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                                 BRB No. 98-0202


BOZIDA GOBIN                            )
                                        )
          Claimant-Petitioner           )    DATE ISSUED:   10/23/1998
                                        )
     v.                                 )
                                        )
UNIVERSAL MARITIME SERVICE              )
CORPORATION                             )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Robert D. Kaplan, Administrative Law
     Judge, United States Department of Labor.

     Jorden N. Pedersen, Jr. (Baker, Garber, Duffy & Pedersen, P.C.),
     Hoboken,  New Jersey, for claimant.

     Christopher J. Field (Weber Goldstein Greenberg & Gallagher), Jersey
     City, New Jersey, for self-insured employer.

     Before:  SMITH and McGRANERY, Administrative Appeals Judges, and NELSON,
     Acting Administrative Appeals Judge.

     PER CURIAM:

     Claimant appeals the Decision and Order (96-LHC-00743) of Administrative Law
Judge Robert D. Kaplan 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 April 26, 1989, claimant sustained an injury to his left leg when he was
struck by a container of meat during the course of his employment with employer;
he has not worked since that date.  Employer voluntarily paid claimant disability
compensation from the date of this accident at a rate of $577.60 per week. 
Claimant sought permanent total disability compensation under the Act.

     In his Decision and Order, the administrative law judge found that claimant
failed to establish a harm to his back, that employer established the availability
of suitable alternate employment as of June 11, 1996, and that claimant had failed
to refute this evidence.  Accordingly, the administrative law judge awarded
claimant permanent partial disability benefits for an 8 percent impairment to his
left leg pursuant to Section 8(c)(2) of the Act, 33 U.S.C. §908(c)(2).

     Claimant now appeals, challenging the administrative law judge's denial of his
claim for compensation under Section 8(c)(21) of the Act, 33 U.S.C.
§908(c)(21), for his alleged back disability.  Claimant additionally contends
that the administrative law judge erred in concluding that employer established the
availability of suitable alternate employment.  Employer responds, urging
affirmance of the administrative law judge's decision.

     Claimant initially challenges the administrative law judge's findings
regarding his alleged back injury.  In this regard, claimant does not contend that
he injured his back at the time of the work-related injury but, rather, that his
back injury was caused by his abnormal walk due to the injury to his left leg. 
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 establish a prima facie case. See U.S.
Industries/Federal Sheet Metal Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982); Obert v. John T. Clark & Son of Maryland, 23 BRBS 157 (1990). 
It is claimant's burden to establish each element of his prima facie case
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) (1993).  Once claimant establishes his prima facie case, Section
20(a), 33 U.S.C. §920(a), of the Act provides claimant with a presumption that
his condition is causally related to his employment. See Merrill v. Todd Pacific
Shipyards Corp., 25 BRBS 140 (1991).    

     In the instant case, the administrative law judge, relying upon the opinion
of Dr. Greifinger, determined that claimant failed to demonstrate a harm to his
back.  Based on the absence of objective findings to support a diagnosis of lumbar
back problems as well as negative findings for such a diagnosis, Dr. Greifinger
opined that claimant had no back problem.[1]   EX-H
at 40-41.  The administrative law judge also based his opinion on the testimony of
claimant; specifically, the administrative law judge noted that claimant stated
that his  back pain started two to three years after the April 1989 injury, but he
did not inform his physician of any back pain until February 1993 and never sought
treatment for this back problem.  It is well-established that, in arriving at his
decision, the administrative law judge is entitled to evaluate the credibility of
all witnesses and to draw his own inferences and conclusions from the evidence.
See 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).  In the instant case, the administrative law judge rationally weighed the
evidence; accordingly, as Dr. Greifinger's testimony constitutes substantial
evidence to support the administrative law judge's ultimate finding, we affirm the
administrative law judge's determination that claimant failed to establish the
existence of a back injury. See O'Keeffe, 380 U.S. at 359. 

     Claimant next contends that the administrative law judge erred in finding that
he was only permanently partially disabled as of June 11, 1996; specifically,
claimant challenges the administrative law judge's determination that employer
established the availability of suitable alternate employment as of that date. 
Where, as in the instant case, a claimant has established that he is unable to
perform his usual employment duties due to a work-related injury, claimant has
established a prima facie case of total disability.  The burden then shifts
to employer to demonstrate within the geographic area where claimant resides, the
availability of specific jobs which claimant, by virtue of his age, education, work
experience, and physical restrictions is capable of performing and which he can
compete and reasonably secure.  If employer makes a showing of suitable alternate
employment, claimant nevertheless can prevail in his quest to establish total
disability if he demonstrates that he diligently tried and was unable to secure
such employment. See New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 14 BRBS 156 (5th Cir. 1981); see also Palombo v. Director, OWCP, 937 F.2d 70,
25 BRBS 1 (CRT)(2d Cir. 1991); CNA Ins. Co. v. Legrow, 935 F.2d 430, 24 BRBS 202 (CRT)(1st Cir. 1991);  Newport
News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540, 21 BRBS 10 (CRT)(4th
Cir. 1988); Roger's Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d
687, 18 BRBS 79 (CRT)(5th Cir. 1986), cert.  denied, 479 U.S. 826 (1986);
Hooe v. Todd Shipyards Corp., 21 BRBS 258 (1988).

