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                                 BRB No. 98-0864

MICHAEL W. SLATON                       )
          Claimant                      )
     v.                                 )
NAJAN CONTRACTORS,                      )    DATE ISSUED:   03/18/1999    
INCORPORATED                            )
     and                                )
MS CASUALTY                             )
INSURANCE COMPANY                       )
          Employer/Carrier-             )
          Respondents                   )
     and                                )
INGALLS SHIPBUILDING,                   )
INCORPORATED                            )
          Self-Insured                 )      
          Employer-Petitioner           )    DECISION and ORDER                  
     Appeal of the Decision and Order and Supplemental Decision and Order
     Awarding Attorney's Fees  of  C. Richard Avery, Administrative Law
     Judge, United States Department of Labor.

     Donald P. Moore (Franke, Rainey & Salloum, PLLC), Gulfport, Mississippi,
     for self-insured employer.

     John S. Gonzalez (Daniel, Coker, Horton & Bell, P.A.), Gulfport,
     Mississippi, for employer/carrier.  
     Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.

     Employer Ingalls Shipbuilding, Incorporated (Ingalls) appeals the Decision and
Order and the Supplemental Decision and Order Awarding Attorney's  Fees (96-LHC-269, 97-LHC-978) of Administrative Law Judge C. Richard Avery rendered on claims
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 sustained a serious injury to his left knee in 1974 as a result of
a football accident.  Ingalls stipulated that claimant, an electrician, re-injured
this knee in a work-related accident in 1987, resulting in surgery and a permanent
partial disability of 30 percent to his leg  for which Ingalls paid compensation
and medical benefits.  33 U.S.C. §§907, 908(c)(2).  Claimant worked for
various employers after his injury precluded his return to Ingalls, and in January
1994 he began employment with Najan Contractors, Incorporated (Najan) as a
maintenance electrician.  Over the next nine months, he gradually increased his
hours from 40 to 70 hours per week.  When claimant sought medical treatment in
September 1994 for increased pain and swelling in his left knee, which he
attributed to the increased walking and standing at Najan, Ingalls, who had been
paying claimant's medical benefits under Section 7 of the Act, 33 U.S.C. §907,
refused to continue paying his medical benefits. Thereafter, in March 1995,
claimant filed claims  against both Ingalls and Najan seeking medical benefits,
including proposed surgery, total disability during his convalescence, and partial
disability compensation thereafter for his reduced earning capacity as a self-employed auto mechanic. 

     The administrative law judge found that Ingalls is the employer solely
responsible for claimant's medical benefits under Section 7, as he found that the
current condition of claimant's knee is due to the natural progression of the
injury claimant sustained in 1987 with Ingalls.[1] 
 In a supplemental decision, the administrative law judge awarded claimant an
attorney's fee of $3,250, payable by Ingalls.
     On appeal, Ingalls contends that the administrative law judge erred in finding
it is the responsible employer.  Najan responds, urging affirmance.  In its
supplemental appeal, Ingalls states that in the event the Board finds it is not the
responsible employer, it cannot be held liable for the awarded attorney's fee. 
Claimant has not filed a brief on appeal.  

     We agree with Ingalls  that the administrative law judge erred in finding it
to be the responsible employer.  In a case involving multiple traumatic injuries,
the determination of the responsible employer turns on whether the claimant's
condition is the result of the natural progression or aggravation of a prior
injury.  If the claimant's disability results from the natural progression of the
first injury, then the claimant's employer at the time of the first injury is the
responsible employer.   If his employment thereafter aggravates, accelerates or
combines with the earlier injury, resulting in the claimant's disability, claimant
has sustained a new injury and the employer at that time is the employer
responsible for the payment of benefits thereafter. Foundation Constructors,
Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT) (9th Cir. 1991);
Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir.
1986) (en banc); McKnight v. Carolina Shipping Co., 32 BRBS 165,
aff'd on recon.  en banc, 32 BRBS 251 (1998).  Section 20(a) of the Act, 33
U.S.C. §920(a), is inapplicable to a determination of the responsible
employer. Buchanan v. Int'l Transportation Services, 31 BRBS 81 (1997);
see also Lins v.  Ingalls Shipbuilding, Inc., 26 BRBS 62 (1992).  The first
employer bears the burden of proving that there was a new injury or aggravation
with the second employer in order to be relieved of its liability as responsible
employer.  The second employer, on the other hand, must prove that claimant's
condition is solely the result of the injury with the first employer in order to
escape liability.  A determination as to which employer is liable requires the
administrative law judge to weigh the evidence as a whole, and to arrive at a
conclusion supported by substantial evidence. Id. 

