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. e du/thir dc ir c uit_2002/74Filed January 30, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1709

DELAWARE RIVER STEVEDORES, INC., Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, AND SOUTHERN STEVEDORES, INC., Respondents.

On Petition for Review of Order and Opinion of the Benefits Review Board dated March 12, 2001 entered in Agency Nos. 00-691 and 00-691A

Argued December 18, 2001

Before: SLOVITER and McKEE, Circuit Judges, and DEBEVOISE, District Judge.*

(OPINION FILED: January 30, 2002)

Stephen M. Calder, Esq. (Argued) Palmer Biezup & Henderson LLP 620 Chestnut Street, Suite 956 Philadelphia, PA 19106 Attorneys for Petitioner

___________________________________________________ ______________ * Honorable Dickinson R. Debevoise, United States S enior District Judge for the District of New Jersey, sitting by designat ion.Eugene Mattioni, Esq. (Argued)

Mattioni, Ltd. 399 Market Street, 2nd Floor Philadelphia, PA 19106 Attorneys for Respondents

OPINION OF THE COURT

DEBEVOISE, Senior District Judge:

This is a petition for review of an order and opini on of the Benefits Review Board (the "Board") which reversed the finding of the Administrative Law Judge ("ALJ") tha t Respondent, Southern Stevedores, Inc. ("SSI") is th e employer responsible for the benefits awarded to cl aimant James Loftus for his back injuries. We conclude tha t the findings of the ALJ were not supported by substanti al evidence and will deny the petition for review.

I. The Facts

Loftus had worked as a longshoreman since 1974. Although he suffered several workplace injuries bef ore he commenced working for SSI in 1996, none affected hi s back. At SSI Loftus worked as a 40-foot trailer mec hanic and inspected, repaired and overhauled gensets. Gen sets were generators that were mounted under the bellies of

trailer chassis. Loftus described trailer maintenan ce and repair as follows:

A. Well, if the landing gear gets broken off , you've got to cut it off and put a new set on, reweld i t and everything. If an air valve's broke, you got to take it off, unhook all the hoses under the trailer to ge t a new air -- to get the valve off and replace a new va lve and put the hoses back under the trailer. You also p ull the big black tires, two at a time, to do a brake jo b. And the springs that hold those brakes on aren't ver y lightly

stretched.

(App. at 99).

2A substantial part of Loftus's work consisted of re pairing

and maintaining gensets. Although management expect ed that it would take seven and one half hours to repa ir a genset, Loftus and his teammate developed the abili ty to accomplish the task in four hours or less. He descr ibed his work on the genset:

Q. How did you have to either repair or main tain a genset at Southern in the period between Jan uary to September of 1996?

A. Well, we had to sit on a stool, Your Hono r, it's a

little mechanic's stool . . .

Q. What's a mechanic's stool?

A. . . . and it measures exactly one foot of f the floor.

It's a little stool with four wheels on it a nd you could roll around. Now where the genset was mounte d on the trailer is very low. I'm already down a foot off the floor and I have to stick my head in that hole to get to that engine and do what I had to do. And I would be bent over constantly one foot from the floor.

Q. How many men do this job?

A. Basically, it was me and Kevin Doyle.

Q. When you're doing this, my point, do you get two men working on the same genset?

A. Well, I would be on this side. I would ta ke the side

where the starter and the alternator and eve rything

was and this would be the trailer. And Kevin Doyle

would be on that side where he would drain t he oil and change the oil filters and work on the contr ol panel, which was up a little higher than the side t hat I

worked on.

(App. at 99-100).

After performing this work for a number of months L oftus began to have trouble with his lower back. In Septe mber 1996 he went to his family doctor who prescribed pa in relieving drugs and, because it was a work related problem, advised him to seek medical care through his employ er. SSI referred Loftus to Michael J. Mandarino, M.D., P.C. who

3examined Loftus on or about October 11. Dr. Mandari no

reported that Loftus complained of discomfort up an d down the spine and across the low back but denied arm or leg radiation of discomfort. He concluded that the comp laints were consistent with a sprain and strain and advise d Loftus to exercise, swim as much as possible during an approaching Florida vacation, to continue taking hi s oral

medication and to return for reevaluation in two we eks.

