United States Court of Appeals

For the First Circuit

No. 03-2530

BATH IRON WORKS CORPORATION,

Petitioner,

v.

MICHAEL PRESTON and

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

Respondents.

APPEAL FROM THE BENEFITS REVIEW BOARD

Before

Boudin, Chief Judge,

 Lipez and Howard, Circuit Judges.

Stephen Hessert, with whom Doris V. R. Champagne and Norman,

Hanson & Detroy, LLC were on brief, for petitioner.

Marcia J. Cleveland for respondents.

August 30, 2004
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LIPEZ, Circuit Judge. Michael Preston filed a worker's

compensation claim against his employer, Bath Iron Works (BIW),

alleging that harassment in the workplace aggravated the symptoms

of his previously existing neurological condition. After the

Administrative Law Judge (ALJ) denied benefits, Preston appealed to

the Benefits Review Board (the Board). In vacating the ALJ's

decision, the Board ruled that the ALJ had not determined whether

the stress and harassment claimed by Preston had occurred, and it

remanded for further consideration. On remand, the ALJ made the

requisite findings on stress and harassment and reversed his

earlier disposition by granting benefits to Preston. BIW appealed

the ALJ's second decision, and the Board affirmed. BIW now appeals

to this court, arguing primarily that the Board erred in

overturning the ALJ's first decision denying benefits. It also

challenges rulings in the Board's second decision. After careful

review, we affirm. 

I.

We derive the following facts from the record before the

ALJ. We relate only those facts necessary to dispose of the issues

on appeal. 

Michael Preston suffers from a hereditary neurological

disorder called paramyoclonus multiplex, which causes involuntary

shaking of his head and arms. Preston has suffered symptoms of the

disease from approximately age ten until the present. The
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involuntary shaking tends to become worse when he is under stress.

When the stress subsides, however, his symptoms usually subside. 

From 1978 until 1998, Preston worked at the BIW shipyard

in Bath, Maine. He began work as a "rigger," which required him to

attach shackles to ship components--which often weighed between 100

and 150 tons--so that they could be picked up by a crane.

Typically, he worked as part of a six to eight person crew, and

most of his work was done on the ground or in a hydraulic lift

called a "cherry picker." In the last six to eight years of his

career, Preston spent about half of his time at work as a crane

operator, maneuvering cranes that sat on tracks approximately forty

feet above the floor of the assembly area.

Preston alleges that, during his twenty years at BIW, he

was ridiculed, called derogatory names, and subjected to practical

jokes because of the symptoms of his disease. Members of his crew

referred to him as "Shake and Bake" and would sometimes try to

startle him so that his shaking would become more pronounced. This

harassment caused stress, which in turn exacerbated Preston's

symptoms. As his shaking worsened, he began to worry that he could

not safely perform his job. In a harmful cycle, this concern

caused even greater stress which further aggravated his symptoms.

As his symptoms grew worse, he claims that his coworkers began to

question whether he was a danger to his crew. 
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In light of these difficulties at work, Preston began to

take time off to get his symptoms under control. On the advice of

his treating physician, Dr. Stephanie Carcini, he stopped working

altogether on August 28, 1998. He reports that his symptoms have

improved since he stopped working.

II.

On October 22, 1998, Preston filed a claim for benefits

under the Longshore and Harbor Workers' Compensation Act (the Act),

33 U.S.C. §§ 901-950. On November 4, 1998, BIW controverted

Preston's claim. An ALJ held hearings on April 17 and April 19,

2000, during which both parties presented evidence, including the

expert testimony of several physicians. Preston argued that the

working conditions at BIW so aggravated the symptoms of his

disorder that he could not continue working. BIW contended that

any teasing or ridicule at the shipyard was minor and that any

deterioration in Preston's condition was due to other stressful

events in his life, such as struggles with his family life and his

recurring problems with alcohol abuse.

The evidence offered by BIW included the testimony of a

neurologist, Dr. Seth Kolkin, and an evaluation conducted by a

psychiatrist, Dr. David J. Bourne. In his written decision, the

ALJ described Dr. Kolkin's testimony about whether stress could

aggravate Preston's conditions:

Dr. Kolkin . . . testified that stress can

worsen the involuntary movements associated
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with myoclonus but only as a temporary

aggravation, that any improvement of that

temporary condition "depends on the exact

situation and his levels of concentration,

medications, fatigue, motivation" and that

[Preston] advised the doctor that he found his

work to be stressful "because of depression

and difficulties at work."

