Skip to page content
Benefits Review Board
Bookmark and Share

                                 BRB No. 99-0666
DENIS K. REID                           )
          Claimant-Respondent    )
     v.                                 )
JORE CORPORATION                        )    DATE ISSUED:   03/24/2000 

     and                                )
INDUSTRIAL INDEMNITY                    )
COMPANY                                 )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

          Appeal of the Decision and Order - Awarding Benefits of Edward C. Burch,
     Administrative Law Judge, United States Department of Labor.

          Richard E. Weiss (Small, Snell, Weiss & Comfort, P.S.), Tacoma,
     Washington, for claimant.

          Raymond H. Warns, Jr. (Holmes, Weddle & Barcott, P.C.), Seattle,
     Washington, for employer/carrier.

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


     Employer appeals the Decision and Order - Awarding Benefits (97-LCH-2755) of
Administrative Law Judge Edward C. Burch 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 if they 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, working for employer as a welder/mechanic/laborer, tripped and fell
on October 16, 1993, sustaining injuries to his left foot and the left side of his
body.  Dr. Bradley diagnosed a herniated lumbar disk at L5-S1, and subsequently
performed a micro disk lumbar laminectomy on December 22, 1993.  After physical
therapy and completion of a work hardening program, claimant returned to his
regular full-duty position with employer in March 1994.  Over the next two years,
claimant, though working full-time at his regular employment, continued to complain
of back pain and sought further treatment from Drs. Bradley, Tauben and Peterson,
resulting in a diagnosis of radiculopathy.  In September 1996, Dr. Peterson
recommended that claimant receive epidural steroid injections at the bilateral L5
and S1 nerve root levels, and if unsuccessful, that claimant undergo additional
back surgery.[1]  

     On the way home following his first epidural injection on November 26, 1996,
claimant was involved in an automobile accident which caused additional back pain,
and prevented claimant from returning to work.  Drs. Peterson, Laurnen and Campbell
observed that claimant's pre-existing back pain intensified, and that he now
complained of right lower back pain which did not previously exist.  Dr. Peterson
opined, and Dr. Campbell agreed, that the work-related accident on October 16,
1993, was the cause of a significant portion of claimant's current disability.  In
contrast, Dr. Bidgood opined that claimant is no longer disabled due to the work

     In his decision, the administrative law judge initially determined that
claimant invoked but employer rebutted the Section 20(a) presumption, 33 U.S.C.
§920(a). Upon consideration of the record as a whole, the administrative law
judge found that 70 percent of claimant's current disability is attributable to the
work-related accident of October 16, 1993, and that 30 percent is attributable to
his subsequent car accidents.  The administrative law judge therefore concluded
that claimant established a compensable claim under the Act, and that employer is
liable for the portion of claimant's current disability attributable to his work-
related injury.  He therefore found employer liable for 70 percent of claimant's
temporary total disability benefits from November 27, 1996, to January 26, 1997,
permanent total disability benefits from May 1, 1997, to March 20, 1998, and
permanent partial disability benefits thereafter.  In addition, he awarded claimant
all future medical costs necessitated by the October 16, 1993, work-related
accident. Lastly, the administrative law judge determined that employer is not
entitled to Section 8(f) relief, 33 U.S.C. §908(f).  
     On appeal, employer challenges the administrative law judge's finding that
claimant's disability is in part causally related to the work accident.  Claimant
responds, urging affirmance.

     Employer argues that the administrative law judge erred in awarding benefits
to claimant as his present disability is solely attributable to the two car
accidents.  Additionally, employer argues that the administrative law judge
erroneously used the physical restrictions imposed by Dr. Campbell in 1998
following the second car accident to assess claimant's ability to perform his usual
work and any suitable alternate employment.  

     Claimant is entitled to the Section 20(a) presumption linking his disabling
condition to the work accident, as it is uncontested that claimant has an injury
to his back and that a work accident occurred. See generally Plappert v. Marine
Corps Exchange, 31 BRBS 13 (1997), aff'd on recon., 31 BRBS 109 (1997). 
In a case involving a subsequent injury, an employer can rebut the Section 20(a)
presumption by showing that the claimant's disabling condition was caused by a
subsequent event, provided the employer also proves that the subsequent event was
not caused by the claimant's work-related injury. Bass v. Broadway
Maintenance, 28 BRBS 11 (1994); James v. Pate Stevedoring Co., 22 BRBS
271 (1989).  The employer is liable for the entire disability if the second injury
is the natural or unavoidable result of the first injury; however, where the second
injury is the result of an intervening cause, the employer is relieved of liability
for that portion of the disability attributable to the second injury. Merrill
v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991); Leach v. Thompson's
Dairy, Inc., 13 BRBS 231 (1981).

