Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1985)

MEMORANDUM

Chong petitions for review of the decision of the Benefits Review Board (Board) denying her additional compensation for temporary total disability and reimbursement for medical expenses pursuant to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. The Board possessed jurisdiction pursuant to 33 U.S.C. § 921(b) (3). We have jurisdiction over this timely petition pursuant to 33 U.S.C. § 921(c). We grant the petition for review, affirm in part, and reverse and remand in part.

"We review Board decisions 'for errors of law and for adherence to the statutory standards governing the Board's review of the administrative law judge's [ALJ] factual determinations.' " King v. Director, OWCP, 904 F.2d 17, 18 (9th Cir. 1990) (King) (internal citations omitted). "The Board may not substitute its views for those of the ALJ, but instead must accept the ALJ's findings unless they are contrary to the law, irrational, or unsupported by substantial evidence in the record." Id. "We review the administrative record independently to determine whether the Board has done so." Id.

Chong contends that the Board erred in accepting the ALJ's determination that she could return to work as a shipyard welder. Chong first argues that the ALJ's characterization of welding as "unsuitable" employment for Chong is inconsistent with the ALJ's ultimate determination that Chong could return to work as a welder. Regarding the testimony of Dr. Chambers, Chong's attending physician, the ALJ observed that:

Dr. Chambers testified ... that this diminutive woman should not return to welding or hard work and she should not have been a welder even before her injuries. I am inclined to agree that welding is unsuitable employment for Claimant and such employment was equally unsuitable prior to her injuries. She had never worked in such an environment before May 31, 1979 and the records demonstrating her susceptibility to work injury supports the conclusion that such employment is dangerous and questionable for a person of her stature.

This passage, however, does not state that Chong was unable to do the work; it merely says that the ALJ agreed with Dr. Chambers that, in general, welding is not a "suitable" job for a diminutive woman like Chong. Indeed, the fact that both Dr. Chambers and the ALJ opined that welding was an unsuitable job for Chong even before she suffered her injury implies that, while they may have thought that a woman of her statute was unsuited for welding, they did not think she was incapable of doing the job. The ALJ's final comment in the above passage, "that such employment is dangerous and questionable for a person of [Chong's] stature," further supports the conclusion that the ALJ was referring only to the general suitability of welding for a person with Chong's physical attributes, not to whether Chong herself could return to her job. We conclude that the ALJ's remarks on "unsuitability" are not inconsistent with the ALJ's ultimate determination that Chong could return to work as a welder.

Chong next argues that the Board erred in determining that Chong could return to work even though the Orthopedic Panel of Consultants (orthopedic panel) had placed restrictions upon the amount of weight Chong could lift. The orthopedic panel, on two separate occasions, concluded that Chong was physically capable of returning to work as a welder subject only to the restriction that the employment did not entail "repetitive lifting of weight over 50 pounds." Chong argues that her return to work as a welder would require her to violate this restriction. In support of this argument, she relies upon a job description in which the maximum lifting requirements of the "average worker" are given as requiring a welder to lift 10% of the time during an eight hour day and to lift a maximum of 60 pounds. This description, however, does not suggest that Chong would be required to engage in repetitive lifting of over 50 pounds. At most, Chong would be required to lift 60 pounds during 10% of the workday. Moreover, the same job description states that the requirements listed therein "vary from job to job." There is substantial evidence in the record to conclude that Chong's particular welding job does not require her to engage in repetitive lifting, but involves primarily bending and crouching in order to weld in small places. We hold that the Board correctly reviewed the decision of the ALJ under King in concluding that, despite the orthopedic panel's restriction upon repetitive lifting, Chong could return to her job.

