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                                 BRB No. 00-0856
                                         
HIXON MILLENDER, JR.                    )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   05/21/2001 
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order - Denying Additional Benefits and
     Decision on Motion for Reconsideration of David W. Di Nardi,
     Administrative Law Judge, United States Department of Labor.

     Sue Esther Dulin (Dulin and Dulin, LTD.), Gulfport, Mississippi, for
     claimant.

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

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

     PER CURIAM:

     Claimant appeals the Decision and Order - Denying Additional Benefits and Decision on Motion for
Reconsideration (99-LHC-1046) of Administrative Law Judge David W. Di Nardi 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 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, a mobile crane operator, injured his neck, upper back, and right
shoulder, and alleged that he suffers from right ulnar nerve entrapment, right
carpal tunnel syndrome, and an aggravation of his pre-existing hypertension as a
result of a work injury on November 13, 1995.  Claimant also alleged in March 1998
that he sustained bilateral carpal tunnel syndrome due to repetitive use.  Employer
voluntarily paid claimant various periods of total disability benefits for the 1995
injury but denied that any injury occurred in 1998.  Claimant sought various
periods of temporary total disability benefits after November 15, 1995, and
permanent partial disability benefits after December 15, 1997, and continuing, and
a 15 percent scheduled award for a permanent impairment to the right arm due to
ulnar nerve entrapment and  carpal tunnel syndrome.  Claimant alternatively sought
a nominal award.

     The administrative law judge found that claimant's neck injury and ulnar nerve
entrapment are work-related, but that claimant's hypertension is not work-related. 
The administrative law judge found that claimant does not have carpal tunnel
syndrome.  With respect to the extent of claimant's disability, the administrative
law judge found that claimant established his prima facie case of total
disability but that employer established the availability of suitable alternate
employment by providing claimant a light duty job in its facility at the same rate
of pay as he received prior to his injury.  Consequently, the administrative law
judge awarded claimant total disability benefits from November 15 through November
28, 1995, May 15 through May 19, 1996, May 22 through June 18, 1996, and June 25,
1996, through March 8, 1998, based upon an average weekly wage of $561.90, which
are the same benefits employer voluntarily paid to claimant.[1]   Thus, the administrative law judge denied claimant additional
disability benefits, as well as a nominal award.  The administrative law judge
found that claimant's counsel is not entitled to an attorney's fee.  The
administrative law judge denied summarily claimant's motion for reconsideration.

     On appeal, claimant challenges the administrative law judge's determination
of his average weekly wage.  In addition, claimant asserts that the administrative
law judge erred in finding that his hypertension is not work-related and that he
does not have carpal tunnel syndrome.  Claimant contends he is entitled to
additional disability and  medical benefits.  Employer responds in support of the
administrative law judge's decision.
     Claimant first contends that the administrative law judge erred in calculating
his average weekly wage.   Claimant argues that his average weekly wage should be
$640.01 or $581.20, and not $561.90 as the administrative law judge found, and that
the administrative law judge erred in calculating his average weekly wage without using
claimant's actual daily wage records which were admitted into evidence.  Section
10(a), 33 U.S.C. §910(a),  looks to the actual wages of the injured worker who
is employed for substantially the whole year prior to the injury as the monetary
base for the determination of the amount of compensation, and is premised on the
injured employee's having  worked the substantially the entire year prior to the
injury.[2]   Duncanson-Harrelson Co. v.
Director, OWCP [Freer], 686 F.2d 1336 (9th Cir. 1982), vacated on other
grounds, 462 U.S. 1101 (1983), decision after remand, 713 F.2d 462 (9th
Cir. 1983).  A calculation under Section 10(a) is made by determining the total
income claimant earned in the 52 weeks preceding the work injury, dividing that sum
by the actual number of days claimant worked, multiplying by 260 (for a five day
per week worker as here), and dividing that number by 52. See Universal Maritime
Corp. v. Moore, 126 F.3d 256, 31 BRBS 119(CRT) (4th  Cir. 1997); 33 U.S.C.
§910(d).  The use of Section 10(a) is premised on the availability of
information in the record from which the number of days claimant worked can be
ascertained. See Taylor v. Smith & Kelly Co., 14 BRBS 489 (1981).  In
Wooley v.  Ingalls Shipbuilding, Inc., 33 BRBS 88 (1999), aff'd, 204
F.3d 615, 34 BRBS 12(CRT) (5th Cir.  2000), the Board affirmed the administrative law
judge's finding that "days" should not be created by dividing by eight the vacation
pay claimant received in lieu of vacation days.    The Board stated that doing so
would dilute claimant's earnings by creating additional work days, and is contrary
to the language of Section 10(a). See n.2, supra.  In affirming the
Board's decision, the United States Court of Appeals for the Fifth Circuit, in
whose jurisdiction this case arises, stated that the administrative law judge's
finding that vacation days the claimant actually took were to be treated as days
worked was supported by substantial evidence.  Wooley, 204 F.3d at 618, 34
BRBS at 14(CRT).  Similarly, the court found that the administrative law judge's decision
not to treat the vacation pay claimant received in lieu of vacation days as days
worked  was supported by substantial evidence. Id.

