Skip to page content
Benefits Review Board
Bookmark and Share

                                 BRB No. 98-1083

DELORIS POSEY                           )
          Claimant-Petitioner           )
                                        )    DATE ISSUED:   05/03/1999
NAVY EXCHANGE                           )
     and                                )
CRAWFORD AND COMPANY                    )
          Employer/Carrier-             )    
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Awarding Benefits and Decision and
     Order Denying Motion for Reconsideration of Daniel L. Stewart,
     Administrative Law Judge, United Department of Labor.

     Deloris Posey, pro se, National City, California.

     Eugene L. Chrzanowski (Littler Mendelson), Long Beach, California, for

     Before: HALL, Chief Administrative Appeals Judge, SMITH and BROWN,
     Administrative Appeals Judges.


     Claimant, representing herself, appeals the Decision and Order Awarding
Benefits and Decision and Order Denying Motion for Reconsideration of
Administrative Law Judge Daniel L. Stewart 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).  In an appeal by a claimant without
representation by counsel, the Board will review the administrative law judge's
findings of fact and conclusions of law to determine if they are rational, 
supported by substantial evidence, and in accordance with law.  33 U.S.C.
§921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).

     Claimant, a security guard, suffered two injuries to her left knee on June 26
and July 29, 1991; she also alleged a psychological stress condition arising out
of a confrontation with her supervisor on January 11, 1993, during the course of
her employment.  Claimant's position with this employer was abolished December 9,
1993, and she remained unemployed at the time of the initial hearing in July 1994. 
Following that hearing, Administrative Law Judge Lindeman found that claimant's
left knee condition became permanent and stationary before January 1993, and that
claimant was not entitled to any permanent partial disability compensation for her
knee due to the absence of a permanent impairment rating.  He found claimant
entitled to compensation for a temporary total disability from May 3 to June 23,
1993, for a work-related stress condition, as well as payment for treatment
provided by Dr. Fernandez, unpaid hospital bills, psychotherapy until December 18,
1993, and the contemplated knee surgery.  He also concluded that claimant suffered
no discrimination under Section 49 of the Act, 33 U.S.C. §948.  The
administrative law judge denied employer's subsequent motion for reconsideration.

      Claimant underwent the knee surgery authorized by Administrative Law Judge
Lindeman on March 28, 1995.  On March 17, 1995, she obtained employment as a
security guard with the San Diego Job Corps, a position which she held until she
was terminated December 6, 1995, at the end of her probationary period.  Claimant
worked as a certified nurses' assistant for Castle Manor from December 31, 1995
until January 13, 1996, when she injured her back and knee and quit.[1]  

     In the current proceeding, claimant sought compensation for a permanent total
disability from December 6, 1995, and continuing, except for her brief period of
employment as a certified nurses' assistant, as well as payment of  past and future
medical bills, including a rehabilitation program and specified knee and abdominal
tests.  In his decision, Administrative Law Judge Stewart (the administrative law
judge) determined that claimant was entitled to compensation from March 28 to July
7, 1995, when she returned to her pre-surgery position as a security guard with the
Job Corps, and that she suffered no permanent disability arising from her knee
surgery after August 11, 1995, the date of maximum medical improvement.  He further
found that claimant's psychiatric and/or gastrointestinal problems, if any, were
unrelated to her knee condition, and any treatment associated with these conditions
was, therefore, not compensable under the Act.  He also stated that he could not
address claimant's contentions under Section 14(f), 33 U.S.C. §914(f), because
this issue must be first raised before the district director.  Finally, he denied
claimant's attorney a fee.

     On reconsideration, the administrative law judge refused to admit into
evidence the opinions of Drs. Soliman and Kumar, as he found they were submitted
too long after the record had been closed, as well as not being probative of the
issues.  He further found that the factual disputes raised by claimant did not
provide a legal basis to amend or set aside his prior decision.

     Claimant now appeals without legal representation, contending that the
administrative law judge erred in denying her continuing disability compensation.[2]   Employer responds, urging affirmance.

     In his Decision and Order, the administrative law judge initially concluded
that claimant was not totally disabled subsequent to July 7, 1995, and that she had
no permanent impairment to her left knee.  He based this conclusion upon the
credited opinions of Drs. Fernandez and  Dodge who, after finding no anatomical
impairment to claimant's knee, opined that claimant could return to work as  a
security guard.  The administrative law judge  also noted that Dr. Kellerhouse
stated that claimant's 1996 MRI was basically normal.

