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                                 BRB No. 97-1283

DOUGLAS J. PASCUAL, JR.                 )
          Claimant-Petitioner           )
     v.                                 )
FIRST MARINE CONTRACTORS,               )    DATE ISSUED:   06/17/1998 
INCORPORATED                            )
     and                                )
ASSOCIATION                             )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

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

     J. Paul Demarest (Favret, Demarest, Russo, & Lutkewitte), New Orleans,
     Louisiana, for claimant.

     Maurice E. Bostick and Robert P.  McCleskey, Jr. (Phelps Dunbar,
     L.L.P.), New Orleans, Louisiana, for employer/carrier.

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


     Claimant appeals the Decision and Order Denying Benefits (96-LHC-0282) 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 administrative
law judge's findings of fact and conclusions of law if they are supported by
substantial evidence, are rational, and are in accordance with law. O'Keeffe v.
Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C.
     Claimant, a longshoreman, suffered an injury on August 16, 1995, during the
course of his employment when a load of railroad ties fell off the opposite end of
the track causing him to be thrown into the air.  Claimant was hospitalized for
five days following this incident, and he has not returned to work since the date
of his injury.  Employer has paid no compensation or medical benefits on this

     In his decision, the administrative law judge found that claimant established
his prima facie case based on his current back and neck conditions and the
occurrence of the work incident on August 16, 1995.  After invoking the Section
20(a) presumption of causation, 33 U.S.C. §920(a), the administrative law judge
found that employer established rebuttal based upon the opinion of Dr. Laborde and
his finding that claimant's subjective complaints of pain are not credible.  He
then weighed all the evidence of record and concluded that any incident which took
place did not cause or aggravate claimant's condition.  Accordingly, he denied all
disability and medical benefits.

     On appeal, claimant alleges that the administrative law judge erred in denying
all disability and medical benefits, contending that he is at least entitled to
such benefits on a temporary basis.   Employer responds, urging affirmance of the
administrative law judge's decision.

     We agree with claimant that the administrative law judge's denial of all
benefits cannot be affirmed as it is not supported by substantial evidence.[1]   Initially, the administrative law judge
addressed this case as involving causation, when in fact it involves both questions
of causation and the extent of disability.  As it is uncontested that claimant
spent five days in the hospital due to the injury at work, at a minimum claimant is
entitled to disability and medical benefits for this initial period.  The administrative law
judge's total denial of benefits, moreover, is inconsistent with his finding that
"it is uncontested that Claimant suffered some disabling pain
resulting from the accident."  Decision and Order at 13 (emphasis added).  These
uncontested facts and the administrative law judge's finding thus establishes
entitlement to some period of disability benefits and compensable medical care; the
denial of all benefits, hence, is inconsistent with the record.  The issues to be addressed
involve the cause of claimant's continuing back and neck complaints and the
duration of claimant's disability due to the work injury.

     The first issue to be addressed is the cause of claimant's continuing neck and
back complaints. Claimant is entitled to reimbursement for all  reasonable and
necessary medical treatment related to the work injury.  33 U.S.C. §907(a);
See, e.g., Kelley v.  Bureau of National Affairs, 20 BRBS 169 (1988).   He
need not be economically disabled in order to be entitled to medical benefits.
Romeike v.  Kaiser Shipyards, 22 BRBS 57 (1989).   In establishing the work-relatedness of his condition, claimant is aided by the Section 20(a) presumption,
which applies generally to the issue of whether claimant's injury or disability is
work-related, see Kubin v.  Pro-Football, Inc., 29 BRBS 117 (1995), and is
applicable in this case inasmuch as it is uncontested that claimant sustained
physical harm and that the accident at work could have caused the harm. See
Noble Drilling Co.  v.  Drake, 795 F.2d 478, 19 BRBS 6 (CRT) (5th Cir.  1986). 
The burden then shifts to employer to rebut the presumption by producing
substantial evidence that claimant's  condition was not caused by the work accident
or that the work accident did not aggravate claimant's underlying condition.  
Gooden v.  Director, OWCP, 135 F.2d 1066, 32 BRBS 59 (CRT) (5th Cir.  1998);
Rajotte v.  General Dynamics Corp., 18 BRBS 85 (1986).

