Delaware River Stevedores v. Director, OWCP (3d. Cir. 2002)

Filed January 30, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1709

DELAWARE RIVER STEVEDORES, INC.,
Petitioner,

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).

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

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).

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).

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.

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.

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

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).

"[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.

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

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

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

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

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.

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:

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