. . . [T]he doctor agree[d] [that]

"[s]tress, depression[,] any volition,

motivation, any degree of psychological state"

would affect [Preston's] movements. . . .

According to the doctor, stress and

fatigue will "transiently" exacerbate

[Preston's] symptoms, that the exacerbation

would last for the "duration of the fatigue or

stress" and "once that stress is resolved (the

person) would be back at (his) baseline," the

doctor remarking that it would take "moments"

to return to baseline after the stress is

removed and that [Preston] "could work if he

had a calm, supportive environment," and "that

if he were motivated and given some latitude

and encouragement and support, there is no

reason why he couldn't be doing what he was

doing before if he wanted to be." According

to the doctor, if [Preston] were to be called

derogatory names because of his myoclonus, he

should report those instances to his

supervisors and if action were not taken to

stop that harassment, then such would not

constitute a calm and supporting work

environment.

Dr. Bourne's evaluation, dated June 22, 2000, assessed only

Preston's complaints of psychological problems, including anxiety

and depression. The ALJ quoted Dr. Bourne's evaluation at length

in his opinion, including the following passage:

It is my [Dr. Bourne's] belief that Mr.

Preston's psychological condition has been

caused by his physical illness and by the

deterioration of his health which he

perceives. His movement disorder has caused a

psychological struggle, which has left him
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feeling isolated, sensitive and hurt. I do

not have the expertise to determine whether

any eventual aggravation of the movement

disorder is or was due to work conditions, and

will defer to the expertise of neurologists

concerning that issue. 

Thus, Dr. Kolkin stated that stressful working conditions could

aggravate Preston's physical symptoms, even if the aggravation

lasted only as long as the stress remained. Dr. Bourne explicitly

limited his analysis to Preston's psychological, rather than his

physical, problems, and avoided any opinion on whether work

conditions aggravated Preston's movement disorder.

On January 2, 2001, the ALJ denied benefits to Preston.

In his written order he explained that, to be eligible for

benefits, a claimant must first establish a prima facie case, which

gives rise to a presumption that his injury was caused by his

employment and thus is covered by the Act. 

To establish a prima facie claim for

compensation, a claimant need not

affirmatively establish a connection between

work and harm. Rather, a claimant has the

burden of establishing only that (1) the

claimant sustained physical harm or pain and

(2) an accident occurred in the course of

employment, or conditions existed at work,

which could have caused the harm or pain.

(citations omitted). The ALJ noted that "[i]f claimant's

employment aggravates a non-work-related, underlying disease so as

to produce incapacitating symptoms, the resulting disability is

compensable." He also described the effect of establishing a prima

facie case:
133 U.S.C. § 920 provides in relevant part:

In any proceeding for the enforcement of a claim for compensation

under this Act it shall be presumed, in the absence of substantial

evidence to the contrary--

(a) that the claim comes within the provisions of this

chapter.

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Once this prima facie case is established, a

presumption is created under Section 20(a) [33

U.S.C. § 920(a)]1 that the employee's injury or

death arose out of employment. To rebut that

presumption, the party opposing entitlement

must present substantial evidence proving the

absence of or severing the connection between

such harm and employment or working

conditions. . . . If the presumption is

rebutted, it no longer controls and the record

as a whole must be evaluated to determine the

issue of causation.

Despite laying out this analytical framework accurately,

the ALJ did not make specific findings as to whether Preston had

suffered the ridicule and verbal abuse at work that he had

described, or whether the alleged abuse had aggravated the symptoms

of his disease. Instead, the ALJ ruled that BIW had adequately

rebutted any Section 20(a) presumption of causation through Dr.

Kolkin's testimony and Dr. Bourne's evaluation. He analyzed the

rebuttal of the Section 20(a) presumption in two passages. In the

first, he acknowledged the nature of Preston's claim and then

dispatched it summarily:

In the case sub judice, Claimant alleges that

the harm to his bodily frame . . . resulted

from working conditions at the Employer's

shipyard. The Employer has introduced

substantial evidence severing the connection
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between such harm and Claimant's maritime

employment. Thus, the presumption falls out

of the case, does not control the result and I

shall now weigh and evaluate all of the record

evidence. 