On December 9 and 16 Loftus returned to Dr. Mandari no for tests and reevaluation. Loftus had had a CT sca n, a bone scan and MRI scan, all of which were normal. O n December 16 Dr. Mandarino noted that "On examinatio n today the patient has full motion of the lumbar spi ne. Straight leg raise is negative. No neurological def icit are noted at this time nor has there ever been any neur ologic deficit. It has been explained to Mr. Loftus that a ll of the diagnostic studies are normal. He feels that he is capable of returning to work." (App. at 32).

Dr. Mandarino stated that Loftus could return to wo rk full duty without restriction the following day-- D ecember 17, 1996. Loftus did in fact return to work, and SS I made substantial adjustments in its work practices to re lieve the pressures on Loftus's back. As Loftus described it:

A. Well, the trailer came up higher off the floor and everything. And then the trailer came up, th e genset came up, everything was up high. We had - - they bought a hydraulic jack, we put it in the ba ck. We raised the back. And they had two big twelve -by-twelve chocks that we would put under the landing g ear. And everything came from this high on the floor to where, you know, where you could sit and work in th ere. You didn't have to stick your head in, you know, you weren't bent over like this anymore.

Q. Did you still have to use that one footst ool?

A. No, they had chairs just as high as this here. You

could raise the chair and lower the chair. I t had a back

on it.

(App. at 109-110).

4Loftus returned to Dr. Mandarino on April 25, 1997

reporting that since the December visit "the job it self and the overall conditions of his job have been improve d tremendously" but that "over the last few weeks the re has been a gradual recurrence of discomfort in the spin e." (App. at 32). On examination of the lumbar spine Dr. Mand arino found discomfort on motion. Straight leg raising wa s negative. No neurological deficits were noted in th e lower extremities. Loftus was started on Medrol-dospak an d advised to return in three days for reevaluation.

Loftus returned to Dr. Mandarino for reevaluation o n April 28 and May 2, 1997. Dr. Mandarino found that none of the tests nor his examination would explain Loft us's disabling pain. After explaining this to Loftus, Dr

. Mandarino cleared him orthopedically to return to f ull duty

without restriction. Dr. Mandarino advised him to h ave a physical with his family doctor to see if there wer e any nonwork related etiology for his discomfort and dis charged

him from his care.

On May 14, 1997 Loftus went to Dr. Gad Guttman, senior orthopedic surgeon at the Department of Orth opedic Surgery at Albert Einstein Medical Center, for a se cond opinion. Dr. Guttman reviewed Dr. Mandarino's recor ds reflecting the absence of radiculopathy, Loftus's r eturn to work on December 17, 1966, the recurrence of back p ain in April, 1997 and Dr. Mandarino's conclusion that fro m an orthopedic standpoint Loftus was cleared to return to full duty. Dr. Guttman also reviewed the December 12, 19 96 report of the radiologist reflecting Loftus's retur n to work on December 17, 1996, the recurrence of back pain in A pril

1997 and Dr. Mandarino's conclusion that from an orthopedic standpoint Loftus was cleared to return to full duty. Dr. Guttman also reviewed the December 12, 19 96 report of the radiologist reflecting that an MRI sh owed mild degenerative changes of discs 3-4 and 4-5 and mild bulging

without disc herniation or foraminal stenosis. Thes e findings, Dr. Guttman stated, were confirmed by the December CAT scan and bone scan, all of which "were consistent with the findings of degenerative change s of the lumbar spine which one would expect in a patient in this type of work, with this habitus and weight and so o n." (Supp. App. at 48).

5Dr. Guttman took Loftus's history and performed a

physical examination. During his testimony Dr. Gutt man was asked whether he had an opinion as to whether Loftus's complaints emanating from October of 1996 had closed when he saw him in May of 1997. Dr. Guttman responded:

I felt that at the time that I examined him the patient's complaints were related more to his overweig ht, to his overexertion and to the underlying degenerat ive changes. He kept working all the time and it was not unusual to have pain coming and going after such heavy work and he was in pretty bad overall condition anyway. When I saw him he was overweight and he had degenerative changes.