     In calculating claimant's average weekly wage in the instant case, the
administrative law judge divided the total number of hours that claimant worked in
the year pre-injury, 1977.6, inclusive of vacation hours, by eight to arrive at the
number of days claimant worked pre-injury, 247.2.  The administrative law judge
then divided claimant's total wages of $27,781.78 by 247.2 to arrive at a daily
wage of $112.38 which he multiplied by 260, as claimant was a five day a week
worker, to arrive at $29,218.80.  Next, the administrative law judge divided
$29,218.80 by 52 to arrive at his determination that claimant's average weekly wage
was $561.90.  We agree with claimant that the administrative law judge erred in
calculating claimant's average weekly wage without reference to claimant's daily
wage records, which were admitted into evidence.  Claimant alleges that these wage
records show that he worked 217, exclusive of vacation days, and 239 days, including vacation days.[3]    Cl. Ex. 4, see generally  Wooley, 33 BRBS at
90.  Thus, we vacate the administrative law judge's calculation of claimant's
average weekly wage, and remand this case to the administrative law judge for a
recalculation of claimant's average weekly wage with reference to the wage records
in evidence.  Employer's assertion that any error in the administrative law judge's
calculation is harmless because claimant's pre-injury hourly wage of $13.70 plus
a shift premium of $8 per week equals an amount close to the administrative law
judge's calculation of $561.90 per week is without merit as Section 10(a) applies
and requires a specific method of calculating claimant's average weekly wage.

     Claimant next challenges the administrative law judge's finding that employer
established rebuttal of the presumption at Section 20(a) of the Act, 33 U.S.C.
§920(a), with respect to his hypertension.  Claimant argues that the
administrative law judge erred in finding that his hypertension is not work-related
based on the uncontradicted opinion of Dr. McCloskey as the physician's opinion was
indeed contradicted by the opinions of Drs. Stewart and Nolan.  Section 20(a) provides
claimant with a presumption that the injury he sustained is causally related to his employment if he establishes a prima
facie case by showing that he suffered an injury and that employment conditions existed or a work accident occurred
which could have caused the injury or aggravated a pre-existing condition.  See Conoco, Inc. v. Director, OWCP
[Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); Gooden v. Director, OWCP, 135
F.3d 1066, 32 BRBS 59(CRT) (5th Cir. 1998).  Once claimant has invoked the Section
20(a) presumption, the burden shifts to employer to rebut it with substantial
countervailing evidence that claimant's condition was not caused or aggravated by
his employment. See Prewitt, 194 F.3d 684, 33 BRBS 187(CRT).  If the
administrative law judge finds that the Section 20(a) presumption is rebutted, then
all relevant evidence must be weighed to determine if a causal relationship has
been established with claimant bearing the burden of persuasion. See Port
Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96 (CRT)(5th
Cir. 2000); see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT)(1994). 

