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                                 BRB No. 01-0687

RICHARD P. STEARNS                      )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
MWR, DEPARTMENT OF ARMY                 )
(NAF) FT. STEWART, GA                   )    DATE ISSUED:   05/20/2002

                                        )
     and                                )
                                        )
ALEXSIS, INCORPORATED                   )
                                        )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER
                                         
     Appeal of the Decision and Order on Modification of Jeffrey Tureck,
     Administrative Law Judge, United States Department of Labor.

     Ralph R. Lorberbaum (Zipperer & Lorberbaum), Savannah, Georgia, for
     claimant.

     Donovan A. Roper (Law Offices of Donovan A. Roper, P.A.), Altamonte
     Springs, Florida, for employer/carrier.

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

     PER CURIAM:

     Claimant appeals the Decision and Order on Modification (1998-LHC-1758) of
Administrative Law Judge Jeffrey Tureck 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 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 professional golfer and Director of Operations for Hunter Golf
Course at Fort Stewart, alleged that he injured his right foot at work.  In
developing his claim, claimant alleged three alternative theories of recovery: 1)
that he injured his right foot on June 20, 1997, at work by falling; 2) that the
June 20, 1997, fall at work aggravated a pre-existing right foot injury; or 3) that
he aggravated any pre-existing right foot injury through general working conditions
which required him to stand and walk constantly.  Employer did not pay any
disability benefits, but it paid some medical benefits.  

     In his initial decision, the administrative law judge found that claimant's
first two theories of recovery were timely raised.  The administrative law judge,
based on the weight of the evidence, further found that the incident at work on
June 20, 1997 did not cause the fractures in claimant's right foot, and that
claimant failed to prove that he aggravated the pre-existing condition to his right
foot in the June 20, 1997 fall at work.  Consequently, benefits were denied with
respect to claimant's first two theories.  With respect to claimant's third theory
of recovery, the administrative law judge found that notice of this claim was
untimely given, pursuant to Section 12 of the Act, 33 U.S.C. §912, on January
18, 2000, fifteen months after the case was referred to the Office of
Administrative Law Judges, and that employer was prejudiced by the late notice
under Section 12(d)(2), 33 U.S.C. §912(d)(2).  The administrative law judge
thus did not consider the merits of claimant's general working conditions claim,
and he denied benefits on this theory as well. Claimant appealed the administrative
law judge's denial of benefits to the Board.

     Before the Board addressed the appeal, claimant requested modification of the
administrative law judge's denial of benefits.  33 U.S.C. §922.  Consequently,
the Board dismissed claimant's appeal and remanded the case to the administrative
law judge for consideration of the modification request. Stearns v. MWR, Dep't
of Army (NAF) Ft. Stewart, GA, BRB No. 01-429 (Apr. 11, 2001)(unpub. Order). 
Upon claimant's motion for modification, the administrative law judge again found
that notice of claimant's general working conditions claim was untimely, although
he found that notice was given on July 15, 1999, and not January 18, 2000, as he
initially had found.  The administrative law judge also found that whether notice
was given on July 15, 1999, or January 18, 2000, was immaterial as employer was
prejudiced by claimant's failure to give timely notice.  33 U.S.C. §912(a), (d). 
Moreover, the administrative law judge found that the claim based on claimant's
general working conditions was untimely filed pursuant to Section 13, 33 U.S.C.
§913.  Consequently, the administrative law judge again denied benefits.

     On appeal, claimant challenges the administrative law judge's denial of his
request for modification.  He did not seek reinstatement of his initial appeal. 
Claimant asserts that the administrative law judge erred in finding that notice of
claimant's claim based on his  general working conditions was untimely given.  Claimant
also contends that the administrative law judge erred in finding that the fall at
work on June 20, 1997, did not aggravate claimant's pre-existing foot problems. 
Employer responds in support of the administrative law judge's decision.  

     We first address claimant's contention that the administrative law judge erred
in finding claimant's assertion that his injury was related to his general working
conditions barred by the provisions of Sections 12 and 13 of the Act, 33 U.S.C.
§§912, 913.  These statutory provisions require that a notice of injury
and a claim for compensation be filed within 30 days and one year, respectively,
of the date of claimant's awareness of the relationship between his injury and his
employment.  In this case, employer stipulated that claimant's initial claim for
benefits for his foot injury, which was based on the fall at work on June 20, 1997,
was timely filed pursuant to Section 13(a).  The administrative law judge also
found that claimant "may have" provided oral notice of his injury to employer
within 30 days of June 30, 1997, see 33 U.S.C. §912(d)(1) (failure to
give written notice excused if employer had actual knowledge of the injury), and
that claimant provided written notice to employer 45 days after the injury.  The
administrative law judge found that employer was not prejudiced by this late
notice.  Decision and Order at 8-9.  