So as far as the specific question, in I bel ieve 1996 his symptoms started acutely. Then they resolved in December of `96 I believe according to Dr. M andarino's report. He returned back to work. Then he ke pt on working and after four months or so he start ed having pain again. I called it overexertion and dec onditioning and underlying degenerative changes.

(Supp. App. at 54).

Because his back was hurting Loftus had taken time off from his work from April 25 to May 4, 1997. He saw Dr. Guttman on May 14 and took time off from work from May 8 to May 18. On or about May 18 he returned to work full

time. His back still caused him discomfort and to r elieve the pain he commenced seeing a chiropractor, Dr. Iz zo on July 16, continuing with him until September 12, 19 97 when his insurance coverage expired. Dr. Izzo provi ded relief through ultrasound, a TENS device, heat pack s and stretching.

At the end of August 1997 petitioner, Delaware Rive r Stevedores, Inc. ("DRS") acquired SSI's interest in the facility at which Loftus worked. DRS acquired SSI's equipment including the special equipment that had been designed for Loftus to relieve his back problems. O perations at the facility continued as before and the nature of Loftus's work did not change after August of 1997.

6In the four month period January through April 1998

Loftus worked an extraordinary number of overtime h ours, ranging on many days from ten to eleven hours and o n others from seventeen to eighteen hours. On one day he worked twenty-one hours. The demands placed upon th e stevedoring company to move incoming cargoes of fru it was the reason for DRS's heavy time demands imposed on its

mechanics.

By April 1998 Loftus's back was again causing him serious pain. He was referred to Roy T. Lefkoe, M.D ., P.C. The referral letter from Branch Manager, presumably of DRS's claims adjuster, Neil J. Davis stated: "We ar e particularly interested in having you take a comple te history from the claimant, to determine whether or not his recent complaints are the result of a new injury wi th his present employer, Delaware River Stevedores, or if they are attributable to the old accident of September 30,[1 996]":**

Dr. Lefkoe saw Loftus for an orthopedic consultatio n on May 20, 1998. He reviewed Loftus's medical records and took a history from Loftus, who reported that "[i]n 4/98 his pain worsened without additional injury" (App. at 3 8). Loftus reported low-back pain radiating into both l egs.

Dr. Lefkoe conducted a physical examination. His diagnosis was acute and chronic lumbosocral strain/ sprain and lumbar degenerative disc disease at L3-4 and L4 -5 with bulging discs. He found Loftus to be in acute pain and unable to continue working. He prescribed medicatio n and physical therapy to include aquatherapy, modalities and exercise. As to the question Davis addressed to him , he stated, "Based on all information available to me, the cause of his present back condition still is the original work injury of 9/30/96." (App at 40).

Loftus did not return to work; rather he continued seeing Dr. Lefkoe and proceeded with physical therapy. Dr. Lefkoe received a July 9, 1988 report of neurologist Steve n Mandel, M.D., who stated, ". . . this gentleman app ears to

___________________________________________________ ______________

** The letter (App. at 36) referred to September 30 , 1990, but undoubtedly the author intended to refer to Septemb er 30, 1996, and

Dr. Lefkoe so understood it.

7have complaints consistent with a diagnosis of lumb ar

radiculopathy. There is evidence of chronic changes and the L5 and S1 distribution without evidence of any sign ificant acute changes noted. There are only mild changes no ted in his right lumbar paraspinal muscles at the L4-5 and L5-S1 area." (App. at 47). Dr. Lefkoe prescribed medicati on and referred Loftus to Dr. Sandra Kahn for injections. None of this provided relief, and Loftus was referred to Dr . Rosen in November, 1998. Dr. Rosen administered a series of six epidural injections which had a beneficial effect. Loftus testified that Dr. Rosen's treatment "brought me ba ck" to the extent that "I never knew anything was wrong wi th me. It was so good." (App. at 122).

Loftus was able to return to work with DRS in Janua ry 1999 with restrictions. He was not called upon to g o underneath the trailers. He usually wore a TENS uni t and occasionally took pills to relieve pain. He worked only eight hour shifts and performed no overtime.

