BRB Nos. 96-0795,
                              96-0795A and 96-0795B

GEORGE W. SIPLE, JR.                    )
                                        )
          Claimant-Petitioner           )
          Cross-Respondent              )
                                        )
     v.                                 )
                                        )
PENNSYLVANIA SHIPBUILDING               )
COMPANY                                 )
                                        )
          Self-Insured                  )
          Employer-Respondent           )
          Cross-Respondent              )
                                        )
     and                                )
                                        )
SUN SHIPBUILDING AND DRYDOCK            )
COMPANY                                 )    DATE ISSUED:   03/20/1997

                                        )
     and                                )
                                        )
EMPLOYERS' CASUALTY COMPANY             )
                                        )
          Employer/Carrier-             )
          Respondents                   )
          Cross-Petitioners             )
                                        )
DIRECTOR, OFFICE OF WORKERS'            )
COMPENSATION PROGRAMS,                  )
UNITED STATES DEPARTMENT                )
OF LABOR                                )
                                        )
          Cross-Petitioner              )
          Cross-Respondent              )    DECISION and ORDER

     Appeals of the Decision and Order, Order on Motion for Reconsideration,
     and Order of Frank D. Marden, Administrative Law Judge, United States
     Department of Labor.

     Neil B. Kitrosser (Brookman, Rosenberg, Brown & Sandler), Philadelphia,
     Pennsylvania, for claimant.

     Andrew B. Kabler (Weber, Goldstein, Greenberg & Gallagher),
     Philadelphia, Pennsylvania, for Pennsylvania Shipbuilding Company.

     Stephen J. Harlen and Barbara D. Huntoon (Swartz, Campbell & Detweiler),
     Philadelphia, Pennsylvania, for Sun Shipbuilding and Drydock Company and
     Employers' Casualty Company.

     Mark A. Reinhalter (J. Davitt McAteer, Acting Solicitor of Labor; Carol
     DeDeo, Associate Solicitor; Janet Dunlop, Counsel for Long shore),
     Washington, D.C., for the Director, Office of Workers' Compensation
     Programs, United States Department of Labor.

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

     PER CURIAM:

     Claimant, Sun Shipbuilding and Drydock Company (Sun Ship), and the Director,
Office of Workers' Compensation Programs (the Director), appeal the Decision and
Order,  Order on Motion for Reconsideration, and Order (90-LHC-1946) of
Administrative Law Judge Frank D. Marden rendered on a claim filed pursuant to the
provisions of the Long shore 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 & Grylls Associates, Inc., 380 U.S. 359
(1965); 33 U.S.C. §921(b)(3).

     Claimant sustained an injury to his lower back on December 5, 1977, while
working for Sun Ship.  Claimant subsequently returned to work for Sun Ship with
physical restrictions.  Commencing in 1982, Sun Ship paid claimant compensation
benefits at a rate of $100 per week.  In 1982, Pennsylvania Shipbuilding Company
(employer) succeeded Sun Ship at the facility at which claimant worked.  As a
result of claimant's physical restrictions,  employer subsequently demoted claimant
from being a first class mechanic/rigger  to a third class mechanic/rigger with no
opportunity for promotion.  On February 9, 1988, claimant  suffered a work-related
injury to his upper back and neck while working for employer.  He continued working
until April 1, 1988, when his treating physician advised him to quit; claimant has
not been employed since that time.

     In his Decision and Order Awarding Benefits, the administrative law judge
found that: (1) claimant was totally disabled and  reached maximum medical
improvement as of August 18, 1992; (2) employer failed to establish the
availability of suitable alternate employment and was thus responsible for paying
claimant temporary total disability benefits from April 1, 1988, to August 18,
1992, and permanent total disability benefits thereafter; (3) employer  is liable
for the medical services of Drs. Romy and Ungar-Sargon, but not those of Dr.
Hollander; (4) employer is entitled to relief pursuant to Section 8(f), 33 U.S.C.
§908(f), of the Act; (5) Sun Ship is responsible for no further disability
benefits after April 1, 1988; and (6) employer must reimburse Sun Ship for the
compensation it paid claimant since the date he ceased working, April 1, 1988.