     In the instant case, the administrative law judge found that claimant's
hypertension is not work-related, stating it is a "personal condition" and "there
is no evidence that such condition was aggravated or exacerbated by his maritime
employment."  Decision and Order at 13.  The administrative law judge also stated
that he accepted Dr. McCloskey's uncontradicted opinion that claimant's work injury
did  not cause his hypertension, noting that Dr. Nolan agreed.  In so finding, the
administrative law judge erred.  As claimant correctly asserts, Dr. McCloskey's
opinion is not uncontradicted;  the record contains the opinion of Dr. Stewart that
claimant's hypertension is work-related and that of Dr. Nolan, who initially stated
that claimant's continued problems with hypertension are not work-related, but then
subsequently deferred to claimant's treating physician, Dr. Stewart, on the
issue.[4]   As the issue is rebuttal of Section
20(a), moreover, the burden was upon employer to produce substantial evidence that
claimant's hypertension was not aggravated by his work.  As Dr. McCloskey opined
only that claimant's hypertension was not caused by his employment, this opinion
cannot rebut Section 20(a),  as it does not address whether claimant's employment
aggravated his pre-existing hypertension. See Prewitt, 194 F.3d 684, 33 BRBS 187(CRT). 
Moreover, Dr. Nolan also did not address aggravation in his initial opinion and,
in any event,  subsequently abandoned the position that claimant's hypertension is
not work-related.  Dr. Stewart opined that claimant's condition was work-related. 
As the record lacks substantial evidence rebutting Section 20(a),  we reverse the
administrative law judge's finding that claimant's hypertension is not work-related, and  hold that claimant's hypertension is work-related as a matter of law.
See generally Louisiana Ins. Guar. Ass'n v. Bunol, 211 F.3d 294, 34
BRBS 29(CRT)(5th Cir. 2000); Cairns v. Matson Terminals, Inc., 21 BRBS 252
(1988); Decision and Order at 13-14; Cl. Exs. 12, 29; Emp. Exs. 17 at 69, 22 at 4.   

     Claimant further contends that the administrative law judge erred in finding
the absence of probative evidence that claimant suffers from carpal tunnel
syndrome.  In this regard, the administrative law judge relied on the opinion of
Dr. Millette that claimant's hand problems are the result of a chronic C8-T1 lesion
and the opinion of Dr. McCloskey, whom the administrative law judge stated agreed
with Dr. Millette.  The administrative law judge gave less weight to the opinion
of Dr. Wyatt that claimant has carpal tunnel syndrome, finding this opinion to be
"tentative," and  noting that Dr. Wyatt had not seen claimant since March 31, 1998. 
The administrative law judge's opinion cannot be affirmed, however, because in
evaluating the medical evidence,  he mischaracterized the opinions of Drs.
McCloskey and Wyatt.  Although Dr. McCloskey, on September 24, 1997, stated he
agreed with Dr. Millette that claimant's right hand problems were related to his
cervical injury, Emp. Ex. 17 at 26, 51-53, Dr. McCloskey, on March 19, 1999,
checked "yes" to the statement that claimant's work injury caused or materially
contributed to his right carpal tunnel syndrome, that claimant's employment as a
crane operator with employer for 30 years caused or materially contributed to his
right carpal tunnel syndrome, and that claimant reached maximum medical improvement
on July 17, 1998, for his right carpal tunnel syndrome which resulted in a 15
percent permanent partial impairment.  Emp. Ex. 17 at 56.  Moreover, while Dr.
Wyatt initially only "suspected" carpal tunnel syndrome, Emp. Ex. 19 at 4, he
subsequently wrote the following on April 20, 1998:  "This is to state
categorically that [claimant] does have carpal tunnel syndrome, that it is related
to his employment, and the [claimant] should receive appropriate care at the
earliest possible time."  Cl. Exs. 11 at 1; 16 at 2.  Because the
administrative law judge did not discuss and weigh Dr. McCloskey's later opinion
and his conclusion that Dr. Wyatt's opinion is tentative is inconsistent with  that
physician's opinion as stated above, the administrative law judge's finding that
claimant does not have carpal tunnel syndrome is vacated, and the case is remanded
to the administrative law judge for reconsideration of all relevant opinions.  
See generally McCurley v.  Kiewest Co., 22 BRBS 115 (1989); see also Hampton v. Bethlehem
Steel Corp., 24 BRBS 141 (1990); Decision and Order at 14; Cl. Exs. 11 at 1, 16 at 2;
Emp. Ex. 17 at 26, 51-53, 56.   If the administrative law judge determines that
claimant has carpal tunnel syndrome, he must also determine whether it is work-related, and if so, whether claimant is entitled to a scheduled award for this
injury. See 33 U.S.C. §908(c)(1), (3); Emp. Ex. 17 at 56.   