Later in the opinion, he revisited BIW's attempt to rebut the

Section 20(a) presumption:

[T]he Employer, in this case, has clearly

introduced substantial evidence to rebut the

presumption with the testimony of Dr. Kolkin,

both in his report and in his deposition, and

with the testimony of Dr. Bourne. Dr. Kolkin

testified that Claimant's condition is the

same now as it was six or ten years ago and

has not been aggravated or accelerated by his

work as a rigger, or by any of the alleged

stress in any way in the work environment.

Dr. Bourne has testified that Claimant's

psychological condition is a chronic

adjustment disorder which is caused by his

underlying pre-existing disease and which was

not caused, accelerated, aggravated or

exacerbated by the alleged stress at work.

The ALJ cited only Dr. Kolkin's testimony and Dr. Bourne's

evaluation in determining that BIW had rebutted the Section 20(a)

presumption of causation with substantial evidence. 

Preston appealed the ALJ's decision to the Board. In its

written opinion of January 22, 2002, the Board noted that the ALJ

had not made specific findings on whether Preston had actually

suffered increased harassment and stress while working at BIW:

While the administrative law judge identified

claimant's allegations as to "harm" and

"working conditions," he did not determine

whether the alleged stress and harassment at

claimant's workplace occurred. Without

findings evaluating the conflicting evidence

on this issue the Board lacks the proper
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context for considering whether employer

presented substantial evidence in rebuttal.

The Board reasoned that it should remand the case to the ALJ with

instructions to determine "whether [Preston's] condition or its

symptoms were aggravated by conditions or an accident at work.

Answering this question requires findings identifying the accident

or working conditions in existence which could have aggravated

[Preston's] condition."

Additionally, the Board instructed the ALJ that Dr.

Kolkin's testimony and Dr. Bourne's evaluation were, as a matter of

law, inadequate to rebut the Section 20(a) presumption of causation

if the ALJ found on remand that Preston had established a prima

facie case. The Board explained:

[T]he opinion of Dr. Kolkin actually supports

a causal connection rather than rebutting it

as the administrative law judge found. . . .

Dr. Kolkin testified that stress could

temporarily worsen the symptoms of claimant's

myoclonus disease. He also stated that the

increase of the involuntary movements would

not be permanent but, rather, would dissipate

when the stressor was removed. . . . This

medical evidence supports the conclusion that

stressful working conditions could have

aggravated claimant's condition.

In a footnote, the Board explained that Dr. Bourne's evaluation was

also insufficient to rebut the Section 20(a) presumption: "Dr.

Bourne's report addressed only the alleged psychiatric injury and

not the physical injury. In fact, Dr. Bourne specifically admitted
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he has no expertise to determine whether claimant's physical

disorder had been aggravated by his employment."

On remand, the ALJ stated that, "having been directed by

the Board to reconsider the totality of this closed record on the

nature and extent of the Section 20(a) presumption, [I am] now

constrained to find and conclude that [Preston] has established a

prima facie claim." His opinion contained a detailed analysis of

the evidence supporting the conclusion that the work environment at

BIW had caused stress that aggravated Preston's involuntary

shaking. Specifically, the ALJ relied on Preston's testimony, and

the testimony of Preston's supervisor, in finding that Preston had

been ridiculed at work, that this ridicule caused stress, and that

his symptoms had at least worsened temporarily during stressful

periods during his twenty years at BIW. Additionally, the ALJ

relied on testimony by BIW's own expert medical witnesses in

finding that workplace stress could exacerbate Preston's symptoms,

if only temporarily, and thus that Preston had established that

workplace conditions could have aggravated the symptoms of his

underlying condition. The ALJ then found that BIW had not rebutted

the Section 20(a) presumption, noting correctly that the Board had

ruled as a matter of law that Dr. Kolkin's testimony and Dr.

Bourne's evaluation were not sufficient for rebuttal. Finally, the

ALJ ruled that Preston's claim was not time barred and that Preston
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was entitled to benefits based on his weekly wages and medical

expenses. 

In making these findings and rulings, the ALJ groused

that he had been "prompted by the Board." Specifically, he stated

that "after being prompted by the Board, I now find and conclude

that Mr. Preston has introduced ample evidence of harm to invoke

the [Section 20(a)] presumption." He then added this complaint: 

This matter is another example of cases

involving my decisions wherein the Board has

clearly usurped the functions of this

Administrative Law Judge, has clearly

substituted its opinions for this trier-offact who presided over two days of formal

hearings and who alone had the opportunity to

hear the testimony and judge the credibility

of witnesses testifying under oath before me.