Dr. Guttman, who had reported on Loftus's condition after his work cessation in April 1997 saw him agai n in June of 1998, about five weeks after he had ceased work because of increased pain and after Loftus had come under the care of Dr. Lefkoe. He saw him again in August 1998. Dr. Guttman testified that Loftus was in greater pa in than when he had seen him the previous year. Dr. Guttman was referred to the records showing Loftus's longer hou rs during the months preceding May of 1998. He testifi ed:

Basically they showed that he did quite a lo t of overwork and in those months, I believe Janu ary through April, he did extremely heavy long-t ime work, what I call overwork, and that in itself I b elieve can explain why he had this onset of pain after he was already working there, but during those four months he really worked extremely heavy and I belie ve that that could explain his pain when I saw him a gain which was a little bit worse in intensity th an the one

that he had before.

(Supp. App. at 58).

Dr. Guttman was directed to assume that Loftus work ed unusually long hours in January, February, March an d

8April 1998 and was asked if he had an opinion as to the

cause of Loftus's back pain in April and May of 199 8 through the time he saw him in August 1998. Dr. Gut tman responded:

Well, the information you give me I was also privy to review before. It just amplifies my impressi on that

there was an exertion of work. He worked muc h more than the normal person would work in a day's session, almost twice as much sometimes, and that was certainly very stressful for his back. So th e symptoms that he reported to me and came to me was of being

similar were much worse and intense when I s aw him in June of `98 than compared to the ones tha t I saw him in April of `97 at which time he had har dly any symptoms and, in fact, I felt he could go ba ck to work without problems. I didn't feel so when I sa w him in`98 and explanation for that, he over exerted hi mself. He

stressed his back at work over time and that was the cause of his problems and it was ongoing.

(Supp. App. at 65-66).

As recited above, after Dr. Guttman's August examin ation Loftus continued medical treatment and physical the rapy and was able to return to work on a restricted basi s in January 1999.***

II. Administrative Proceedings

In August 1999 the ALJ heard Loftus's claim for wor kers compensation benefits under the Longshore and Harbo r Workers' Compensation Act, as amended 33 U.S.C.S 90 1, et seq. (the "Act"). The parties to the proceeding were the claimant, Loftus; the earlier employer, SSI; and th e subsequent employer, DRS. Of the four issues before the ALJ, only one is the subject of the present appeal, i.e.,

___________________________________________________ ______________

*** The portion of the testimony of Dr. Bong Lee in cluded in the record contributes little to resolution of the principal i ssue in this case. In

Dr. Lee's opinion the cause of Loftus's disability was not due to a work incident or symptoms in September 1996 but is due t o his pre-existing back condition. This pre-existing back condition wo uld also be the cause of each subsequent flare up. (Supp. App. 15-76).

9"[w]hich of the named Employers is responsible for any

compensation benefits awarded." 

SSI asserted that Loftus suffered no work related disability as a result of work Loftus performed for it but that Loftus suffered a naturally occurring degenera tive spinal condition pre-existent to the September 1996 manifestation of low back pain therefrom. Alternati vely SSI asserted that if Loftus was rendered disabled by wo rk related causes, such disability arose as the result of a separate and discrete event of work overexertion wh ile in the employ of DRS between January and April 1998, t hus placing liability for compensation benefits upon DR S as of the May 20, 1998 manifestation of low back pain and

thereafter.

DRS adopted SSI's first contention and alternativel y urged that if Loftus were disabled from work activi ty, it was his work activity at SSI, first manifested by pain in September 1996 which exclusively placed liability f or compensation benefits solely upon SSI.

