BRB No. 02-0435
CARMEN KEITH HICKS )
)
Claimant-Petitioner )
)
v. )
)
HALTER MARINE GROUP, )
INCORPORATED ) DATE ISSUED: 01/23/2003
)
and )
)
MISSISSIPPI INSURANCE GUARANTY )
ASSOCIATION )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of C. Richard Avery, Administrative Law
Judge, United States Department of Labor.
Tommy Dulin (Dulin and Dulin, Ltd.), Gulfport, Mississippi, for
claimant.
Karl R. Steinberger and Gina Bardwell Tompkins (Colingo, Williams,
Heidelberg, Steinberger & McElhaney, P.A.), Pascagoula, Mississippi, for
employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (2000-LHC-1110) 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. (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. §921(b)(3).
Claimant, a safety medic, alleges that he injured his back at work on May 27,
1998. Claimant did not miss any work due to this injury, and he was terminated
from his job for insubordination on August 7, 1998. Claimant worked for a
different employer from August 21, 1998, through April 1, 1999, as a safety
representative, when he was terminated due to excessive absenteeism. He had back
surgery in February 1999, and alleged that the operation was due to the work
injury.[1] Subsequently, claimant worked for
only three weeks, as a security guard, and filed a claim seeking total disability
benefits due to his back injury and other conditions he alleges are the result of
his work injury. Claimant alleges that he experienced blackouts, in July and
December 1999, due to the work injury and that the December 1999 blackout caused
him to have an automobile accident which resulted in an injury to his neck,
requiring surgery on March 8, 2000. Since July 17, 2000, claimant has undergone
psychiatric treatment, which he also alleges is a result of the work accident. In
addition, claimant attributes sexual dysfunction, headaches, and a leg injury to
the work accident.
The administrative law judge found that claimant established that the
temporary aggravation of his pre-existing back condition was work-related, but that
claimant did not establish that he was disabled due to this temporary aggravation.
The administrative law judge also found that claimant did not establish that the
other conditions, including his February 1999 back surgery, sexual dysfunction,
blackouts/seizures, neck injury, leg injury, and depression, are work-related since
no physician attributed any of these alleged injuries to the work accident.
On appeal, claimant challenges the administrative law judge's denial of
disability and medical benefits. Employer responds in support of the
administrative law judge's decision.
Claimant initially contends that the administrative law judge erred in finding
that his 1999 back surgery, sexual dysfunction, headaches, blackouts and seizures,
neck injury, and leg injury are not work-related. Section 20(a), 33 U.S.C.
§920(a), provides claimant with a presumption that the injury he sustained
is causally related to his employment if he establishes a prima facie case
by showing that he suffered an injury and that a work accident occurred which could
have caused the injury or aggravated a pre-existing condition. See Conoco, Inc.
v. Director, OWCP [Prewitt], 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999);
American Grain Trimmers, Inc. v. Director, OWCP [Janich], 181 F.3d 810, 33
BRBS 71(CRT) (7th Cir. 1999), cert. denied, 120 S.Ct. 1239 (2000). Once
claimant has invoked the Section 20(a) presumption, the burden shifts to employer
to rebut it with substantial countervailing evidence. See Prewitt, 194 F.3d
684, 33 BRBS 187(CRT). If the administrative law judge finds that the Section
20(a) presumption is rebutted, all relevant evidence must be weighed to determine
if a causal relationship has been established, with claimant bearing the burden of
persuasion. See Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d
285, 34 BRBS 96(CRT) (5th Cir. 2000); see also Director, OWCP v. Greenwich
Collieries [Santoro], 512 U.S. 267, 28 BRBS 43(CRT)(1994). 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., 360 F.2d 693 (5th Cir.
1962), cert. denied, 372 U.S. 954 (1963); John W. McGrath Corp. v.
Hughes, 289 F.2d 403 (2d Cir. 1961).
In the instant case, the administrative law judge found that claimant
sustained a temporary aggravation of his pre-existing back injury but did not
sustain any other injury due to his work accident on May 27, 1998. The
administrative law judge found that claimant's testimony regarding his symptoms and
their onset following the work injury was not credible since claimant's reports to
his doctors following the work accident were inconsistent regarding his symptoms
and their dates of onset; he sometimes failed to refer to the work accident and he
failed to advise most of them that he was simultaneously being treated by other
doctors for the same or different symptoms. As the administrative law judge's
rejection of claimant's testimony is not inherently incredible or patently
unreasonable, we affirm his finding. See Goldsmith v. Director, OWCP, 838
F.2d 1079, 21 BRBS 27(CRT) (9th Cir. 1988); Cordero v. Triple A Machine
Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S.