     With regard to the "claim" based on claimant's general working conditions, the
administrative law judge, by finding such a claim barred for failure to comply with
Section 12 and 13, see Decision and Order on Modification at 3-4, obviously
required a new separate, notice of injury and claim for compensation in order for
claimant to raise this theory of causation for his foot injury.  The administrative
law judge erred in requiring separate notice and filing in order for claimant to
raise a new theory of causation.  In U.S. Industries/Federal Sheet Metal, Inc.,
v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982), the Supreme Court held
that the presumption of Section 20(a) of the Act, 33 U.S.C. §920(a), attaches
only to the claim asserted by the claimant.  Pertinent to the instant case, the
court discussed the requirements for a claim under the Act, specifically addressing
the fact that the claim may be amended, noting that " considerable liberality is
usually shown in allowing the amendment of pleadings to correct. . . . defects,'
unless the  effect is one of undue surprise or prejudice to the opposing party.'"
U.S. Industries, 455 U.S. at 613 n. 7, 14 BRBS at 633 n. 7, quoting 3
A. Larson, The Law of Workmen's Compensation, §78.11 (1976), currently 7 Arthur
Larson and Lex K. Larson, Larson's Workers' Compensation Law,
§124.04[3] (2001).  In this regard, the Larson treatise states that a wide
variance is permitted between pleading and proof, unless the employer is prejudiced
by having to defend at the hearing an injury completely different than the one
pleaded.  7 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law, §124.04[5]
(2001).

     In Meehan Seaway Serv. Co. v. Director, OWCP [Hizinski], 125 F.3d 1163,
31 BRBS 114(CRT)(8th Cir. 1997), cert. denied, 523 U.S. 1020 (1998), the
United States Court of Appeals for the Eighth Circuit addressed a case in which the
claimant filed a claim alleging a knee injury occurred at work on October 14, 1989,
when he stepped in a hole while he was carrying heavy bags of wheat.  The
administrative law judge found that the evidence did not support a finding of a
specific accident on that day, but that the evidence did support a finding that
cumulative trauma aggravated claimant's pre-existing knee condition. Id.,
125 F.3d at 1167, 31 BRBS at 116(CRT).  On appeal, the employer contended that
it was denied due process because the administrative law judge awarded benefits on
a theory that the claimant did not assert.  In affirming the Board's decision, the
Eighth Circuit quoted the language regarding the amendment of pleadings from the
Supreme Court's decision in U.S. Industries, and proceeded to discuss
whether employer was prejudiced by consideration of a cumulative trauma claim.  The
court held that employer was on notice of the possibility that claimant's injury
was due to cumulative trauma sufficiently before the hearing so that it was not
prejudiced by an award based on such a claim.  Specifically, claimant's pre-trial
pleading and a copy of a letter to the Department of Labor provided notice to
employer of a cumulative trauma claim.  In addition, medical reports generated
prior to the alleged injury of October 1989 denoted progressive knee complaints.
Id.   The court thus denied the employer's challenge to the sufficiency of
claimant's amended claim.

     Similarly, in Mikell v.  Savannah Shipyard Co., 24 BRBS 100 (1990),
aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom.  Argonaut Ins.
Co. v. Mikell, 14 F.3d 58 (11th Cir. 1994), the claimant filed a timely claim
for death benefits alleging that her husband's death was due to cancer caused by
work-related asbestos exposure.  Two and one-half years later, claimant filed an
amended pre-hearing statement seeking death benefits based on her husband's being
permanently totally disabled due to a back injury at the time of death, see
33 U.S.C. §909 (1982)(amended 1984).  The administrative law judge allowed
the amended claim, citing U.S. Industries, finding that employer was not
prejudiced by the amendment of the claim and that it was aware of this theory of
recovery prior to the hearing and had adequate opportunity to prepare its defense. 
The Board affirmed, specifically stating that the timeliness of "the claim" is
determined by the date the original claim was filed.  Mikell, 24 BRBS at
104-105, citing 29 C.F.R. §18.5(e)(allowing an amendment to a pleading
if it is determined by the administrative law judge to be reasonably within the
scope of the original claim).