In certain cases, the Board has treated the

Section 20(a) presumption as virtually an

irrebuttable presumption. This matter, in my

judgment, is another of those cases.

BIW appealed this second decision to the Board. Taking

some cues from the complaints of the ALJ, it argued that the

Board's first decision "exceeded the scope of its review and

usurped the administrative law judge's function as a fact-finder"

because it "reweighed the evidence and made inappropriate factual

determinations in concluding that employer did not establish

rebuttal of the Section 20(a) presumption as a matter of law." It

further argued that the Board had improperly "required employer to

'rule out' any possible causal connection between claimant's

employment and his condition in order to establish rebuttal,"
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instead of allowing BIW to rebut a Section 20(a) presumption with

only "substantial evidence." 

The Board rejected these arguments. It ruled that its

first decision had only required the ALJ to undertake the Section

20(a) analysis mandated by law, which required the ALJ to make

specific findings about stress and harassment in Preston's

workplace. With respect to its ruling that BIW had not introduced

evidence sufficient to rebut a Section 20(a) presumption, the Board

wrote that it had merely "applied the well-established aggravation

rule, which provides that where a claimant's employment aggravates,

accelerates or combines with a pre-existing condition, the entire

resulting disability is compensable." Under that rule, BIW could

only rebut a Section 20(a) presumption of causation with

"substantial evidence that claimant's condition was not aggravated

by his working conditions." The Board concluded that "[a]s none of

the physicians opined to 'a reasonable degree of medical certainty'

that claimant's working conditions did not aggravate his underlying

physical condition, employer did not meet its burden of production"

to rebut the Section 20(a) presumption. The Board affirmed the

ALJ's second decision because BIW had "not challenge[d] the

administrative law judge's findings invoking Section 20(a)" and had

"not point[ed] to any evidence sufficient to rebut Section 20(a)."

Finally, the Board affirmed the ALJ's rulings on the timeliness of

Preston's filing and the award of benefits. 
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On appeal to this court, BIW argues primarily that the

Board erred in overturning the ALJ's first decision. It further

argues that both the Board and the ALJ, in the second round of

decisions, erred in (1) finding that Preston filed his claim in a

timely fashion, (2) finding that Preston was "disabled" within the

meaning of the Act and was therefore entitled to benefits, (3)

determining Preston's average weekly wage for the purpose of

calculating the award of benefits, and (4) considering the question

of medical benefits even though the parties had agreed to litigate

that issue at a later date. We take each of these arguments in

turn. "This court reviews the [Board's] decision on legal issues

de novo and determines whether the Board adhered to the

'substantial evidence' standard when it reviewed the [ALJ's]

factual findings." Bath Iron Works v. Brown, 194 F.3d 1, 3 (1st

Cir. 1999).

III.

A. The Board's First Decision

"In order for an injury to be covered by the Act, the

claimant must initially make out a prima facie case. That is, a

claimant 'must at least allege an injury that arose in the course

of employment as well as out of employment.'" Brown, 194 F.3d at

4 (quoting U.S. Indus./Fed. Sheet Metal, Inc. v. Director, OWCP,

455 U.S. 608, 615 (1982)). To establish a prima facie case, a

claimant must make two showings: (1) that he "sustained physical
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harm" and (2) "that conditions existed at work which could have

caused the harm." Susoeff v. San Francisco Stevedoring Co., 19

Ben. Rev. Bd. Serv. 149, 151 (1986). Thus, to make his prima facie

case, the claimant is not required to show a causal connection

between the harm and his working conditions, but rather must show

only that the harm could have been caused by his working

conditions. For the purposes of making a claim under the Act, the

physical harm alleged can be the aggravation of a previously

existing condition. See Gardner v. Director, OWCP, 640 F.2d 1385,

1389 (1st Cir. 1981) (holding that aggravation of claimant's

symptoms from a previously existing venous condition was

compensable under the Act); Strachan Shipping Co. v. Nash, 782 F.2d

513, 517 (5th Cir. 1986) ("[W]here an employment injury worsens or

combines with a preexisting impairment to produce a disability

greater than that which would have resulted from the employment

injury alone, the entire resulting disability is compensable.").