The ALJ rejected SSI's and DRS's first argument and concluded that Loftus was entitled to compensation for total temporary disability for the periods sought. As between SSI and DRS he found that SSI was the emplo yer responsible for all benefits awarded, stating:

I find that the record evidence establishes that Southern is the employer responsible for ben efits awarded herein. First, there is no evidence that Claimant suffered from a severe back injury or impairment or from back pain prohibiting his work prior to the September 30, 1996 manifestatio n of low back pain (See Tr. 25, 62). Second, Claimant 's back problems and same complaints of back pain pe rsisted throughout the time period subsequent to Sep tember

___________________________________________________ ______________

** ** In addition the ALJ had to determine i) whethe r Loftus was entitled to compensation for total temporary disability for the intermittent periods he was out of work between September 30, 19 96 and January 21, 1999, ii) whether Loftus was entitled to compen sation for temporary partial disability (loss of wage earning capacity) after January 21, 1999 and iii) Loftus's average weekly wage underlying an y compensation

benefits awarded.

1030, 1996 up to the present (Tr. 46; 105-6; 1 12-13).

And Claimant promptly reported this back pai n to his foreman at that time (Tr. 31). Finally, the more probative medical and lay evidence otherwise establishes that Southern is the employer re sponsible

for benefits.

(App. at 17).

In half a page the ALJ marshaled the evidence he believed supported his conclusion. He rejected SSI' s contention that but for the four month period of in tensive

work Loftus would not have been disabled after late April 1998 on the ground that "but for the initial (Septe mber 30, 1996) manifestation of back symptoms, Claimant woul d not have suspended his work activities after the April- May, 1998 symptom flare-up". (App. at 17).

The ALJ attached the greatest weight to Dr. Lefkoe' s May 20, 1998 opinion that Loftus's back condition in Ap ril-May 1998 was caused by the original work injury of Sept ember 30, 1996. The ALJ further stated that Dr. Lefkoe's deposition testimony "repeats this conclusion even more firmly." (Id.)

The ALJ acknowledged that "the episode of extra hea vy work exertion while Claimant was employed at DRS in January through April 1998 may well have furthered his low back pain," but he went on to state that"the in itial precipitant event of symptom manifestation on Septe mber 30, 1996 was the discrete event which ultimately eventuated and progressed to the final debilitating event of late April - May, 1998 requiring the suspension of work activity (and later necessitating the January, 1999 return to work at only a light daily job)." (Id.)

SSI appealed to the Board the Decision and Order of the ALJ finding it to be the responsible employer for t he period of temporary total disability from April 21, 1998 t o January 20, 1999. The Board concluded that the ALJ applied erroneous legal principles and held that as a matte r of law DRS is liable for Loftus's temporary total disabili ty benefits for the period from May 1998 to January 20, 1999.

The Board held that "[a]lthough the employer at the time of an initial traumatic injury remains liable for t he full

11disability resulting from the natural progression o f that

injury, if claimant's subsequent employment aggrava tes or accelerates claimant's condition resulting in disab ility, the subsequent employer is fully liable." (App. at 4). Phrased somewhat differently the Board also held the law to be that "where claimant's work results in a temporary exace rbation of symptoms, the employer at the time of the work e vents leading to this exacerbation is responsible for the resulting temporary total disability." (App. at 4).

The Board found that the undisputed evidence established that Loftus's employment with DRS, whic h included the four months of lengthy overtime, aggra vated Loftus's symptoms, resulting in increased pain. Thi s evidence included Dr. Guttman's, Dr. Lefkoe's and D r. Lee's opinions to that effect.

The Board held that the ALJ misapplied the law in t hat the test was not, as the ALJ ruled, that Loftus"sus tained a work-related injury on September 30, 1996, and/or that his continued work activity aggravated his low back impairment." (App. at 5).

The Board further held that the ALJ misapplied the law in holding that it was determinative that "the init ial precipitant event of symptom manifestation on Septe mber 30, 1996 was the discrete event which ultimately eventuated and progressed to the final debilitating event of late April-May 1998 requiring the suspension of wor k activity." (App. at 5).

Based on what it found to be errors of law the Boar d reversed the ALJ's finding that SSI is liable for L oftus's period of temporary total disability benefits from May 1998 to January 20, 1999, holding that DRS is the respon sible employer for this period of disability as a matter of law.

III. Discussion

We have jurisdiction of the petition to review the Board's final order by virtue of Section 21(c) of the Act, 33 U.S.C. S 921(c).