     In his Order on Motion for Reconsideration, the administrative law judge
addressed 
the applicability of Hastings v. Earth Satellite Corp., 628 F.2d 85,
14 BRBS 345 (D.C. Cir.), cert. denied, 449 U.S. 905 (1980), to the
case at bar.  Specifically, when considering the  issue raised by the parties
regarding whether claimant was entitled to receive permanent partial disability
compensation concurrently with the permanent total disability compensation awarded,
the administrative law judge concluded that continuing the prior award of $100 per
week, payable by Sun Ship, concurrently with the award of $248.11 per week for
permanent total disability, payable by employer, would exceed the statutory limit
on compensation; accordingly, the administrative law judge affirmed his prior
decision.

     Both claimant and employer sought reconsideration of this decision.  In an
Order dated March 4, 1996, the administrative law judge:  (1) denied claimant's
request to reopen the record for the submission of additional evidence; (2) ordered
employer to pay the medical bill of Bright Medical Technology, Inc., unless it
could demonstrate that the services provided were not a valid medical expense; and
(3) deleted his order that employer should reimburse Sun Ship for the monies it
paid after April 1, 1988, and ordered claimant to reimburse Sun Ship for those
benefits.

     On appeal, claimant challenges the administrative law judge's decision to
terminate Sun Ship's ongoing $100 per week payments of compensation, his decision
to hold claimant liable for repaying the compensation Sun Ship paid him after April
1, 1988, and his refusal to order employer to reimburse claimant for the
chiropractic services rendered by Dr. Hollander.  BRB No. 96-0795.  Sun Ship, in
its cross-appeal, contends that the administrative law judge erred in reconsidering
his first two decisions and in holding that claimant, rather than employer, should
reimburse it for the payments it made to claimant after April 1, 1988.  BRB No. 96-0795A.  The Director has also filed a cross-appeal, arguing that the administrative
law judge erred in finding employer entitled to relief under Section 8(f); the
Director, in his brief, also responds that the administrative law judge erred in
concluding that claimant was not entitled to concurrent awards and that claimant
must reimburse Sun Ship for those payments made to him after April 1, 1988.[1]   BRB No. 96-0795B.

     We will first address claimant's contentions regarding his treatment with Dr.
Hollander and his assertion that the administrative law judge erred in terminating
Sun Ship's payments of $100 per week to him.  BRB No. 96-0795.  Initially, claimant
contends that the administrative law judge erred in failing to find employer liable
for the medical treatment that he received from Dr. Hollander, a chiropracter. 
Section 7(a) of the Act, 33 U.S.C. §907(a), states that "[t]he employer shall
furnish such medical, surgical, and other attendance or treatment ... medicine,
crutches, and apparatus, for such period as the nature of the injury or the process
of recovery may require." See Ballesteros v. Willamette Western
Corp., 20 BRBS 184 (1988).  In order for a medical expense to be awarded,
it must be reasonable and necessary for the treatment of  the injury at issue. 
See Pardee v. Army & Air Force Exchange Service, 13 BRBS 1130 (1981);
20 C.F.R. §702.402.  Whether a particular medical expense is necessary is a
factual issue within the administrative law judge's authority to resolve. 
See Wheeler v. Interocean Stevedoring, Inc., 21 BRBS
33 (1988).     