     We hold that the administrative law judge, in relying upon Dr. Laborde's
opinion to deny benefits, did not properly apply the aggravation rule and
additionally drew some irrational conclusions from the doctors' opinions.   The
aggravation rule provides that where an injury at work aggravates, accelerates or
combines with a prior condition, the entire resultant disability is compensable.
Independent Stevedore Co.  v.  O'Leary, 357 F.2d 812 (9th Cir.  1966).  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).  Whether the circumstances of a claimant's
employment combine with the pre-existing condition so as to increase his symptoms
to such a degree as to incapacitate him for any period of time or whether they
actually alter the underlying process is not significant. Gooden, 135 F.3d
at 1066, 32 BRBS at 59 (CRT); Gardner v. Director, OWCP, 640 F.2d 1385, 13
BRBS 101 (1st Cir. 1981), aff'g 11 BRBS 561 (1971).  Moreover, the severity
of a claimant's injury is not determinative of whether an aggravation occurred
since even a minor incident can aggravate a pre-existing condition and impair a
claimant's ability to work. See, e.g., Foundation Constructors, Inc. v.
Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT)(9th Cir. 1991).  Thus, in a case
such as this one where claimant asserts that the work accident aggravated an
underlying condition, it is incumbent upon employer to introduce evidence
affirmatively establishing that the work accident did not aggravate or accelerate
the underlying condition in order to rebut the Section 20(a) presumption.
Hensley v.  Washington Metropolitan Area Transit Authority, 655 F.2d 264,
13 BRBS 182 (D.C. Cir.  1981), cert.  denied, 456 U.S. 904 (1982). 

     In the instant case, the administrative law judge relied on the opinion of 
Dr. Laborde,  a Board-certified orthopedic surgeon, to conclude that claimant's
condition is not work-related.  He specifically credited Dr. Laborde's
interpretations of claimant's pre- and post-injury MRI's that claimant's pre-existing lumbar condition was unchanged by the work accident and that claimant's
cervical changes are due to the aging process.  In this regard, however, the
administrative law judge did not discuss Dr. Laborde's testimony that there was "no
significant change" in claimant's lumbar MRI after the injury, Tr.  at 168-169 (emphasis added), and that "it's possible" that the accident could have been
a contributing factor in the differences evidenced on the cervical films.  More
importantly, the administrative law judge did not consider Dr. Laborde's opinion
with an eye toward determining whether the incident caused at least a  temporary
disability or  aggravation of claimant's condition which would entitle him to some
compensation and medical benefits.  In this regard, we note that Dr. Laborde
examined claimant in October 1996, more than one year after the accident, and
stated that there is no way to objectively determine the presence of a sprain or
rule out the possibility of a muscular injury from the work incident.  Tr. at 160-163.  He stated that such a sprain likely would have healed within two months.  Dr.
Laborde's opinion therefore does not  establish that the work accident had no
causal relation to claimant's disability thereafter.  Tr. at 162.  Indeed, Dr.
Laborde testified that he was unable to make a determination as to whether claimant
suffered a back sprain after his injury.  Tr. at 163.       

     In weighing the evidence, the administrative law judge credited the opinion
of Dr. Laborde, a Board-certified orthopedic surgeon, over the opinion of Dr.
Pearce, a Board-certified radiologist, who stated that the MRI's taken of both the
cervical and lumbar regions before and after the injury showed that changes
occurred after the injury and that the changes are not normally associated with the
aging process and are most likely due to trauma.  Tr.  at 61.  The administrative
law judge gave less weight to Dr. Pearce's testimony because the administrative law
judge discredited claimant's subjective complaints of pain.  Decision and Order at
13.  This finding, however,  is irrational inasmuch as Dr. Pearce's opinion
regarding the changes on the MRI's is based solely on her reading of the films and
not on claimant's complaints of pain; thus, the credibility of claimant's complaints is irrelevant to Dr.
Pearce's opinion.   As an expert in radiology, Dr. Pearce was well qualified to interpret
the MRI evidence, and the administrative law judge gave no valid reason for
preferring Dr. Laborde's differing interpretation of these films.

