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                                 BRB No. 99-0564
NILES RICKER                            )    
          Claimant-Petitioner           )
     v.                                 )
UNIVERSAL MARITIME                      )    DATE ISSUED:   03/01/2000

SERVICE CORPORATION                     )
     and                                )
SIGNAL MUTUAL                           )
INDEMNITY ASSOCIATION                   )
          Employer/Carrier-             )
          Respondents                   )
                         COMPENSATION PROGRAMS,        )
                                        UNITED STATES DEPARTMENT OF        )    
LABOR                                   )
                                                       Party-in-Interest             )    DECISION and ORDER

          Appeal of the Decision and Order of Paul H. Teitler, Administrative Law
     Judge, United States Department of Labor.

          Samuel A. Denberg (Baker, Garber, Duffy & Pederson), Hoboken, New
     Jersey, for claimant.

          Francis M. Womack III (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for employer/carrier.  

          Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.


     Employer appeals the Decision and Order (97-LHC-2589) of Administrative Law
Judge Paul H. Teitler 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).

     Claimant worked for employer as a longshoreman from 1979 until he retired on
January 30, 1995, due to chronic obstructive pulmonary disease (COPD) and cor
pulmonale.  He testified that during the course of his employment he was exposed
to diesel fumes and noxious dust. Tr. 1 at 63-77.  Claimant also has a smoking
history of approximately 45 pack years, he is obese, and he has sleep apnea.  At
the formal hearing, claimant alleged that his working conditions contributed to his
present disability and/or that a return to his usual employment as a dockman would
exacerbate his disability.  Tr. 1 at 7, 12.

     In his Decision and Order, the administrative law judge found that claimant
timely filed a notice of injury and a claim for compensation. See 33 U.S.C.
§§912, 913.  The administrative law judge next  found claimant entitled
to the Section 20(a) presumption of compensability, 33 U.S.C. §920(a), based
on the testimony of Dr. Nahmias and the reports of Dr. Eisenstein.  These doctors
stated that claimant's COPD was aggravated by his exposures to injurious substances
at work.  CX 2; Tr.  2 at 57.  Dr.  Nahmias stated that claimant initially noted
an increase in his symptoms after a day's work, and that the progression of the
disease eventually led to increased symptoms even when claimant was not working. 
Tr.2 at 42-43, 113-115.  The administrative law judge found, however, that employer
established rebuttal of the presumption based on the testimony and  report of Dr.
Adelman.  Finally, the administrative law judge found that claimant failed to
establish, based on the record as a whole, that his disability is work-related. 
He credited the opinion of Dr. Adelman that claimant's COPD is due to smoking and
aggravated by sleep apnea.  On appeal, claimant contends that employer failed to
rebut the Section 20(a) presumption as Dr. Adelman's opinion does not state that
claimant's work exposures did not aggravate his COPD or  contribute to his
disability.  Employer responds, urging affirmance.

       Once, as here, the Section 20(a) presumption is invoked, the burden shifts
to employer to rebut the presumption by producing substantial evidence that
claimant's condition was neither caused nor aggravated by his employment. See
American Grain Trimmers, Inc. v. Director, OWCP, 181 F.3d 810, 33 BRBS
71(CRT)(7th Cir. 1999)(en banc); Swinton v. J. Frank Kelley,
Inc., 554 F.2d 1075, 4 BRBS 466(D.C. Cir.), cert. denied, 429 U.S. 820
(1976).  If the administrative law judge finds the Section 20(a) presumption
rebutted, it drops from the case. Universal Maritime Corp. v. Moore, 126
F.3d 256, 31 BRBS 119(CRT)(4th Cir. 1997).  The administrative law judge then must
weigh all the evidence and resolve the issue of causation on the record as a whole
with claimant bearing the burden of persuasion. See Santoro v. Maher Terminals,
Inc., 30 BRBS 171 (1996); see generally Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 28 BRBS 43 (CRT) (1994).