     In his decision, the administrative law judge found that claimant failed to
establish that the treatment rendered by Dr. Hollander was reasonable or necessary. 
In making this determination, the administrative law judge relied on Dr. Lerman's
opinion that patients with claimant's condition should not undergo aggressive
manipulation.  Dr. Lerman's opinion is supported by the opinion of Dr. Leonard, who
is also a chiropractor, and who stated that Dr. Hollander's treatment addressed
claimant's condition arising out of his prior injuries and not the subject injury,
as well as by the opinion of Dr. Saland, an orthopedic surgeon, who opined that
none of  the treatment rendered by Dr. Hollander was related to claimant's February
1988 work injury.  Moreover, the administrative law judge relied on the opinions
of these doctors that claimant was receiving the same treatment from his physical
therapy as that provided by Dr. Hollander.  It is well-established that the
administrative law judge is entitled to evaluate the credibility of the medical
evidence and to draw his own inferences from the evidence. See
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  It
was, therefore, within the administrative law judge's discretionary authority as
factfinder not to credit Dr. Hollander's testimony regarding the necessity of his
treatment of claimant and to rely instead on the contrary opinions of Drs. Lerman,
Leonard, and Saland. See Cordero v. Triple A Machine Shop, 580 F.2d
1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440 U.S. 911
(1979); McGrath, 289 F.2d at 403.  We therefore affirm the
administrative law judge's determination that employer is not liable for the
medical treatment rendered to claimant by Dr. Hollander, as that finding is
rational and in accordance with law. See generally Wheeler, 21 BRBS
at 35.

     Claimant next contends that the administrative law judge erred in concluding
that he, rather than employer, must reimburse Sun Ship for the compensation
benefits paid to him by  Sun Ship subsequent to April 1, 1988.  Employer, Sun Ship,
and the Director, in their respective briefs, support the position asserted by
claimant.  Sun Ship, however, asserts in its appeal that employer must reimburse
it for these benefits.    

     Section 14(j) of the Act, 33 U.S.C. §914(j), provides the only method
whereby an employer may be entitled to reimbursement of advance compensation
payments made by it to a claimant. Vinson v. Newport News Shipbuilding & Dry
Dock Co., 27 BRBS 220 (1993).  Specifically, Section 14(j) provides:  

     If the employer has made advance payments of compensation, he shall be
     entitled to be reimbursed out of any unpaid installment or installments
     of compensation due.  

33 U.S.C. §914(j).  The Act, therefore, provides for reimbursement of advance
compensation payments made by an employer only if unpaid installments of
compensation remain owing. See Ceres Gulf v. Cooper,
957 F.2d 1199, 25 BRBS 125 (CRT)(5th Cir. 1992); see also
Stevedoring Services of America, Inc. v. Eggert, 953 F.2d 552, 25
BRBS 92 (CRT) (9th Cir. 1992), cert. denied, 112 S.Ct. 3056 (1992). 
Thus, as the Act does not provide for the direct reimbursement by claimant to an
employer for compensation paid by the employer, we hold that the administrative law
judge erred in ordering claimant to repay Sun Ship all compensation that Sun Ship
had paid subsequent to April 1, 1988.  Accordingly, we reverse the administrative
law judge's finding that Sun Ship is entitled to reimbursement from claimant of its
post-April 1, 1988, payments to claimant.  Moreover, employer is also not liable
for reimbursement of benefits paid by Sun Ship for the 1977 injury as Section 14(j)
does not allow reimbursement from unpaid installments due for a separate injury. 
Vinson, 27 BRBS at 223.   

     Claimant additionally asserts that the administrative law judge erred in
determining that Sun Ship was no longer liable for any disability payments
subsequent to April 1, 1988; specifically, claimant avers that concurrent awards
of disability compensation are appropriate in the case at bar.   Both employer and
the Director are supportive of claimant's position regarding this issue.  Sun Ship,
in contrast, urges affirmance of the administrative law judge's decision to
terminate its liability for ongoing permanent partial disability compensation.

     Initially, we reject Sun Ship's contention that the administrative law judge
was without authority to reconsider his decision for a second time in his Order
dated March 4, 1996.  BRB No. 96-0795A.  An administrative law judge is not bound
by formal rules of procedure, see Taylor v. B. Frank Joy Co., 22 BRBS
408 (1989); moreover, neither the Act nor the Act's implementing regulations
prohibit an administrative law judge from reconsidering a prior Order on Motion for
Reconsideration. See Hamilton v. Ingalls Shipbuilding, Inc., 30 BRBS
84 (1996); Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989);
see also 20 C.F.R. §802.206(b)(1).  Accordingly, we hold that
the administrative law judge committed no error in reconsidering his Order on
Motion for Reconsideration.

