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                                 BRB No. 98-0258

RONALD A. BOURG                         )
          Claimant-Respondent           )    DATE ISSUED:   10/21/1998
     v.                                 )
          Self-Insured                  )
          Employer-Petitioner           )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of C. Richard Avery, Administrative Law
     Judge, United States Department of Labor.

     David B. Allen (Samanie, Barnes & Allen), Houma, Louisiana, for

     Thomas C. Fitzhugh III and Matthew H. Ammerman (Fitzhugh & Elliott,
     P.C.), Houston, Texas, and Joseph B. Guilbeau (Juge, Napolitano, Leyva,
     Guilbeau & Ruli), Metairie, Louisiana, for self-insured employer.

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


     Employer appeals the Decision and Order (96-LHC-1815) of Administrative Law
Judge C. Richard Avery 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.,  as extended by the Outer Continental Shelf Lands Act, as amended,
43 U.S.C. §1331 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.

     Claimant, who successfully completed a pre-employment physical examination on
April 22, 1993, began working for employer on May 5, 1993 as a cementer/mixer.  On
May 24, 1993, claimant traveled from his assigned rig, the H&P 108, to another rig,
the H&P 101, to assist in a cement pumping and mixing job; claimant's assignment
involved the unloading of approximately 30 buckets of cargo weighing 40 to 45
pounds each into a tank containing several barrels of cement.  Though claimant
experienced chest pain and dizziness while performing this job, he completed this
assignment then told the service operator on H&P 101, Lester Chaisson, that he had
a medical problem and needed to return to H&P 108.  After reaching H&P 108 by boat,
claimant was forced to climb several levels of stairs while carrying his clothes
bag and briefcase, which totaled 60 to 70 pounds, to get to his living quarters. 
Suffering from severe chest pain and swollen feet, claimant was evacuated from the
rig at 11:00 p.m. on May 24, 1993, and taken to the hospital where he was treated
for symptoms of congestive heart failure.  Thereafter, claimant was diagnosed as
suffering from cardiomyopathy, a disease of the heart muscle, and eventually
underwent a procedure whereby a defibrillator was implanted in his heart on two
separate occasions.  Claimant, who has been unable to perform any work since the
May 24, 1993 incident, sought permanent total disability compensation and medical
benefits under the Act.

     In his Decision and Order, the administrative law judge found that claimant
was entitled to invocation of the Section 20(a), 33 U.S.C. §920(a),
presumption. The administrative law judge further determined that employer failed
to introduce any evidence sufficient to establish that claimant's employment did
not accelerate the time at which claimant's cardiomyopathy became disabling and,
therefore, failed to rebut the Section 20(a) presumption.  Inasmuch as employer
stipulated that claimant cannot return to any employment, the administrative law
judge awarded claimant temporary total disability compensation from May 24, 1993
until December 9, 1996, and permanent total disability compensation thereafter. 
Lastly, the administrative law judge denied employer's request for Section 8(f),
33 U.S.C. §908(f), relief because, although he found that claimant's
cardiomyopathy and diabetes constituted pre-existing permanent partial
disabilities, he concluded that claimant's heart disease was not manifest to
employer prior to May 24, 1993.[1] 

     On appeal, employer challenges the administrative law judge's findings
regarding causation and the extent of claimant's disability.  Additionally,
employer challenges the administrative law judge's denial of its request for
Section 8(f) relief.  Claimant responds, urging affirmance of the administrative
law judge's decision.  Employer has filed a reply brief, reiterating its
contentions that claimant's condition is not related to his employment, that he
should not be entitled to an award of permanent total disability compensation, and
that employer is entitled to Section 8(f) relief.  The Director, Office of Workers'
Compensation Programs, has not filed a brief in this case.