     Claimant further contends that the administrative law judge erred in failing
to award additional total disability benefits after March 8, 1998.  Claimant argues
that he is entitled to disability benefits from March 23, 1998, to February 1,
1999, as employer did not place him in suitable light duty employment during this
time, for March 15, April 12, 13, 26, June 20, July 12 and 13, and August 30, 1999,
when claimant sought medical treatment with Dr. McCloskey, and from July 23 until
September 20, 1999, during which employer again did not make suitable light duty
work available to him.  Claimant establishes his prima facie case of total
disability if he is unable to perform his usual employment duties due to a work-related injury. See Gacki v. Sea-Land Service, Inc., 33 BRBS 127 (1998). 
The burden then shifts to employer to establish the availability of suitable
alternate employment, which it may do by providing claimant with a suitable light
duty job at its facility. Darby v. Ingalls Shipbuilding, Inc., 99 F.3d 685,
30 BRBS 93(CRT) (5th Cir. 1996); New Orleans (Gulfwide) Stevedores v.
Turner, 661 F.2d 1031, 14 BRBS 156 (5th Cir. 1981).

     In the instant case, the administrative law judge found that claimant
sustained no economic disability after March 8, 1998, since employer provided
suitable light duty work for claimant at this time with no loss in actual wages. 
The administrative law judge found that claimant's light duty job as of March 23,
1998, as a flagman in the area of the gantry tracks, was suitable for claimant
based on the opinion of Mr. Walker, a vocational rehabilitation consultant hired
by the Department of Labor, to that effect.   Decision and Order at 19; Emp. Ex.
24 at 5, 10.    We cannot affirm the denial of additional benefits for several
reasons.  First, in view of our holding that claimant's hypertension is related to
his employment, the administrative law judge must consider Dr.  Stewart's opinion
regarding claimant's ability to work with his hypertension.   Dr. Stewart excused
claimant from working from March 23 to September 2, 1998, and from January 19
through February 2, 1999.   Cl. Exs.  12 at 26, 25 at 138, 164.  Moreover, although
the administrative law judge correctly characterized Dr.  McCloskey's opinions, his
conclusion does not follow from those opinions.   Dr. McCloskey excused claimant
from work on March 23 and 24, 1998, and imposed new restrictions on July 17, 1998. 
Emp. Ex. 17 at 44.  The administrative law judge noted  that Dr. McCloskey released claimant to
return to work with the additional restriction against flagging which requires him
to hold his right arm in the air.  Decision and Order at 20; Emp. 17 at 44; Cl. Ex.
10 at 54.  Subsequently, on December 2, 1998, Dr. McCloskey modified this
restriction which allowed claimant to be available for light duty employment as a
flagman.  Decision and Order at 20; Emp. Ex. 17 at 48; Cl. Ex. 10 at 51.  The
administrative law judge stated that employer did not provide light duty employment to
claimant within the later restrictions until January 25, 1999, although claimant
did not report to work until February 1, 1999, as he was excused from work from
January 19 through February 2, 1999, by Dr. Stewart.  Decision and Order at 20.  
Nonetheless, despite the absence of suitable alternate employment during these
periods, the administrative law judge did not award claimant additional benefits.   Thus,
we vacate the denial of additional benefits and remand the case for the administrative
law judge to consider claimant's entitlement to benefits for the periods he was
medically unable to work or employer did not provide suitable alternate
employment.[5]     

     Claimant further contends that the administrative law judge erred in denying
him continuing permanent total disability benefits or, alternatively, a nominal
award.  Claimant argues that he is totally disabled because he continues to work
through extraordinary effort and in spite of excruciating pain and diminished
strength.  Alternatively, claimant argues that he is entitled to a nominal award
as the odds are significant that his post-injury wage-earning capacity will fall
below his pre-injury wages at some point in the future.  A claimant who works post-injury only in spite of excruciating pain or extraordinary effort may be entitled
to total disability benefits despite his continued employment. Haughton Elevator Co.
v. Lewis, 572 F.2d 447, 7 BRBS 838 (4th Cir. 1978).  Where claimant's pain and limitations do not rise to this level,
such factors nonetheless are relevant in determining claimant's post-injury wage-earning capacity, and may support an
award of partial disability benefits despite the fact that claimant's actual wages have not decreased. See, e.g.,
Container Stevedoring Co. v. Director, OWCP [Gross], 935 F.2d 1544, 24 BRBS
213(CRT)(9th Cir. 1991); Ezell v.  Direct Labor, Inc., 33 BRBS 19 (1999). 
Claimant may be entitled to a nominal award if he establishes that, despite the
absence of a present loss in wage-earning capacity, there is a significant
possibility of future economic harm as a result of his injury. Metropolitan
Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54(CRT)(1997);
Hole v. Miami Shipyards Corp., 640 F.2d 769, 13 BRBS 237 (5th Cir. 1981). 