     Next, we agree with claimant that the administrative law judge's decision to
deny claimant concurrent disability awards cannot be affirmed.  Where a claimant
sustains an injury which results in a permanent partial disability award pursuant
to Section 8(c)(21), 33 U.S.C. §908(c)(21), and subsequently suffers a second
injury which results in a permanent total disability, he may receive concurrent
awards for the two disabilities.  See Hastings v. Earth Satellite
Corp., 628 F.2d 85, 14 BRBS 345 (D.C. Cir. 1980), cert.
denied, 449 U.S. 905 (1980); Finch v. Newport News Shipbuilding & Dry
Dock Co., 22 BRBS 196 (1989).  The concurrent awards must be calculated to
fully compensate claimant for both injuries while avoiding the double recovery of
benefits. Id.  In this regard, Hastings holds that
compensation is computed based on the average weekly wage of the injured employee
at the time of the injury. See 33 U.S.C. §910.  In general,
claimant's earnings at the time of  the second injury  should reflect claimant's
reduced wage-earning capacity as a result of the first injury, so that the
combination of  the two awards fully compensates claimant's loss in wage-earning
capacity for both injuries. See Lopez v. Southern Stevedores, 23 BRBS
295 (1990); Crum v. General Adjustment Bureau, 16 BRBS 101 (1983),
aff'd in pert. part and rev'd and rem. on other grounds, 738 F.2d
474, 16 BRBS 115 (CRT) (D.C. Cir. 1984).  While claimant's average weekly wage at
the time of the second injury may be adjusted to correspond with his residual wage-earning capacity following the first injury, see Crum, 16 BRBS at
108, both Hastings and the Board's decisions thereafter recognize
that increased earnings may also be considered.  Where a claimant's earning
capacity increases, he may be awarded benefits based on his average weekly wage at
the time of  the second injury and an adjustment of the initial permanent partial
disability award may be made under the modification procedures in Section 22, 33
U.S.C. §922, if his wage-earning capacity has in fact increased. 
Hastings, 628 F.2d at 96 n.30, 14 BRBS at 354 n.30.  Where claimant's
increased earnings do not reflect increased wage-earning capacity, but result from
such events as contractual wage increases, claimant may be entitled to benefits
based on his full average weekly wage at the time of the second injury in addition
to the continuing permanent partial disability award. Morgan v. Marine Corps
Exchange, 14 BRBS 784 (1982), aff'd mem. sub nom. Marine Corps
Exchange v. Director, OWCP, 718 F.2d 1111 (9th Cir. 1983), cert.
denied, 465 U.S. 1012 (1984).   See also Finch, 22 BRBS at
196; Kooley v. Marine Industry Northwest, 22 BRBS 142 (1989).  In a
case involving multiple injuries, therefore, the administrative law judge has the
authority to fashion awards which fully compensate claimant's loss in wage-earning
capacity for both injuries.

     In this case, the administrative law judge, after acknowledging the parties'
assertions that Hastings must be applied in this multiple injury case
in order to compensate claimant for his overall loss of wage-earning capacity,
declined to render concurrent awards.  Specifically the administrative law judge
stated that, although claimant's classification changed from that of a first-class
rigger in 1977 to that of a third-class rigger in 1988, "only theory was argued as
to the effect or consequences of claimant's job classifications" and, moreover ,
no evidence was submitted regarding claimant's pay scales.  The administrative law
judge therefore utilized claimant's actual weekly earnings  in 1977 and 1988 in
concluding that claimant was entitled to only an award of permanent total
disability compensation based on his 1988 earnings.  In rendering this conclusion,
however, the administrative law judge failed to determine whether claimant's 1988
earnings fairly and reasonably represent his annual earning capacity.[2]   See 33 U.S.C. §910; see
generally 33 §908(h).