Under the Act the Board is obligated to treat the A LJ's findings of fact as "conclusive if supported by sub stantial

12evidence in the record considered as whole." 33 U.S .C.

S 921(b)(3). Substantial evidence is "more than a m ere scintilla. It means such relevant evidence as a rea sonable mind might accept as adequate to support a conclusi on." Universal Camera Corporation v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456(1951).

In reviewing the Board's decision this court must ascertain i) whether the Board adhered to the appli cable scope of review, ii) whether the Board committed an y errors of law, and iii) whether the ALJ's findings are sup ported by

substantial evidence on the record as a whole. Crum v. General Adjustment Bureau, 738 F.2d 474, 477 (D.C. Cir. 1984).

Both SSI and DRS agree that the law governing the responsible employer in the case of multiple trauma tic injuries is set forth in Buchanan v. International Transportation Services, 33 BRBS 32 (1999), aff 'd mem., No. 99-70631 (9th Cir., Feb. 26, 2001). There the B oard

stated:

In determining the responsible employer in t he case of multiple traumatic injuries, if the disabili ty results from the natural progression of an initial i njury and would have occurred notwithstanding a subseq uent injury, then the initial injury is the compe nsable injury and accordingly the employer at the time of that injury is responsible for the payment of benefits. If, on the other hand, the subsequent injury aggravates

, accelerates, or combines with claimant's pri or injury, thus resulting in claimant's disability, the n the subsequent injury is the compensable injury and the subsequent employer is fully liable.

Id. at 35.

This is the law that the Board applied. It noted, c orrectly, that "[i]f the conditions of a claimant's employmen t cause him to become symptomatic, even if no permanent har m results, the claimant has sustained an injury withi n the meaning of the Act." The Board further noted, corre ctly, that "where claimant's work results in a temporary exacerbation of symptoms, the employer at the time of the

13work events leading to this exacerbation is respons ible for

the resulting temporary total disability." (App. at 3).

Kelaita v. Director, OWCP, 799 F.2d 1308 (9th Cir. 1986) is illustrative of the application of these princip les and bears a close parallel to the present case. The cla imant in that case suffered from a continuing shoulder rotat or cuff tear. He suffered a flare-up of pain which interrup ted his work while employed at Triple A. He voluntarily qui t Triple

A in December 1974 and commenced work as a machinis t at General Engineering. There he suffered another w ork interrupting flare-up of his arm. He filed two clai ms for compensation. In the first he alleged cumulative tr auma injury to his right shoulder during employment at T riple A. In the second he alleged an identical injury during his employment at General.

The ALJ found that the claimant's disability result ed

from continued use of his arm and that each flare-u p of pain represented cumulative trauma and aggravated t he underlying injury, resulting in each case in a comp ensable injury.

The Court of Appeals sustained the ALJ's conclusion that because General was the employer during the most re cent aggravation, it should be held liable for the disab ility stating:

The last responsible employer rule is applie d to two- injury cases as follows:

If, on the other hand, the [subsequent] inju ry aggravated, accelerated or combined with cla imant's prior injury, thus resulting in claimant's d isability, then the [subsequent] injury is the compensa ble injury, and [the subsequent employer] is . . . respo nsible . . .

700 F.2d at 1311 (quoting Crawford v. Equitable Shi pyards, Inc., 11 BRBS 646, 649-50 (1979), aff 'd sub nom. Employers National Ins. Co. v. Equitable Shipyards, 640 F.2d 383 (5th Cir. 1981)).

The facts in the present case are almost identical to those dealt with in Kelaita except that the underlying in jury resulting in periodic flare-ups involved Loftus's c ontinuing back condition rather than a continuing shoulder

14condition. All the medical evidence confirmed that Loftus

suffered from chronic lumbar degenerative disc dise ase. This resulted in two distinct flare-ups or injuries . The first culminated in late September 1996 when the back pai n became so intractable that Loftus had to stop work and undergo diagnosis and treatment. He recovered suffi ciently to return to work in December 1996. The underlying lumbar degenerative disc disease persisted as was t o be expected, requiring Loftus to resort to various rem edies from time to time to alleviate pain. However, he wa s able to continue work, with occasional absences, through al l of 1997 and on until May 1998 when he suffered another flare-up, more serious than the first. The flare-up required

extensive treatment and Loftus was unable to return to work until January 1999.

