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                                   BRB No. 02-0883
BILL D. EZELL                         )
             Claimant-Petitioner           )
        v.                            )
INGALLS SHIPBUILDING,            )DATE ISSUED:   06/30/2003
INCORPORATED                     )
                      Self-Insured              ) DECISION and ORDER
             Employer-Respondent      )

        Appeal of the Decision and Order-Awarding Benefits of Richard D. Mills,
        Administrative Law Judge, United States Department of Labor.

        D. Jason Embry (Davis & Feder, P.A.), Gulfport, Mississippi, for

        Paul M. Franke, Jr. (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
        Mississippi, for employer.

        Before:  SMITH, McGRANERY and HALL, Administrative Appeals Judges.
        PER CURIAM:
        Claimant appeals the Decision and Order-Awarding Benefits (2001-LHC-2406) of
Administrative Law Judge Richard D. Mills 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).
        Claimant was injured on November 10, 1998, while he was loading a piece of
steel angle at employer's facility.   He stepped on a small piece of angle, which
twisted his foot and caused him to twist his back.  He was diagnosed with a pulled
muscle or muscle strain and was taken off  work until November 15, 1998.  Claimant
attempted to return to work at that time, but continued to have pain.  He was
treated conservatively by Dr. Broussard, who eventually referred claimant to Dr.
Smith, a neurosurgeon.  Dr. Smith ordered an MRI, which revealed multi-level lumbar
stenosis and a herniated disc at L3-4.  Dr. Smith attempted to control claimant's
pain with therapy and injection treatments, but eventually performed a lumbar
microdiscectomy on April 12, 1999.  Based on a functional capacity evaluation, Dr.
Smith assigned a maximum medical improvement date of September 28, 1999, and
released claimant to work with restrictions on October 4, 1999.  Claimant returned
to modified duty on October 5, 1999, but worked only three weeks before he retired
due to medical reasons.  Claimant sought benefits under the Act.
        In his decision, the administrative law judge found that claimant's condition
became permanent on September 28, 1999, the date Dr. Smith stated claimant reached
maximum medical improvement.  The administrative law judge also found that claimant
established that he could not return to his usual work before that time and thus
is entitled to temporary total disability benefits until September 28, 1999.   The
administrative law judge then found that claimant returned to work at a modified
position in employer's facility, and that contrary to claimant's contention, this
position was suitable given claimant's condition and restrictions.  He concluded
that claimant's allegation that he was in such pain that he had to take vacation
time to cope and eventually had to retire due to his medical condition is not
consistent with other evidence, and that since the modified position paid the same
wages claimant was earning prior to his injury, claimant is not entitled to
benefits after October 5, 1999.  With regard to medical benefits, the
administrative law judge found that employer is liable for the reasonable and
necessary past and future medical expenses associated with claimant's work-related
injury to his lower back, including treatment provided by both Dr. Smith, the
neurosurgeon, and Dr. Broussard, the general practitioner.
        On appeal, claimant contends that the administrative law judge erred in
finding that the modified position offered by employer was suitable and that
employer should be liable for Dr. Broussard's treatment pursuant to Section 7, 33
U.S.C. §907.  Employer responds, urging affirmance of the administrative law
judge's decision as it is based on substantial evidence of record.
        Initially,  claimant contends that the administrative law judge erred in
finding that  the modified position at employer's facility was suitable for him. 
A claimant establishes his prima facie case of total disability if he is
unable to perform his usual employment duties due to a work-related injury. See
Gacki v. Sea-Land Service, Inc., 33 BRBS 127 (1998).  Where, as in the instant
case, it is uncontested that claimant is unable to perform his usual duties, the
burden then shifts to employer to establish the availability of suitable alternate
employment, which it may do by providing claimant with a suitable light duty job
at its facility. Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS
93(CRT) (5th Cir. 1996); New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 14 BRBS 156 (5th Cir. 1981).
        In the instant case, the administrative law judge found that claimant returned
