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                                 BRB No. 98-1199

TERRY L. PERKINS                   )
          Claimant-Petitioner           )
     v.                                 )
AVONDALE INDUSTRIES,                    )    DATE ISSUED:   05/24/1999 

INCORPORATED                            )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Granting Benefits of James W. Kerr,
     Jr., Administrative Law Judge, United States Department of Labor.  

     Tony B. Jobe, Madisonville, Louisiana, for claimant.

     Joseph J. Lowenthal (Jones, Walker, Waechter, Poitevent, Carrere &
     Denegre, L.L.P.), New Orleans, Louisiana, for self-insured employer.

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


     Claimant appeals the Decision and Order Granting Benefits (96-LHC-990) of
Administrative Law Judge James W. Kerr, Jr., 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.

     Claimant sustained an injury to his pelvis while working for employer on June
13, 1994.  Claimant has not returned to work since this injury occurred.  Claimant
initially selected Dr. Butler to be his treating physician; Dr. Butler thereafter
referred claimant to Dr. Doyle.  After treating with Dr. Doyle, claimant was
examined by Dr. Djuric on one occasion.  Employer voluntarily paid claimant
temporary total disability compensation from June 14, 1994 to September 4, 1995,
and permanent partial disability compensation thereafter, see 33 U.S.C.
§908(b), (c)(21), as well as all of claimant's medical charges excluding the
physical examination performed by Dr. Djuric.  33 U.S.C. §907.  Subsequently,
claimant sought ongoing total disability compensation under the Act.

     In his Decision and Order, the administrative law judge initially found that
claimant reached maximum medical improvement on November 7, 1995.  Next, the
administrative law judge determined that claimant failed to cooperate with
employer's vocational counselor, that employer established the availability of
suitable alternate employment, and that claimant sustained no loss of post-injury
wage-earning capacity; accordingly, the administrative law judge denied claimant's
claim for ongoing compensation benefits subsequent to February 10, 1995.  Lastly,
the administrative law judge concluded that since claimant had not sought
authorization for his examination by Dr. Djuric, employer is not required to
reimburse claimant for that visit.

     On appeal, claimant argues that the administrative law judge erred in failing
to reopen the record for the purpose of admitting post-hearing evidence. 
Additionally, claimant contends that the administrative law judge erred in finding
that his condition is permanent in nature, in addressing the issue of suitable
alternate employment, and in denying him reimbursement for the examination
performed by Dr. Djuric.  Employer responds, urging affirmance of the
administrative law judge's decision in its entirety.  

                         Admissability of Evidence

     Claimant initially contends that the administrative law judge erred in failing
to admit two written reports by Dr. Doyle into the record.  In support of this
contention, claimant asserts that these reports would establish that his physical
condition remains temporary in nature.  Although Dr. Doyle was listed as a
potential witness in claimant's November 8, 1995, pre-hearing statement, claimant
did not call Dr. Doyle as a witness at the July 28 and 29, 1997, formal hearing;
rather, the record was left open for claimant to acquire additional information
from that physician.  Thereafter, in an Order dated September 2, 1997, the
administrative law judge granted claimant an additional two and one-half months,
specifically until November 14, 1997, to conduct post-trial discovery.  Although
claimant secured an October 21, 1997, report from Dr. Doyle, he made no attempt to
submit this report into the record within the time frame set by the administrative
law judge.  Rather, after receiving a second report from Dr. Doyle on November 24,
1997, ten days after the record closed, claimant, on December 2, 1997, filed a
motion to reopen the record to admit the testimony and reports of Dr. Doyle.  In
an Order dated December 30, 1997, the administrative law judge denied claimant's
motion, implicitly finding, inter alia,  that, as one of Dr. Doyle's reports
which serves as the basis for claimant's motion was dated before the close of the
record, claimant had not diligently developed his claim.
     It is well-established that the administrative law judge has the discretion
to hold the record open after a hearing for the receipt of additional evidence;
however, a party seeking to have evidence admitted must exercise diligence in
developing its claim. See generally Smith v. Ingalls Shipbuilding Div., Litton
Systems Inc., 22 BRBS 46, 50 (1989); Sam v. Loffland Brothers Co., 19
BRBS 228, 230 (1987).  The Board has interpreted the relevant provisions of the
Act's implementing regulations, 20 C.F.R. §§702.338, 702.339, as
affording administrative law judges considerable discretion in ruling on requests
for the admission of evidence into the record. See Wayland v.  Moore Dry
Dock, 21 BRBS 177, 180 (1988).  In the instant case, claimant has failed to
establish that the administrative law judge abused his discretion in declining to
reopen the record, having held it open for several months after the hearing. 
Accordingly, claimant contention of error is rejected. See Smith, 22 BRBS
at 50.

