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                                  BRB No. 01-0693
                                        
                                        
LEON BOLDEN                             )
                                        )
          Claimant-Petitioner           )
                                        )
     v.)                                 
                                        )
INGALLS SHIPBUILDING,                   )    DATE ISSUED:   05/16/2002
                                             
INCORPORATED                            )
                                        )
          Self-Insured Employer-)        
          Respondent                    )    DECISION and ORDER

     Appeal of the Decision and Order on Remand of C. Richard Avery,
     Administrative Law Judge, United States Department of Labor.
     
     Ellen Turner, Mobile, Alabama, for claimant.
     
     Paul M. Franke, Jr. (Franke, Rainey & Salloum, P.L.L.C.), Gulfport,
     Mississippi, for employer.
     
     Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand (1998-LHC-1373) of
Administrative Law Judge C. Richard Avery 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).

     This is the second time this case has come before the Board.  To reiterate,
claimant worked as an electrician and material runner for employer for over 19
years, excluding layoffs.  He testified that in early 1995 he began suffering from
tightness, numbness and pain in his feet and legs.  In February 1995, he was
evaluated by a chiropractor who considered the problem to be caused by a back
condition and referred claimant to an orthopedic surgeon.  The surgeon, Dr. Semon,
diagnosed a ruptured or bulging disc and performed a discography and percutaneous
discectomy in May 1995.   The procedure was unsuccessful, so Dr. Semon recommended
an open laminectomy.  Cl. Ex. 1.  In August 1995, claimant declined further
invasive procedures, and he changed doctors.  Dr. Fontana, his treating orthopedic
surgeon, confirmed the previous diagnosis and also diagnosed degenerative disc
disease.  Emp. Ex. 15 at 11-12.  Claimant, who has not worked since May 1995, filed
a claim for benefits in September 1995.[1] 

     The administrative law judge found that claimant failed to give timely notice
of the injury to employer under Section 12(a) of the Act, 33 U.S.C. §912(a). 
Decision and Order at 8.  He then found that Section 12(d), 33 U.S.C. §912(d),
did not apply to excuse claimant's failure to give timely notice because employer
had no knowledge of the work-relatedness of the injury due to claimant's
certification on his health insurance forms that the injury was non-industrial and
that it was due to a non-work-related 1988 injury.  He also found that employer was
prejudiced by the late notice, as employer was prevented from effectively
investigating the claim, obtaining a second opinion regarding the origin of the
back condition prior to surgery or participating in claimant's medical care.
Id. at 9-10.  Consequently, the administrative law judge denied the claim,
id. at 10-11, and summarily denied claimant's motion for reconsideration. 
Claimant appealed the decision.

     The Board held that the administrative law judge erred in failing to ascertain
whether claimant's back injury constituted a traumatic injury or an occupational
disease so as to determine which limitations period under Section 12(a) is
applicable to this situation.  The Board also held that the administrative law
judge should have made a finding as to the date on which claimant became aware of
the relationship between his injury, his disability and his employment. 
Specifically, the Board stated it was necessary to know the date on which claimant
had reason to know of a likely impairment to his earning capacity, as it is
impossible to assess whether claimant's claim was timely without this date.  The
Board vacated the administrative law judge's decision, and remanded the case for
him to consider these issues, granting claimant the benefit of the Section 20(b),
33 U.S.C. §920(b), presumption that his notice was timely filed.  Although the
Board remanded for reconsideration of the Section 12(a) timeliness issue, it
affirmed the administrative law judge's finding that Section 12(d)(1), 33 U.S.C.
§912(d)(1), does not apply to excuse an untimely notice under Section 12(a),
and that Section 12(d)(2), 33 U.S.C. §912(d)(2), also would not apply if the
administrative law judge found a date of awareness prior to claimant's undergoing
surgery.  The Board also remanded the case for the administrative law judge to
consider whether claimant is entitled to medical benefits, as those benefits are
never time-barred. Bolden v. Ingalls Shipbuilding, Inc., BRB No. 00-465
(Jan. 26, 2001).

     On remand, the administrative law judge found that claimant's back injury is
a traumatic injury, not an occupational disease, and that such a classification
requires a notice of injury to be filed within 30 days of the date of awareness
under Section 12(a).  With regard to the date of awareness, the administrative law
judge concluded that claimant was aware of the relationship between his injury, his
disability and his employment when he first treated with Dr. Wetzel, his
chiropractor, in February 1995, and, if not then, certainly by May 1995, when he
ceased work and was under the care of Dr. Semon.  Decision and Order on Remand at
3.  The administrative law judge applied the Section 20(b) presumption, but found
it rebutted by statements on claimant's insurance forms certifying that the injury
was not work-related.  Therefore, he found that the filing of a notice of injury
in September 1995, more than 30 days after either February or May 1995, made the
notice untimely.  Accordingly, he denied the claim for disability benefits. 
Decision and Order on Remand at 4, 7.

