, while Dr.
Hernandez, who presently provides claimant with psychiatric care, has since March
26, 1998, diagnosed claimant with depression. See Cl. Exs. 11-12.

     Based upon this evidence, we hold that the administrative law judge erred in
failing to invoke the Section 20(a) presumption in addressing the issue of whether
claimant sustained a work-related psychological injury.  While the testimony of Dr.
Jarrett may support a determination that claimant, as of the date of his
examination in February 1999, was not disabled by depression, that opinion is
insufficient to establish that claimant did not suffer from a psychological
condition immediately following his work-injuries.  Rather, Dr. Jarrett
acknowledged that claimant may have suffered from an adjustment disorder following
his multiple hand injuries in March 1997.  Thus, as the three physicians who
addressed the issue of claimant's psychological condition following his March 1997
work-injuries either opined that claimant sustained a psychiatric injury or could
have done so, we hold that claimant has established the existence of a harm under
the Act for purposes of establishing his prima facie case.  Accordingly, as
it is uncontroverted that claimant sustained  work-related injuries which  could
have caused claimant's harm, i.e., the "working conditions" element of his
prima facie case, claimant is entitled to invocation of the Section 20(a)
presumption as a matter of law. See Sinclair v. United Food & Commercial
Workers, 23 BRBS 148 (1989); James v. Pate Stevedoring Co., 22 BRBS 271
(1989).  We thus remand this case to the administrative law judge for consideration
of whether claimant's post-injury psychological condition is work-related
consistent with the Section 20(a) presumption.  If the administrative law judge
finds a casual relationship between claimant's psychological condition and his
March 1997 work-injuries, he must then consider the nature and extent of this
disability.

     Claimant additionally challenges the administrative law judge's determination
that claimant's post-injury coronary problems and subsequent treatment were not
related to his March 1997 work-related hand injuries.  In the instant case, it is
undisputed that work accidents occurred on March 11 and 12, 1997, and that claimant
subsequently experienced chest pain, underwent cardiac catheterization which
revealed  re-stenosis in his left coronary artery, and thereafter had coronary
artery bypass surgery to correct this condition.  Thus, claimant has established
his prima facie case and is entitled to the Section 20(a) presumption that
these conditions are casually related to his employment.[2]   See James, 22 BRBS 271.  In analyzing the issue of causation
as it relates to claimant's coronary conditions, however, the administrative did
not apply the Section 20(a) presumption.  Rather, without reference to the Section
20(a) presumption, the administrative law judge relied solely on the opinion of Dr.
Sayfie to find that claimant's re-stenosis was unrelated to his work-related hand
injuries.  As the administrative law judge did not apply the Section 20(a)
presumption when addressing this issue, we vacate his finding on this issue, and
remand the case for the administrative law judge to consider whether employer has
rebutted the invoked presumption with substantial evidence that claimant's
condition was not caused or aggravated by his employment.[3]   See Brown, 893 F.2d 294, 23 BRBS 22(CRT); O'Kelley v. Dept.
of the Army/NAF, 34 BRBS 39 (2000).  On remand, the administrative law judge
must consider the application of the aggravation rule and specifically determine
whether employer established  that work events neither directly caused claimant's
harm nor aggravated the pre-existing condition resulting in injury.[4]   See, e.g., Cairns v. Matson Terminals, 21
BRBS 252 (1988).  If the administrative law judge finds that the Section 20(a)
presumption is rebutted, he must then weigh all of the evidence and resolve the
causation issue based on the record as a whole. See Devine, 23 BRBS 279;
see also Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT).  Lastly, if
the administrative law judge finds a causal relationship between claimant's
coronary conditions and his work injuries, he must then consider the nature and
extent of claimant's disability.

     Accordingly, the administrative law judge's denial of disability benefits is
vacated, and the case is remanded for further consideration consistent with this
opinion.  In all other respects, the administrative law judge's Decision and Order
is affirmed.

     SO ORDERED.
     


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)A harm has been defined as something that has unexpectedly gone wrong with the human frame. See Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968)(en banc); Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989). Back to Text
2)It is well-established that chest pains constitute an injury under the Act. See Volpe v. Northeast Marine Terminal Corp., 671 F.2d 697, 14 BRBS 538 (2d Cir. 1982). Back to Text
3)The United States Court of Appeals for the Eleventh Circuit, within whose jurisdiction the instant claim arises, has espoused a "ruling out" standard when addressing the issue of rebuttal of the Section 20(a) presumption. Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294, 23 BRBS 22 (CRT)(11th Cir. 1990). The Board has recently explained that this standard does not require a physician to rule out all possibilities, as absolute certainties do not exist in the medical profession and such a requirement would raise the standard regarding rebuttal of the presumption to an unreachable level. O'Kelley v. Dept. of the Army/NAF, 34 BRBS 39 (2000). The Board held that an unequivocal opinion, given to a reasonable degree of medical certainty, that the employee's injury is not work-related is sufficient to rebut the Section 20(a) presumption. Id. Back to Text
4)The aggravation rule provides that where an injury at work aggravates, accelerates or combines with a prior condition, the entire resultant disability is compensable. Independent Stevedore Co., v. O'Leary, 357 F.2d 812 (9th Cir. 1966); Kubin v. Pro-Football, Inc., 29 BRBS 117 (1995). This rule applies not only where the underlying condition itself is affected but also where the injury "aggravates the symptoms of the process." Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986). Thus, if claimant's employment played any role in the manifestation of his harm, the entire resulting disability is compensable. See Bechtel Associates, P.C. v. Sweeney, 834 F.2d 1029, 20 BRBS 49 (CRT)(D.C. Cir. 1987). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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