2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2002

DE River Stevedores v. Director OWCP

Precedential or Non-Precedential:

Docket 1-1709

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"DE River Stevedores v. Director OWCP" (2002). 2002 Decisions. Paper 74.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/74
Filed 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 Senior District Judge 

for the District of New Jersey, sitting by designation. 
 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 opinion of the 

Benefits Review Board (the "Board") which reversed the 

finding of the Administrative Law Judge ("ALJ") that 

Respondent, Southern Stevedores, Inc. ("SSI") is the 

employer responsible for the benefits awarded to claimant 

James Loftus for his back injuries. We conclude that the 

findings of the ALJ were not supported by substantial 

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 before he 

commenced working for SSI in 1996, none affected his 

back. At SSI Loftus worked as a 40-foot trailer mechanic 

and inspected, repaired and overhauled gensets. Gensets 

were generators that were mounted under the bellies of 

trailer chassis. Loftus described trailer maintenance 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 it and 

 everything. If an air valve's broke, you got to take it off, 

 unhook all the hoses under the trailer to get a new air 

 -- to get the valve off and replace a new valve and put 

 the hoses back under the trailer. You also pull the big 

 black tires, two at a time, to do a brake job. And the 

 springs that hold those brakes on aren't very lightly 

 stretched. 

(App. at 99). 

 2 
A substantial part of Loftus's work consisted of repairing 

and maintaining gensets. Although management expected 

that it would take seven and one half hours to repair a 

genset, Loftus and his teammate developed the ability to 

accomplish the task in four hours or less. He described his 

work on the genset: 

 Q. How did you have to either repair or maintain a 

 genset at Southern in the period between January to 

 September of 1996? 

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

 little mechanic's stool . . . 

 Q. What's a mechanic's stool? 

 A. . . . and it measures exactly one foot off the floor. 

 It's a little stool with four wheels on it and you could 

 roll around. Now where the genset was mounted 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 take the side 

 where the starter and the alternator and everything 

 was and this would be the trailer. And Kevin Doyle 

 would be on that side where he would drain the oil and 

 change the oil filters and work on the control panel, 

 which was up a little higher than the side that I 

 worked on. 

(App. at 99-100). 

After performing this work for a number of months Loftus 

began to have trouble with his lower back. In September 

1996 he went to his family doctor who prescribed pain 

relieving drugs and, because it was a work related problem, 

advised him to seek medical care through his employer. SSI 

referred Loftus to Michael J. Mandarino, M.D., P.C. who 

 3 
examined Loftus on or about October 11. Dr. Mandarino 

reported that Loftus complained of discomfort up and down 

the spine and across the low back but denied arm or leg 

radiation of discomfort. He concluded that the complaints 

were consistent with a sprain and strain and advised Loftus 

to exercise, swim as much as possible during an 

approaching Florida vacation, to continue taking his oral 

medication and to return for reevaluation in two weeks. 

On December 9 and 16 Loftus returned to Dr. Mandarino 

for tests and reevaluation. Loftus had had a CT scan, a 

bone scan and MRI scan, all of which were normal. On 

December 16 Dr. Mandarino noted that "On examination 

today the patient has full motion of the lumbar spine. 

Straight leg raise is negative. No neurological deficit are 

noted at this time nor has there ever been any neurologic 

deficit. It has been explained to Mr. Loftus that all 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 work 

full duty without restriction the following day-- December 

17, 1996. Loftus did in fact return to work, and SSI made 

substantial adjustments in its work practices to relieve 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, the genset 

 came up, everything was up high. We had - - they 

 bought a hydraulic jack, we put it in the back. We 

 raised the back. And they had two big twelve-by-twelve 

 chocks that we would put under the landing gear. And 

 everything came from this high on the floor to where, 

 you know, where you could sit and work in there. 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 footstool? 

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

 could raise the chair and lower the chair. It had a back 

 on it. 

(App. at 109-110). 

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

reporting that since the December visit "the job itself and 

the overall conditions of his job have been improved 

tremendously" but that "over the last few weeks there has 

been a gradual recurrence of discomfort in the spine." (App. 

at 32). On examination of the lumbar spine Dr. Mandarino 

found discomfort on motion. Straight leg raising was 

negative. No neurological deficits were noted in the lower 

extremities. Loftus was started on Medrol-dospak and 

advised to return in three days for reevaluation. 

Loftus returned to Dr. Mandarino for reevaluation on 

April 28 and May 2, 1997. Dr. Mandarino found that none 

of the tests nor his examination would explain Loftus's 

disabling pain. After explaining this to Loftus, Dr. 