Once a claimant makes a prima facie case, he is entitled

to a presumption that the injury was caused by his working

conditions and is therefore compensable under the Act. 33 U.S.C.

§ 920(a); see also Brown, 194 F.3d at 5 ("Once [claimant] made out

his prima facie case, there was a presumption of liability."). An

employer can rebut this so-called "Section 20(a)" presumption by
2"Substantial evidence" is "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion."

Sprague v. Director, OWCP, 688 F.2d 862, 865 (1st Cir. 1982)

(citation and quotation marks omitted).

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demonstrating, through substantial evidence,2 that the injury was

not caused by the claimant's working conditions. See Brown, 194

F.3d at 5; Sprague v. Director, OWCP, 688 F.2d 862, 865 (1st Cir.

1982). If an employer introduces substantial evidence severing the

causal connection between the injury and claimant's working

conditions, "the presumption 'falls' out of the case." Sprague,

688 F.2d at 866 n.7. In that instance, the claimant bears the

burden of showing, "based on the record as a whole," that his

injury was caused by his working conditions. Brown, 194 F.3d at 5.

BIW contends that the Board erred in its first decision

by ruling that the ALJ had not made sufficient "findings

identifying the accident or working conditions in existence which

could have aggravated [Preston's] condition." Rather, BIW argues

that the ALJ found in his first decision that Preston had suffered

stress on the job that could have aggravated his condition,

determined that Preston had established a prima facie case

entitling him to the Section 20(a) presumption of causation, but

then ruled that BIW had rebutted that presumption with substantial

evidence that personal factors unrelated to work caused claimant's

stress and worsened his condition. 
-16-

BIW points to a single statement from the ALJ's first

decision to support its argument that he made the necessary

findings on stress and harassment: "I may properly rely on

Claimant's credible testimony to establish that he experienced a

work-related harm, if the record reflects the presence of working

conditions that could have caused the harm, thereby invoking the

Section 20(a) presumption." This is a contingent finding -- "if

the record reflects . . . ." The ALJ never stated whether "the

record reflects the presence of working conditions that could have

caused the harm." 

In contrast, the ALJ made explicit findings about

Preston's work environment in his second decision. Specifically,

he found that Preston was "routinely called 'Shake and Bake'" and

that "[t]his nickname was so pervasive that at least some employees

did not know [Preston] by his real name." He further found that

Preston "was subjected to ad hominum [sic] and dehumanizing remarks

about a genetic condition he could not do anything to change," that

"even though his job performance was good, he was subjected to

constant name calling and pranks," and that "[s]urely, ridicule for

an inherited condition would make the usual stress of a job worse

for anyone." He concluded that Preston's "stressful working

conditions aggravated, accelerated and exacerbated his pre-existing

and chronic neurological disorder." In the absence of such
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findings in the ALJ's first decision, the Board was entitled to

remand the case to the ALJ.

BIW next argues that the Board's first decision ignored

the ALJ's findings that the evidence "as a whole" did not support

a causal connection between the aggravation of Preston's symptoms

and his workplace conditions. This argument, however, skips

several steps in the proper analysis. The ALJ could only consider

"the record as a whole" after finding that (1) Preston had

established a prima facie case and was therefore entitled to the

Section 20(a) presumption, and (2) BIW had rebutted the Section

20(a) presumption. In reviewing the ALJ's first decision, the

Board never reached the ALJ's analysis of the "record as a whole"

because it found that the ALJ had not made the factual findings

about Preston's workplace conditions necessary to determine whether

Preston had established a prima facie case. Thus, the ALJ's

analysis of whether the "record as a whole" supported a causal

connection between Preston's injury and his work environment was

irrelevant to the question remanded by the Board in its first

decision: whether Preston's work environment had caused stress that

could have aggravated his condition.

BIW also argues that the Board usurped the ALJ's fact

finding authority in its first decision when it stated that Dr.

Kolkin's testimony and Dr. Bourne's evaluation were not sufficient

to rebut the Section 20(a) presumption. This conclusion of the
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Board, however, was a legal conclusion. There was no disagreement

between the ALJ and the Board about the substance of the testimony

or its credibility. Rather, the Board concluded that, "as Dr.

Kolkin opined that stress could aggravate claimant's pre-existing

condition," his testimony could not, as a matter of law, sever the

causal link between Preston's aggravated symptoms and his work

environment. Thus, it could not rebut a Section 20(a) presumption

that Preston's injury was caused by his work environment. 