     In the instant case, claimant testified as to the circumstances surrounding
his demotion. See December 10, 1993 Tr. at 62.  Additionally,
claimant submitted into evidence documentation from employer acknowledging the
effect of claimant's medical restrictions upon his wage-earning capacity. 
See CX-13.  Claimant thus may be entitled to concurrent awards in
order to fully compensate him for his loss in wage-earning capacity resulting from
the combined effects of the two injuries.  In order to resolve this issue, the
administrative law judge must determine whether claimant's actual earnings in 1988
fairly and reasonably represent his wage-earning capacity.  The absence of
comparative first and third class rigger wage scales in 1977 and 1988,  which
seemed to deter the administrative law judge from making the necessary findings,
see Order on Motion for Reconsideration at 2, does not negate the
necessity to make such a finding. See White v. Bath Iron Works Corp.,
812 F.2d 33, 19 BRBS 70 (CRT)(1st Cir. 1987).  The administrative law judge could
have adjusted claimant's earnings by using the changes in the National Average
Weekly Wage as calculated under Section 6(b)(3), 33 U.S.C. §906(b)(3).
See Richardson v. General Dynamics Corp., 23 BRBS 327, 330 (1990). 
Moreover, it appears uncontroverted that claimant was demoted as a result of the
physical restrictions placed on him following his 1977 work-related injury.  Thus,
the administrative law judge's findings on this issue are vacated, and the case
remanded for the administrative law judge to properly determine claimant's wage-earning capacity and thereafter address the issue of whether claimant is entitled
to concurrent awards under the proper standard. Hastings, 628 F.2d
at 85, 14 BRBS at 354; White, 812 F.2d at 33, 19 BRBS at 70 (CRT).

     We will now address the Director's appeal of the administrative law judge's
award of Section 8(f) relief to employer.  BRB No. 96-0795B.  In his appeal, the
Director contends that the administrative law judge erred in determining that
employer established the contribution element necessary for such relief to be
granted.  We disagree.  Section 8(f) shifts liability to pay compensation for
permanent disability or death after 104 weeks from an employer to the Special Fund
established in Section 44 of the Act.  33 U.S.C. §§908(f), 944.  An
employer may be granted Special Fund relief, in a case where a claimant is
permanently totally disabled, if it establishes that the claimant had a manifest
pre-existing permanent partial disability, and that his permanent total disability
is not due solely to the subsequent work injury.[3] 
 See 33 U.S.C. §908(f)(1); Director, OWCP v.
Luccitelli, 964 F.2d 1303, 26 BRBS 1 (CRT)(2d Cir. 1992); Two "R"
Drilling Co. v. Director, OWCP, 894 F.2d 748, 23 BRBS 34 (CRT)(5th Cir.
1990); John T. Clark & Son of Maryland v. Benefits Review Board, 622
F.2d 93, 12 BRBS 229 (4th Cir. 1980).  Thus, where an employee is permanently
totally disabled, an employer must demonstrate that the total disability was caused
by both the work injury and the pre-existing condition in order to receive Section
8(f) relief. See Dominey v. Arco Oil & Gas Co., 30 BRBS 134 (1996).

     After  review of the record, we hold that the decision of the administrative
law judge is rational, supported by substantial evidence in the record, and is in
accordance with law.  33 U.S.C. §921(b)(3); O'Keeffe, 380 U.S.
at 359.  In his decision, the administrative law judge found that employer, though
the statements of Dr. Lerman, established the contribution element of Section 8(f). 
Dr. Lerman stated that claimant's current symptoms were related to an exacerbation
of degenerative changes in the spine due to work-related causes,
i.e., both the 1977 and 1988 injuries.  CX 63 at 25.  Dr. Lerman
opined that claimant's neck and shoulder symptoms were due to his 1988 injury,  his
lower back complaints to the 1977 injury and that neither separately totally
disabled him but together they did. CX 63 at 32-33.  Dr. Lerman's opinion is
supported by the testimony of Dr. Saland, who opined that claimant had recovered
from the 1988 injury and any remaining symptomolgy was the result of the 1977
injury and/or claimant's underlying degenerative condition which was aggravated by
both injuries.     