Mandarino cleared him orthopedically to return to full duty 

without restriction. Dr. Mandarino advised him to have a 

physical with his family doctor to see if there were any 

nonwork related etiology for his discomfort and discharged 

him from his care. 

On May 14, 1997 Loftus went to Dr. Gad Guttman, 

senior orthopedic surgeon at the Department of Orthopedic 

Surgery at Albert Einstein Medical Center, for a second 

opinion. Dr. Guttman reviewed Dr. Mandarino's records 

reflecting the absence of radiculopathy, Loftus's return to 

work on December 17, 1966, the recurrence of back pain in 

April, 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, 1996 

report of the radiologist reflecting Loftus's return to work on 

December 17, 1996, the recurrence of back pain in April 

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, 1996 

report of the radiologist reflecting that an MRI showed mild 

degenerative changes of discs 3-4 and 4-5 and mild bulging 

without disc herniation or foraminal stenosis. These 

findings, Dr. Guttman stated, were confirmed by the

December CAT scan and bone scan, all of which "were

consistent with the findings of degenerative changes of the 

lumbar spine which one would expect in a patient in this 

type of work, with this habitus and weight and so on." 

(Supp. App. at 48). 

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

physical examination. During his testimony Dr. Guttman 

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 overweight, to his 

 overexertion and to the underlying degenerative 

 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 believe 1996 his 

 symptoms started acutely. Then they resolved in 

 December of `96 I believe according to Dr. Mandarino's 

 report. He returned back to work. Then he kept on 

 working and after four months or so he started having 

 pain again. I called it overexertion and deconditioning 

 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 relieve 

the pain he commenced seeing a chiropractor, Dr. Izzo on 

July 16, continuing with him until September 12, 1997 

when his insurance coverage expired. Dr. Izzo provided 

relief through ultrasound, a TENS device, heat packs and 

stretching. 

At the end of August 1997 petitioner, Delaware River 

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. Operations 

at the facility continued as before and the nature of Loftus's 

work did not change after August of 1997. 

 6 
In the four month period January through April 1998

Loftus worked an extraordinary number of overtime hours, 

ranging on many days from ten to eleven hours and on 

others from seventeen to eighteen hours. On one day he 

worked twenty-one hours. The demands placed upon the 

stevedoring company to move incoming cargoes of fruit 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 are 

particularly interested in having you take a complete 

history from the claimant, to determine whether or not his 

recent complaints are the result of a new injury with his 

present employer, Delaware River Stevedores, or if they are 

attributable to the old accident of September 30,[1996]":** 

Dr. Lefkoe saw Loftus for an orthopedic consultation 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 38). 

Loftus reported low-back pain radiating into both legs. 

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 medication 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 Steven 

Mandel, M.D., who stated, ". . . this gentleman appears to 

_________________________________________________________________ 

** The letter (App. at 36) referred to September 30, 1990, but 

undoubtedly the author intended to refer to September 30, 1996, and 

Dr. Lefkoe so understood it. 

 7 
have complaints consistent with a diagnosis of lumbar 

radiculopathy. There is evidence of chronic changes and the 

L5 and S1 distribution without evidence of any significant 

acute changes noted. There are only mild changes noted in 

his right lumbar paraspinal muscles at the L4-5 and L5-S1 

area." (App. at 47). Dr. Lefkoe prescribed medication 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 back" to 

the extent that "I never knew anything was wrong with me. 

It was so good." (App. at 122). 

Loftus was able to return to work with DRS in January 

1999 with restrictions. He was not called upon to go 

underneath the trailers. He usually wore a TENS unit 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 again 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 pain than 

when he had seen him the previous year. Dr. Guttman was 

referred to the records showing Loftus's longer hours 

during the months preceding May of 1998. He testified: 

 Basically they showed that he did quite a lot of 

 overwork and in those months, I believe January 

 through April, he did extremely heavy long-time work, 

 what I call overwork, and that in itself I believe 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 believe that 

 that could explain his pain when I saw him again 

 which was a little bit worse in intensity than the one 

 that he had before. 

(Supp. App. at 58). 