     With regard to claimant's ability to work, both Drs. Fernandez and Dodge
opined that claimant was capable of performing her pre-injury and pre-surgery jobs
as a security guard, as well as the nurses' assistant position, and that any
restrictions claimant may have do not limit either her work or life activities.
See CXS 26, 47.  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 & Const. Co., 17 BRBS 56 (1985).  In order to establish a prima
facie case of total disability, claimant must establish that she is incapable
of returning to her regular or usual employment due to her work-related injury.
See Blake v. Bethlehem Steel Corp., 21 BRBS 49 (1988).   In the instant
case, the administrative law judge's finding that claimant is capable of performing
her prior job as a security job is supported by the opinions of Drs. Dodge and
Fernandez.  An administrative law judge is entitled to evaluate the testimony of
all witnesses, including medical experts,  and to draw his own inferences from the
evidence. See John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961);
Wheeler v. Interocean Stevedoring, Inc., 21 BRBS 33 (1983). As it is
supported by substantial evidence, we affirm the administrative law judge's
determination that claimant was capable of resuming her work as a security guard
as of July 7, 1995, and his consequent denial of benefits for total disability.  

     We hold, however, that the administrative law judge erred in finding no
permanent impairment based on these opinions and thus in failing to specifically
address claimant's entitlement to an award under the schedule for a permanent
partial disability to her lower left extremity.  A schedule award for loss of use
of the leg, 33 U.S.C. §908(c)(2), is the exclusive remedy for permanent
partial disability to this member. See Potomac Electric Power Co. v. Director,
OWCP, 449 U.S. 268, 14 BRBS 363 (1980).  Awards under the schedule are based
on medical impairment; economic loss is not considered. Gilchrist v. Newport
News Shipbuilding & Dry Dock Co., 135 F.3d 915, 32 BRBS 15 (CRT)(4th Cir.

     In the instant case, both Drs. Fernandez and Dodge opined that claimant
suffered a rateable impairment.  Specifically, Dr. Fernandez opined that claimant
had sustained a 3 percent impairment rating to the whole person based upon a 7
percent impairment rating of her lower extremity.  CX 77.  Dr. Dodge opined that
claimant had a 1 percent impairment of the whole person pursuant to a 2 percent
impairment of the lower extremity.  EX 92.   Thus, the medical opinions credited
by the administrative law judge support an award under Section 8(c)(2).  The fact
that these ratings were based on other factors than anatomical impairment is
irrelevant, as the schedule is not limited in this manner. See Pimpinella
v.Universal Maritime Service, Inc., 27 BRBS 154 (1993).  We therefore vacate
the administrative law judge's finding that claimant has no permanent disability
due to her knee injury and remand this case for reconsideration of claimant's
entitlement to disability and medical benefits for her knee.

     Next, the administrative law judge determined that claimant's gastrointestinal
complaints and psychiatric condition are unrelated to her work injury and/or her
consequent knee surgery and therefore are not compensable.  In so concluding, the
administrative law judge failed to apply the Section 20(a), 33 U.S.C. §920(a),
presumption with regard to causation.  Claimant has the burden of proving the
existence of an injury or harm, and that a work-related accident occurred or that
working conditions existed which could have caused the harm, in order to invoke
Section 20(a). Obert v. John T. Clark & Son of Maryland, 23 BRBS 157 (1990);
Kelaita v. Triple A Machine Shop, 13 BRBS 326 (1981).  It is claimant's
burden to establish the prerequisites for invoking Section 20(a) by affirmative
proof. See Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989); see
also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43
(CRT)(1994). Once she does so, the Section 20(a) presumption applies to link the
harm or pain with claimant's employment. Perry v. Carolina Shipping Co., 20
BRBS 90 (1987).  Under Section 20(a),  the burden then shifts to employer to
present specific and comprehensive evidence sufficient to sever the causal
connection between the injury and the employment. See Swinton v. J. Frank Kelly,
Inc., 554 F.2d 1075, 4 BRBS 466     (D.C. Cir.), cert. denied, 429 U.S.
20 (1976).  If employer rebuts the presumption, it falls from the case, and the
administrative law judge must weigh the relevant evidence in the record as a whole.
See Del Vecchio v. Bowers,  296 U.S. 280  (1935).

     With regard to her gastrointestinal complaints, claimant asserts that due to
her knee injury and surgery, she takes prescription and over-the-counter
medications for pain, and these medications have caused her gastrointestinal
problems.  Claimant's physicians of record, Drs. Fernandez, CX 77, Wiener, CXS 53-54, and Greenberger, HT 249-50,  concurred that claimant's prescribed pain
medication could cause such gastrointestinal problems.  Claimant has thus
demonstrated a prima facie case for invocation of the Section 20(a)
presumption, as she has demonstrated  both a harm, i.e., gastrointestinal
problems, and a potential work-related cause, i.e., her knee surgery and
resulting  pain medications, which could have caused this harm. The administrative
law judge erred by failing to consider this issue in light of the Section 20(a)
presumption.  Moreover, the administrative law judge, after stating that claimant's
doctors opined that claimant's medications for her knee could have caused her
problems, inexplicably concluded that because claimant is taking medications for
"nonindustrial illnesses," Decision at 45, any side effects sustained are not
compensable.  As a result of his failure to analyze the issue in accordance with
Section 20(a) or to reach a conclusion supported by the cited evidence, the
administrative law judge's determination that claimant's gastrointestinal problems
are unrelated to her work injury is vacated.  The case is remanded for
reconsideration consistent with Section 20(a) and the evidence.

