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                                 BRB No. 01-0649

MICHAEL WARD                            )
          Claimant-Petitioner           )
     v.                                 )
HOLT CARGO SYSTEMS                      )    DATE ISSUED:   05/06/2002
     and                                )
COMPANY                                 )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order of Ralph A. Romano, Administrative Law
     Judge, United States Department of Labor.

     Louis A. Perez, Jr., and Aloysius J. Staud (Fine and Staud),
     Philadelphia, Pennsylvania, for claimant.

     John E. Kawczynski (Field Womack & Kawczynski, LLC), South Amboy, New
     Jersey, for employer/carrier.

     Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
     Administrative Appeals Judges.


     Claimant appeals the Decision and Order (01-LHC-0046) of Administrative Law
Judge Ralph A. Romano 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 longshoreman, suffered injuries to his head, back, shoulder, and
inner ear when he was struck by a pipe on the right side of his face causing a
cerebral concussion during the course of his employment on July 1, 1998.  He
returned to work on February 14, 2000, and continues to perform his usual job
duties.  Claimant subsequently filed a claim under the Act seeking permanent total
disability compensation or, alternatively, a permanent partial disability award
based on a loss of wage-earning capacity.

     In his decision, the administrative law judge denied the benefits sought by
claimant.  Specifically, the administrative law judge concluded that claimant had
failed to establish either an inability to perform his usual employment duties or
a present loss in wage-earning capacity.  Claimant now appeals, arguing that the
administrative law judge erred in denying his request for disability compensation. 
Employer responds, urging affirmance.

     Claimant has the burden of establishing the nature and extent of any
disability arising from his work-related injury. Trask v. Lockheed Shipbuilding
& Constr. Co., 17 BRBS 56 (1985).  In order to establish a prima facie
case of total disability, claimant must demonstrate his inability to perform his
usual work due to the injury. See, e.g., Padilla v. San Pedro Boat Works,
34 BRBS 49 (2000).  The fact that a claimant works after an injury will not
forestall a finding of total disability if the claimant works only with
extraordinary effort and in spite of excruciating pain or is provided a position
through employer's beneficence. See CNA Ins. Co. v. Legrow, 935 F.2d 430,
24 BRBS 202(CRT)(1st Cir. 1991); Ezell v. Direct Labor, Inc., 33 BRBS 19
(1999).  In instances where a 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 permanent partial disability
benefits under Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), based on
a reduced earning capacity despite the fact that claimant's actual earnings may
have increased. See generally Metropolitan Stevedore Co. v.  Rambo,
521 U.S. 121, 31 BRBS 54(CRT) (1997); Container Stevedoring Co. v. Director,
OWCP, 935 F.2d 1544, 24 BRBS 213(CRT)(9th Cir. 1991).

     In the instant case, claimant does not argue that he is incapable of
performing his usual job duties but, rather, asserts that he should not be
performing those duties because of his residual symptomology, including vertigo. 
Additionally, claimant avers that he is able to work only with the assistance of
his fellow employees.  In making this argument, claimant relies upon the opinion
of Dr. Zwillenberg,  who opined that "[claimant] will never function again as a
Longshoreman." CX 6.  Claimant argues that Dr. Zwillenberg's opinion should be
given definitive weight not only because he is an independent medical examiner but
also because his conclusions are supported by those of Drs. Kean and Shapiro, who
agreed that claimant had vertigo.[1]  

      In finding that claimant did not establish an inability to perform his usual
work as a longshoreman, the administrative law judge did not discuss the medical
evidence in detail, relying instead on the fact that claimant continues to perform
his job duties successfully, as evidenced by his own testimony.  The administrative
law judge noted Dr. Zwillenberg's June 2000 medical opinion predicting that claimant would
never work again as a longshoreman, Decision and Order at 4, n.1, but found he
returned to this work and has worked continuously since February 14, 2000.  The
administrative law judge found that while claimant testified to a balance problem
resulting from his injury, claimant had not established such symptoms interfered
with the performance of his usual job duties with employer.  The administrative law
judge further determined that claimant's allusions to his "informal arrangement"
of being assisted in the performance of his job duties by his co-workers, HT at 24-25, was lacking specificity; it thus is insufficient to prove that claimant would
be unable to perform his job without assistance.  In sum, claimant has not
established error in the administrative law judge's analysis of the evidence, and
we therefore decline to disturb his findings. See Todd Shipyards Corp.  v.
Donovan, 300 F.2d 741 (5th Cir. 1962); Wheeler v. Interocean Stevedoring,
Inc., 21 BRBS 33 (1988).  Accordingly, the administrative law judge's
determination that claimant failed to establish an inability to return to longshore
work is affirmed.

     The administrative law judge also found that claimant did not establish a loss
in hours worked as a result of his injury and thus had no current loss in wage-earning capacity.  Claimant does not challenge this finding, but contends that the
administrative law judge erred in failing to grant him a nominal award.[2]   The United States Supreme Court, in
Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 31 BRBS 54(CRT) (1997),
held that a nominal award may be entered on claimant's behalf where his work-related injury has not diminished his present wage-earning capacity under current
circumstances, but there is a significant possibility of future economic harm as
a result of the injury.  In the instant case, although claimant submitted evidence
which, if credited, may support such an award, the administrative law judge did not
discuss this issue in his decision.  We therefore remand this case for the
administrative law judge to address claimant's entitlement to a nominal award
pursuant to the Supreme Court's decision in Rambo.

     Accordingly,  the case is remanded for consideration of claimant's entitlement
to a nominal award in accordance with this decision.  In all other respects, the
administrative law judge's Decision and Order is affirmed.

     SO ORDERED.                             

                         NANCY S. DOLDER, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         PETER A. GABAUER, Jr.
                         Administrative Appeals Judge

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1)Contrary to claimant's position, the fact that Dr. Zwillenberg is an independent examiner is not dispositive of the issue as the Board has held that such reports are not binding on the fact-finder. See Cotton v. Newport News Shipbuilding & Dry Dock, Co., 23 BRBS 380 (1990). Back to Text
2)We reject employer's contention that the issue of claimant's entitlement to a nominal award should not be considered by the Board because it was not raised before the administrative law judge. A claim for total disability benefits includes any lesser degree of disability. See Rambo v. Director, OWCP, 81 F.3d 840, 843, 30 BRBS 27, 20(CRT)(9th Cir. 1996), vacated in part on other grounds sub nom. Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 31 BRBS 54 (CRT)(1997); Young v. Todd Pacific Shipyards Corp., 17 BRBS 201 (1985). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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