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                                 BRB No. 01-0710


CLIFFORD SLIGHTOM                       )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
NATIONAL MAINTENANCE AND                )
REPAIR                                  )
                                        )
     and                                )
                                        )
FRANK GATES ACCLAIM                     )    DATE ISSUED:   05/23/2002

                                        )
          Employer/Carrier-             )
          Respondents                   )    
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Party-In-Interest             )    DECISION and ORDER  

     Appeal of the Decision and Order and the Supplemental Decision and Order
     - Motion for Reconsideration of Donald W. Mosser, Administrative Law
     Judge, United States Department of Labor.

     Joseph E. Hoefert (Hoefert and Perica, P.C.), Alton, Illinois, for
     claimant.

     Gregory P. Sujack (Garofalo, Schreiber & Hart, Chartered), Chicago,
     Illinois, for employer/carrier.

     Before:  McGRANERY, HALL and GABAUER, Administrative Appeals Judges. 
     PER CURIAM:

     Claimant appeals the Decision and Order and the Supplemental Decision and
Order - Motion for Reconsideration (2000-LHC-1670) of Administrative Law Judge
Donald W. Mosser 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 if they 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).

     On November 8, 1994, claimant sustained injuries to his left and right upper
extremities while working for employer.  Claimant, who underwent five surgeries to
his left upper extremity and one surgical procedure to his right upper extremity,
returned to light duty work for employer in its tool room in June 1997. 

     In his Decision and Order, the administrative law judge found, inter
alia, that claimant had returned to light-duty employment with employer and,
therefore, did not have a continuing total disability.  The administrative law
judge next credited the medical report and testimony of Dr. Brigham and awarded
claimant temporary total disability compensation from March 28, 1995, through June
25, 1997, and permanent partial disability benefits thereafter for an eighteen
percent impairment to his left upper extremity and a one percent impairment to his
right upper extremity. See 33 U.S.C. §908(b), (c)(1).  In denying
claimant's subsequent motion for reconsideration, the administrative law judge
stated that, contrary to claimant's assertion, he had taken into consideration a
number of factors in evaluating the medical evidence, and that he continued to find
that Dr. Brigham's assessment of claimant's conditions was the most reasoned
medical opinion in the record.

     On appeal, claimant challenges the administrative law judge's determination
that he is entitled to permanent partial disability compensation based on an
eighteen percent impairment rating to his left upper extremity and a one percent
impairment rating to his right  upper extremity.  Specifically, claimant asserts
that the administrative law judge erred in crediting the opinion of Dr. Brigham
over the opinion of Dr. Perry.  Employer responds, urging affirmance 

     It is well-established that claimant bears the burden of establishing the
nature and extent of any disability sustained as a result of a work-related injury.
See Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v.
Lockheed Shipbuilding & Constr. Co., 17 BRBS 56 (1985).  Where, as here,
claimant has sustained an injury to a member specified in the schedule contained
in Sections 8(c)(1)-(20), 33 U.S.C. §908(c)(1)-(20), and he is not totally
disabled, claimant's permanent partial disability must be compensated under the
schedule.[1]   Potomac Electric Power Co. v.
Director, OWCP, 449 U.S. 268, 14 BRBS 363 (1980).  Awards under the schedule
are based on the percentage of permanent impairment sustained by the injured body
part. See, e.g., Pimpinella v. Universal Maritime Service, 27 BRBS 154
(1993). 

     We affirm the administrative law judge's determination of the degree of
compensable impairment sustained by claimant to his left and right upper
extremities.  In the instant case, in awarding claimant permanent partial
disability compensation based upon an eighteen percent impairment rating to
claimant's left upper extremity and a one percent impairment to claimant's right
upper extremity, the administrative law judge relied upon the opinion of Dr.
Brigham, which he found to be well-reasoned and ultimately supported by that of Dr.
MacKinnon.  In rendering this determination, the administrative law judge found
that Dr. Brigham wrote the companion textbook to the AMA Guides, and that
he serves as editor-in-chief of the AMA Guides Newsletter.[2]   Next, the administrative law judge addressed the
arguments raised by claimant regarding Dr. Brigham's testimony and report, and
concluded that Dr. Brigham's assessment of claimant's conditions was the most
reasoned medical opinion in the record.  In reaching this conclusion, the
administrative law judge further found that the Dr. Brigham's final ratings were
reviewed and approved by claimant's treating physician, Dr. MacKinnon.  In
contrast, the administrative law judge declined to rely upon the opinions of Drs.
Perry and Lipede, in part because those physicians did not adequately explain in
their respective opinions how they calculated claimant's  impairment ratings under
the AMA Guides.[3]       