Next, Chong argues that the Board and ALJ erred by failing to give sufficient weight to the opinion of Chong's treating physician, Dr. Chambers. After initially expressing his opinion that Chong would suffer only a 10% partial disability rating, Dr. Chambers later changed his diagnosis, stating that Chong suffered from "post laminectomy syndrome" and therefore "would be unlikely to be able to return to her previous employment as a welder." As Chong observes, Dr. Chambers's assessment of Chong's ability to return to work is less optimistic than that of the orthopedic panel, which held on two occasions that Chong could return to work provided her lifting activity was limited. Yet as we explained in Walker v. Rothschild International Stevedoring Co., 526 F.2d 1137, 1140 (9th Cir. 1975), " 'with respect to any conflict in the medical testimony offered by the parties, the [ALJ] is not bound to accept the opinion or theory of any particular medical examiner.' " Id, quoting Mid-Gulf Stevedores, Inc. v. Neuman, 333 F. Supp. 430 (E.D. La. 1971), rev'd on other grounds, 462 F.2d 185 (5th Cir. 1972). Rather, the ALJ must analyze and weigh the evidence in the record "as a whole." King, 904 F.2d at 19. That is precisely what the ALJ did here. On page 21 of his opinion, the ALJ concluded that Chong "retains the present ability to return to work as a welder." He based this conclusion upon the following evidence in the record:

The Orthopedic Panel has, on two separate occasions, indicated that Claimant is capable of returning to work as a welder with a lifting restriction of fifty pounds. (R.Ex. 18, 19). Dr. Chambers, Claimant's longtime treating physician, all but concurred with this conclusion in his August 29, 1983 letter to the [insurance] Carrier. (R.Ex. 24.23). Vocational expert Mr. Kent Shafer has similarily determined that, based on the available medical evidence, Claimant can return to her former employment as a welder. (R.Ex. 20).

We conclude that, despite the ALJ's refusal to accept some of the opinions expressed by Dr. Chambers, the ALJ's decision that Chong could return to work was based upon substantial evidence in the record as a whole.

Chong next argues that the Board erred in denying her reimbursement for medical expenses pursuant to 33 U.S.C. § 907. The Board denied Chong's claim to medical expenses because she failed to present a specific argument in support of that claim. Pursuant to 20 C.F.R. Sec. 802.211(b) (1989), " [e]ach petition for review [to the Board] shall be accompanied by a supporting brief, memorandum of law or other statement which ... presents ... an argument with respect to each issue presented." In her petition for review to the Board, Chong "incorporat [ed] by reference [her] Proposed Decision and Order" which was submitted with her petition. The following passage appeared in Chong's Proposed Decision and Order: "The claimant is entitled to reimbursement for all medical treatment provided by and recommended by Dr. Chambers. Although the employer has made partial payment regarding Dr. Chambers' account, there remains an outstanding balance of $229.50 as of August 5, 1985." Although this passage obviously asserts a claim for reimbursement, it fails to make an argument in support of that claim. Nor is such an argument made elsewhere in Chong's petition for review. The Board was therefore correct in deciding that Chong's claim to medical expenses in her petition for review ran afoul of 20 C.F.R. Sec. 802.211(b).

Chong next argues that the Board erred by failing to grant her continued supervised medical treatment. In her petition for review to the Board, Chong raised a claim for "supervised medical treatment as recommended [by Dr. Chambers] until such time that she has completed treatment and reached medical stability." The Board, however, failed to address this issue in its decision. Consequently, we must remand to the Board for further proceedings on the supervised medical treatment issue. Perkins v. Marine Terminals Corp., 673 F.2d 1097, 1099 (9th Cir. 1982) (issues raised by a claimant but not addressed by the Board are not properly before the appellate court and require remand to the Board).

Finally, Chong seeks attorney's fees pursuant to 33 U.S.C. § 928(a). Section 928(a) provides that attorney's fees may be awarded for the "successful prosecution of [a] claim." "A claimant is entitled to attorney's fees for an appeal to this court only when we address, and resolve in his favor, a dispute over liability for compensation." Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 556 (9th Cir. 1989). Since we did not resolve in Chong's favor a dispute over liability for compensation, we must deny her request for attorney's fees.

PETITION FOR REVIEW GRANTED; JUDGMENT OF THE BOARD AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.