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                                  BRB No. 98-121


NIKOLAI D. DONCEV                  )
                         )
          Claimant-Petitioner           )    DATE ISSUED:  
10/06/1998 
                         )
     v.                            )
                         )
NATIONAL STEEL & SHIPBUILDING )
COMPANY                            )
                         )
          Self-Insured                  )
          Employer-Respondent      )    DECISION and ORDER

     Appeal of the Decision and Order of Daniel L. Stewart,
     Administrative Law Judge, United States Department of Labor.

     Donald G. Cline (Cline & Fox), San Diego, California, for claimant.

     Roy D. Axelrod, San Diego, California, for employer.

     Before:  HALL, Chief Administrative Appeals Judge, BROWN,
     Administrative Appeals Judge, and NELSON, Acting  Administrative
     Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order on Remand Denying Benefits  (90-LHC-1387, 1388) 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).  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).

     This case is before the Board for a second time.  Claimant, a marine
electrician, sustained a right shoulder injury on August 3, 1983, and a back
injury on October 13, 1986, while working for employer.  Initially, employer
voluntarily paid benefits to claimant, but ceased its payments on the basis
that claimant is no longer disabled.  Before the administrative law judge,
claimant alleged that he is permanently totally disabled due to his right
shoulder and back injuries, and that, as a result of those injuries, he
suffers from a memory loss, a psychiatric impairment, and mild adult
diabetes. 

     In his original Decision and Order, the administrative law judge found
that claimant sustained right shoulder and back injuries, but that the
evidence is insufficient to establish that either injury has resulted in a
memory loss, a psychiatric impairment, or diabetes.  The administrative law
judge also found that claimant was capable of performing the suitable
alternate employment positions listed in a labor market survey dated
February 28, 1989, that claimant reached maximum medical improvement on
October 27, 1989, and that, as of that date, claimant could have returned
to his former employment without restrictions.  Accordingly, the
administrative law judge awarded temporary total disability benefits from
November 18, 1986 to February 27, 1989, and temporary partial disability
benefits from February 28, 1989 to October 26, 1989, but denied continuing
disability benefits after that date.[1] 

     Claimant appealed the administrative law judge's decision, contending
that the administrative law judge erred in failing to inform the parties of
his intention to reject their stipulation regarding claimant's inability to
return to his usual employment; alternatively, claimant argued that the
administrative law judge's findings on this issue were not supported by
substantial evidence.  The Board agreed that the administrative law judge
erred in rejecting the parties' stipulation that claimant was unable to
return to his former employment without giving the parties prior notice and
thus remanded the case for the administrative law judge to allow the parties
the opportunity to present additional evidence in support of their positions
regarding this issue. Doncev v. National Steel & Shipbuilding Co.,
BRB Nos. 93-2467/A (Sept. 11, 1996)(unpub.).[2] 

     After weighing the evidence presented at the original hearing as
supplemented by the additional evidence presented on remand, the
administrative law judge found that claimant failed to carry his burden of
proving that as a result of either the right shoulder injury or the low back
injury, or a combination of both, he was incapable of returning to his pre-injury duties as a marine electrician as of October 27, 1989.  Thus, further
benefits were denied.  The administrative law judge denied claimant's motion
for reconsideration.

     On appeal, claimant contends that the administrative law judge erred in
finding that he could return to his former employment.  Employer responds,
urging affirmance of the administrative law judge's decision.

     After consideration of the administrative law judge's Decision and Order
on Remand, the arguments raised on appeal, and the evidence of record, we
hold that the administrative law judge's Decision and Order is supported by
substantial evidence and contains no reversible error.   To establish a
prima facie case of total disability, claimant must show that he
cannot return to his regular or usual employment due to his work-related
injury. Manigault v. Stevens Shipping Co., 22 BRBS 332 (1989).  In
the instant case, the administrative law judge considered the physicians'
opinions of record and gave greater weight to the testimony of Dr. Freeman,
after he viewed the surveillance film, that  claimant has no back
impairment, Tr.  I at 205,  and to Dr. Schwab's opinion that claimant was
capable of returning to his usual work in October 1989.  EX 4 at 11.  In
addition, the administrative law judge rejected the opinions of Drs. Dodge
and Levine that as of 1994 and 1997, respectively, claimant was unable to
perform his usual work,  as neither doctor gave a medical explanation as to
why claimant cannot return to his work as a marine electrician. Moreover,
the administrative law judge noted that Dr. Levine based his opinion on the
totality of claimant's medical condition, some of which are not work-related,  and both doctors relied on claimant's subjective complaints, which
the administrative law judge found are not credible.  The administrative law
judge also rejected the opinion of Mr. Warnemuende, a vocational counselor,
that claimant cannot perform his usual work, as the administrative law judge
found that he had based his opinion regarding claimant's ability to return
to work on his own crediting of the medical reports, which he did not have
the authority to do.  Finally, the administrative law judge found that
claimant lacked credibility, both in his hearing testimony and in his
complaints to the treating physicians.

     As the administrative law judge thoroughly reviewed the evidence of record, and claimant has raised no
reversible error in the administrative law judge's weighing of the evidence and in making credibility
determinations, see generally Cordero v. Triple A Machine Shop, 580 F.2d 1331,
8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979); John
W. McGrath v. Hughes, 289 F.2d 403 (2d Cir. 1961), we affirm the administrative law judge's finding that
claimant has failed to establish a prima facie case of total disability as it is supported by substantial
evidence, and thus that claimant is not entitled to additional benefits under the Act. Chong v. Todd Pacific
Shipyards Corp., 22 BRBS 242 (1989), aff'd mem. sub nom. Chong v. Director, OWCP, 909 F.2d
1488 (9th Cir. 1990).

     Accordingly, the administrative law judge's Decision and Order on Remand
Denying Benefits is affirmed.

     SO ORDERED.




                                                                       
                  
                              BETTY JEAN HALL, Chief
                              Administrative Appeals Judge




                                                                       
                  
                              JAMES F. BROWN
                              Administrative Appeals Judge




                                                                       
           
                              MALCOLM D. NELSON
                              Acting Administrative Appeals Judge


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Footnotes.


1)The administrative law judge also found claimant entitled to future medical treatment, if necessary, for his right shoulder and lower back conditions, and that claimant's counsel is entitled to an attorney's fee in the amount of $7,750 to be paid by employer. See Decision and Order Awarding Benefits; Supplemental Decision and Order. Back to Text
2)The Board affirmed the fee awards of the administrative law judge and the district director. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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