     Based on U.S. Industries, Hizinski, and Mikell, it is clear that
claimant's theory of causation based on his general working conditions must be
considered to be an amendment of his timely claim for a work-related injury to his
foot.  Claimant, therefore, was not required to file a new notice of injury and
claim for compensation pursuant to Sections 12 and 13 of the Act.  As the
administrative law judge found claimant's initial notice and claim for compensation
were timely, we reverse his conclusion that claimant's amended claim is barred by
Sections 12 and 13. Hizinski, 125 F.3d 1163, 31 BRBS 114(CRT);
Mikell, 24 BRBS 100; see also Thompson v. Lockheed Shipbuilding & Constr.
Co., 21 BRBS 94 (1988)(claimant need not file a separate notice of injury for
sequela of original injury).  We will review the administrative law judge's
findings at Section 12(d)(2) regarding prejudice  in order to ascertain whether
claimant's amendment of his claim to raise general working conditions as a cause
of his injury resulted in "undue prejudice or surprise" to employer. See U.S.
Industries, 455 U.S. at 613 n. 7, 14 BRBS at 633 n. 7. 

     Initially, the administrative law judge found that employer established
prejudice because it had deposed all of its doctors, with the exception of two,
prior to the date claimant amended his claim in July 1999.  Although this statement
accurately reflects the record evidence, it is insufficient to establish prejudice
because employer had ample opportunity after the theory was raised to either depose
the doctors again or, to minimize expenses, supplement the doctors' depositions by
propounding written questions to them.[1]   See
generally Boyd v. Ceres Terminals, 30 BRBS 218 (1987).  Additionally, the
administrative law judge found that employer established prejudice because had the
hearing taken place earlier, when it was originally scheduled, the claim based on
general working conditions would not have been raised.  The administrative law
judge also stated that employer was prejudiced because the delay was particularly
troublesome where claimant's condition is longstanding and the cause of his
condition is at issue.  This is insufficient to establish prejudice.  Regardless
of what might have happened had an earlier hearing been held, the fact is that it
was rescheduled on several occasions for varying reasons.  Each side was granted
one continuance, and employer was not voluntarily paying any disability benefits. 
Employer was equally responsible for the delay in holding the hearing and would
have caused further delay in this case had its second request for a continuance of
the hearing on February 14, 2000, been granted.[2] 
 Moreover, the delay did not affect employer's ability to respond to claimant's
case.  Employer had ample time to prepare for the new theory prior to the actual
hearing, as  Dr. Needleman, on August 12, 1997, opined that claimant's right foot
problems were aggravated by a lot of standing and walking at work.  Cl. Ex. 12 at
9.  This opinion was stated on a LS-1 (Request for Examination) sent to employer's
carrier.[3]   See Hizinski, 125 F.3d 1163,
31 BRBS 114(CRT); Mikell, 24 BRBS 100.  Thus, employer had notice of a
potential causal nexus between claimant's foot problems and his general working
conditions well in advance of a hearing.

     Lastly, the administrative law judge stated that the two years' late notice
was prejudicial to employer because people's memories fade and become less
reliable, witnesses become harder to locate, and documents get misplaced or
discarded.  Contrary to this conclusion, there were no assertions by employer that
any of these concerns were actually present in this case.[4]   In any event, a mere allegation that such events occurred is
insufficient to establish prejudice.  See I.T.O. Corp. v. Director, OWCP
[Aples], 883 F.2d 422, 22 BRBS 126(CRT)(5th Cir. 1989); Bustillo v.
Southwest Marine, Inc., 33 BRBS 15 (1999); Forlong v. American Sec. & Trust
Co., 21 BRBS 155 (1988).  In sum, the rationale used by the administrative law
judge is insufficient to establish that employer was unduly prejudiced or surprised
by claimant's amendment of his claim in July 1999.  Employer was aware of medical
evidence, in existence prior to July 1999, relating claimant's foot condition to
his general working conditions. Hizinski, 125 F.3d 1163, 31 BRBS 114(CRT). 
Moreover, employer had adequate time before the February 14, 2000, hearing to
develop new evidence on the amended claim. See id.; Mikell, 24 BRBS 100. 
Therefore, we vacate the denial of benefits on the general working conditions
claim, and we remand the case for the administrative law judge to address
claimant's entitlement to benefits on this claim.

     Claimant also contends that the administrative law judge erred, in his initial
Decision and Order, in finding that invocation of the Section 20(a) presumption was
not established based on Dr. Collier's opinion that claimant's June 20, 1997, fall
at work may have exacerbated his pre-existing foot condition.  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. See Brown v. Jacksonville Shipyards, Inc.,
893 F.2d 294, 23 BRBS 22(CRT)(11th Cir. 1990).  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 Brown, 893 F.2d 294, 23 BRBS 22(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 id.;
see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS
43(CRT)(1994).