Dr. Guttman was directed to assume that Loftus worked 

unusually long hours in January, February, March and 

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

cause of Loftus's back pain in April and May of 1998 

through the time he saw him in August 1998. Dr. Guttman 

responded: 

 Well, the information you give me I was also privy to 

 review before. It just amplifies my impression that 

 there was an exertion of work. He worked much 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 the symptoms 

 that he reported to me and came to me was of being 

 similar were much worse and intense when I saw him 

 in June of `98 than compared to the ones that I saw 

 him in April of `97 at which time he had hardly any 

 symptoms and, in fact, I felt he could go back to work 

 without problems. I didn't feel so when I saw him in`98 

 and explanation for that, he over exerted himself. 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 examination 

Loftus continued medical treatment and physical therapy 

and was able to return to work on a restricted basis in 

January 1999.*** 

II. Administrative Proceedings 

In August 1999 the ALJ heard Loftus's claim for workers 

compensation benefits under the Longshore and Harbor 

Workers' Compensation Act, as amended 33 U.S.C.S 901, 

et seq. (the "Act"). The parties to the proceeding were the 

claimant, Loftus; the earlier employer, SSI; and the 

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 included in the record 

contributes little to resolution of the principal issue 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 to his pre-existing 

back condition. This pre-existing back condition would 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 degenerative 

spinal condition pre-existent to the September 1996

manifestation of low back pain therefrom. Alternatively SSI 

asserted that if Loftus was rendered disabled by work 

related causes, such disability arose as the result of a 

separate and discrete event of work overexertion while in 

the employ of DRS between January and April 1998, thus 

placing liability for compensation benefits upon DRS as of 

the May 20, 1998 manifestation of low back pain and

thereafter. 

DRS adopted SSI's first contention and alternatively 

urged that if Loftus were disabled from work activity, it was 

his work activity at SSI, first manifested by pain in 

September 1996 which exclusively placed liability for 

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 employer 

responsible for all benefits awarded, stating: 

 I find that the record evidence establishes that 

 Southern is the employer responsible for benefits 

 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 manifestation of low 

 back pain (See Tr. 25, 62). Second, Claimant's back 

 problems and same complaints of back pain persisted 

 throughout the time period subsequent to September 

_________________________________________________________________ 

** ** In addition the ALJ had to determine i) whether Loftus was entitled 

to compensation for total temporary disability for the intermittent 

periods he was out of work between September 30, 1996 and January 

21, 1999, ii) whether Loftus was entitled to compensation for temporary 

partial disability (loss of wage earning capacity) after January 21, 1999 

and iii) Loftus's average weekly wage underlying any compensation 

benefits awarded. 

 10 
 30, 1996 up to the present (Tr. 46; 105-6; 112-13). 

 And Claimant promptly reported this back pain to his 

 foreman at that time (Tr. 31). Finally, the more 

 probative medical and lay evidence otherwise

 establishes that Southern is the employer responsible 

 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 intensive 

work Loftus would not have been disabled after late April 

1998 on the ground that "but for the initial (September 30, 

1996) manifestation of back symptoms, Claimant would 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 April-May 

1998 was caused by the original work injury of September 

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 heavy 

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 initial 

precipitant event of symptom manifestation on September 

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 the period 

of temporary total disability from April 21, 1998 to January 

20, 1999. The Board concluded that the ALJ applied 

erroneous legal principles and held that as a matter of law 

DRS is liable for Loftus's temporary total disability 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 the full 

 11 
disability resulting from the natural progression of that 

injury, if claimant's subsequent employment aggravates or 

accelerates claimant's condition resulting in disability, 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 exacerbation 

of symptoms, the employer at the time of the work events 

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, which 

included the four months of lengthy overtime, aggravated 

Loftus's symptoms, resulting in increased pain. This 

evidence included Dr. Guttman's, Dr. Lefkoe's and Dr. Lee's 

opinions to that effect. 

The Board held that the ALJ misapplied the law in that 

the test was not, as the ALJ ruled, that Loftus"sustained 

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 initial 

precipitant event of symptom manifestation on September 

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." (App. at 5). 

Based on what it found to be errors of law the Board 

reversed the ALJ's finding that SSI is liable for Loftus's 

period of temporary total disability benefits from May 1998 

to January 20, 1999, holding that DRS is the responsible 

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 ALJ's 

findings of fact as "conclusive if supported by substantial 

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

S 921(b)(3). Substantial evidence is "more than a mere 

scintilla. It means such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion." 

