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                                 BRB No. 99-0753

ESSIE STEMBRIDGE                        )
          Claimant-Petitioner           )
     v.                                 )
HOWLAND HOOK CONTAINER                  )    DATE ISSUED:   03/28/2000
TERMINAL, INCORPORATED                  )
     and                                )
ASSOCIATION                             )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

          Appeal of the Decision and Order of Ralph A. Romano, Administrative Law
     Judge, United States Department of  Labor.  

          Michael E. Glazer (Israel, Adler, Ronca & Gucciardo),  New York, New
     York,  for claimant.  

          John F. Karpousis (Freehill, Hogan & Mahar), New York, New York, for

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


     Claimant appeals the Decision and Order  (98-LHC-0926) of Administrative Law
Judge Ralph A. Romano 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.  O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.

     Claimant, a lane checker, fell in a hole on December 2, 1996, and sustained
an injury to her  left  knee.  Claimant thereafter alleged she hurt her back, neck
and wrists in this fall. The parties stipulated that claimant is entitled to
temporary total disability benefits from December 3, 1996, through January 13,
1997.  Claimant, however, sought additional benefits for underpayment of temporary
total disability during this period, and also sought temporary total disability
benefits from January 14, 1997, through February 4, 1997.  Additionally, claimant
sought permanent partial disability benefits for impairments to her knee and wrists
under the  schedule at Section 8(c) of the Act, 33 U.S.C. §908(c), and unpaid
medical bills. The administrative law judge found that claimant failed to produce
sufficient  evidence to establish entitlement to further disability payments after 
January 13, 1997, but that employer had underpaid claimant compensation  for the
period between December 3, 1996 and January 13, 1997, by $186.20 per week. The
administrative law judge also found that no medical benefits were payable after
January 13, 1997.[1]   

     On appeal, claimant challenges the administrative law judge's denial of
additional disability benefits and an attorney's fee.  Employer responds, urging

     To establish a prima facie case of total disability, claimant must
establish that she is unable to perform her usual employment due to her work-
related injury. Lombardi v. Universal Maritime Service Corp., 32 BRBS 83
(1998); Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988).  In the instant
case, the administrative law judge acted within his discretion in relying upon the
opinion of Dr. Gallick that claimant could  return to her usual work as of January
7, 1997, as the administrative law judge found the doctor's opinion well-reasoned
and documented.  EXS 5, 10.  Moreover, the administrative law judge found that even
claimant's treating physician, Dr. Stein, was unable to consider claimant disabled
up to the date she actually returned to work, February 4, 1997, and advised that
claimant could have returned to work as of January 3, 1997, unless she informed the
doctor to the contrary, which she did not.  CX 1. See Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  
Contrary to claimant's contention, the administrative law judge provided a
sufficient rationale for his finding that claimant failed to establish her
inability to perform her usual work after January 13, 1997, as required by the
Administrative Procedure Act, 5 U.S.C. §557(c)(3)(A).  As this finding is 
supported by substantial evidence, it is affirmed. Chong v.  Todd Pacific
Shipyards Corp., 22 BRBS 242 (1989), aff'd mem.  sub nom.  Chong v. 
Director, OWCP, 909 F.2d 1488 (9th Cir.  1990).

     Next, we reject claimant's  contention  that the administrative law judge
erred in failing to find her entitled to an award under the schedule at Section
8(c) for impairments to her knee and wrists.  In this regard, the administrative
law judge rationally found that Dr. Post's opinion,[2]  CX 5a, regarding impairment ratings to both wrists and the left knee,
was refuted by the opinions of  Drs. Gallick and Stein that claimant has no
permanent impairment to these members.[3]   EXS 5,
10 at 29-32; CX 8 at 70.   As substantial evidence in the record supports the
administrative law judge's decision that claimant did not sustain a permanent
impairment to her knee and wrists, we affirm the administrative law judge's denial
of permanent disability benefits under the schedule.[4]         

     Finally, we decline to address claimant's contention that the administrative
law judge erred by denying claimant's counsel  attorney's fee award.  The
administrative law judge's decision is silent on this issue, and the record before
us does not indicate that counsel submitted  a fee petition to the administrative
law judge.  Claimant's counsel must first file a fee petition with the
administrative law judge, itemizing work reasonably performed on the issues
successfully pursued, see 33 U.S.C. §928; 20 C.F.R.
§§702.131-134, and the award or denial of the requested fee can then be
          Accordingly, the administrative law judge's Decision and Order  is affirmed.


                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1) 1We affirm, as unchallenged on appeal, the administrative law judge's finding that claimant is not entitled to medical benefits after January 13, 1997. See generally 33 U.S.C. §907; Ballesteros v. Willamette W. Corp., 20 BRBS 184 (1988). Back to Text
2) 2Dr. Post stated that claimant sustained a 10 percent impairment to the right wrist, a 7 percent impairment to the left wrist, and a 15 percent impairment to the left knee. Back to Text
3) 3 Dr. Gallick, a board-certified orthopaedic surgeon, specifically refuted the foundation of Dr. Post's opinion point by point. EXS 5, 10 at 29-32. Dr. Stein stated that claimant's knee and wrist complaints resolved without permanent impairment. CX 8 at 70. Back to Text
4) 4Any error in the administrative law judge's evaluation of claimant's credibility thus is harmless, given the administrative law judge's rational reliance on the medical evidence of record. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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