     We hold that claimant's failure to request reinstatement of his initial appeal
precludes the Board from considering this issue on appeal.  In its Order dated
April 11, 2001 dismissing claimant's initial appeal, the Board specifically
instructed claimant that, 

     This case will be reinstated by the Board only if claimant
     requests reinstatement.  The request for reinstatement must be filed
     with the Board within thirty (30) days of the date the Order on
     modification is filed and must be identified by the Board's docket
     number, BRB No. 01-429.  

     In the event the administrative law judge denies modification and
     claimant wishes the Board to consider not only the original appeal but
     also whether the administrative law judge erred in denying modification,
     a Notice of Appeal of the Order denying modification must be filed in
     addition to the request for reinstatement.

Stearns, slip op. at 1-2 (emphasis added).  As the administrative law
judge's decision on  modification does not address the Section 20(a) issue raised,
and claimant did not request reinstatement of the administrative law judge's
initial decision which did address this causation issue, the Board is precluded
from addressing the issue.[5]  
     Accordingly, the administrative law judge's Decision and Order on Modification
is vacated.  Employer was not prejudiced by claimant's amendment of his claim for
benefits to include a general working conditions theory of recovery.  The case is
remanded to the administrative law judge for consideration of all remaining issues
on the general working conditions claim.   

     SO ORDERED.


                                                                   
                         NANCY S. DOLDER, Chief                            Administrative Appeals Judge
                         


                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge



                                                                   
                         PETER A. GABAUER, JR.                             Administrative Appeals Judge


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Footnotes.


1)By the time claimant amended his claim on July 15, 1999, the depositions of Drs. Dewberry, Dulamal, Harvey, Needleman, Sheils, and Wilkes had been taken. Emp. Exs. 6, 8, 9, 11, 13, 15. Only the depositions of Drs. Collier and Deriso were taken after July 15, 1999, and both of these doctors relate claimant's right foot problems to his working conditions. Emp. Exs. 2 at 42-43; 29 at 55-56, 58. Back to Text
2)The first two hearings scheduled on November 19, 1998, and February 22, 1999, were canceled due to the unavailability of the administrative law judges assigned to the case. Claimant's request for a continuance for the rescheduled March 3, 1999, hearing was granted. After claimant amended his claim on July 15, 1999, employer's request for a continuance was granted with respect to the October 8, 1999, rescheduled hearing date but denied with respect to the February 14, 2000, hearing date. Employer acknowledged at the hearing that it did not voluntarily pay any compensation. Tr. at 7. Back to Text
3)Drs. Baruch, Dewberry, Harvey, and Sheils examined claimant before the alleged work injury. See Cl. Exs. 7, 14, 15; Emp. Exs. 9, 12-16, 25. Drs. Collier, Deriso, Dulamal, Hanzel, Needleman, Shapiro, and Wilkes treated claimant after the alleged work injury. See Cl. Exs. 8, 10-13; Emp. Exs. 1, 2, 4-8, 10-11, 29. Drs. Dulamal and Wilkes related the cause of claimant's right foot condition to his diabetes. Emp. Ex. 6 at 31, 11 (Ex. B). Back to Text
4)In fact, employer presented two witnesses, Ms. Cooper and Mr. Tunkle, who both testified at the hearing that they did not recall much about claimant reporting the accident but knew by at least August 5, 1997, of claimant's injury. Tr. at 137-139, 149, 160-161. The closest to an eyewitness to the accident, Mr. Tipton, testified at the hearing. Tr. at 183-190. Employer did not assert that these witnesses were hard to locate or that their memories faded or that their testimony was less reliable because of the passage of time. Back to Text
5)In any event, the administrative law judge's finding that claimant did not establish that the accident on June 20, 1997, aggravated a pre-existing foot condition is rational and supported by substantial evidence. Contrary to claimant's contention, the administrative law judge did invoke the Section 20(a) presumption. See Decision and Order at 11. He properly found it rebutted by the opinions of Drs. Needleman and Deriso that the fall did not aggravate claimant's pre-existing foot condition. See O'Kelley v. Dept. of the Army, NAF, 34 BRBS 39 (2002). Finally, he found Dr. Collier's opinion that claimant's June 20, 1997, fall at work may have exacerbated his pre-existing foot condition was insufficient to establish that it did aggravate claimant's pre-existing foot condition. Decision and Order at 11, 13; Cl. Ex. 9 at 2 Emp. Ex. 29 at 34. The administrative law judge rationally determined that claimant failed to satisfy his burden of establishing that the specific work injury in fact aggravated his condition based on the record as a whole. See Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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