     In order to be entitled to the Section 20(a) presumption, claimant must
establish a prima facie case by showing that he suffered a harm and that
either a work-related accident occurred or that working conditions existed which
could have caused or aggravated the harm. See Konno v.  Young Bros., Ltd.,
28 BRBS 57 (1994); Perry v. Carolina Shipping Co., 20 BRBS 90 (1987).  Once
claimant has established his prima facie case, he is entitled to invocation
of the Section 20(a) presumption linking his harm to his employment.  See
Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).  Upon invocation of the
presumption, the burden shifts to employer to rebut the presumption with
substantial evidence that claimant's condition was not caused or aggravated by his
employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir.), cert. denied, 429 U.S. 820 (1976).  It is employer's burden on
rebuttal to present specific and comprehensive evidence sufficient to sever the
causal connection between the injury and the employment; the unequivocal testimony
of a physician that no relationship exists between the injury and a claimant's
employment is sufficient to rebut the presumption. See Phillips v. Newport News
Shipbuilding & Dry Dock Co., 22 BRBS 94 (1988).  If employer establishes
rebuttal of the presumption, the administrative law judge must weigh all of the
evidence contained in the record and resolve the causation issue based on the
record as a whole. See Hughes v. Bethlehem Steel Corp., 17 BRBS 153 (1985);
see also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43

     Initially, employer contends that claimant did not sustain an injury as
defined by the Act, as claimant's shortness of breath and abnormal fatigue were
temporary symptoms of his cardiomyopathy.  Employer's contention is without merit. 
A harm has been defined as something that has unexpectedly gone wrong with the
human frame. Perry, 20 BRBS at 90.  The Board has held that credible
complaints of subjective symptoms and pain can be sufficient to establish the
element of physical harm necessary to establish a claimant's prima facie
case. See Welch v. Pennzoil Co., 23 BRBS 395 (1990).  Specifically, chest
pains constitute an injury under the Act. See Volpe v. Northeast Marine Terminal
Corp., 671 F.2d 697, 14 BRBS 538 (2d Cir. 1982).  In the instant case,
claimant, after undergoing acts of physical exertion while working for employer on
May 24, 1993, complained of shortness of breath, chest pain and swollen feet such
that he required evacuation from the rig on which he was stationed and admission
to a hospital.  Thereafter, on May 25, 1993, claimant was treated for congestive
heart failure, which required extensive medication, a left heart catheterization,
a left ventriculogram and a coronary angiogram. See Cl. Ex. 11.  Thus,
contrary to employer's contention, claimant has established the existence of a harm
under the Act for purposes establishing his prima facia case.  Accordingly,
as the "working conditions" element of claimant's prima facie case is not
challenged on appeal, we affirm the administrative law judge's invocation of the
Section 20(a) presumption. See Sinclair v.  United Food and Commercial
Workers, 23 BRBS 148 (1989).

     Employer further argues that claimant's symptoms were not caused or aggravated
by his employment, but, rather, were due to his underlying cardiomyopathy.  We
disagree.  In the instant case, both Drs. Abben and Giles agreed that while
claimant's work for employer did not cause damage to claimant's heart, the physical
stress experienced by claimant on May 24, 1993, aggravated and accelerated his
underlying heart condition causing claimant to experience symptoms sooner than he
otherwise would have. See Cl. Exs. 8, 11 at 29-34; Emp. Ex. 12 at 40, 42,
62.  Thus, as the two doctors rendering relevant opinions regarding the issue of
causation specifically related claimant's injury to his work-related physical
exertion on May 24, 1993, employer has not demonstrated by substantial evidence
that claimant's work-related physical exertion did not aggravate or accelerate his
heart condition; accordingly, employer has failed to meet its burden of proof on
rebuttal.[2]   We therefore affirm the
administrative law judge's finding that employer failed to rebut the Section 20(a)
presumption and his consequent finding that claimant's present medical condition
is causally related to his employment.

     We further reject employer's contention that any disability claimant suffered
after his discharge from the hospital on June 4, 1993, cannot be attributable to
employer.  Our review of the record reveals that since the May 24, 1993 incident,
claimant has undergone numerous hospitalizations for his heart condition, including
the implantation of defibrillators on two separate occasions. See Cl. Ex.
11.  It is well-established that if claimant's employment played a role in the
manifestation of his disease, the entire resultant disability is compensable.
See Bechtel Associates, P.C. v. Sweeney, 824 F.2d 1029, 20 BRBS 49
(CRT)(D.C. Cir. 1987); Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS
45 (CRT)(5th Cir. 1986); Obert v.  John T.  Clark & Sons of Maryland, 23
BRBS  157 (1990).  Consequently, as claimant's present medical condition is
causally related, at least in part, to his employment with employer, and as it is
undisputed that claimant is not capable of any type of work, see Tr. at 88-89, we affirm the administrative law judge's award of total disability benefits to