It is DRS's contention that this was merely a natur al progression of the original injury rather than the result of employment that aggravated or accelerated Loftus's condition resulting in disability. The ALJ, as the Board pointed out, did not address head-on the critical i ssue whether the May 1998 episode aggravated or accelera ted claimant's condition. Rather his general findings s uggested that he was relying on erroneous legal principles a nd his finding that Loftus's May 20, 1998 back condition w as caused by the original work injury of September 30, 1996 was unsupported by any evidence.

The ALJ gave a number of reasons for finding that S SI is the employer responsible for benefits. He stated th at there

is no evidence that Loftus suffered from a severe b ack injury or impairment or from back pain prohibiting his work prior to the September 30, 1996 manifestation of low back pain and that "the initial precipitant event o f symptom manifestation on September 30, 1996 was the discret e event which ultimately eventuated and progressed to the final debilitating event of late April-May 1998." ( App. at 17).

As the Board pointed out in its decision, however," [t]he fact that the earlier injury was the `precipitant e vent' is not determinative." (App. at 5). The determinative ques tion is whether Loftus's subsequent work aggravated or

exacerbated Loftus's condition first manifested in September 1996.

15Even the ALJ's own opinion concedes there was an

aggravation of the September 1996 injury. In the se ction in which he awarded Loftus temporary total disability he found a work-related injury on September 30, 1996"a nd/or that Loftus's continued work activity aggravated h is low back impairment" and that this conclusion was"amply and preponderantly medically demonstrated in this recor d." (App. at 16) (emphasis added). Further, the ALJ ref ers to the April-May "flare-up" and concedes that"the epis ode of extra heavy work exertion while claimant was employ ed at DRS in January through April 1998 may well have furthered his low back pain, the initial precipitan t event, etc. . . ." (App. at 17).

The only medical evidence that might support an inference that the May 1998 flare-up was a continua tion of the September 1996 flare-up is an opinion stated in Dr. Lefkoe's May 20, 1998 report after he had first exa mined Loftus in connection with the May 1998 flare-up. He opined "[b]ased on all information available to me, the ca use of his present back condition still is the original work i njury of 9/30/96." (App. at 40).

The ALJ said that Dr. Lefkoe's opinion is "the medi cal evidence to which I attach the greatest weight." (A pp. at 6).

In Dr. Lefkoe's deposition testimony, however, he

conceded that Loftus had not informed him of the extraordinary number of hours he had worked during the January through April 1998 period.

Q. Did he advise you that he was working a g reat deal of overtime sometimes 15, 16, 18 hour days?

A. No, I was not aware of that . . . He just told me that in April of 1998, his pain worsened wit hout any specific identifiable injury. . . That could have aggravated his condition.

Q. That would be aggravating his condition?

A. That's correct.

(Supp. App. at 16-17).

After being referred to Loftus's testimony concerni ng his long hours during the fruit season, Dr. Lefkoe test ified:

16Q. If that's true, can we agree that that he avy work

aggravated his preexisting back problem?

A. I think that that certainly could have ag gravated his preexisting back problem. (emphasis adde d)

(Supp. App. at 36).

Thus, given full information, Dr. Lefkoe discarded the May 20, 1998 opinion upon which the ALJ relied and revised it to express the view that Loftus's Januar y - April 1998 working conditions "certainly could have aggra vated his preexisting back problem." His opinion in this respect was consistent with the opinions of the other medic al experts, Dr. Guttman and Dr. Lee.

IV. Conclusion

The ALJ applied incorrect principles of law, and hi s finding that the May 1998 flare-up was simply a continuation of the September 1996 flare-up was not supported by substantial evidence.

We will deny the petition to review the Board's rev ersal of the ALJ's finding that SSI is liable for the May 19 98 to January 20, 1999 period of benefits and to review t he Board's holding that DRS is the responsible employe r for this period of disability as a matter of law.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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