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                                     BRB No. 00-1063
                                         
EDENIA SCUDDER                          )
                                        )
          Claimant-Petitioner           )
                                        )
       v.                               )
                                        )
MAERSK PACIFIC, LIMITED                 )    DATE ISSUED:   07/24/2001
2001
                                        )
       and                              )
                                        )
SIGNAL MUTUAL INDEMNITY                 )
ASSOCIATION                             )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER
          
     Appeal of the Decision and Order Awarding Benefits of Daniel L. Stewart,
     Administrative Law Judge, United States Department of Labor.

     James M. McAdams (Pierry & Moorhead, L.L.P.), Wilmington, California,
     for claimant.

     William N. Brooks, II (Law Offices of James P. Aleccia), Long Beach,
     California, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order Awarding Benefits (99-LHC-0998) of
Administrative Law Judge Daniel L. Stewart 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
administrative law judge's findings of fact and conclusions of law if they 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). 
     On November 5, 1997, claimant injured her back, neck, and knees during the
course of her employment for employer as a UTR driver.  Claimant received physical
therapy for her injuries and she underwent surgery on  her right knee on September
2, 1998.  Claimant returned to work in February 1999.   After claimant's work
injury, employer voluntarily paid compensation for temporary total disability, 33
U.S.C. §908(b), from November 6, 1997, to June 24, 1998, and from September
2 to November 11, 1998.  Employer also paid compensation for a seven percent
permanent partial impairment of the right knee.  33 U.S.C. §908(c)(2). 
Claimant sought, inter alia, additional compensation for temporary total
disability from June 25 to September 1, 1998, and from November 11, 1998, to
February 17, 1999, and for permanent partial disability for a 14 percent impairment
of her right knee.

     In his decision, the administrative law judge found that claimant was able to
return to her usual employment as a UTR driver from June 25 to September 1, 1998,
prior to her right knee surgery on September 2, 1998.  The administrative law judge
found that claimant was unable to work from September 2 to December 16, 1998, and
that claimant's right knee reached maximum medical improvement on December 17,
1998, at which time claimant could return to her usual work.  The administrative
law judge therefore awarded claimant additional compensation for temporary total
disability from November 12 to December 16, 1998.   The administrative law judge
also denied claimant compensation for a 14 percent impairment of her right knee. 
The administrative law judge credited evidence that claimant's additional right
knee impairment was due, in part, to claimant's longshore employment after her
November 5, 1997, work injury, and that, therefore, a subsequent longshore employer
is responsible for the additional right knee impairment and for any necessary
medical treatment attendant thereto.  The administrative law judge found that
claimant is not entitled to further medical treatment for the injuries caused by
the November 5, 1997, work accident.  Finally, the administrative law judge found
that claimant had an average weekly wage at the date of injury of $1,231.04. 

     On appeal, claimant challenges the administrative law judge's denial of
compensation for temporary total disability from June 25 to September 1, 1998, from
December 17, 1998, to January 25, 1999, and for the 14 percent impairment to her
right knee.  Claimant also challenges the administrative law judge's denial of
medical treatment for her neck, back, and both knees, and the administrative law
judge's average weekly wage determination.  Employer responds, urging affirmance.

     Claimant contends the administrative law judge erred in finding that she was
able to return to her usual employment from June 25 to September 1, 1998, prior to
her undergoing right knee surgery on September 2, 1998. Claimant further contends
that the administrative law judge erred by denying her compensation for temporary
total disability from December 17, 1998, to January 25, 1999, when claimant's
treating physician, Dr. Shields, opined that claimant's right knee reached maximum
medical improvement and he released her to return to work.   Claimant bears the burden  of
establishing that she is unable to  perform her usual work due to her work-related injury. See Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1989); Trask v. Lockheed Shipbuilding & Constr. Co., 17 BRBS 56
(1985).