to work at a modified position which was approved by Dr. Smith, one of claimant's
treating physicians.  Cl. Ex. 5.  In addition, he found that the Department of
Labor's vocational rehabilitation counselor, Mr. Walker, communicated with several
supervisors and co-workers regarding claimant's condition and concluded that
claimant had not missed any work, nor had he complained to anyone about back or hip
pain.  Mr. Walker was told that that there were no complaints reported by claimant
or the Sheet Metal Department personnel, and claimant reported that he was not
having any problems with the modified work activity.  Emp. Ex. 23.  Likewise,
employer's vocational counselor reviewed claimant's work space, interviewed his
supervisors and co-workers, and concluded that the work activity was in keeping
with the assigned restrictions.  Emp. Ex. 24.
        The administrative law judge also reviewed the medical evidence and concluded
that the post-operative objective evidence was negative.  Dr. Smith reported that
the surgery was successful and a post-operative MRI revealed nothing wrong with
claimant's back.  Cl. Ex. 10.  Dr. Seidensticker, a consulting orthopedist,
reported no degenerative joint conditions.  Emp. Ex. 17.  In a deposition, Dr.
Smith stated that a representative from employer described claimant's actual work
duties at the modified position.  From that description, Dr. Smith concluded that
the position was "well within the restrictions that he was given,"  Cl. Ex. 10 at
10, and opined that claimant  had elected not to continue working, id.  In
addition, the administrative law judge found that while both Drs. Smith and
Broussard advised that claimant retire for medical reasons, it was because claimant
had requested that they do so.  Cl. Exs. 4, 10.   Specifically, Dr. Smith stated
that he based his recommendation to retire on claimant's age and his continued
complaints of pain, which seem in retrospect to be his unwillingness to do the job,
as claimant's actual work at the modified position was well within his
restrictions.  Cl. Ex. 9 at 10.  Dr. Broussard reported on October 1, 1999, before
claimant's return to modified duty, that claimant felt he is incapable of working
at employer's facility and should be retired.  Cl. Ex. 4 at 5.   The administrative
law judge concluded that it was likely that claimant decided he did not want to
work in the modified position before he returned to duty and that was the
motivation for the retirement, not his inability to perform the job.
        It is well-established that, in arriving at his decision, the administrative
law judge is entitled to evaluate the credibility of all witnesses and to draw his
own inferences and conclusions from the evidence. See 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).   The
administrative law judge discussed the conflicting evidence, including claimant's
testimony regarding his difficulties performing the modified job at employer's
facility and concluded that claimant could have continued to perform the duties of
the modified position satisfactorily based on vocational and medical evidence. 
Moreover, substantial evidence supports the administrative law judge's finding that
claimant retired for reasons other than medical necessity.  Therefore, we affirm
the administrative law judge's finding that the modified position at employer's
facility was suitable for claimant as it is rational and supported by substantial
        Accordingly, the Decision and Order of the administrative law judge denying continuing benefits is
        SO ORDERED.

                                 ROY P. SMITH
                                 Administrative Appeals Judge

                                 REGINA C. McGRANERY
                                 Administrative Appeals Judge

                                 BETTY JEAN HALL
                                 Administrative Appeals Judge

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1) As we affirm the administrative law judge's finding that the modified position establishes suitable alternate employment, and thus that claimant suffered no loss in wage-earning capacity, we need not address claimant's contentions on appeal regarding his post-retirement wage-earning capacity. See generally Shell Offshore, Inc. v. Director, OWCP, 122 F.3d 312, 31 BRBS 129(CRT) (5th Cir. 1997), cert. denied, 523 U.S. 1095 (1998). In addition, claimant's contention regarding the necessity of treatment by Dr. Broussard is moot, as the administrative law judge found that claimant is entitled to payment of past and future services and medications provided by Dr. Broussard that are related to his lower back injury. Decision and Order at 14-15. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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