     The sole issue in this case is whether Dr.  Adelman's opinion is sufficient
to rebut the Section 20(a) presumption.   Dr.  Adelman stated in his report that
although claimant had multiple exposures to fumes and chemicals, these are "local
irritants" that do not cause significant obstructive airway disease and cor
pulmonale.  EX 1.    Dr.  Adelman stated that claimant's obstructive lung disease
is secondary to chronic cigarette abuse, and is complicated by obstructive sleep
apnea. Id.  Dr. Adelman testified at the hearing that claimant's COPD is due
to cigarette smoking, Tr.  2  at 139,  and is not due to exposures at work. Id.
at 160, 168.  He thus concluded that claimant's functional impairment, as
demonstrated by his pulmonary function studies, is not caused by his work exposure.
Id.  at 162-163.

     Dr. Adelman further stated, however, his opinion that claimant was irritated
by his  exposure to dust and diesel fumes, and had  industrial bronchitis,
resulting in symptoms such as a cough and sputum production while claimant was at
work, id. at 161-162, although this exposure did not result in functional
decline.  He stated that when such individuals are removed from the environment,
their airways revert to their prior state. Id.  at 185.  Moreover, he
testified that a cigarette smoker with bronchitis may have more sputum production,
"may have more trouble in that [work] environment," and may have a temporary
decline in function as with any other irritant. Id. at 176-178. 

     We hold that Dr. Adelman's opinion is not sufficient to rebut the Section
20(a) presumption as he does not state that claimant's COPD was not exacerbated by
his employment or that claimant's disability is not due in part to his work
exposure to dust and fumes.   If the conditions of the claimant's employment cause
him to become symptomatic, even if no permanent harm results, the claimant has
sustained an injury within the meaning of the Act.  Crum v. General
Adjustment Bureau, 738 F.2d 474, 16 BRBS 115(CRT)(D.C. Cir. 1984); see
also Gardner v. Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir.  1981) (no
distinction between acceleration of underlying disease and manifestation of
symptoms).   It then becomes employer's burden on rebuttal to produce substantial
evidence severing the connection between claimant's disability and the work injury.
See generally American Grain Trimmers, 181 F.3d at 817, 33 BRBS at 77(CRT). 
  Moreover, where a claim is based on aggravation of an underlying condition,
employer must produce substantial evidence that claimant's work did not aggravate
the underlying condition. Peterson v.  General Dynamics Corp., 25 BRBS 71
(1991), aff'd sub nom. INA v. United States Department of Labor, 969 F.2d
1400, 26 BRBS 14(CRT) (2d Cir. 1992), cert. denied, 507 U.S. 909 (1993). 
 An opinion that allows for claimant's employment to have a role in the
manifestation of claimant's underlying disability is insufficient to rebut the
Section 20(a) presumption.  See generally Crum, 738 F.2d at 477-478, 16 BRBS
at 119-121(CRT); see also Wheatley v. Adler, 407 F.2d 307, 312-314 (D.C.
Cir. 1968); Obert v. John T. Clark & Son of Maryland, 16 BRBS
157,160-161 (1990).  Inasmuch as Dr.  Adelman did not state that claimant's work
exposures did not aggravate his COPD, and in fact testified that the exposures
increased claimant's symptomotology while he was at work, his opinion is
insufficient to rebut the Section 20(a) presumption as a matter of law. See
generally Bridier v.  Alabama Dry Dock & Shipbuilding Corp., 29 BRBS 84 (1995). 
 We therefore vacate the administrative law judge's finding that Dr. Adelman's
opinion rebuts the Section 20(a) presumption.  Decision and Order at 12.  Moreover,
as there is no other evidence of  record which could rebut the presumption, we
reverse the administrative law judge's  conclusion that claimant's injury is not
work-related. See Cairns v. Matson Terminals Corp., 21 BRBS 252, 257 (1988). 
The denial of benefits therefore is vacated, and the case is remanded to the
administrative law judge to address the remaining issues.

     Accordingly, the administrative law judge's Decision and Order is vacated, and
the case is remanded for further proceedings consistent with this opinion.  


                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

NOTE: This is an UNPUBLISHED LHCA Document.

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