     The administrative law judge's findings that claimant is not entitled to
continuing disability benefits or a nominal award with respect to his cervical
injury cannot be affirmed.  In the instant case, the administrative law judge relied on the opinions of Drs. Wyatt
and McCloskey, as well as the testimony of claimant's co-worker, Mr. Taylor, claimant's current supervisor, Mr. Chambers,
employer's return to work coordinator, Ms. Wiley, and the report of Mr. Sanders, a vocational rehabilitation consultant,
to find that claimant could perform his current light duty job,  which is within his restrictions and for which he receives his
regular wages and retains his job title as mobile crane operator.  Decision and Order at 15-16, 20.  The administrative law
judge's reliance on Dr. Wyatt's opinion is problematic in that Dr. Wyatt's most recent opinion is dated April 20, 1998, and
thus cannot address the suitability of claimant's light duty job in 1999.  Cl. Exs. 11 at 1, 16 at 2.  The administrative law
judge's reliance on the testimony of Mr. Chambers and Ms. Wiley also is problematic in that their depositions occurred on
October 6, 1999, wherein they testified that claimant could perform his current light duty job within his restrictions, yet Dr.
McCloskey on October 13, 1999, after reporting that claimant stated "the job is killing [him]," sought to investigate whether
claimant's current job is indeed within his restrictions. See Cl. Exs. 10 at 8, 24, 26.  On February 25, 1999, Mr.
Sanders reported that claimant's current job is within his restrictions, but conditioned his opinion on whether Dr.
McCloskey restricted claimant from alternately sitting, standing, and walking versus primarily standing with intermittent
walking.  Mr.  Sanders noted that claimant stands or walks seven out of eight hours a day, according to claimant's
supervisor, Mr. Chambers.  Emp. Ex. 27 at 5.  Moreover, the administrative law judge relied on the testimony of Mr. Taylor
in support of his findings that claimant can perform his current work as it is within his restrictions; however, Mr. Taylor's
testimony describes claimant's current job as a flagman and states that claimant works in pain and has missed time from
work because of pain.  Tr. at 42-91.  In concluding that claimant is not entitled to continuing disability benefits or a nominal
award, the administrative law judge did not discuss and weigh this evidence.  The administrative law judge also did not
discuss and weigh the fact that claimant continues to undergo treatment with Drs. McCloskey and Stewart and has received
two disciplinary warnings from employer. See Cl. Exs. 10, 12, 30.    

     Moreover, the administrative law judge found that claimant's unwillingness to
return to work, or in making half-hearted attempts to perform the duties when he
does show up for work, is influenced by other factors such as his qualification for
and receipt of Social Security Administration disability benefits while out of work
or by his essential hypertension, which the administrative law judge describes as
a personal illness.    As we have reversed the administrative law judge's finding
that claimant's hypertension is not work-related, we cannot affirm the
administrative law judge's finding that  claimant's hypertension is not relevant
to his disability status.  Moreover, although the administrative law judge repeatedly
questions claimant's motivation for not reporting to work, the sole basis for this
appears to be claimant's use, in 1998, of a cervical collar and cane, which Dr. 
Wyatt stated was not medically necessary.  Emp.  Ex.  19 at 7.[6]    Thus, as there is evidence of record which the
administrative law judge did not discuss, we vacate the administrative law judge's denial
of additional disability benefits and a nominal award and remand this case to the
administrative law judge for further consideration of this issue consistent with
law. See Rambo II, 521 U.S. 121, 31 BRBS 54(CRT); Barbera v. Director,
OWCP, 245 F.3d 282 (3d Cir. 2001). 

     Claimant also contends that the administrative law judge erred in not awarding
future medical benefits for his cervical injury in light of Dr. McCloskey's opinion
that claimant may need future periodic medical treatment and evaluation.  Claimant
is entitled to medical benefits for a work-related injury if the treatment is
necessary for his work-related injury.  Romeike v. Kaiser Shipyards, 22 BRBS
57 (1989).   Although Dr. McCloskey's opinion may support an award of future
medical benefits for claimant's cervical injury, any error in the administrative
law judge's failure to make such an award is harmless because a claim for medical
benefits is never time-barred and employer concedes in its response brief that it never
controverted claimant's entitled to medical benefits for his cervical injury.  
See Ryan v. Alaska Constructors, Inc., 24 BRBS 65 (1990); Decision and Order at 29;
Emp. Br. at 31; Emp. Ex. 17 at 56.  Thus, claimant may later file a claim for
payment of medical expenses by employer for his cervical injury. See generally
Strachan Shipping Co. v. Hollis, 460 F.2d 1108 (5th Cir.), cert. denied,
409 U.S. 887 (1972), 423 U.S. 885 (1975).    