     In support of its contention that claimant's disability is partial rather than
total, employer identified a number of specific employment positions via the
reports and testimony of Dr. Ehrenreich which it averred were suitable for
claimant.  In identifying positions which he considered to be suitable for
claimant, Dr. Ehrenreich relied upon the report of Dr. Magliato, which indicated
that claimant could perform sedentary work for eight hours a day, could sit up to
six hours, walk up to an hour, but could not kneel, climb or squat.  CX-10.  The
administrative law judge initially found that neither the jobs referred to in Dr.
Ehrenreich's October 1996 report, nor the shipping clerk position noted by  Dr.
Ehrenreich in his June 1996 report, satisfied employer's burden to establish the
availability of jobs which claimant is capable of performing.  Next, the
administrative law judge found that the positions identified by Dr. Ehrenreich at
PAFRA and Jungle Time established the availability of suitable alternate
employment.[2]   Claimant's assertions of error
regarding the administrative law judge's findings on this issue are without
merit.[3]   Although claimant contends that Dr.
Ehrenreich did not take into account claimant's back disability, the administrative
law judge determined that claimant did not estabish a harm to his back.  Moreover,
the administrative law judge found that Dr. Magliato's 1991 evaluation of claimant
provided a reasonable assessment of claimant's capabilities in 1996, as Dr.
Magliato was an impartial physician whose opinion was objective and reasoned; while
claimant contended that his condition became worse after 1991 based primarily on
the opinions of Dr. Margolies and Steinway, the administrative law judge found that
the contrary  opinions of Drs. Greifinger and Lerman were entitled to greater
weight.  Finally, the administrative law judge acted within his discretion in
crediting the vocational testimony of Dr. Ehrenreich over that of Mr. Provder,
claimant's vocational expert, because Mr. Provder's opinion was based on his own
assessment of claimant's physical impairments and capabilities, and not on that of
a physician.  Thus, as the administrative law judge's finding on this issue is
supported by substantial evidence and consistent with law, it is affirmed. See
Sketoe v.  Dolphin Titan Int'l, 28 BRBS 212 (1994)(Smith, J., dissenting on
other grounds); Jones v.  Genco, Inc., 21 BRBS 12 (1988).

     Finally, claimant summarily asserts that he submitted into evidence testimony
sufficient to establish that the positions at PAFRA and Jungle Time were either
unavailable or not within his physical restrictions.  The administrative law judge,
however, fully addressed claimant's assertion in his decision.  In this regard, the
administrative law judge acknowledged that claimant and his friend, Miss Lukin,
visted both PAFRA and Jungle Time visited and that in each instance claimant failed
to obtain employment.  After noting that claimant did not testify regarding his
visits to these employers, the administrative law judge concluded that claimant had
not made a good faith effort to secure employment.  Specifically, the
administrative law judge determined, based upon the testimony of Miss Lukin and his
prior determination that claimant's complaints of severe back pain are not
credible, that claimant's actions were "enough to discourage even the most
sympathetic employer from offering claimant a position."  See Decision and
Order at 14.  Thus, the administrative law judge properly recognized that it is
claimant's burden to establish due diligence; in this instance, based upon his
evaluation of claimant's efforts, the administrative law judge concluded that
claimant did not meet this burden.  Accordingly, the administrative law judge's
finding that claimant did not diligently seek employment, and that claimant had
thus not refuted employer's evidence that the positions at PAFRA and Jungle Time
were available and suitable, is affirmed. See, e.g., Dangerfield v. Todd Pacific
Shipyards Corp., 22 BRBS 104 (1989).  

     Accordingly, the Decision and Order of the administrative law judge is
affirmed.

     SO ORDERED.



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge



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Footnotes.


1)The administrative law judge declined to rely on the contrasting opinion of Dr. Margolies, since that physician is not an orthopedist. Similarly, the administrative law judge determined that Dr. Steinway's opinion was problematic, since that physician acknowledged that his diagnosis of lumbar osteoarthritis would have to be documented by an x-ray, CAT scan, or MRI. Back to Text
2)The position at Jungle Time would require claimant to assemble boxes for toys. Claimant would not be required to lift over 10 pounds, and claimant could take breaks as needed. 1996 Tr. at 71. The assembler position at PAFRA was a sedentary position which would require claimant to assemble electronic components or electric components. The person could sit or stand as needed. 1996 Tr. at 66. Back to Text
3)Contrary to claimant's assertions on appeal, the administrative law judge found that the position identified with Celsis, Inc., was not in fact suitable for claimant since it was located outside of the geographic area in which claimant resides. See Decision and Order at 12. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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