911 (1979); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996);
Decision and Order at 4 n. 11; 12-13; Emp. Exs. 4 at 9-18; 6 at 7,
11. Contrary to claimant's contention, the administrative law judge did
not err in not discussing the opinions of Drs. Fondren, Black, Barrett, Drake,
Hinman, and Cole, as the first three doctors treated claimant for non-work-related
injuries and the latter three doctors did not provide an opinion regarding a
relationship between claimant's work accident and his subsequent complaints.[2] See Calbeck, 360 F.2d 693; Hughes,
289 F.2d 403; Decision and Order at 13; Cl. Exs. 11, 14, 15, 20; Emp. Exs.
4 (exhibits to Dr. McCloskey's deposition), 9.
In determining that claimant's 1999 back surgery was not work-related, the
administrative law judge rationally relied on the opinions of Drs. McCloskey and
Applebaum to find that employer established rebuttal of the Section 20(a)
presumption, and that upon a weighing of their opinions, claimant did not establish
that his 1999 back surgery was work-related. See Duhagon v. Metropolitan
Stevedore Co., 31 BRBS 98 (1997), aff'd, 169 F.3d 615, 33 BRBS 1(CRT)
(9th Cir. 1999); Calbeck, 360 F.2d 693; Hughes, 289 F.2d 403;
Decision and Order at 13; Cl. Ex. 10; Emp. Ex. 4 at 22-23, 125. Dr. Applebaum
stated that the sole cause of claimant's back surgery and subsequent disability was
more likely than not his pre-existing condition, Emp. Ex. 4 at 125. Dr. McCloskey
subsequently agreed with that statement, after reviewing the medical records of
Drs. Fondren and Drake in addition to claimant's comments which were inconsistent
with those records. Emp. Ex. 4 at 22-23. As these opinions constitute substantial
evidence that the surgery in 1999 was due solely to the pre-existing back
condition, we affirm the administrative law judge's finding that employer rebutted
the Section 20(a) presumption, see Bath Iron Works Corp. v. Director, OWCP
[Harford], 137 F.3d 673, 32 BRBS 45(CRT) (1st Cir. 1998), and that the evidence
establishes the absence of a causal link between the work accident and the surgery,
based on the record as a whole. Id. Thus, we also affirm the administrative
law judge's denial of medical benefits for this condition. See generally
Davison v. Bender Shipbuilding & Repair Co., 30 BRBS 45 (1996).
With regard to the other conditions claimant alleges are related to the
injury, i.e., sexual dysfunction, headaches, blackouts/seizures, neck
injury, and leg injury, we hold that any error that the administrative law judge
may have committed in placing the burden on claimant to establish that the
conditions are work-related is harmless. See generally Bolden, 30 BRBS 71;
Bingham v. General Dynamics Corp., 20 BRBS 198 (1988). Based on the facts
of this case, we hold that the Section 20(a) presumption is not invoked with regard
to these conditions, because none of the medical evidence links these alleged
injuries to claimant's work accident and the administrative law judge found
claimant's testimony in this regard is not credible. See id.; Cl. Exs. 10,
11, 13-15, 18-20; Emp. Exs. 4, 9. Thus, we affirm the administrative law judge's
finding that these conditions are not work-related, as well as the denial of
medical benefits for these conditions. Davison, 30 BRBS 45.
Claimant also contends that the administrative law judge erred in finding that
claimant did not establish that his depression is work-related. The Section 20(a)
presumption is applicable in psychological injury cases. Manship v. Norfolk &
Western Ry. Co., 30 BRBS 175 (1996). In the instant case, the
administrative law judge found that claimant did not establish a relationship
between his depression and work accident based on the opinions of Drs. Pyles and
Maggio that claimant's depression is not directly related to the work
accident. Dr. Pyles stated that claimant's work accident had some contribution to
his current psychiatric symptoms. Emp. Ex. 14 at 61-62. As there is evidence that
claimant suffers from a psychiatric condition that could have been caused, at least
in part, by the work accident, we hold that the administrative law judge erred in
failing to invoke the Section 20(a) presumption. Since Dr. Pyles's opinion
establishes that claimant's psychological condition is in part work-related,
Section 20(a) is invoked as a matter of law. See Hargrove v. Strachan
Shipping Co., 32 BRBS 11, aff'd on recon., 32 BRBS 224 (1998); Emp. Ex.
14 at 61-62. On remand, the administrative law judge must determine whether the
Section 20(a) presumption is rebutted by Dr. Maggio's opinion, and if so, to
ascertain whether a causal relationship is established based on the record as a
whole. If the administrative law judge finds that claimant's psychological
condition is work-related, he must determine if claimant is entitled to medical
benefits for this condition, see 33 U.S.C. §907; Cotton v. Newport
News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990); Romeike v. Kaiser
Shipyards, 22 BRBS 57, 60 (1989), and if claimant is disabled thereby.[3]
Claimant further contends that the administrative law judge erred in denying
him disability benefits. It is claimant's burden to establish he is unable to
perform his usual employment duties or to establish a loss in wage-earning capacity
due to his injury. See, e.g., Avondale Shipyards, Inc. v. Guidry, 967 F.2d
1039, 26 BRBS 30(CRT) (5th Cir. 1992); Gacki v. Sea-Land Serv., Inc., 33
BRBS 127 (1998). The administrative law judge denied claimant disability benefits
for the temporary aggravation of his pre-existing back condition, stating that
claimant "has proven no recoverable loss of wages." Decision and Order at 15-16.
