BRB No. 98-0770
KERMIT SHAFFER )
)
Claimant-Respondent )
)
v. )
)
CROSBY & OVERTON ) DATE ISSUED: 03/01/1999
)
and )
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STATE COMPENSATION )
INSURANCE FUND )
)
Employer/Carrier- )
Petitioners ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Henry B. Lasky,
Administrative Law Judge, United States Department of Labor.
James M. McAdams (Pierry & Moorhead, LLP), Wilmington, California, for
claimant.
Steven G. Sloma (State Compensation Insurance Fund), Cerritos,
California, for employer/carrier.
Before: SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (97-LHC-536) of
Administrative Law Judge Henry B. Lasky 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).
On November 30, 1985, claimant, during the course of his employment as a
vacuum-truck driver, suffered injuries to his lumbar spine which necessitated two
surgeries. On October 13, 1989, an award was made by the deputy commissioner
pursuant to stipulations, whereby employer was to pay temporary total disability
to claimant from December 3, 1988 to February 17, 1989,[1] followed by permanent partial disability compensation through February
17, 1991, after which the Special Fund would commence payment. EX-12. Thereafter,
both claimant and employer filed petitions for modification under Section 22 of the
Act, 33 U.S.C. §922. In his petition, claimant sought an award of both permanent
total disability compensation and future medical costs. Employer, alleged in its
petition, that claimant's condition had substantially improved such that claimant
could return to his usual and customary employment. In addition, employer asserted
a Section 31, 33 U.S.C. §931, claim, alleging that claimant had given
perjured testimony based on the sub rosa videotape films entered into
evidence.
In his Decision and Order, the administrative law judge found that employer
had not sustained its burden of proving that claimant's condition improved such
that he could return to his usual and customary employment or, in the alternative,
seek suitable alternate employment. Rather, the administrative law judge found
that claimant had successfully met his burden in showing the deterioration of his
condition and, accordingly, that claimant was permanently and totally disabled from
July 1, 1992. See 33 U.S.C. §908(a).
On appeal, employer contends that the administrative law judge erred in
finding that claimant is unable to return to his previous employment duties with
employer. Employer further asserts that this case should be referred to the United
States Attorney due to fraudulent representations by claimant under Section 31(a)
of the Act. Claimant responds, urging affirmance.
Section 22 of the Act, 33 U.S.C. §922, provides the only means for
changing otherwise final decisions; modification pursuant to this section is
permitted based upon a mistake of fact in the initial decision or a change in
claimant's physical or economic condition. See Metropolitan Stevedore Co. v.
Rambo, 515 U.S. 291, 30 BRBS 1 (CRT)(1995). It is well-established that the
party requesting modification due to a change in condition has the burden of
showing the change in condition. See, e.g., Vasquez v. Continental Maritime of
San Francisco, Inc., 23 BRBS 428 (1990); see also Metropolitan Stevedore Co.
v. Rambo, 521 U.S. 121, 31 BRBS 54 (1997). Moreover, the Board has held that
the standard for determining disability is the same during Section 22 modification
proceedings as it is during the initial adjudicatory proceedings under the Act.
Vasquez, 23 BRBS at 431.
It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v.
Lockheed Shipbuilding & Const. Co., 17 BRBS 56 (1985). In order to establish
a prima facie case of total disability, claimant must show that he is unable
to return to his usual employment due to his work-related disability. See Bumble
Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 12 BRBS 660 (9th Cir.
1980); Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988).
Employer initially contends that claimant is no longer disabled.
Specifically, employer asserts that its videotapes show claimant engaged in
activity contrary to his stated limitations, including bending, squatting, lifting,
and moving a large tree several times. The administrative law judge, however,
declined to give determinative weight to these videotapes, reasoning that
claimant's activities on the videotapes did not represent an accurate portrayal of
claimant's total activities; in rendering this decision, the administrative law
judge noted that the videographer stopped and started the film numerous times,
and that the videographer was unable to account for some period that claimant could
have been resting. Furthermore, the administrative law judge disagreed with
employer's characterization of the activities shown on the tapes. It is well-established that the administrative law judge, as the trier of fact, is entitled
to draw his own inferences from the evidence. See 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); Anderson, 22 BRBS at 22. Thus, as the
administrative law judge's determination is rational and within his authority as
factfinder, we affirm his findings that employer's videotapes do not establish that
claimant is capable of resuming his usual employment duties with employer.
Employer next contends that the administrative law judge erred in failing to
give determinative weight to the testimony of Dr. Lieb. We disagree. In adjudicating
a claim, the administrative law judge is required to evaluate the credibility of witnesses, including doctors, and is not
bound to accept the opinion or theory of any particular medical examiner; rather, the administrative law judge may 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., 300 F.2d at 741. In evaluating the medical
evidence in the instant case, the administrative law judge chose to give greater
weight to the opinions of Dr. Butuk, whom the administrative law judge noted was
claimant's current treating physician, and Dr. Rhodes. Dr. Rhodes concluded that
claimant was totally disabled with regard to remunerative activities because of
cumulative progressive spinal stenosis secondary to work injuries. Dr. Rhodes
opined that claimant was restricted from his work as a vacuum truck driver, Tr.
at 139, and that his need for narcotics contributes to his not being employable,
Tr. at 140. Lastly, Dr. Rhodes did not believe that claimant was malingering. Dr.
Butuk similarly noted that he never saw any evidence of malingering, that claimant
was clearly disabled, and that claimant's ability to perform any job on a regular
basis for more than an hour or two would be very questionable. CX-31. As these
opinions constitute substantial evidence in support of the administrative law
judge finding that claimant is totally disabled, that determination is affirmed.[2] See generally General Dynamics Corp. v. Director,
OWCP, 673 F.2d 23, 14 BRBS 636 (1st Cir. 1982).
Accordingly, the Decision and Order Awarding Benefits is affirmed.[3]
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)Employer had commenced paying temporary total disability benefits on December 3, 1985. CX-2.
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2)We reject employer's argument that Dr. Lieb's opinion should have been controlling. Dr. Lieb,
after reviewing the videotapes and an on-site job analysis, inferred that claimant could perform the activities required by
a vacuum truck driver. Tr. 177-178. The administrative law judge acted within his discretion in determining that Dr. Lieb's
viewing of the videotape and consequent analysis of claimant's capabilities was inconsistent with what the tape represented.
With regard to the opinion of Dr. London, the administrative law judge discussed Dr. London's report of April 29, 1997, in
which Dr. London stated that claimant's back complaints are excessive, and found that although this opinion is contradictory
to the conclusions of Drs. Butuk and Rhodes, Dr. London's cursory report is entitled to little weight. Although employer
correctly notes that the administrative law judge did not discuss Dr. London's supplementary letter in which he states that
after reviewing the films he agrees with Dr. Lieb's opinion that claimant is fully capable of performing his usual and
customary activities as a vacuum truck driver, EX-11 at 139, this omission is harmless since the administrative law judge
previously determined that the opinions of Drs. Butuk and Rhodes were more persuasive, that Dr. London's report was cursory,
and that the films were unpersuasive.
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3)Section 31(a) of the Act states that any false statement or representation, which is knowingly
and willfully made for the purpose of obtaining benefits under the Act, is a felony. 33 U.S.C. §931(a). In light of the
administrative law judge's findings that claimant is disabled as he claimed, which we affirm as supported by the record, this
issue is moot.
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NOTE: This is an UNPUBLISHED LHCA Document.
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