Similarly, the Board emphasized that Dr. Bourne's

evaluation only addressed Preston's mental state, and that Dr.

Bourne had specifically declined to comment on Preston's physical

symptoms. It ruled that testimony about Preston's mental state

could not rebut a Section 20(a) presumption that Preston's physical

injury was caused by his workplace environment. The Board's

conclusions about Dr. Kolkin's testimony and Dr. Bourne's

evaluation did not usurp the ALJ's authority to make findings of

fact; rather they addressed only the legal sufficiency of that

evidence to rebut the Section 20(a) presumption.
3In its reply brief, BIW argued for the first time that the

ALJ's second decision should be vacated because it was based on

what BIW calls "coerced findings of fact." BIW says that the

critical issue is "whether a decision can stand where a trier-offact expressly and unambiguously disagrees with the facts he was

forced to find." BIW also tried to elaborate on this argument at

oral argument. Pursuant to well-established precedent, we decline

to address this argument. "[A]rguments raised in a reply brief are

insufficient to preserve a claim on appeal." Frazier v. Bailey,

957 F.2d 920, 932 n.14 (1st Cir. 1992). However, to dispel any

notion of unfairness to BIW, we make three points: (1) The Board

did not order the ALJ to find that Preston had experienced stress

and harassment in the workplace. It simply ordered him to find

whether they had occurred. (2) To the extent that the ALJ read the

Board's decision as requiring him to find in favor of Preston, he

misread the Board's decision. (3) Most importantly, there was

substantial evidence in the record to support the ALJ's findings in

favor of Preston. 

-19-

B. The Board's Second Decision3

1. Timely Notice

BIW argues that Preston did not file a claim within the

time period specified by the Act, and therefore his claim is

barred. The Act imposes two separate time limits for filing a

workers' compensation claim. In the case of a "traumatic injury,"

an employee must give notice to his employer within thirty days of

the injury. 33 U.S.C. § 912(a). In the case of an "occupational

injury" that does not immediately result in disability, the

employee must notify the employer within one year after the

employee becomes aware, or should have become aware, "of the

relationship between the employment, the disease, and the . . .

disability." Id. However, "[f]ailure to give such notice

[required by § 912(a)] shall not bar any claim under this chapter
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(1) if the employer . . . or the carrier had knowledge of the

injury." 33 U.S.C. § 912(d). 

In his second decision, the ALJ ruled that BIW had actual

knowledge of the aggravation of Preston's condition on September

22, 1997, when Preston and his union representative met with the

medical staff of BIW at the shipyard infirmary. Records from that

meeting indicate that Preston "discuss[ed] his tremors and

indicat[ed] he is feeling uncomfortable due to coworker pressure

and a worsening of his condition." Preston also indicated that his

tremors were "worse when under stress" and that his "coworkers are

concerned about their safety and often made fun of him." This

record constitutes substantial evidence that BIW was aware of

Preston's injury as early as September 22, 1997. Thus, the ALJ

ruled correctly that Preston's failure to formally notify BIW was

excused pursuant to § 912(d). 

The ALJ also offered an alternative basis for finding

that Preston's claim was not barred, ruling that Preston did not

know until August 28, 1998, that his aggravated condition would

prevent him from continuing his employment. On that date, Dr.

Carcini evaluated Preston and suggested that he should stop work

immediately. Dr. Carcini also composed a letter on that date to

the referring physician stating that "I do feel that he is having

a lot of movement problems that prohibit safe operation of a crane

at work. I would like to take him out of work immediately and make
-21-

plans for disability or perhaps another type of job." Since this

recommendation from Dr. Carcini was the first notice Preston

received that he could not continue to work, the ALJ ruled that

August 28, 1998, was the date from which the time period for

notifying his employer should be measured. See Bechtel Assocs.,

P.C., v. Sweeney, 834 F.2d 1029, 1033 (D.C. Cir. 1987) ("[T]he

limitation period begins only when the employee knows or should

know that (1) his injury is causally related to his employment and

(2) his injury is impairing his capacity to earn wages."). BIW

received a copy of Dr. Carcini's letter, and therefore was aware

shortly after August 28, 1998, that the aggravation of Preston's

condition was due to his work environment and prevented him from

adequately performing his job. Therefore, pursuant to § 912(d),

Preston's claim could not be time barred because BIW had actual

knowledge of Preston's injury shortly after August 28, 1998, the

date on which the limitations period began to run.