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 applicable 

scope of review, ii) whether the Board committed any errors 

of law, and iii) whether the ALJ's findings are supported 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 traumatic 

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 Board 

stated: 

 In determining the responsible employer in the case of 

 multiple traumatic injuries, if the disability results 

 from the natural progression of an initial injury and 

 would have occurred notwithstanding a subsequent 

 injury, then the initial injury is the compensable 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 prior injury, 

 thus resulting in claimant's disability, then 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, correctly, 

that "[i]f the conditions of a claimant's employment cause 

him to become symptomatic, even if no permanent harm 

results, the claimant has sustained an injury within the 

meaning of the Act." The Board further noted, correctly, 

that "where claimant's work results in a temporary 

exacerbation of symptoms, the employer at the time of the 

 13 
work events leading to this exacerbation is responsible 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 principles and 

bears a close parallel to the present case. The claimant in 

that case suffered from a continuing shoulder rotator cuff 

tear. He suffered a flare-up of pain which interrupted his 

work while employed at Triple A. He voluntarily quit Triple 

A in December 1974 and commenced work as a machinist 

at General Engineering. There he suffered another work 

interrupting flare-up of his arm. He filed two claims for 

compensation. In the first he alleged cumulative trauma 

injury to his right shoulder during employment at Triple A. 

In the second he alleged an identical injury during his 

employment at General. 

The ALJ found that the claimant's disability resulted 

from continued use of his arm and that each flare-up of 

pain represented cumulative trauma and aggravated the 

underlying injury, resulting in each case in a compensable 

injury. 

The Court of Appeals sustained the ALJ's conclusion that 

because General was the employer during the most recent 

aggravation, it should be held liable for the disability 

stating: 

 The last responsible employer rule is applied to two- 

 injury cases as follows: 

 If, on the other hand, the [subsequent] injury 

 aggravated, accelerated or combined with claimant's 

 prior injury, thus resulting in claimant's disability, 

 then the [subsequent] injury is the compensable injury, 

 and [the subsequent employer] is . . . responsible . . . 

700 F.2d at 1311 (quoting Crawford v. Equitable Shipyards, 

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 injury 

resulting in periodic flare-ups involved Loftus's continuing 

back condition rather than a continuing shoulder 

 14 
condition. All the medical evidence confirmed that Loftus 

suffered from chronic lumbar degenerative disc disease. 

This resulted in two distinct flare-ups or injuries. The first 

culminated in late September 1996 when the back pain 

became so intractable that Loftus had to stop work and 

undergo diagnosis and treatment. He recovered sufficiently 

to return to work in December 1996. The underlying 

lumbar degenerative disc disease persisted as was to be 

expected, requiring Loftus to resort to various remedies 

from time to time to alleviate pain. However, he was able to 

continue work, with occasional absences, through all 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 natural 

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 issue 

whether the May 1998 episode aggravated or accelerated 

claimant's condition. Rather his general findings suggested 

that he was relying on erroneous legal principles and his 

finding that Loftus's May 20, 1998 back condition was 

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 SSI is 

the employer responsible for benefits. He stated that there 

is no evidence that Loftus suffered from a severe back 

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 of symptom 

manifestation on September 30, 1996 was the discrete 

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 event' is not 

determinative." (App. at 5). The determinative question is 

whether Loftus's subsequent work aggravated or 

exacerbated Loftus's condition first manifested in 

September 1996. 

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

aggravation of the September 1996 injury. In the section in 

which he awarded Loftus temporary total disability he 

found a work-related injury on September 30, 1996"and/or 

that Loftus's continued work activity aggravated his low 

back impairment" and that this conclusion was"amply and 

preponderantly medically demonstrated in this record." 

(App. at 16) (emphasis added). Further, the ALJ refers to 

the April-May "flare-up" and concedes that"the episode of 

extra heavy work exertion while claimant was employed at 

DRS in January through April 1998 may well have 

furthered his low back pain, the initial precipitant event, 

etc. . . ." (App. at 17). 

The only medical evidence that might support an 

inference that the May 1998 flare-up was a continuation of 

the September 1996 flare-up is an opinion stated in Dr. 

Lefkoe's May 20, 1998 report after he had first examined 

Loftus in connection with the May 1998 flare-up. He opined 

"[b]ased 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). 

The ALJ said that Dr. Lefkoe's opinion is "the medical 

evidence to which I attach the greatest weight." (App. 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 great 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 without 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 concerning his 

long hours during the fruit season, Dr. Lefkoe testified: 

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

 aggravated his preexisting back problem? 

 A. I think that that certainly could have aggravated 

 his preexisting back problem. (emphasis added) 

(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 January - April 

1998 working conditions "certainly could have aggravated 

his preexisting back problem." His opinion in this respect 

was consistent with the opinions of the other medical 

experts, Dr. Guttman and Dr. Lee. 

IV. Conclusion 

The ALJ applied incorrect principles of law, and his 

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 reversal of 

the ALJ's finding that SSI is liable for the May 1998 to 

January 20, 1999 period of benefits and to review the 

Board's holding that DRS is the responsible employer 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 

 17