     In the instant case, the administrative law judge found that claimant
sustained a work-related back injury on October 16, 1993, and that the two
subsequent automobile accidents aggravated that condition, but also caused claimant
to develop pain in new areas.  The administrative law judge thus concluded that the
automobile accidents were independent and intervening causes which sever the nexus
between claimant's work-related back injury and his current disability.  Based upon
the record as a whole, however, the administrative law judge credited the opinions
of Dr. Peterson and Dr. Campbell, and determined that 70 percent of claimant's
current disability is a result of the work-related incident and that the remaining
30 percent is due to the subsequent car accidents.  

     In weighing the record as a whole on the issue of causation, the
administrative law judge rationally accorded greatest weight to claimant's treating
physicians, Drs. Peterson and Campbell.  He found their opinions that claimant's
current disability is substantially due to  his prior work-related back injury, and
to a smaller extent to a new injury sustained in the car accidents, are consistent
with each other.  He further found they had a greater opportunity to observe
claimant's condition over a significant period of time. See generally
Amos v. Director, OWCP, 153 F.3d 1051, 1054, 32 BRBS 144, 147 (CRT)(9th Cir.
1998), amended, 164 F.3d 480, cert. denied, 120 U.S. 40 (1999);
see also Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962),
cert. denied, 372 U.S. 954 (1963).  The administrative law judge thus
rejected Dr. Bidgood's contrary opinion that claimant's current disability is
solely attributable to his subsequent automobile accident. As the record
herein contains substantial evidence which supports the administrative law judge's
decision, and his decision is consistent with law, we affirm his conclusion that
claimant's current disability is in part work-related and that employer is liable
for the 70 percent portion of the disability attributable to the work injury.
See Leach, 13 BRBS at 235.

     Employer is correct in theory that restrictions imposed solely due to the
subsequent car accidents should not be considered in making determinations
regarding claimant's ability to perform his usual work and/or suitable alternate
employment.  However, in the instant case, the administrative law judge credited the
opinions of Drs. Peterson and Campbell.  Prior to the first car accident, Dr.
Peterson stated that claimant's job was not appropriate for him over the long term
and that re-training was advisable.  EX 4 at 29.  He repeated his opinion about
retraining following the car accident.  EX 4 at 34, 36.  In May and September 1997,
Dr. Campbell attributed claimant's physical restrictions entirely to his work-
related back injury.[3]   EX 10 at 12; CXG at 132. 
As employer challenges only the administrative law judge's reliance on these opinions,[4]  and as the Board may not reweigh the evidence,
we hold that the administrative law judge rationally relied on the statements of
Drs. Peterson and Campbell to find that claimant was incapable of performing his
usual work as a welder/mechanic/laborer since November 26, 1996, and only capable
of performing the light duty category of work identified in employer's labor market
survey dated March 20, 1998. Therefore, the award of temporary total, permanent
total, and permanent partial disability benefits is affirmed as it supported by
substantial evidence.
     Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is affirmed.


                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

To Top of Document


1)Dr. Bradley previously recommended epidural injection treatment in June 1994, but altered his opinion when he noted that claimant's pain seemed to have subsided in September 1994. Additionally, Dr. Bidgood concurred with the course of treatment recommended by Dr. Peterson. Back to Text
2)Claimant was also involved in a car accident on January 8, 1998. Only Dr. Campbell examined claimant following his second automobile accident, and although she did not explicitly address the issue of the cause of claimant's pain in her opinion, she nevertheless noted that the intensified pre- existing radiculopathy is due to the prior industrial accident. Back to Text
3)Specifically, in her Work Capacity Evaluation, Dr. Campbell answered "No" to the question as to whether claimant has any limitations due to any non-work-related condition(s). EX 10 at 2; see also CXG at 132. In September 1997, Dr. Campbell limited claimant's lifting to no more than 10 pounds. CXG at 132. Following the January 1998 car accident, however, Dr. Campbell stated claimant could not lift more than 20 pounds, CXG at 131, and the administrative law judge used the higher figure. EX 10 at 10; CX G at 133. Back to Text
4)In so doing, the administrative law judge rejected Dr. Bidgood's contrary opinion that, in 1997, claimant was not disabled from the work injury. Just prior to the first car accident, moreover, Dr. Bidgood gave claimant restrictions limiting him to intermittent sitting, walking, lifting, bending, squatting, climbing, kneeling, twisting and standing for up to six hours per day, with a lifting restriction of 20 to 50 pounds. EX 11 at 5. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document