     In his decision, the administrative law judge initially determined that he
would rely on the objective medical evidence of record due to his doubts as to
claimant's overall credibility.  Decision and Order at 36-37.  Moreover, the
administrative law judge found Dr. London well-qualified and credible.  The
administrative law judge credited Dr. London's testimony that claimant was
physically able to work as a UTR driver from June 25 to September 1, 1998.  Tr. at
158, 161-163, 191; EX 6 at 24-26.  Additionally, the administrative law judge noted
the deposition testimony of Dr. Shields  that claimant was unable to work driving
a UTR because of her lifting restriction, CX 19, 35 at 31-32; however, the
administrative law judge credited claimant's testimony that her duties as a UTR
driver did not require her to lift more than two or three pounds and that she did
not know why Dr. Shields stated that driving a UTR required lifting.  Tr. at 112-113. The administrative law judge, in essence, found that this misunderstanding
detracted from Dr. Shields's opinion. As substantial evidence supports the
administrative law judge's finding that claimant could perform her usual work from
June 25 to September 1, 1998, the denial of temporary total disability benefits for
this period is affirmed. Chong v. Todd Pacific Shipyards Corp., 22 BRBS 242
(1989), aff'd mem., 909 F.2d 1488 (9th Cir. 1990).

     Similarly, we affirm the administrative law judge's finding that claimant
could return to her usual work as of December 17, 1998. The administrative law
judge noted Dr. London's opinion that claimant could return to work on November 12,
1998, but found that Dr. London also stated that claimant's recovery from the
surgery could take as long as three months.   The administrative law judge
rationally concluded from the medical evidence that claimant's condition did not
appreciably change after Dr. Shields's December 17, 1998, examination, compare
CX 30 at 89, EX 6 at 33 with CX 31 at 92, EX 6 at 34(f), and thus
concluded that claimant could return to her usual work as of December 17, 1998. 
As the administrative law judge's findings and inferences are rational and
supported by substantial evidence, we affirm the administrative law judge's award
of temporary total disability benefits from September 2 to December 16, 1998, and
the denial of such benefits thereafter. See generally  Johnson v. Director,
OWCP, 911 F.2d 247, 24 BRBS 3(CRT) (9th Cir. 1990), cert. denied, 499 U.S. 959 (1991); Cordero
v. Triple A Machine Shop, 580 F.2d 1331, 1335, 8 BRBS 744, 747 (9th
Cir.1978), cert. denied, 440 U.S. 911 (1979); Todd Shipyards Corp. v.
Donovan, 300 F.2d 741 (5th  Cir. 1962); Chong, 22 BRBS 242.

     We next address claimant's contention that the administrative law judge erred by finding that employer is
not responsible for additional permanent partial disability benefits related to claimant's work-related knee injury.
In determining the responsible employer in the case of multiple traumatic injuries, if the disability results from the
natural progression of an initial 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, a 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, 25 BRBS 71(CRT) (9th Cir. 1991); Kelaita v.
Director, OWCP, 799 F.2d 1308 (9th Cir. 1986); Buchanan v. Int'l Transportation Services, 33 BRBS
32 (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 (1991).

     In the instant case, the administrative law judge credited the impairment rating of Dr. London based on his
detailed evaluation of claimant's right knee pursuant to the American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides) over the deposition testimony of Dr. Shields,
who stated that he never attempted to evaluate claimant's right knee condition pursuant to the AMA
Guides.  Dr. London opined, after his October 28, 1998, examination of claimant's right knee, that
claimant has a seven percent impairment of the patella/femoral joint due to a prior right knee injury, pre-existing
chondromalacia, the November 5, 1997,work injury, and continuing symptomatology. Tr. at 166-167.  Employer
voluntarily paid permanent partial disability benefits for this seven percent impairment.  An x-ray taken at Dr.
London's examination on August 18, 1999, showed a narrowing of the medial joint space at the tibia/femoral joint,
which had not been present on prior x-rays or MRI scans.  Tr. at 171-173, 182; EX 6 at 34(a)-(f).  Dr. London
opined that this condition resulted in a 14 percent impairment, and he attributed the tibia/femoral joint narrowing
to the progression of claimant's pre-existing chondromalacia, claimant's November 5, 1997, work injury, daily
living, and claimant's longshore employment after she returned to work in February 1999.  Tr. at 173, 184-186. 
Based on this opinion, the administrative law judge found that claimant sustained a new injury to her knee as a
result of her employment after February 1999, which resulted in a greater permanent impairment of claimant's
right knee. The administrative law judge concluded, pursuant to the aggravation rule, that liability for
compensation and medical benefits for this additional impairment lies with the employer or employers for whom
claimant worked after she returned from her November 1997 injury.[1] 


