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                                 BRB No. 98-0872

NOLAN BRIDGEWATER                       )
          Claimant-Petitioner           )
     v.                                 )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   03/05/1999 
INCORPORATED                            )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order - Awarding Benefits, Order on
     Claimant's Request for Rehearing, and  Decisions on Motions for
     Reconsideration of David W. DiNardi, Administrative Law Judge, United
     States Department of Labor.

     Curtis L. Hays, Biloxi, Mississippi, for claimant.

     Paul B. Howell (Franke, Rainey & Salloum, PLLC), Gulfport, Mississippi,
     for self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH, Administrative
     Appeals Judge, and NELSON, Acting Administrative Appeals Judge.


     Claimant appeals the Decision and Order - Awarding Benefits, Order on
Claimant's Request for Rehearing, and Decisions on Motions for Reconsideration (96-LHC-0339) of Administrative Law Judge David W. DiNardi 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. 
33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls  Associates,
Inc., 380 U.S. 359 (1965).

     Claimant, a painter, slipped on March 21, 1991, allegedly injuring both his
knees and his back.  In his first decision awarding benefits, the administrative
law judge found that claimant did not suffer a work-related injury to his back and
was entitled only to compensation for a 30 percent impairment to his legs under the
schedule,  33 U.S.C. §908(c)(2), (19).  By Order of May 15, 1997, the
administrative law judge denied claimant's motion for reconsideration, but
thereafter granted a request for rehearing, based upon claimant's allegations that
he was prevented from attending his own hearing and presenting his own testimony
and that he had new evidence addressing the connection between his back condition
and the work incident.

     Following the reconvened hearing, the administrative law judge issued a second
Decision on Motion for Reconsideration.  In that decision, the administrative law
judge again invoked the Section 20(a), 33 U.S.C. §920(a), presumption to link
claimant's current back condition and the work accident but found it rebutted by
substantial evidence.  Based upon his weighing of the evidence as a whole, the
administrative law judge concluded that claimant failed to establish a work-related
back injury.  He then held that employer established the availability of suitable
alternate employment and that claimant, therefore, retained a residual work
capacity; accordingly, claimant was entitled only to an award under the schedule
for his knee impairment.  As this amount had been fully paid by employer, the
administrative law judge found claimant entitled to no further compensation and
that as claimant had not successfully prosecuted his claim, his attorney was not
entitled to a fee.

     Claimant now appeals, arguing that the administrative law judge erred in
finding that employer rebutted the Section 20(a) presumption and in his weighing
of the evidence with regard to claimant's alleged back injury.  Employer responds,
urging affirmance.

     It is claimant's burden to prove the existence of an injury or harm and that
a work-related accident occurred or that working conditions existed which could
have caused the harm in order to establish a prima facie case. See U.S.
Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982).  Once claimant establishes his prima facie case, Section 20(a)
provides him with a presumption that his condition is causally related to his
employment. See Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991). 
Where the Section 20(a) presumption is invoked, the burden shifts to employer to
rebut the presumption with substantial evidence that claimant's condition was
neither caused nor aggravated by his employment. See Brown v. Jacksonville
Shipyards, Inc., 893 F.2d 294, 23 BRBS 22 (CRT)(11th Cir. 1990); Manship v.
Norfolk & Western Railway Co., 30 BRBS 175 (1996).  It is employer's burden on
rebuttal to present specific and comprehensive evidence sufficient to sever the
causal connection between the injury and  the employment. See Peterson v.
General Dynamics Corp., 25 BRBS 71 (1991), aff'd sub nom. Ins. Co. of North
America v. U.S. Dept. of Labor, 969 F.2d 1400, 26 BRBS 12 (CRT)(2d Cir. 1992),
cert. denied, 113 S.Ct. 1253 (1993).  The testimony of a physician that no
relationship exists between an injury and a claimant's employment is sufficient to
rebut the presumption. See Kier v. Bethlehem Steel Corp., 16 BRBS 128
(1984).  If the administrative law judge finds that the Section 20(a) presumption
is rebutted, he must weigh all of the evidence and resolve the causation issue
based on the record as a whole.[1]   See Devine
v. Atlantic Container Lines, G.I.E., 23 BRBS 270 (1990).

     In the instant case, in his initial decision the administrative law judge
invoked the Section 20(a) presumption but found that the record evidence was
sufficient to rebut it.  The administrative law judge noted the lapse of time
between the accident and claimant's first reports of pain and the fact that the
records of Drs.  Ray, West, Rutledge, Enger, Park and Longnecker did not relate
claimant's back problems to his work-related knee injury.  He further found that
Drs.  Ray and Rutledge opined that there was no causal relationship between
claimant's work-related injury and his back relationship or between claimant's
work-related injury and his back pain, finding Dr. Ray most persuasive.  On
reconsideration, the administrative law judge again relied on this evidence, as
well as discussing the new evidence submitted by claimant, concluding that employer
rebutted the presumption and that causation was not established on the record as
a whole.  Claimant contends that employer failed to rebut the presumption,
asserting it did not produce any affirmative evidence that his pain was not caused
by his accident. 

     We affirm the administrative law judge's finding, as the opinions of Drs.  Ray
and Rutledge are sufficient to establish rebuttal.  Dr. Ray, claimant's treating physician, opined
that he did not find any evidence that his back problems are directly related to his original injury,  EX 12, and Dr. Rutledge
concluded that claimant's complaints of back pain are not connected with his accident nor with his knees.  EX 14. 
Weighing the evidence as a whole, the administrative law judge discussed the
medical evidence supporting claimant's assertion of a work-related back condition,
but found it unpersuasive given the great time lapse between the incident and
claimant's reporting the problem.  He also noted that most of the notations were
based on claimant's self-reporting.  Moreover, the administrative law judge did not
find credible claimant's allegation that he complained of the back injury at the
time of the incident and to various physicians thereafter, but that evidence of
these complaints was either stolen or removed from the records.  

     In adjudicating a claim, the administrative law judge is entitled to weigh the
medical evidence and draw his own inferences from it, see Wheeler v. Interocean
Stevedoring, Inc., 21 BRBS 33 (1988), and he is not bound to accept the opinion
or theory of any particular witness. See Todd Shipyards Corp. v. Donovan,
300 F.2d 741 (5th Cir. 1962).  In this case,  the administrative law judge provided
valid reasons for crediting the opinions of Drs. Rutledge and Ray, and these
opinions provide substantial evidence in support of his finding that claimant's
back condition is not work-related.  Accordingly, we affirm the administrative law
judge's conclusion that causation was not established.[2] 

     Accordingly, the administrative law judge's decisions denying further
compensation are affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)Claimant's argument that all doubts must resolved in his favor is without merit. See Director, OWCP v. Greenwich Collieries, 521 U.S. 267, 28 BRBS 43 (CRT)(1994). Back to Text
2)As claimant does not appeal the administrative law judge's findings concerning suitable alternate employment, they are hereby affirmed. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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