     In addition, in attributing claimant's symptoms to the aging process based on
Dr. Laborde's  testimony, the administrative law judge erroneously discounted the
opinion of Dr. Watermeier, a board-certified orthopedic surgeon, who opined that
claimant's pre-existing condition was aggravated by the trauma.  The administrative
law judge found it significant that Dr. Watermeier's opinion was based on
claimant's subjective complaints of pain.  The record reflects, however, that
although Dr. Watermeier stated it was his opinion that claimant's subjective back
complaints were consistent with the history of trauma, Tr.  at 124-125, he also
opined that claimant's neck complaints correlate with objective evidence. Tr.  at
145.  Furthermore, the administrative law judge also erred in stating that Dr.
Watermeier's opinion is supportive of that of Dr. Laborde because Dr. Watermeier
could not state with a reasonable degree of medical certainty that the
deterioration in claimant's lumbar condition was caused from trauma as opposed to
by the aging process.  Tr.  at 137. Even if that were an accurate statement of Dr.
Watermeier's opinion, it would not in fact support Dr. Laborde's opinion; it would
simply be neutral.  The record shows, however, that Dr. Watermeier's opinion was
not neutral; he disputed Dr. Laborde's opinion of causation.  Decision and Order
at 12-13.  Dr. Watermeier  stated that claimant's cervical condition was more
likely than not due to trauma, and not the aging process. Tr.  at 130.

     In sum, we must vacate the administrative law judge's finding that employer
established rebuttal of the Section 20(a) presumption and the finding that claimant
has no  medical conditions causally related to the work accident.  On these facts,
Dr. Laborde's opinion is insufficient to rule out the work accident as the cause
of a condition which was to some degree disabling thereafter.  On remand, the
administrative law judge must reconsider the evidence relative to the cause of
claimant's disability in light of the aggravation rule, bearing in mind that it is
employer's burden to sever the connection between claimant's disabling condition
and the work accident. Hensley, 655 F.2d at 264, 13 BRBS at 182.  In
addition, if claimant's back and neck conditions are in any way work-related, the
administrative law judge must award benefits for medical treatment reasonable and
necessary for the treatment of the conditions.

     The other issue presented is related to the foregoing, as the same evidence
is at issue in determining the extent of claimant's work-related disability. 
Claimant is entitled to disability benefits for any period his work injury causes
a total or partial loss of wage-earning capacity. Shell Offshore, Inc. v.
Director, OWCP, 112 F.3d 321, 31 BRBS 129 (CRT) (5th Cir. 1997); Johnson v.
Newport News Shipbuilding & Dry Dock Co., 25 BRBS 340 (1992).  In the instant
case, it is undisputed that claimant, on August 16, 1995, sustained an injury at
work of such severity that he was immediately transported to the hospital where he
remained for five days.  Dr. Correa, who treated claimant during his
hospitalization following the accident, stated that claimant demonstrated objective
and subjective signs of injury.  On September 19, 1995, Dr. Correa stated claimant
was still unable to return to full unrestricted work.  CX 1.   Drs. Watermeier and
O'Keefe, who examined claimant in the period after his release from the hospital,
considered claimant temporarily totally disabled from any employment.  Tr. at 130.
The record thus reflects that all the physicians who examined claimant soon after
the accident opined that the injury rendered him incapable of returning to work for
at least some period of time.

     In determining that claimant is not entitled to disability benefits, the
administrative law judge relied upon the opinion of Dr. Laborde that, as of the
date of his examination, October 26, 1996, more than one year after the work
accident, claimant exhibited no objective evidence that his pre-injury condition
had worsened as a result of the work accident or that it prevented his return to
his usual employment.   Tr. at 160-161.   Dr. Laborde opined that, while there is
no objective evidence of a physical injury precluding claimant's return to work at
the time of his examination in October 1996, there is no way to objectively
determine the presence of a sprain or rule out the possibility of a muscular injury
as of the date of the work incident.  Tr. at 160-163.  He stated that such a sprain
likely would have healed within two months.  Dr. Laborde's opinion thus does not
in fact support the conclusion that claimant was not at all disabled after the
injury.  Thus, while this opinion may establish that at some point claimant was no
longer disabled by his back and neck condition, it cannot establish that claimant
did not suffer any  disability in the period immediately following the accident.
See Cotton v.  Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380, 383
(1990).  Moreover, with regard to claimant's continuing disability, in light of our
prior discussion of the administrative law judge's errors in addressing the
opinions of Drs. Laborde, Pearce and Watermeier, supra at 5-6, we cannot
affirm the conclusion that claimant has no ongoing disability due to the work
accident.  We therefore must vacate the administrative law judge's denial of
disability benefits.  On remand, the administrative law judge  must determine the
duration of claimant's disability due to the work accident considering all relevant
evidence of record. 

     Accordingly, the administrative law judge's denial of disability and medical
benefits is vacated, and the case is remanded for reconsideration consistent with
this decision.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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1)The administrative law judge's decision states that employer paid no disability or medical benefits. Decision and Order at 2. Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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