The administrative law judge pointed out that claimant continued to work post-injury for employer until he was terminated for insubordination on August 7, 1998.
Claimant was off work for two weeks and then worked for a different employer until
April 1999, when he was terminated due to absenteeism following the surgery for the
pre-existing back condition.
We affirm the denial of benefits for the period following claimant's injury.
Claimant's only contention on appeal with regard to this period is that he worked
in severe pain following the accident and thus is entitled to total disability
benefits. A claimant who works post-injury only in spite of excruciating pain or
extraordinary effort may be entitled to total disability benefits despite his
continued employment. Haughton Elevator Co. v. Lewis, 572 F.2d 447, 7 BRBS
838 (4th Cir. 1978). In this case, however, there is no medical evidence to
support claimant's contention, and the administrative law judge rationally
discredited claimant's testimony. See generally Louisiana Ins. Guar. Ass'n v.
Bunol, 211 F.3d 294, 34 BRBS 29(CRT) (5th Cir. 2000) (pain, where credited, is
a relevant factor in determining wage-earning capacity). In addition, the
administrative law judge rationally found no loss in wage-earning capacity based
on claimant's continued employment in his usual job, until he was terminated for
reasons unrelated to his employment. Claimant also contends he is disabled due
to the other conditions alleged above; however, as we have affirmed the finding
that these conditions, except for claimant's depression, supra, are not
work-related, the administrative law judge properly denied benefits for these
conditions.
Claimant lastly contends that the administrative law judge erred in denying
him medical benefits under Section 7 of the Act, 33 U.S.C. §907. See
Decision and Order at 16. As we have discussed, claimant is not entitled to
medical benefits for the conditions which are not work-related. Davison, 30
BRBS 45. With regard to the temporary aggravation of claimant's back condition, the
administrative law judge noted that claimant sought treatment on one occasion with
a chiropractor, Dr. Hinman, and did not seek authorization from employer for that
visit. On appeal, claimant alleges that employer denied authorization for all
treatment and thus claimant was not required to seek employer's authorization for
treatment. See, e.g., Roger's Terminal & Shipping Corp. v. Director, OWCP,
784 F.2d 687, 18 BRBS 79(CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986).
Claimant, however, has not established that he initially sought authorization for
treatment for the aggravation of the pre-existing back condition and that employer
denied this treatment. Ranks v. Bath Iron Works Corp., 22 BRBS 301 (1989).
Thus, we affirm the administrative law judge's denial of medical benefits for the
temporary aggravation of claimant's back condition. Id.
Accordingly, the administrative law judge's finding that claimant's
depression is not work-related is vacated, and the case is remanded for further
consideration consistent with this opinion. In all other respects, the
administrative law judge's Decision and Order is affirmed.
SO ORDERED.
____________________________________
NANCY S. DOLDER, Chief
Administrative Appeals Judge
____________________________________
ROY P. SMITH
Administrative Appeals Judge
____________________________________
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant had previously had back surgery in 1992
following an automobile accident. At that time, claimant was diagnosed with
severe spinal stenosis, cervical disc disease, and disc herniations at C6/7,
and L4/5.
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2)2Dr. Fondren is an orthopedist who treated claimant for his
elbow and shoulder pain. Emp. Ex. 4 (exhibits to Dr. McCloskey's deposition).
Dr. Black treated claimant for his left elbow problems. Emp. Ex. 9. Dr.
Barrett treated claimant for arthralgia in the hands, legs, and feet. Cl. Ex.
11. Drs. Drake and Hinman are chiropractors who treated claimant for back and
neck pain, Cl. Exs. 14, 15, and Dr. Cole is a psychologist who evaluated
claimant for his depression. Cl. Ex. 20.
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3)3In this regard, we note that Dr. Pyles stated, "In all
likelihood [claimant] will require ongoing treatment both psychiatric as well as
medical for his Chronic Pain Syndrome coupled with Severe Depression." Cl. Ex.
18 at 6. Dr. Pyles prescribed medications for claimant's depression. Cl. Ex.
18 at 5-6. Dr. Cole recommended continued treatment by Dr. Pyles for
claimant's depression and psychological treatment for depression and pain
including cognitive therapy, pain management, relaxation training, and if
needed, biofeedback. Cl. Ex. 20 at 4. Dr. Maggio stated that claimant should
not be taking the medications prescribed by Dr. Pyles. Emp. Ex. 6 at 10-11. In
addition, Dr. Pyles stated that claimant is disabled from working due to his
depression, Cl. Ex. 18, whereas Dr. Maggio stated claimant is not disabled by
this condition, Emp. Ex. 6.
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NOTE: This is an UNPUBLISHED LHCA Document.
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