     In addressing the claim for medical benefits, the administrative law judge
found that claimant invoked the Section 20(a), 33 U.S.C. §920(a), presumption
relating his injury to his employment, but that employer rebutted the presumption. 
On the record as a whole, the administrative law judge found that claimant failed
to satisfy his burden of proof, giving greatest weight to claimant's assertions on
his insurance forms and to his doctors' opinions, based on the history given by
claimant, that the injury was not related to his work.  Thus, the administrative
law judge concluded that claimant's injury was not caused by or related to his
employment, and he denied medical benefits.[2]  
Id. at 4-6.   Claimant appeals, and employer responds, urging affirmance.

     Claimant first challenges the administrative law judge's findings with regard
to the cause of claimant's injury.  Specifically, claimant contends he is entitled
to the Section 20(a)  presumption and that employer has not presented substantial
evidence to rebut that presumption.  In determining whether an injury is work-related, a claimant is aided by the Section 20(a) presumption, which may be invoked
only after he establishes a prima facie case.  To establish a prima
facie case, the claimant must show that he sustained a harm or pain and that
conditions existed or an accident occurred at his place of employment which could
have caused the harm or pain. Gooden v. Director, OWCP, 135 F.3d 1066, 32
BRBS 59(CRT) (5th Cir.1998); Kelaita v. Triple A Machine Shop, 13 BRBS 326
(1981); see also U.S. Industries/Federal Sheet Metal, Inc. v. Director,
OWCP, 455 U.S. 608, 14 BRBS 631 (1982).  Once the claimant establishes a
prima facie case, Section 20(a) applies to relate the injury to the
employment, and the employer can rebut this presumption by producing substantial
evidence that the injury was not caused or aggravated by the employment. Conoco,
Inc. v. Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir.
1999); see also American Grain Trimmers v. Director, OWCP [Janich], 181 F.3d
810, 33 BRBS 71(CRT) (7th Cir. 1999) (en banc), cert. denied, 120
S.Ct. 1239 (2000); Gooden, 135 F.3d 1066, 32 BRBS 59(CRT).  If the employer
rebuts the presumption, it no longer controls and the issue of causation must be
resolved on the evidence of record as a whole, with the claimant bearing the burden
of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256, 31 BRBS
119(CRT) (4th Cir. 1997); see also Director, OWCP v. Greenwich Collieries,
512 U.S. 267, 28 BRBS 43(CRT) (1994).

     In this case, the administrative law judge properly invoked the Section 20(a)
presumption, as claimant testified that he performed heavy labor at work and these
work activities could have caused the uncontested harm to his back.  Decision and
Order on Remand at 4.  As claimant established a prima facie case, the
burden shifted to employer to produce substantial evidence that claimant's
condition is not related to his work.  The administrative law judge found that
employer rebutted the presumption based on the  following evidence:  a) claimant's
and Dr. Semon's statements on claimant's group health insurance forms relating the
injury to a non-industrial fall in 1988; b) claimant's statements to his doctors
that the injury was caused by that 1988 fall; c) claimant's admission that he did
not know the cause of his injury; and d) the doctors' opinions that everyday living
activities can cause claimant's condition. Id. at 4-5.

     As the administrative law judge stated, the record contains copies of
claimant's group health insurance forms dated between June 23 and September 25,
1995, all of which certify, by the checking of a box, that claimant's injury was
not due to his employment and some of which indicate that claimant had this
condition since 1988.  The forms were signed by either claimant or by Dr. Semon. 
Emp. Ex. 7.  There also is evidence of record establishing that claimant told both
Drs. Semon and Fontana that the injury was related to a fall in 1988, and testimony
from the doctors that neither had reason to doubt claimant's assertions.  Cl. Ex.
6; Emp. Exs. 10, 12, 15.  Further, the record contains evidence establishing that
because claimant was unsure of the cause of his back problems, he did not want to
lie and tell the doctors or the insurance company that the condition was work-related if it was not and apparently he believed he would have to lie to file a
workers' compensation claim because employer had advised him that in order to file
a claim he would have to provide the exact date of the injury.  Emp. Ex. 14 at 64;
Decision and Order at 4.  Emp. Ex. 14 at 73; Tr. at 93.  Finally, both doctors
testified that claimant's back condition could have been caused by regular wear and
tear from everyday activities.  Cl. Ex. 6 at 26, 43; Emp. Ex. 15 at 59.  The issue
before the Board, therefore, is whether the evidence cited by the administrative
law judge constitutes substantial evidence rebutting the Section 20(a) presumption. 
We hold that it does not.