     Contrary to claimant's contention on appeal, the unequivocal testimony Dr. London, and the credited
portion of Dr. Shields's testimony that claimant's employment after she returned to work may have contributed
to the narrowing of her knee joint, CX 35 at 36-37, constitutes substantial evidence that claimant's additional
seven percent knee impairment is due, in part, to her subsequent employment, notwithstanding claimant's not
losing any time from work, requesting medical treatment for this condition, or filing a claim against subsequent
employers. See generally Buchanan, 33 BRBS at 35-37; see also Davison v. Bender Shipbuilding &
Repair Co., Inc., 30 BRBS 45 (1996).  Inasmuch as the credited evidence provides support for the
administrative law judge's finding that claimant's knee condition was aggravated by subsequent longshore
employment, we affirm the administrative law judge's conclusion that employer is not liable for the
additional impairment to claimant's knee above that in Dr. London's initial rating or for medical treatment
necessitated by this new injury. Abbott v. Dillingham Marine & Manufacturing Co., 14 BRBS 453 (1981),
aff'd mem., 698 F.2d 1235 (9th Cir.  1982).

     Claimant next challenges the administrative law judge's finding that she is not entitled to medical treatment
for her neck, back, and both knees, which were injured in the November 5, 1997, work injury. Section 7(a) of the
Act, 33 U.S.C. §907(a), states that "[t]he employer shall furnish such medical, surgical and other attendance
or treatment . . . medicine, crutches, and apparatus, for such period as the nature of the injury or the process of
recovery may require." See Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988).  In
order for a medical expense to be awarded, it must be reasonable and necessary for the treatment of the injury at
issue. See Davison, 30 BRBS 45; 20 C.F.R. §702.402.  It is claimant's burden to prove the elements
of her claim for medical benefits.  Schoen v. United States Chamber of Commerce, 30 BRBS 112 (1996);
see also Ingalls Shipbuilding, Inc., v. Director, OWCP, 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993). 

     In the instant case, the administrative law judge found that the medical evidence does not support claimant's
entitlement to ongoing medical treatment for her neck, back, and left knee.  The administrative law judge credited
Dr. London's testimony that no future medical treatment is necessary for these injuries, Tr. at 200-201, nor for the
patellar/femoral injury to claimant's right knee that was caused by the November 5, 1997, work injury, Tr. at 187,
as supported by the reports of Drs. Dillin and Farran.  Dr. Dillin opined that claimant's neck condition does not
prevent her from working.  CX 24 at 84.  Dr. Farran found no evidence of neurologic disability in claimant's neck
or lower back.  EX 7 at 39-40.  The administrative law judge also credited Dr. Shields's deposition testimony that
claimant's neck and back had improved with treatment and had stabilized; moreover, Dr. Shields stated that he
was unaware of any work restrictions for these injuries.  CX 35 at 10, 39-40.  Inasmuch as  substantial evidence
supports the administrative law judge's finding that claimant's neck, back, left knee, and right knee
patellar/femoral joint injury do not require ongoing medical treatment, we affirm the denial of continuing medical
benefits.[2]   See Schoen, 34 BRBS at 114.

     Finally, we address claimant's assertion the administrative law judge erred
in calculating her average weekly wage pursuant to Section 10(c) of the Act, 33
U.S.C. §910(c).  Specifically, claimant argues that the administrative law
judge erred by not deducting from his calculation of claimant's earnings during the
52-week period prior to her injury the entire period from July 6 to October 19,
1997,  that claimant was unable to work due to the deaths of her aunt and son.[3]   Claimant contends that, after allowing for this
period of unemployment, she had an average weekly wage of $1,800.  The object of
Section 10(c) of the Act, 33 U.S.C. §910(c), is to arrive at a sum that
reasonably represents claimant's annual earning capacity at the time of her
injury.[4]   Empire United Stevedores v.
Gatlin, 936 F.2d 819, 25 BRBS 26(CRT) (5th Cir. 1991); Fox v. West State
Inc., 31 BRBS 118 (1997).  It is well-established that the administrative law
judge has broad discretion in determining an employee's annual earning capacity
under Section 10(c).  Bonner v. National Steel & Shipbuilding, 5 BRBS 290
(1977), aff'd in pert. part, 600 F.2d 1288 (9th Cir. 1979). 