     Employer's final argument challenges the administrative law judge's finding
that it failed to establish entitlement to relief pursuant to Section 8(f) of the
Act; specifically, employer contends that the administrative law judge erred in
finding that claimant's pre-existing cardiomyopathy was not manifest to employer. 
Section 8(f) of the Act, 33 U.S.C. §908(f), shifts the liability to pay
compensation for permanent total disability after 104 weeks from the employer to
the Special Fund established in Section 44 of the Act, 33 U.S.C. §944.  In a
case where claimant is permanently totally disabled, an employer may be granted
Special Fund relief if it establishes that the claimant had a manifest pre-existing
permanent partial disability, and that this permanent total disability is not due
solely to the subsequent work-related injury. See Ceres Marine Terminal
v.  Director, OWCP, 118 F.3d 387, 31 BRBS 91 (CRT)(5th Cir. 1997); Two "R"
Drilling Co. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34 (CRT)(5th Cir. 1990).

     In the instant case, the administrative law judge initially determined that
claimant's cardiomyopathy and diabetes constituted pre-existing permanent partial
disabilities for purposes of Section 8(f). See Decision and Order at 20. 
However, noting that claimant passed his pre-employment physical examination, the
administrative law judge found that there were no strong indications in the record
that claimant had any underlying heart disease.  Thus, the administrative law judge
concluded that employer failed to meet the manifest element required for  Section
8(f) relief.  Contrary to employer's assertions, the evidence of record supports
the administrative law judge's finding that claimant's cardiomyopathy was not
manifest to employer.  While claimant's pre-existing diabetes is well documented
in the records, see Emp. Ex. 17, and Drs. Abben, Giles, and Dr. Ellender
testified that the probable cause of claimant's cardiomyopathy was his long-standing diabetic condition, see Cl. Ex. 11 at 17-18, 52-53; Emp. Ex. 9 at
30-32; Emp. Ex. 12 at 56-59, the mere presence of certain risk factors is not
legally sufficient to establish the manifest requirement.  Without a documented
diagnosis, there must be "sufficient unambiguous, objective, and obvious indication
of a disability . . . reflected by the factual information contained in the
available records so that the disability should be considered manifest even though
actually unknown to the employer." Ceres Marine Terminal, 118 F.3d at 392,
31 BRBS at 95 (CRT), quoting Eymard & Sons Shipyard v. Smith, 862 F.2d 1220,
1224, 22 BRBS 11, 14 (CRT)(5th Cir. 1989); see also Transbay Container Terminal
v. U.S. Dept. of Labor, 141 F.3d 907, 32 BRBS 35 (CRT)(9th Cir. 1998).  In the
instant case, there is no evidence in the record that claimant's diabetes  had any
effect on his employment; moreover, there is no indication in the record that
claimant's heart condition was diagnosed prior to the May 24, 1993 work incident,
or that his condition could be diagnosed from the objective records that existed
prior to May 24, 1993, based on the extant medical records.[3]   We therefore affirm the administrative law judge's determination that
employer failed to establish the manifest requirement necessary for Section 8(f)
relief, and his consequent conclusion that employer is not entitled to Section 8(f)

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


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

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1)The administrative law judge denied employer's motion for reconsideration on October 1, 1997. Back to Text
2)Dr. Ellender, a board-certified internist and pulmonary disease specialist, provided testimony with regard to claimant's third-party action against claimant's previous employer. Dr. Ellender opined that claimant's exposure to ammonia did not cause his congestive heart failure, but rather, related claimant's condition to his cardiomyopathy, which was caused in part by diabetes. See Emp. Ex. 9 at 16, 28, 30-32. Back to Text
3)Employer notes that Dr. Giles testified that claimant's symptoms of coughing and shortness of breath as a result of his ammonia exposure prior to working for employer were symptoms of heart failure. Emp. Ex. 12 at 32. However, claimant was diagnosed with allergy bronchitis when he was treated for this exposure, and thus, Dr. Giles's testimony does not constitute an unambiguous, obvious indication of heart disease. Emp. Ex. 29 at 22, 25-26. In addition, contrary to employer's assertion, Dr. Giles testified that claimant's previous erectile dysfunction with traces of blood in his urine exhibited prostate problems and kidney malfunction, not heart failure. Emp. Ex. 12 at 21-22. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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