                           Nature of Disability

     Claimant next challenges the administrative law judge's finding that he
reached maximum medical improvement on November 7, 1995.  Specifically, claimant
avers that the administrative law judge erred in relying upon the reports of Dr.
Doyle in reaching this conclusion.  For the reasons that follow, we affirm the
administrative law judge's finding.

     The determination of when maximum medical improvement is reached is primarily
a question of fact based on medical evidence. Eckley v. Fibrex & Shipping
Co., 21 BRBS 120 (1988); Ballesteros v. Willamette W. Corp., 20 BRBS 184
(1988).  A claimant's condition may be considered permanent when it has continued
for a lengthy period and appears to be of lasting and indefinite duration, as
opposed to one in which recovery merely awaits a normal healing period. Watson
v. Gulf Stevedore Corp., 400 F.2d 649 (5th Cir. 1968), cert. denied, 394
U.S. 976 (1969).  A finding of fact establishing the date of maximum medical
improvement must be affirmed if it is supported by substantial evidence. See
Mason v. Bender Welding & Machine Co., 16 BRBS 307 (1984).

     On November 7, 1995, approximately one year and five months after claimant's
accident,  Dr. Doyle, claimant's treating physician at the time, stated that
claimant's physical examination was relatively normal and she released claimant to
sedentary work. See CX-2 at 8.  Thereafter, on January 9, 1996, Dr. Doyle
similarly could not "find much clinically wrong" with claimant. See id. at
1.  Thus, the medical evidence relied upon by the administrative law judge reflects
that claimant's condition plateaued as of November 7, 1995. See generally
Louisiana Ins. Guaranty Ass'n Abbott, 40 F.3d 122, 29 BRBS 22 (CRT)(5th Cir.
1994), aff'g 27 BRBS 192 (1993).  Accordingly, as the record contains
substantial evidence to support the administrative law judge's determination that
claimant reached maximum medical improvement on November 7, 1995, we affirm that
finding. See Delay v. Jones Washington Stevedoring Co., 31 BRBS 197 (1998);
Ion v. Duluth, Missabe & Iron Range Railway Co., 31 BRBS 75 (1997);
Diosdado v. Newpark Shipbuilding & Repair, Inc., 31 BRBS 70 (1997).

                           Extent of Disability

     Next, claimant contends that, as his condition has not yet reached permanency,
the administrative law judge erred in addressing the issue of whether employer
established the availability of suitable alternate employment.  Claimant
additionally avers that it is premature to address the issues of his due diligence
in seeking post-injury employment and his loss of wage-earning capacity. 
Claimant's contentions are without merit.

     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.
Anderson v. Todd Shipyards Corp., 22 BRBS 20 (1989); Trask v. Lockheed
Shipbuilding & Const. Co., 17 BRBS 56 (1985).  Where, as in the instant case,
claimant is unable to perform his usual employment, claimant has established a
prima facie case of total disability, thus shifting the burden to employer
to establish the existence of realistically available job opportunities within the
geographical area where claimant resides which claimant, by virtue of his age,
education, work experience, and physical restrictions, is realistically able to
secure and perform. New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d
1031, 14 BRBS 156 (5th Cir. 1991); see also Avondale Shipyards, Inc. v.
Guidry, 967 F.2d 1039, 26 BRBS 30 (CRT)(5th Cir. 1992).