     In the instant case, the administrative law judge initially found that he
would consider claimant's earnings history from 1994, 1995, and 1996, as well as
those from the  52-week period prior to claimant's November 5, 1997, work injury. 
In this regard, the administrative law judge found that claimant worked an average
of 26.3 hours per week in 1994, 27.9 hours in 1995, 30.5 hours in 1996, and 28
hours per week during the 52-week period prior to her injury.  In order to account
for claimant's increasing wage-earning capacity in the years prior to her injury,
he  factored out only three weeks for convalescence from the deaths, resulting in
an average of 30.35 hours per week.  The administrative law judge therefore divided
by 49 claimant's total earnings of $60,323.09 during the 52 weeks  prior to the
November 5, 1997, work injury, and derived an average weekly wage of $1,231.08,
which he found approximated claimant's annual earning capacity.[5]   Decision and Order at 40.

     We affirm the administrative law judge's determination as it is rational and
supported by substantial evidence.  Claimant does not challenge the administrative
law judge's finding of the average number of hours she worked per week in 1994,
1995, 1996.  The administrative law judge acted within his discretion in
determining from this data that an average weekly wage based on dividing by 49
claimant's total earnings during the 52 weeks prior to her work injury is
reasonable and fair.  Moreover, the administrative law judge rationally found that
by factoring out only three weeks' convalescence would yield an average weekly wage
and  average number of hours worked per week during the 52-week period prior to her
work injury consistent with the increasing average number of hours per week
claimant worked during the three calender years prior to her injury.[6]   See generally New Thoughts Finishing Co. v.
Chilton, 118 F.3d 1028, 31 BRBS 51(CRT) (5th Cir. 1997); Browder v. 
Dillingham Ship Repair, 24 BRBS 216, aff'd on recon., 25 BRBS 88 (1991).
Therefore, as the administrative law judge's average weekly wage calculation
reflects a reasonable representation of claimant's wage-earning capacity at the
date of injury, we affirm the administrative law judge's average weekly wage
determination.[7] See generally Richardson
v. Safeway Stores, Inc., 14 BRBS 855 (1982).         


     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)The record establishes that claimant worked as a signalman, in various supervisory positions, and as a clerk upon her return to work in February 1999. Back to Text
2)We reject claimant's assertion that the administrative law judge erred by not crediting Dr. Shields's testimony that claimant's neck and back require monitoring, CX 35 at 18-19, 41, on the basis that Dr. Shields is claimant's treating physician, see generally Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480, 32 BRBS 144(CRT) (9th Cir. 1999), cert. denied, 120 S.Ct. 40 (1999), as Dr. London testified that no further treatment for these conditions was necessary. See generally Brown v. National Steel & Shipbuilding Co., 34 BRBS 195 (2001). Back to Text
3)Prior to her work injury, claimant's aunt died on July 6, 1997, and her son was the victim of a fatal shooting on July 19, 1997. As a result of these deaths, claimant received psychological treatment and state disability compensation from July to October 1997, and was not able to work. Back to Text
4)The administrative law judge's use of Section 10(c) as the applicable subsection for calculating claimant's average weekly wage is not challenged on appeal. Back to Text
5)The administrative law judge also factored in the three weeks allowed for the recovery period by multiplying $1,231.08 by three and dividing the sum by 52, which also corresponds to an average weekly wage of $1,231.08. See James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 34 BRBS 35(CRT) (5th Cir. 2000); 33 U.S.C. §910(d). Back to Text
6)Claimant earned $50,058.68 in 1994, $52,212.48 in 1995, and $64,487.16 in 1996. CX 40. Back to Text
7)Absent any indication from Congress that the Act should be interpreted consistently with the Family and Medical Leave Act, 29 U.S.C. §2611 et seq. (1993), we reject claimant's contention that, in determining her average weekly wage, the administrative law judge was required to exclude the entire time her family physician certified that she was disabled due to the deaths in her family. See generally Preziosi v. Controlled Industries, Inc., 22 BRBS 468, 473 (1989) (Brown, J., dissenting); Greene v. J.O. Hartman Meats, 21 BRBS 214, 217 (1988). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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