     In order to rebut the Section 20(a) presumption, an employer is required to
present:

     substantial evidence that the injury was not caused by the
     employment.  When an employer offers sufficient evidence to rebut the
     presumption   the kind of evidence a reasonable mind might accept as
     adequate to support a conclusion   only then is the presumption
     overcome. . . .

Prewitt, 194 F.3d at 690, 33 BRBS at 191(CRT) (quoting Noble Drilling Co.
v. Drake, 795 F.2d 478, 481, 19 BRBS 6, 8(CRT) (5th Cir. 1986)); see also
Gooden, 135 F.3d at 1068, 32 BRBS at 61(CRT).  An opinion that is equivocal as
to etiology is insufficient to rebut the Section 20(a) presumption. Phillips v.
Newport News Shipbuilding & Dry Dock Co., 22 BRBS 94 (1988).  Moreover, the
evidence must be more than mere speculation. Smith v. Sealand Terminal,
Inc., 14 BRBS 844 (1982); Williams v. Chevron U.S.A., Inc., 12 BRBS 95
(1980).  In this case, the administrative law judge provided four bases for
rebuttal; turning to the last two reasons first, we hold neither is sufficient. 
Clearly,  the fact that claimant was unsure of the etiology of his back condition
cannot meet employer's burden of producing substantial evidence that claimant's
condition was not caused or aggravated by claimant's employment.  Moreover, that
both doctors agreed the condition could be related to everyday activities does not
constitute sufficient evidence to rebut the presumption, particularly as claimant's
everyday activities would include the heavy work asserted as at least an
aggravating factor in his condition.

     The remaining bases for rebuttal involve claimant's relating his condition to
a fall outside work in 1988.  Claimant's statements to his doctors, while providing
insight as to what he thought might be the reason for his condition,  are not
substantial evidence that his condition is not in fact work-related.  Claimant is
not a medical expert, and he cannot be expected to be aware of all the possible
manners in which his condition could arise, become symptomatic or worsen.  Thus,
claimant's beliefs regarding medical causality do not satisfy employer's burden to
produce evidence.  While it was certainly rational for claimant's doctors to rely
on his history in forming an opinion, neither his statements, nor the doctors'
reliance thereon, are sufficient to overcome the presumption that claimant's injury
is related to his employment, as neither doctor ever stated with any degree of
medical certainty that claimant's work did not aggravate or exacerbate his
condition.[3] Janich, 181 F.3d at 818-819,
33 BRBS at 77(CRT); Taylor v. Smith & Kelly Co., 14 BRBS 489 (1981).  The
absence of medical evidence stating that claimant's back condition was not
aggravated by claimant's work is especially significant in this case.  If indeed
claimant initially injured his back in 1988, it is employer's burden to produce
substantial evidence  that claimant's continued work until 1995 did not aggravate
the prior condition, see Hensley v. Washington Metropolitan Area Transit
Authority, 655 F.2d 264, 13 BRBS 182 (D.C. Cir. 1981), cert. denied, 456
U.S. 904 (1982), as employer is liable for claimant's entire disability if
claimant's work aggravated a prior condition. See generally Strachan Shipping
Co. v. Nash, 782 F.2d 513, 18 BRBS 45(CRT) (5th Cir. 1986)(en banc). 
Employer produced no such medical evidence in this case.

     Similarly, Dr. Semon's checking the box on the insurance forms, indicating
that the condition was not work-related, is not sufficient evidence of rebuttal in
light of his testimony.  See Devine v. Atlantic Container Lines, G.I.E., 23
BRBS 279 (1990) (Lawrence, J., dissenting).  Standing alone, none of the forms
constitutes a reasoned medical opinion.  In explaining his opinion, although he did
not have a history from claimant of a specific injury at work that could have
caused claimant's back condition, and he presumed the cause was something other
than claimant's work, Dr. Semon testified that claimant's work could have caused,
aggravated or exacerbated claimant's condition.  Cl. Ex. 6 at 20, 36-37, 43, 45. 
This testimony makes any "opinion" rendered on the insurance forms equivocal at
best.  Similarly, Dr. Fontana, who also stated that claimant's injury was not work-related based on claimant's history, could not say with any degree of medical
certainty that claimant's condition was or was not related to his employment.  Emp.
Ex. 15 at 55-56.[4]   Thus, the evidence cited by
the administrative law judge does not rebut the Section 20(a) presumption relating
claimant's back condition to his employment. See Taylor, 14 BRBS 489.  As
employer has failed to produce evidence to overcome the presumption that claimant's
back condition is related to his employment, we hold that claimant's condition is
work-related as a matter of law. Janich, 181 F.3d at 818, 33 BRBS at
77(CRT).  Accordingly, we reverse the administrative law judge's denial of medical
benefits, and we remand the case for further consideration.