     Contrary to claimant's argument on appeal, an award of partial disability
compensation may be entered by the administrative law judge even if claimant's
condition is temporary in nature. See McKnight v. Carolina Shipping Co., 32
BRBS 165 (1998), aff'd on recon.  en banc, 32 BRBS 251 (1998). 
Specifically, an award of benefits for a temporary partial disability under Section
8(e), 33 U.S.C. §908(e), is based on a claimant's reduced earning capacity,
similar to an award under Section 8(c)(21), 33 U.S.C. §908(c)(21).[1]   See Johnson v. Newport News Shipbuilding &
Dry Dock Co., 25 BRBS 340 (1992).   Thus, as it is immaterial whether the
nature of claimant's condition was temporary or permanent, we hold that the
administrative law judge in the instant case properly considered the  issue of
whether employer met its burden of establishing the availability of suitable
alternate employment.  Moreover, as the administrative law judge's specific
findings that employer met its burden of establishing the availability of suitable
alternate employment, that claimant did not diligently seek work post-injury, and
that claimant sustained no loss of wage-earning capacity post-injury are not
challenged by claimant on appeal, these findings are affirmed.

                                 Section 7

     Lastly, claimant argues that the administrative law judge erred in determining
that employer is not liable for the medical charges incurred by claimant as a
result of his treatment with Dr. Djuric.  Section 7 of the Act, 33 U.S.C.
§907, describes an employer's duty to provide medical services necessitated
by its employee's work-related injuries.  Section 7(d) of the Act, 33 U.S.C.
§907(d), sets forth the prerequisites for an employer's liability for payment
or reimbursement of medical expenses incurred by claimant.  Section 7(d) requires
that a claimant request his employer's authorization for medical services performed
by any physician, including the claimant's initial choice. See Maguire v. Todd
Shipyards Corp., 25 BRBS 299 (1992); Shahady v. Atlas Tile & Marble, 13
BRBS 1007 (1981)(Miller, J., dissenting), rev'd on other grounds, 682 F.2d
968 (D.C. Cir. 1982), cert. denied, 459 U.S. 1146 (1983).  Where a
claimant's request for authorization is refused by the employer, claimant is
released from the obligation of continuing to seek approval for his subsequent
treatment and thereafter need only establish that the treatment he subsequently
procured on his own initiative was necessary for his injury in order to be entitled
to such treatment at employer's expense.  Schoen v. U.S. Chamber of Commerce,
30 BRBS 112 (1996).  Employer must consent to a change of physician where
claimant has been referred by his treating physician to a specialist skilled in
treating claimant's injury. See generally Armfield v. Shell Offshore, Inc.,
25 BRBS 303 (1992)(Smith, J., dissenting on other grounds); Senegal v. Strachan
Shipping Co., 21 BRBS 8 (1988); 20 C.F.R. §702.406(a).

     In the instant case, claimant last treated with Dr. Doyle on March 29, 1996,
at which time Dr. Djuric, an associate of Dr. Doyle's, examined claimant without
charge or the recording of a report.  On April 28, 1997, over one year later,
claimant visited Dr. Djuric's new practice, which was located approximately 100
miles from claimant's residence; claimant has not returned to Dr. Djuric since this
single visit.

     In denying claimant's request that he hold employer liable for Dr. Djuric's
single  examination of claimant on April 28, 1997, the administrative law judge
found that no authorization had been sought for this examination and no evidence
was presented to show that claimant's choice of physicians was not a specialist. 
Claimant, on appeal, does not assert that Dr. Doyle was not his choice of
physician, see Claimant's brief at 16; Tr. at 131; RX-15; thus Dr. Doyle's
release of claimant cannot be viewed as a refusal of treatment by employer's
physician. See Slattery Assoc., Inc. v. Lloyd, 725 F.2d 780, 16 BRBS 44
(CRT)(D.C. Cir. 1984).  Claimant, moreover, does not assert that he sought
employer's authorization for his visit to Dr. Djuric on April 28, 1997, nor does
he cite to any evidence that Dr. Djuric is a specialist skilled in treating his injury.  We, therefore,
affirm the administrative law judge's finding that employer is not liable for  the
medical treatment provided by Dr. Djuric, as that determination is in accordance
with law.

     Accordingly, the administrative law judge's Decision and Order Granting
Benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)Under Section 8(c)(21) of the Act, 33 U.S.C. §908(c)(21), an award for permanent partial disability is based on the difference between claimant's pre-injury weekly wage and his post-injury wage-earning capacity. See 33 U.S.C. §908(h). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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