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                                 BRB No. 97-1394

KEVIN KILGARIFF                    )
          Claimant-Respondent      )    DATE ISSUED:   06/26/1998     

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

     Appeal of the Decision and Order Awarding Benefits of Thomas Schneider,
     Administrative Law Judge, United States Department of Labor.

     Dorsey Redland, San Francisco, California, for claimant.

     Judith A. Leichtnam (Laughlin, Falbo, Levy & Moresi, LLP), San
     Francisco, California, for employer/carrier.

     Before: SMITH, BROWN and McGRANERY, Administrative Appeals Judges.


     Employer appeals the Decision and Order Awarding Benefits (96-LHC-1744) of
Administrative Law Judge Thomas Schneider 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).[1]   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).

     Claimant was injured on December 22, 1991, in a work-related accident when a
container was dropped twice on the chassis of the tractor he was driving, the
second time apparently with greater force than the first time.  H. Tr. at 144. 
Claimant filled out an accident report and went home.  The next day, claimant
reported to Dr. Stroop, an orthopedist, who diagnosed acute lumbosacral sprain,
with a possible discogenic component and radiculopathy.  Cl. Ex. 8.  Dr. Silverman
took over treatment of claimant's back after Dr. Stroop's retirement.  She
diagnosed lumbar disc disease with radiculopathy at the left L5 or S1 level, and
she stated that claimant's 1992 MRI showed disc protrusion and stenosis.  H. Tr.
at 78.  Prior to his retirement, Dr. Stroop referred claimant to a psychiatrist to
treat his attendant depression.  Dr. Trahms, claimant's treating psychiatrist,
opined that she did not think claimant was capable of working due to his major
depression with psychotic features, and that he could not handle surgery from a
psychiatric standpoint.  H. Tr. at 198, 237.  Claimant has not returned to work
since the accident, and sought permanent total disability benefits under the Act.

     In his Decision and Order, the administrative law judge found that there were
possibly some jobs claimant might be able to perform from a purely orthopedic
standpoint, but when claimant's psychological condition is considered, he is not
a candidate for a job in the open market.  Decision and Order at 7.  Moreover, the
administrative law judge credited the testimony of Ms. Schissel, a vocational
consultant testifying on claimant's behalf, that she found no employer willing to
hire claimant.  Therefore, the administrative law judge concluded that claimant is
entitled to permanent total disability benefits under the Act.

     On appeal, employer contends that the administrative law judge erred in
finding the evidence insufficient to establish suitable alternate employment. 
Claimant responds, urging affirmance of the administrative law judge's Decision and

     Employer contends that the administrative law judge erred in finding that claimant is permanently totally disabled
as it alleges the evidence supports a finding of suitable alternate employment.  As it is uncontested that claimant is unable
to perform his usual work, the burden shifted to employer to demonstrate the availability of actual job opportunities within
the geographic area where claimant resides, which the claimant, by virtue of his age, education, work experience, and
physical restrictions, is capable of performing. Bumble Bee Seafoods v. Director, OWCP, 629
F.2d 1327, 12 BRBS 660 (9th Cir. 1980).  If the administrative law judge finds,
based on medical opinions, that claimant cannot perform any employment, employer
has not established suitable alternate employment. Lostaunau v. Campbell
Industries, Inc., 13 BRBS 227 (1981), rev'd on other grounds sub nom.
Director, OWCP v. Campbell Industries, Inc., 678 F.2d 836, 14 BRBS 974 (9th
Cir. 1982), cert. denied, 459 U.S. 1104 (1983).  Moreover, if the vocational
expert states that no jobs exist which the employee could reasonably obtain, he is
permanently totally disabled. Brandt v. Stidham Tire Co., 16 BRBS 277
(1984), rev'd on other grounds, 785 F.2d 329, 18 BRBS 73 (CRT) (D.C. Cir. 1986).

     After consideration of the administrative law judge's Decision and Order and the evidence of record, we hold that
the administrative law judge's Decision and Order is supported by substantial evidence, and therefore it is affirmed.  
Specifically, although the administrative law judge discussed the opinions of Drs.
Curry and Munday that vocational rehabilitation was desirable in determining
whether claimant is psychologically capable of returning to the work force, he
credited the opinion of claimant's treating psychiatrist, Dr. Trahms, that claimant
is not psychologically stable enough to seek work at this time or to pursue further
surgery.  In addition, although Mr. Stauber testified on behalf of employer
regarding a number of positions identified in a labor market survey, the
administrative law judge noted that Mr. Stauber testified that Dr. Trahms did not
approve of any of the positions for claimant. Tr. at 263.  Moreover, the
administrative law judge credited the testimony of Ms. Schissel that she had called
a number of employers and told them of claimant's injury, his lifting capacity, his
need to lie down part of the day, his depression, and his poor social skills, and
that she found no employer willing to hire claimant. The administrative law judge
also relied on his observations of claimant, as well as the medical record, to find
that claimant was more or less in constant pain. See generally Anderson v. Todd
Shipyards Corp., 22 BRBS 20 (1989).  Although, as employer contends, an
employee must reasonably cooperate with his employer's rehabilitation specialist
and submit to rehabilitation evaluations, Dangerfield v. Todd Pacific Shipyards
Corp., 22 BRBS 104 (1989); Vogle v. Sealand Terminal, Inc., 17 BRBS 126
(1983), in the present case we hold that any error by the administrative law judge
in not considering claimant's refusal to meet with employer's rehabilitation
specialists is harmless as the administrative law judge credited evidence of record
that claimant cannot perform any work. See generally Brandt, 16 BRBS at 277;
Lostaunau, 13 BRBS at 227.  Thus, as employer has raised no reversible error
on appeal, we affirm the administrative law judge's finding that claimant is
entitled to permanent total disability benefits as it is supported by substantial
evidence based on credibility determinations that are rational and a proper
exercise of his discretion. See generally John W. McGrath Corp. v. Hughes,
289 F.2d 403 (2d Cir. 1961).

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


                              ROY P. SMITH
                              Administrative Appeals Judge

                              JAMES F. BROWN
                              Administrative Appeals Judge

                              REGINA C. McGRANERY
                              Administrative Appeals Judge

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1)Pursuant to claimant's request, the Board dismissed claimant's appeal in BRB No. 97-1394A by Order dated May 5, 1998. In addition, by Order dated April 9, 1998, the Board dismissed employer's supplemental appeal as abandoned. 20 C.F.R. §802.402(a). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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