     Claimant next contends the administrative law judge erred in finding the claim
for disability benefits barred by Section 12(a) of the Act.  Specifically, claimant
argues that he first became aware of the full effect the injury would have on his
ability to earn wages sometime after August 21, 1995, when Dr. Semon scheduled
claimant for a lumbar myelogram and contrast CT scan, or August 28, 1995, when he
declined further invasive procedures.[5]   As those
dates are within 30 days of the date on which claimant filed his claim for
compensation, he asserts that the notice to employer was timely.  Alternatively,
claimant argues that his condition is an occupational disease and that, therefore,
he had one year within which to notify employer of his condition.

     On remand, the administrative law judge specifically found that claimant's
condition is the result of a traumatic injury, as the record contains no evidence
that claimant's condition is "peculiar to his particular line of work. . . ." 
Decision and Order on Remand at 3. See LeBlanc v. Cooper/T. Smith Stevedoring,
Inc., 130 F.3d 157, 31 BRBS 195(CRT) (5th Cir. 1997); Gencarelle v. General
Dynamics Corp., 892 F.2d 173, 23 BRBS 13(CRT) (2d Cir. 1989).  Accordingly, he
found that claimant had 30 days within which to notify employer of his work-related
injury.  We hold that the administrative law judge's finding on this point is
supported by the evidence and comports with law. Id.  Claimant suffered a
back injury, and the administrative law judge's conclusion that claimant did not
establish that a back injury of this type is "peculiar to" claimant's employment
or to a specific class of employees is rational.

     Under Section 12(a) of the Act, a claimant who sustains a traumatic injury is
required to file a notice of injury within 30 days of the date on which he became
aware, or should have become aware, of the relationship between his injury and his
employment.  33 U.S.C. §912(a); see Bechtel Associates, P.C. v.
Sweeney, 834 F.2d 1029, 20 BRBS 49(CRT) (D.C. Cir. 1987); 20 C.F.R.
§702.212(a).  The claimant is entitled to the presumption that the notice was
timely filed, and the burden of establishing that his notice was untimely is on the
employer.  33 U.S.C. §920(b); Shaller v. Cramp Shipbuilding & Dry Dock
Co., 23 BRBS 140 (1989).  If the employer establishes that the notice was not
filed in a timely manner, the late filing may be excused pursuant to Section 12(d)
of the Act, 33 U.S.C. §912(d).[6]    In order
to determine whether a notice of injury was timely filed, the administrative law
judge must make a specific determination as to the date on which claimant became
aware, or should have become aware of the true nature of his condition,
i.e., awareness of the relationship between his injury, his employment, and
the likely impairment of his wage-earning capacity. See, e.g., Marathon Oil Co.
v. Lunsford, 733 F.3d 1139, 16 BRBS 100(CRT) (5th Cir. 1984); Bivens v.
Newport News Shipbuilding & Dry Dock Co., 23 BRBS 233 (1990).

     On remand, the administrative law judge stated that he believed there were two
possible scenarios regarding claimant's date of awareness:  either claimant's
condition was not work-related, which is why he continued to report that it was not
due to his work, or it was work-related and claimant knew this by February 1995
when he sought treatment or at the latest by May 1995 when he stopped working and
was under Dr. Semon's care; in either event, his filing in September 1995 was
untimely.  Decision and Order on Remand at 3-4.  The administrative law judge  also
summarily stated that the Section 20(b) presumption was rebutted, and he found that
when the evidence was weighed as a whole, claimant should have known his condition
was work-related "months before" he gave employer notice. Id. at 4.  The
administrative law judge gave great weight to the following facts: a) claimant was
unable to continue work because of his pain; b) claimant was unsure of the true
source of his injury; c) doctors relied on claimant's statements regarding the
cause of his condition; and d) claimant and Dr. Semon certified on health insurance
forms that the condition was 
not work-related.  Further, after having filed a claim for compensation on
September 11, 1995, claimant filed another health insurance claim form on September
25, 1995, certifying that his back condition was not related to his employment, and
he told Dr. Fontana in November 1995 that the condition was related to a fall in
1988.  Cl. Ex. 7; Emp. Ex. 12.