     As claimant acknowledges on appeal, it is well-established that it is for the
administrative law judge, in adjudicating a claim, to determine the weight to be
accorded the medical evidence. See generally Calbeck v. Strachan Shipping Co.,
306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954 (1963); Todd
Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); John W. McGrath
Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961); Perini Corp. v. Heyde, 306
F.Supp. 1321 (D.R.I. 1969); Wheeler v. Interocean Stevedoring, Inc., 21 BRBS
33 (1988).  In the instant case, the administrative law judge fully evaluated the
medical opinions of record and ultimately gave determinative weight to Dr.
Brigham's opinion, which he found to be well-reasoned, in part based upon Dr.
Brigham's expertise regarding the use of the AMA Guides and the fact that
Dr. MacKinnon ultimately did not disagree with his findings.[4]   This  determination is rational and within the administrative law
judge's authority as factfinder; moreover, the credited evidence constitutes
substantial evidence supporting the administrative law judge's determination that
claimant suffers from an eighteen percent impairment to his left upper extremity
and a one percent impairment to his right upper extremity. See O'Keeffe, 380
U.S. 359.  

     We also reject claimant's contention that the administrative law judge erred
by failing to base claimant's scheduled award on the economic effects of his
injuries in addition to his medical impairments.  As we previously stated, the
schedule is the exclusive remedy for claimant's permanent partial disability.
Potomac Electric, 449 U.S. 268, 14 BRBS 363.  Awards under the schedule are
based on medical impairment and economic loss is not considered in determining the
degree of disability. Gilchrist v. Newport News Shipbuilding & Dry Dock Co.,
135 F.3d 915, 32 BRBS 15(CRT)(4th Cir. 1998).  Accordingly, as the
administrative law judge's decision to credit the opinion of Dr. Brigham is
rational, we affirm his award of permanent partial disability compensation for an
eighteen percent impairment to claimant's left upper extremity and a one percent
impairment to claimant's right upper extremity.

     Accordingly, the administrative law judge's Decision and Order and
Supplemental Decision and Order - Motion for Reconsideration are affirmed.

     SO ORDERED. 
    


                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         BETTY JEAN HALL
                         Administrative Appeals Judge



                                                                   
                         PETER A. GABAUER, Jr.
                         Administrative Appeals Judge

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Footnotes.


1)The administrative law judge's finding that employer established the availability of suitable alternate employment based on claimant's return to work in its tool room is unchallenged on appeal, and is therefore affirmed. Back to Text
2)The Act does not require impairment ratings based on medical opinions using the criteria of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) except in cases involving compensation for hearing loss and voluntary retirees. See 33 U.S.C. §§908(c)(13), 902(10); Pimpinella v. Universal Maritime Service, Inc., 27 BRBS 154 (1993). In this case, however, all four of the physicians' ratings were based on the AMA Guides. Back to Text
3)Dr. Perry, upon whom the claimant relies in support of his allegations of error, opined that claimant sustained a 40 percent impairment to each of his upper extremities. Back to Text
4)Contrary to claimant's assertions on appeal, the administrative law judge stated in his decision that he had considered claimant's symptoms, limitations, surgical interventions, and the fact that Dr. Brigham was a witness for employer when he considered the issue of the extent of claimant's disability. See Supplemental Decision and Order at 2. Additionally, the administrative law judge acknowledged that Dr. Brigham's opinion was based upon his review of the medical evidence and that Dr. Brigham admitted on cross-examination that, had he examined claimant, his assessment of claimant's condition would be more reliable. Nonetheless, he rationally chose to credit Dr. Brigham, and these two facts do not establish error in his weighing. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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