     Claimant further contends that the administrative law judge erred in
denying his counsel an attorney's fee.  The administrative law judge denied
claimant's counsel an attorney's fee because claimant did not receive greater
benefits than those employer voluntarily paid.  On remand, the administrative law
judge must award claimant's counsel a reasonable attorney's fee if claimant obtains
additional benefits. See Hensley v. Eckerhart, 461 U.S. 424 (1983); Ingalls Shipbuilding, Inc.
v. Director, OWCP [Baker], 991 F.2d 163, 27 BRBS 14 (CRT)(5th Cir. 1993); George Hyman Constr. Co. v.
Brooks, 963 F.2d 1532, 25 BRBS 161(CRT)(D.C. Cir. 1992); Decision and Order at 28-29.  

     Finally, claimant asserts that he "is also entitled to penalties,
interest, costs, and adjustments."  Because claimant does not explain why he is
entitled to penalties, interest, costs, and adjustments, or allege specific error
with respect to the administrative law judge's findings on these issues, we decline
to review these issues. See Plappert v. Marine Corps Exchange, 31 BRBS 109
(1997), aff'g on recon. en banc 31 BRBS 13 (1997); Collins v. Oceanic
Butler, Inc., 23 BRBS 227 (1990); Cl. Br. at 42.  

     Accordingly, the administrative law judge's calculation of claimant's average weekly wage,
his finding that claimant does not have carpal tunnel syndrome, and his denial of additional disability benefits and of an
attorney's fee award are vacated, and the case is remanded to the administrative law judge for further consideration of these
issues.  The administrative  law  judge's  finding  that claimant's  hypertension  is not  work-related is reversed, and we hold that claimant's hypertension is work-related as a matter of law.   In all other respects, the
administrative law judge's Decision and Order - Denying Additional Benefits and Decision on Motion for Reconsideration
are affirmed. 

     SO ORDERED.              



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.


1)Permanent total disability benefits were awarded from December 16, 1997, as the administrative law judge found that claimant reached maximum medical improvement on December 15, 1997. Decision and Order at 18, 29-30. Back to Text
2)The administrative law judge's use of Section 10(a) is uncontested on appeal. Section 10(a) states: If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 33 U.S.C. §910(a) (emphasis added). Back to Text
3)We reject employer's contention that Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS 70 (1997), mandates affirmance of the decision herein. In Diosdado, the Board affirmed the administrative law judge's division of the total number of hours claimant worked in the year prior to injury by eight to arrive at the number of days claimant worked pre-injury, as did the administrative law judge in this case. In Diosdado, however, no daily wage records were admitted into evidence. Back to Text
4)Dr. Stewart checked "yes" to the statement that claimant's work injury permanently aggravated or materially contributed to his hypertension. Cl. Ex. 12. In Dr. Nolan's subsequent opinion, he checked "yes" to the statement, "I defer to [claimant's] treating physician for his hypertension as to whether [claimant's] industrial accident . . . permanently aggravated or materially contributed to [claimant's] hypertension." Cl. Ex. 29. Dr. Nolan also commented that, "I am unable to draw an opinion regarding the contribution of his industrial accident to [claimant's] hypertension. This is not my area of expertise nor did I follow [claimant] continually (?) before and after his accident." Id. Dr. McCloskey's opinion and Dr. Nolan's initial opinion were that claimant's work injury did not cause his hypertension and that claimant's hypertension was not work-related, respectively. Emp. Exs. 17 at 69, 22 at 4. Back to Text
5)The administrative law judge also should address claimant's entitlement to disability benefits on the dates claimant sought medical treatment, see Cl. Ex. 10, and for the period of July 23 until September 20, 1999, during which time employer sought clarification of claimant's restrictions from Dr. McCloskey, claimant sought treatment from Drs. McCloskey and Stewart, and employer did not place claimant in suitable light duty work. See Tr. at 112-117; Cl. Exs. 10 at 15, 12 at 13. Back to Text
6)Dr. Wyatt stated that claimant feels that he needs to use these devices. Emp. Ex. 19 at 7. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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