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                                 BRB No. 97-1353

MICHAEL JOHNSON                         )
          Claimant-Petitioner           )    DATE ISSUED:   06/18/1998

     v.                                 )
     and                                )
          Employer/Carrier-             )
          Respondents                   )    DECISION and ORDER

     Appeal of the Decision and Order Denying Benefits for a Back Impairment
     of Richard K. Malamphy, Administrative Law Judge, United States
     Department of Labor.

     Michael Johnson, Portsmouth, Virginia, pro se. 

     Robert M. Tata and Wendy T. Cohen (Hunton & Williams), Norfolk,Virginia,
     for employer/carrier.

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


     Claimant, representing himself, appeals the Decision and Order Denying
Benefits for a Back Impairment (96-LHC-1233) of Administrative Law Judge Richard
K. Malamphy 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).  In an appeal by a claimant without counsel, we review the
administrative law judge's findings of fact and conclusions of law to determine if
they are rational, supported by substantial evidence, and in accordance with law;
if so, they must be affirmed. O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3); 20 C.F.R.
§§802.211(e), 802.220.

     On January 21, 1996, claimant allegedly sustained an injury to his back when
he fell in a tank on a ship at work.  On January 22, 1996, claimant received
emergency room treatment for unspecified complaints.  Thereafter, claimant received
treatment for his back. Claimant filed a claim for temporary total disability
benefits.  Employer argued that its records showed that the tanks at issue were
sealed on January 21, 1996, and that employees were not assigned to that area on
that date.

     In his Decision and Order, the administrative law judge found that claimant
is entitled to invocation of the presumption of Section 20(a) of the Act, 33 U.S.C.
§920(a), but that the presumption is rebutted due to inconsistencies in the
record regarding the occurrence of the accident on the date in question.  The
administrative law judge denied benefits after  weighing  the evidence and
concluding that claimant failed to establish that his back impairment is work-related.

     On appeal, claimant challenges the administrative law judge's denial of
benefits.  In response, employer asserts that claimant's appeal was not timely
filed in accordance with 20 C.F.R. §802.205, and that, in any event,
substantial evidence supports the administrative law judge's denial of benefits.

     Claimant has the burden of proving the existence of a 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. Bolden v.
G.A.T. X.  Terminals Corp., 30 BRBS 71 (1996); Obert v. John T. Clark & Son
of Maryland, 23 BRBS 157 (1990); Kelaita v. Triple A Machine Shop, 13
BRBS 326 (1981).  It is claimant's burden to establish  each element of his
prima facie case by affirmative proof.  Kooley v. Marine Industries
Northwest, 22 BRBS 142 (1989); see also Director, OWCP v. Greenwich
Collieries, 512 U.S. 267, 28 BRBS 43 (CRT)(1994).  Once claimant establishes
his prima facie case, Section 20(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); Gencarelle v.
General Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS
13 (CRT)(2d Cir. 1989).  Once claimant has invoked the presumption, the burden of
proof shifts to employer to rebut it with countervailing evidence.
Merrill, 25 BRBS at 144.  If  the presumption is rebutted, the
administrative law judge must weigh all the evidence and render a decision
supported by substantial evidence. See Del Vecchio v. Bowers, 296 U.S. 280

     In the instant case, the administrative law judge found that claimant
established his prima facie case, i.e., claimant reported low
back complaints in January 1996 which he attributed to an injury at work,
received treatment for pertinent complaints in early 1996, and several physicians 
recorded claimant's recitation of an injury at work.  The administrative law judge,
found, however, that employer established rebuttal of the Section 20(a) presumption
based on employer's records demonstrating that the tanks were sealed on the date
of the alleged accident and that employees were not assigned to that area on that
date, and the fact that claimant made no mention of an injury to a supervisor on
January 21, 1996.  In finding that employer established rebuttal, the
administrative law judge also found inconsistencies in the record concerning the
date of the alleged accident.  The administrative law judge noted that in
information supplied by claimant on January 23 and 24, 1996, to physicians, he
indicated that back pain had been present for three weeks and that he had fallen
in a tank one week earlier.  The administrative law judge further credited this
evidence on the record as a whole and denied benefits.

     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 Calback 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 denying
claimant's claim, the administrative law judge considered the inconsistencies
between claimant's testimony regarding the circumstances concerning the alleged
January 21, 1996 accident and employer's business records, as well as with the
medical records relating differing dates of the onset of  back pain.  On the basis
of the record before us, the administrative law judge's decision to discredit the 
testimony of claimant is not irrational.  We, therefore, affirm the administrative
law judge's determination that claimant failed to establish the existence of a
work-related incident occurring on January 21, 1996, which could have caused his
back condition.  As claimant failed to establish an essential element of his
prima facie case, his claim for benefits was properly denied. See U.S.
Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982); Goldsmith v. Director, OWCP, 838 F.2d 1079, 21 BRBS 27 (CRT)
(9th Cir.1988).  We note that the evidence as to whether the alleged event at work
occurred should have been weighed in determining whether the Section 20(a)
presumption was invoked. See Jones v. J.F. Shea Co., 14 BRBS 207
(1981).  Any error is harmless, however, as the administrative law judge weighed
the relevant evidence and his denial of benefits is supported by substantial
evidence. Bartelle v. McLean Trucking Co., 14 BRBS 166 (1981)(Miller
dissenting), aff'd, 687 F.2d 34, 15 BRBS 1 (CRT)(4th Cir. 1982). 

     Accordingly, the administrative law judge's Decision and Order Denying
Benefits for a Back Impairment is affirmed.[1] 


                         BETTY JEAN HALL
                         Chief Administrative Appeals Judge

                         JAMES F. BROWN
                         Administrative Appeals Judge

                         REGINA C. MCGRANERY
                         Administrative Appeals Judge

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1)Contrary to employer's contention, claimant's notice of appeal is timely filed inasmuch as the administrative law judge's decision was issued on May 20, 1997, and claimant's notice of appeal is postmarked June 18, 1997. See 20 C.F.R. §§802.205(a), 802.207(b), 802.208(b). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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