     The administrative law judge's decision to rely upon this testimony is within
his discretion as the trier-of-fact. Calbeck v. Strachan Shipping
Co., 306 F.2d 693 (5th Cir. 1962), cert. denied, 372 U.S. 954
(1963); Perini Corp. v. Heyde, 306 F.Supp. 1321 (D.R.I. 1969). Thus,
as there is credible evidence which demonstrates that claimant's total disability
is the result of his pre-existing conditions and his 1988 work injury, the
administrative law judge's conclusion that the contribution element of Section 8(f)
is met must be affirmed. See Cordero, 580 F.2d at 1331, 8 BRBS at
744; Dominey, 30 BRBS at 134.

     Accordingly, the administrative law judge's Decision and Order, Order on
Motion for Reconsideration, and Order are affirmed in part, reversed in part,
vacated in part, and remanded in part for further consideration consistent with
this opinion.

     SO ORDERED.

                                                                     
         
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         _____________________________     
                         ROY P. SMITH
                         Administrative Appeals Judge


                                                                     
          
                         NANCY S. DOLDER
                         Administrative Appeals Judge
[1] 

To Top of Document

Footnotes.
 1)     We reject employer's contention that the Director is without authority to appeal that portion of the
administrative law judge's decision denying concurrent awards and ordering claimant to reimburse Sun Ship. 
Pursuant to the Board's implementing regulations, the Director has standing to appeal or respond to an appeal
before the Board as a party-in-interest. See 20 C.F.R. §§802.201(a), 802.212;
see also 20 C.F.R. §801.2(a)(10); Ahl v. Maxon Marine, Inc., 29 BRBS
125 (1995).  Thus, the Director could properly appeal this issue to the Board.  The issue of concurrent awards in
this case, moreover, was raised by claimant in his appeal and thus that portion of the Director's brief addressing
this issue is in response to claimant's appeal.  
 Back to Text

 2)The administrative law judge relied on the decision of the United States Court of Appeals
for the Ninth Circuit in Brady-Hamilton Stevedore Co. v. Director, OWCP, 58 F.3d 419, 29
BRBS 101 (CRT)(9th Cir. 1995), in terminating claimant's permanent partial disability award, reasoning that both
a permanent total disability award based on claimant's 1988 average weekly wage of $372.17 and a $100 per week
permanent partial disability award would exceed the statutory maximum.  In Brady-Hamilton,
the court approved concurrent awards under Hastings, but held the two awards combined should
not exceed the 66 2/3 percent of average weekly wage maximum of Section 8(a), 33 U.S.C. §908(a). 
Brady-Hamilton, however, did not involve facts similar to the present case, where claimant's
earnings at the time of permanent total disability arguably reflect reduced wage-earning capacity resulting from
his reassignments.  In the 11 years between injuries, claimant's average weekly wage increased only from $279.99
in 1977 to $372.17 in 1988, and the administrative law judge did not address the effects of claimant's  first injury
on his earnings thereafter.  In Brady-Hamilton, moreover, the court did not simply eliminate the
permanent partial disability award, but rather remanded the case for findings of fact as to the reason for claimant's
increase in earnings from $435.93 in 1977 to $674.72 in 1982, and whether this increase  represented increased
wage-earning capacity. 
 Back to Text

 3)The Director does not dispute that claimant has a manifest pre-existing permanent partial
disability; employer has thus satisfied the first two elements necessary for Section 8(f) relief to be granted.
 Back to Text

To Top of Document To Top of Document

Footnotes.

To Top of Document