     We agree with claimant that the administrative law judge's finding that his
notice of injury was untimely cannot be affirmed.  Rather than supporting the
administrative law judge's conclusion that claimant knew his condition was work-related at the latest by May 1995, but did not act on that knowledge until
September 1995, the facts the administrative law judge gave greatest weight to
support only the opposite conclusion:  claimant did not know his condition was
work-related prior to September 11, 1995.  Indeed, claimant continued to relate the
injury to a 1988 fall rather than to his work, thereby establishing his continued
unawareness of the relationship between his injury and his employment. 
Moreover, there is no medical evidence of record suggesting claimant should have
been aware of the relationship of his injury and his employment prior to the time
claimant gave employer notice of his injury.  In particular, the evidence cited by
the administrative law judge involving claimant's continued certification on
insurance forms that his condition was not work-related is insufficient to rebut
the Section 20(b) presumption.[7]   Under Section
20(b) employer was required to produce evidence that claimant was aware more than
30 days prior to his providing notice.  As employer did not produce even a
scintilla of evidence  demonstrating claimant's awareness that his back problems
were work-related at that time, we must reverse the administrative law judge's
finding that claimant's claim for compensation is barred for lack of compliance
with Section 12(a).  As claimant's notice was timely, the case must be remanded for
consideration of the merits of the claim.


     Accordingly, the administrative law judge's Decision and Order on Remand is
reversed.  The case is remanded for the administrative law judge to address any
remaining  issues raised by the parties.

     SO ORDERED.


                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge


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Footnotes.


1)Doctors agree claimant cannot return to his usual work due to his back condition and vascular disease in both legs. Claimant also has a three percent pre-existing permanent partial disability due to a work-related wrist injury. Cl. Ex. 1; Emp. Ex. 15 at 34, 46, 49. Back to Text
2)In a footnote, the administrative law judge stated that, had claimant's claim been timely, he would have denied disability benefits as well because the injury is not related to claimant's employment. Id. at n.1. Back to Text
3)In stating claimant's condition was not caused by a work event, both Drs. Fontana and Semon stated that their opinions were based solely on claimant's history relating his condition to a 1988 fall and his not mentioning his work as a factor. Cl. Ex. 6; Emp. Ex. 15. Both also acknowledged claimant's heavy work could aggravate a degenerative condition, and neither stated to a reasonable degree of medical certainty a belief that claimant's condition was not aggravated or exacerbated by his work. Back to Text
4)When asked what would be "more likely than not the etiology of [claimant's] complaints to his low back," Dr. Fontana responded "from the history I have it's basically just wear and tear and degenerative disk disease." Id. at 15-16. For the remainder of the deposition, both lawyers tried to get a definitive answer as to the role claimant's work played. Dr. Fontana clearly could not relate claimant's back problems to an accident at work, nor would he affirmatively state the condition was related to claimant's usual heavy labor. On the other hand, he never affirmatively stated it was not related to heavy labor or that claimant's degenerative disk disease was not aggravated by his work. Perhaps Dr. Fontana's most definitive statement was "there is no way to say what caused his back problem." Id. at 18-19. Given the absence of any statement that, to a reasonable degree of probability claimant's work did not aggravate his back, Dr. Fontana's opinion cannot meet employer's burden of production. Back to Text
5)Claimant testified that he returned to work sometime between August 28 and November 30, 1995, but he could not continue because of the pain and that it was only after that failed attempt that he learned he should not return to his usual work. Tr. at 74. Back to Text
6) 6Section 12(d) of the Act, 33 U.S.C. §912(d), provides in pertinent part: Failure to give such notice shall not bar any claim under this chapter (1) if the employer . . . or the carrier had knowledge of the injury or death, (2) the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (3) if the deputy commissioner excuses such failure. . . . The promulgating regulation permits an administrative law judge to determine whether an employer has been prejudiced, and it states that "actual knowledge" of the injury is deemed to exist if the claimant's immediate supervisor is aware of the injury. 20 C.F.R. §702.216. Back to Text
7)The administrative law judge erred in relying on the Board's holding that claimant's certification on his health insurance forms rebutted Section 20(b) with regard to employer's knowledge of an injury under Section 12(d)(1) and transferring this conclusion to Section 12(a). When the issue is employer's knowledge, claimant's statements that an injury is not work-related prevents employer from knowing of a work-related injury and thus such evidence rebuts Section 20(b) with regard to Section 12(d)(1). Under Section 12(a), however, the issue is claimant's awareness, and the fact that claimant attributed his condition to non-work causes simply is not evidence he knew or should have known it was work-related. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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