     The administrative law judge also erred in his consideration of claimant's
psychiatric condition.  Initially, he again did not apply Section 20(a).  In
addition, he considered only whether the psychological condition was related to her
knee injury and/or surgery.  In her initial claim, however, claimant sought and was
awarded compensation for an emotional stress condition arising out of her previous
employment.  With regard to her psychological problems, claimant also established
the elements necessary to invoke Section 20(a), as the condition constitutes a
harm, and she established two separate work events which could have caused it,
i.e., the knee injury and workplace stress.  Thus, the case must be remanded
for Section 20(a) to be applied.

     In addition, although the administrative law judge noted claimant's long
history of emotional problems pre-dating her stress injury of 1993, he failed to
properly apply the aggravation rule, which provides that where an injury at work
aggravates, accelerates or combines with a prior condition, the entire resultant
disability is compensable.  This rule applies not only where the underlying
condition itself is affected but also where the injury "aggravates the symptoms of
the process." Pittman v. Jeffboat, Inc. 18 BRBS 212, 214 (1986).  Thus, the
case is remanded for the administrative law judge to reconsider whether  claimant's
current psychological condition is related to either the earlier stress incident
or to her knee injury in accordance with Section 20(a), and the aggravation rule. 
Accordingly, we vacate the administrative law judge's findings that claimant's
psychiatric condition is unrelated to her knee surgery and thus not compensable and
remand for reconsideration under the proper standards.[3] 

     We will next address the administrative law judge's decision not  to admit
into evidence reports which claimant attempted to submit post-hearing;
specifically, the administrative law judge declined to admit the evidence at issue
because it was submitted well after the record had closed.  The Act's regulations,
20 C.F.R. §§702.338, 702.339, afford administrative law judges
considerable discretion in ruling on requests for the admission of evidence into
the record. Wayland v. Moore Dry Dock, 21 BRBS 177, 180 (1988).  Moreover,
a party seeking to have evidence admitted  must exercise diligence in developing
its claim. See Smith v. Ingalls Shipbuilding Div., Litton Systems, Inc., 22
BRBS 46, 50 (1989); Sam v. Loffland Brothers Co., 19 BRBS 228, 230 (1987). 
In the instant case, we hold that  the administrative law judge did not abuse his
discretion in declining to admit claimant's post-hearing evidence into the record;
accordingly, claimant's contention of error is rejected. See Smith, 22 BRBS
at 50.

     Additionally, we hold that the  administrative law judge committed no
reversible error  in failing to address claimant's allegation that employer is
liable for a penalty under Section 14(f), 33 U.S.C. §914(f).  In the instant
case, the administrative law judge properly stated that a request for a Section
14(f) penalty must first be directed to the district director.  See Richard v.
General Dynamics Corp.,  19 BRBS 48 (1986).  Accordingly, we affirm the
administrative law judge's conclusion that he could not address claimant's
contentions under Section 14(f), as that issue was raised for the first time before
him. See generally Sinclair v. United Food and Commercial Workers, 23 BRBS
148 (1989).

     Finally, claimant alleges that the administrative law judge demonstrated
prejudicial bias in his handling of her case.   We disagree.  Adverse rulings alone
are insufficient to demonstrate bias. Orange v. Island Creek Coal Co., 786
F.2d 724, 8 BLR 2-192 (6th Cir. 1986).  Moreover, claimant's references to alleged
instances of the administrative law judge's unfriendliness toward her witnesses
fail to rise to the level necessary to indicate prejudicial bias by the
administrative law judge. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98
(1988).   Thus, we hold that claimant has failed to demonstrate that the
administrative law judge's actions in the instant case were arbitrary, capricious,
or an abuse of discretion. See O'Keeffe, 380 U.S. at 359.
     Accordingly, the administrative law judge's findings regarding permanent
impairment to claimant's knee and the cause of her gastrointestinal and
psychological conditions are vacated, and the case is remanded for reconsideration
consistent with this opinion.  In all other respects, the administrative law
judge's decisions are affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

To Top of Document


1)Claimant was also employed as a certified nurses' assistant at Fredericka, where she took her nurses' training during January and February 1995. Back to Text
2)Claimant has submitted additional evidence which was not before the administrative law judge. The Board will not consider such evidence on appeal. See Nelson v. Stevedoring Services of America, 29 BRBS 90 (1995). If claimant has evidence of a change in condition or mistake in fact, she must file a petition under Section 22 of the Act, 33 U.S.C. §922, in order for it to be considered. Back to Text
3) 3Claimant's current psychological condition, however, would not be compensable if it were the result of a legitimate personnel action, i.e., the original reduction in force, Marino v. Navy Exchange, 20 BRBS 166 (1988), or of subsequent non-related intervening events. Wright v. Connolly-Pacific Co., 25 BRBS 161 (1991), aff'd, 8 F.3d 34 (9th Cir. 1993). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

To Top of Document