2. Entitlement to Benefits

BIW contends that Preston is not entitled to benefits

because substantial evidence did not support the ALJ's finding in

his second decision that Preston was "totally disabled" within the

meaning of the Act. BIW argues that the evidence before the ALJ

demonstrated that Preston's condition was aggravated by other

factors, including his family life and struggle with alcohol abuse,

rather than by his working conditions.
4The establishment of a "disability" is distinct from the

establishment of an "injury" covered by the Act, which we discussed

supra Part III.A. See Bath Iron Works Corp. v. White, 584 F.2d

569, 574 (1st Cir. 1978) ("To establish the right to disability

benefits, an employee must show, aided in certain contexts by the

[Section 20(a)] presumption, that he has suffered a disabling

occupational injury. . . . It must further be established that the

injury has produced a 'disability' . . . ."). 

-22-

The Act defines disability as "incapacity because of

injury to earn the wages which the employee was receiving at the

time of injury in the same or any other employment." 33 U.S.C. §

902(10). Thus, "[t]o establish a prima facie case of total

disability, claimant must show that he is unable to return to his

usual employment" because of his injury.4 Delay v. Jones

Washington Stevedoring Co., 31 Ben. Rev. Bd. Serv. 197 (1998).

"Once a claimant demonstrates an inability to return to his job

because of a work-related injury, he is considered totally disabled

within the meaning of [the Act] and the burden shifts to the

employer to prove the availability of suitable alternative

employment in the claimant's community." Palombo v. Director,

OWCP, 937 F.2d 70, 71 (2d Cir. 1991). In this case, BIW offered

no evidence regarding the availability of alternative employment

and thus relies only on the argument that Preston did not establish

a prima facie case of disability.

The ALJ concluded that the "record leads inescapably to

the conclusion that claimant cannot return to work as a crane

operator at the employer's shipyard." In making this

determination, the ALJ relied on the testimony of Preston's
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supervisor, who stated that Preston was subjected to name calling

and practical jokes, and that his tremors had become so pronounced

that other members of his crew questioned whether Preston could

safely perform his work. The ALJ also relied on Dr. Kolkin's

testimony that Preston needed a "calm and supporting work

environment," and noted that the teasing and ridicule that Preston

suffered, combined with normal stresses associated with working in

a shipyard setting, did not constitute such an environment.

Finally, he relied on the opinions of Dr. Carcini and Dr. David G.

Standaert, another of Preston's treating physicians, that Preston's

aggravated symptoms prevented him from safely performing the tasks

required by his employment. He concluded that "the medical

evidence establishes that all of the doctors who have expressed an

opinion on [Preston's] ability to operate a crane are in agreement

that he cannot safely do so."

This testimony by Preston's supervisor and by several

medical experts, along with Preston's own contentions, constitute

substantial evidence that Preston cannot perform his usual work at

the BIW shipyard. Thus, the ALJ was entitled to find that Preston

was totally disabled within the meaning of the Act and was entitled

to benefits.

3. Calculation of Preston's Average Weekly Wage

The amount of a disabled employee's award of benefits

under the Act depends on the average weekly wage that the employee

earned while employed. See 33 U.S.C. § 908 (stating formulas for
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calculating disability benefits based on an employee's average

weekly wage). Pursuant to 33 U.S.C. § 910, an ALJ can calculate an

employee's average weekly wage in several ways. If a claimant was

employed for substantially the whole year prior to the injury, §

910(a) instructs that the average annual earnings should be

calculated by determining the average daily wage during the period

worked, and multiplying that number by either 260, if the employee

was a five-day worker, or 300, if the employee was a six-day

worker. That annual figure is then divided by fifty-two to

determine the average weekly wage. § 910(d)(1). If, however, an

employee has not worked substantially all of the previous year, §

910(b) provides that the average weekly wage should be determined

by looking at the wages earned by employees of the same class, in

the same or similar employment, and in the same or a neighboring

location. Where neither § 910(a) or § 910(b) can be properly

applied, § 910(c) requires that the average annual wage used to

calculate the average weekly wage "shall reasonably represent the

annual earning capacity of the injured employee." Section 910(c)

does not provide a precise method for determining an employee's

annual earning capacity, but it does state that the ALJ should

consider the previous earnings of the employee as well as the

earnings of similarly situated employees.

