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                                 BRB No. 98-0917

ELNORA SMITH                            )
          Claimant-Respondent           )
       v.                               )
NONAPPROPRIATED FUND                    )    DATE ISSUED:   03/12/1999
PERSONNEL                               )
       and                              )
COMMERCIAL UNION                        )
INSURANCE COMPANY                       )
          Employer/Carrier-             )
          Petitioners                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits of Clement J.
     Kennington, Administrative Law Judge, United States Department of Labor.

     Richard W. Withers (Sharp & Gay, P.A.), Jacksonville, Florida, for

     Danny L. Kepner (Shell, Fleming, Davis & Menge, P.A.), Pensacola,
     Florida, for employer/carrier.

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


     Employer appeals the Decision and Order Awarding Benefits (96-LHC-755) of
Administrative Law Judge Clement J. Kennington 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., as extended by the
Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 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).
     On October 26, 1979, while working as a cook, claimant slipped on some grease
and fell, injuring her back, neck, shoulder and legs.  Claimant has undergone
numerous surgeries.[1]   After each surgery,
claimant reported an initial improvement, followed by a return of the preoperative
symptoms.  Claimant has not had any surgeries since May 1991.  Employer paid
temporary total disability benefits from September 1987 to May 1993, and additional
benefits from September 1987 to October 1997, amounting to a total of $56,702.40. 
The parties stipulated that claimant is now permanently totally disabled.  The
primary issue before the administrative law judge concerned the date claimant's
condition became permanent. 

     In his Decision and Order, the administrative law judge found that claimant
reached maximum medical improvement as of December 1984, based upon the testimony
of Dr. Falco (claimant's treating physician), Dr. Morrow (claimant's former
treating physician), claimant's testimony, and the entirety of the medical records
presented. The administrative law judge then awarded cost-of-living adjustments
pursuant to Section 10(f) of the Act, 33 U.S.C. §910(f).  

     On appeal, employer challenges the administrative law judge's finding
regarding maximum medical improvement and contends that claimant is not entitled
to cost-of-living  increases under Section 10(f) which accrued during her period
of temporary disability.  Claimant responds, urging affirmance.  

     Employer's assertion that the administrative law judge erred in finding that
claimant reached maximum medical improvement in December 1984 rather than on
January 11, 1993, is rejected.  The determination of when maximum medical
improvement is reached is primarily a question of fact based on medical evidence.
Eckley v. Fibrex & Shipping Co., Inc., 21 BRBS 120 (1988); Ballesteros
v. Willamette W. Corp., 20 BRBS 184 (1988).  A claimant's condition may be
considered permanent when it has continued for a lengthy period and appears to be
of lasting and indefinite duration, as opposed to one in which recovery merely
awaits a normal healing period.  Watson v. Gulf Stevedore Corp., 400 F.2d
649 (5th Cir. 1968), cert. denied, 394 U.S. 976 (1969).  A finding of fact
establishing the date of maximum medical improvement must be affirmed if it is
supported by substantial evidence. See Mason v. Bender Welding & Machine
Co., 16 BRBS 307 (1984). 

     In the instant case, employer argues that the administrative law judge erred
in concluding that claimant reached maximum medical improvement in December 1984
inasmuch as claimant underwent five surgeries after that date.  Employer asserts
that, even if the improvement from surgery was only temporary, determination of
maximum medical improvement status is premature prior to surgery.  Claimant
contends that the administrative law judge's decision should be affirmed, as these
surgeries were done to prevent further deterioration of claimant's body and took
place a considerable amount of time after the injury.

     The administrative law judge's finding that claimant reached maximum medical
improvement in December 1984 is rational and supported by substantial evidence. 
Dr. Falco first treated claimant in 1993 and originally opined that she reached
maximum medical improvement on January 11, 1993.  However, Dr. Falco testified that
this conclusion was based only on his treatment records and after he had the
opportunity to review claimant's entire medical history, he opined that maximum
medical improvement was reached in December 1984.  CX-27 at 26.  Dr. Falco stated
that claimant's symptoms were consistent after this point and that he did not
believe that the subsequent surgical procedures affected her date of maximum
medical improvement, as the chance of her having any significant improvement at
that late date was minimal.

     The administrative law judge found Dr. Falco's testimony provided a reasonable
and credible explanation, and he further found that the doctor's opinion was
supported by his review of claimant's medical records, as well as the opinion of
Dr. Morrow, claimant's former treating physician.  Finally, the administrative law
judge found claimant's testimony was credible and made evident that her condition
has not changed since 1984.  The administrative law judge is entitled to evaluate
the credibility of the witnesses, and his conclusions may not be set aside unless
they are inherently incredible or patently unreasonable. See Cordero v. Triple
A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. 
denied, 440 U.S. 911 (1979).  Inasmuch as the administrative law judge fully
weighed the evidence and his finding is supported by substantial evidence in the
record, it is affirmed. See Sinclair v. United Food and Commercial Workers,
23 BRBS 148, 156 (1989).

     We further reject employer's contention that the law stated in Holliday v.
Todd Shipyards Corp., 654 F.2d 415, 13 BRBS 741 (5th Cir. 1981), regarding
cost-of-living adjustments under Section 10(f) should not apply to this case.  The
United States Court of Appeals for the Fifth Circuit held in Holliday that
adjustments to compensation pursuant to Section 10(f) of the Act, which are made
to permanent total disability benefits annually to reflect the rise in the national
average weekly wage, are to include intervening adjustments occurring during a
claimant's previous period of temporary total disability. Holliday, 654 F.2d
at 415, 13 BRBS at 741; contra Phillips v. Marine Concrete Structures, Inc.,
895 F.2d 1033, 23 BRBS 36 (CRT) (5th Cir. 1990) (en banc) (overruling
Holliday).  As employer concedes, the United States Court of Appeals for the
Eleventh Circuit, under whose appellate jurisdiction this case arises, has twice
held that the rule in Holliday, which was decided prior to the creation of
the Eleventh Circuit on September 11, 1981, is still binding in that circuit.
See Southeastern Maritime Co. v. Brown, 121 F.3d 648, 31 BRBS 140 (CRT),
reh'g en banc denied, 132 F.3d 48 (11th Cir. 1997), cert. denied, 118
S.Ct. 2366 (1998); Director, OWCP v. Hamilton, 890 F.2d 1143 (11th Cir.
1989).  Employer's contention in this regard is therefore rejected.

     Accordingly, the Decision and Order Awarding Benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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1)Claimant underwent a cervical discogram on February 4, 1987, CX-8, a lumbar discogram and percutaneous discectomy on April 22, 1987, CX-9, arthroscopic surgery on her right shoulder on May 13, 1988, CX-10, arthroscopic surgery of her right shoulder on January 20, 1989, CX-11, and a lumbar discogram and microscopic discectomy on May 3, 1991, CX-12. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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