     In the instant case, the administrative law judge correctly invoked the
Section 20(a) presumption in favor of claimant in addressing the issue of whether
claimant sustained an injury while in the employ of Najan. See generally Noble
Drilling Co. v. Drake, 795 F.2d 478, 19 BRBS 6 (CRT) (5th Cir. 1986).  The
administrative law judge, however, incorrectly relieved Najan of liability by
finding it rebutted the Section 20(a) presumption with regard to the issue of
whether claimant's injury is the result of the natural progression of the 1987
injury or is the result of the conditions of claimant's employment with Najan.
Buchanan, 31 BRBS at 84.  This analysis would have constituted harmless
error had the administrative law judge weighed the evidence as a whole in a proper

     We hold, however, that the evidence of record cannot support the 
administrative law judge's conclusion that claimant's condition is the result of
the 1987 injury.  Initially, we hold that the administrative law judge did
rationally discredit the opinion of Dr. Barnes that the employment at Najan
aggravated claimant's pre-existing condition.  In noting that Dr. Barnes' testimony
was "somewhat tarnished," the administrative law judge rejected the ultimate
opinion of  Dr. Barnes that claimant aggravated his left knee while at work at
Najan, since he found that Dr. Barnes had a limited involvement with claimant and
since the doctor inexplicably signed an affidavit initially in which he agreed that
no part of claimant's disability was attributable to the work at Najan. See
Decision and Order at 16; Najan Ex.  4, 6.  This determination is within the
administrative law judge's discretion as the trier-of-fact. See Calbeck v.
Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372
U.S. 954 (1963); John W. McGrath  v. Hughes, 289 F.2d 403 (2nd Cir. 1961). 
Inasmuch as the administrative law judge's finding is rational, we affirm the
administrative law judge's finding that Dr. Barnes' opinion is insufficient to
establish Najan's liability as the responsible employer. 

     We further hold, however, that the administrative law judge's treatment of the
opinions of Drs.  Enger and Zarzour cannot stand.  The administrative law judge 
irrationally relied on the opinion of Dr. Enger to find that claimant's condition
following his employment with Najan is the result of the natural progression of
claimant's 1987 injury.  Dr. Enger was claimant's treating physician for over 17
years.  He performed all of claimant's left knee surgeries, and he stated as early
as 1983 that claimant had degenerative arthritis.  He stated on several occasions
that claimant's left knee would naturally degenerate to the point where it required
a total knee replacement. See, e.g., Cl.  Ex 7.   Dr. Enger, however, was
deceased at the time claimant's employment with Najan began to bother his knees. 
Dr. Enger obviously was unavailable to examine claimant or to offer an opinion
regarding the effect of claimant's employment at Najan on claimant's pre-existing
1987 work-related injury to his left knee.   His opinion, therefore, cannot
establish that claimant's employment with Najan did not aggravate or accelerate
claimant's knee condition. Consequently, we reverse the administrative law judge's
reliance on Dr. Enger's opinion,  and we hold that his opinion is insufficient to
establish that claimant's present condition is the natural progression of
claimant's 1987 work-related injury at Ingalls.

     Moreover, the administrative law judge erred in finding Dr. Zarzour's 1995
opinion insufficient to establish that claimant sustained a new injury or
aggravation while working for Najan.  Decision and Order at 17 at n 7.  In office
notes dated June 5, 1995, Dr. Zarzour stated that "it is of note that claimant hurt
his knee at work this past year while walking, and developed pain in it." The
doctor's report then states, "He has an original football injury and then
documentation of a reinjury in 1987 and then an exacerbation in this past
year."  Ing. Ex. 8 at 4 (emphasis added).  Thus, the only remaining opinion of 
record rendered after claimant's employment with Najan, that of Dr. Zarzour,
supports the conclusion that claimant's pre-existing condition was  aggravated by
his employment at Najan.  Given this evidence and the complete absence of
substantial evidence attributing claimant's condition to the natural progression
of his prior injury, we hold that Najan is the responsible employer as a matter of
law. See, e.g., Kelaita v.  Director, OWCP, 799 F.2d 1308 (9th Cir.
1986); Lopez v.  Southern Stevedores, 23 BRBS 295 (1990).  Accordingly, we reverse the
administrative law judge's finding that Ingalls is the responsible employer, and
we  hold that Najan is liable for claimant's medical benefits and for his
attorney's fee.  

     In view of our holding, Ingalls' alternative contention that claimant's
intentional violation of his work restrictions over several years constituted an
intervening cause which severed the causal connection between claimant's 1987 work-related injury and claimant's current knee injury is not dispositive. 
Nevertheless, we affirm the administrative law judge conclusion that claimant's
subsequent work at Najan was not an irresponsible and intentional act constituting
an intervening cause sufficient to relieve Ingalls of liability, as it is rational,
supported by the medical evidence he cited, and in accordance with law.  See
Jones v. Director, OWCP, 977 F.2d 1106, 26 BRBS 64 (CRT)(7th Cir.1992). 

     Accordingly, the administrative law judge's finding that Ingalls is the
responsible employer is reversed, and his decision is modified to hold  Najan
liable  for the payment of medical benefits and the attorney's fee awarded by the
administrative law judge.


                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)The administrative law judge denied claimant's claim for partial disability benefits, finding that claimant did not have an increase in his impairment rating. Although the administrative law judge properly noted that claimant's sole recovery for a partial disability to the knee is under the schedule, see Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 14 BRBS 363 (1980), the administrative law judge nonetheless found that claimant has no loss in wage-earning capacity due to his knee injury. Decision and Order at 18. These findings are unchallenged on appeal. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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