In this case, the record included wage information only

for the final thirty-nine weeks of the fifty-two weeks preceding

the filing of Preston's complaint, and it showed no earnings for
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eight of those thirty-nine weeks. Moreover, the record did not

indicate whether Preston had been a six-day per week or five-day

per week worker. The ALJ reasoned that this partial record was not

sufficient to determine Preston's average weekly wage under §

910(a). The ALJ also ruled that the "paucity of evidence as to the

wages earned by a comparable employee" prevented him from

determining Preston's average weekly wage pursuant to § 910(b).

Finding that neither § 910(a) nor § 910(b) could be "reasonably and

fairly applied," the ALJ calculated the average weekly wage

pursuant to § 910(c). See Story v. Navy Exch. Serv. Ctr., 30 Ben.

Rev. Bd. Serv. 225 (1997) (holding that § 910(c) is a catch-all

provision to be applied when neither § 910(a) nor § 910(b) can be

reasonably and fairly applied). 

The ALJ calculated Preston's average weekly wage by

taking the wages that Preston earned during the thirty-nine weeks

accounted for in the wage report ($20,456.35), and dividing that

amount by thirty-one weeks (thirty-nine weeks minus the eight weeks

for which the wage report indicated no earnings). This calculation

led the ALJ to find that Preston's average weekly wage was $659.88.

BIW argues that the ALJ should have calculated the average weekly

wage pursuant to § 910(a) by dividing Preston's earnings during the

previous thirty-nine week period by thirty-nine, thereby including

in the calculation the eight weeks in which, according to the wage

report, Preston performed no work. BIW's suggested method would

have resulted in an average weekly wage of $524.50.
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"The essential purpose of the average weekly wage

determination is to reflect 'a claimant's annual earning capacity

at the time of the injury.'" Hall v. Consol. Employment Sys.,

Inc., 139 F.3d 1025, 1031 (5th Cir. 1998) (citation omitted)

(emphasis in original). The ALJ's determination in this respect is

subject to the "substantial evidence" standard. Id. at 1031-32.

In this case, the record contained only partial information about

Preston's work history over the previous year, with no indication

of whether he worked five days or six days per week. Since these

factors are critical to the calculation of an average weekly wage

under § 910(a), the ALJ was entitled to find that § 910(a) could

not be "reasonably and fairly applied." Moreover, in calculating

Preston's average weekly wage under § 910(c), the ALJ accounted for

the fact that Preston's condition, aggravated or otherwise, might

limit his ability to consistently perform a full work week. The

thirty-one weeks used in the ALJ's calculation included a wide

range of hours worked, from 4.5 to 51.8, and thus presumably

included weeks in which Preston took time off because of his

aggravated condition. If anything, the ALJ's calculation likely

underestimated the amount that Preston could have earned if he had

not been dealing with aggravated symptoms caused by his work

environment. Therefore, substantial evidence supported the ALJ's

calculation of Preston's average weekly wage pursuant to § 910(c).

4. Medical Benefits
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Finally, BIW argues that the ALJ erred in granting

Preston medical benefits pursuant to 33 U.S.C. § 907 because the

parties had agreed to litigate the propriety of medical benefits

only after litigating whether Preston's injuries were work related.

The Board vacated the portion of the ALJ's decision granting any

specific medical expenses, ruling that the parties could litigate

or reach agreement on the "reasonable necessity of medical

treatment" at a future date. However, it affirmed the ALJ's

general finding that Preston was entitled to medical benefits under

§ 907. 

We affirm the Board's decision on this issue. Section

907(a) provides that an "employer shall furnish such medical . . .

treatment . . . as the nature of the injury . . . may require."

Thus, if a claimant is found to have suffered an "injury" as

defined under the Act, he is generally entitled to medical benefits

pursuant to § 907(a). See Ingalls Shipbuilding, Inc., v. Director,

OWCP, 991 F.2d 163, 165 (5th Cir. 1993) (stating that § 907

"entitles a claimant to reasonable and necessary medical services

if he suffers a work-related injury"). Our holding does not,

however, prevent the parties from further litigating the propriety

or reasonableness of any specific medical expense.

IV.
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For the foregoing reasons, the decision of the Board is

AFFIRMED. 

SO ORDERED.