IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-60448

Summary Calendar

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ROBBIE GIROIR,

Petitioner,

VERSUS

CONRAD INDUSTRIES, INCORPORATED; ZURICH INSURANCE COMPANY;

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

_________________________

Petition for Review of an Order of

the Benefits Review Board

m 00-0761

_________________________

March 5, 2002

Before JONES, SMITH, and

EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The Administrative Law Judge (“ALJ”)

deniedRobbie Giroir’s claimfor benefits under

the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C. § 901 et seq.

(“LHWCA”), finding, after a formal hearing,

that Giroir had failed to prove that he had suffered a harm caused, aggravated, or accelerated by employment conditions. The Benefits

Review Board (“Board”) affirmed. In his petition for review, Giroir argues only that substantial evidence does not support the ALJ’s

decision. Finding no reversible error, we deny

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
2

the petition for review.

I.

Giroir worked in a shipyard owned and

operated by Conrad Industries, Inc. (“Conrad”), first as a subcontractor with C-Fab

Industries and then as a shipfitter and employee of Conrad’s. As a shipfitter, Giroir

repaired iron on boats, cutting out old rusted

iron and putting in new iron. He routinely

cropped out the iron to be replaced, found a

piece to replace it, cut it to size, and tacked it

into place. 

The witnesses agreed that shipfitters commonlycarried smallpieces ofiron for distances

of up to 300 feet but disagreed over the average weight of these iron pieces. Giroir testified that he typically lifted fifty to sixty

pounds; Ricky Land, another fitter, testified

that shipfitters often lifted as much as their

own weight; and Herman Bailey, a shipyard

superintendent, testified that in over nineteen

years, he could not recall a fitter lifting and

carrying an object that weighed more than

thirty-five pounds.

In the early morning of November 28,

1997, Giroir participated in a barroom fight

that led to his arrest and conviction for simple

battery. Bradley Bergeron, an eyewitness to

the fight, testified that the fight degenerated

until Giroir and his opponent were wrestling

on the floor.

Giroir testified asfollows: On December 3,

1997, David Fontenot, his foreman, ordered

him to carry a twelve-foot piece of angle iron

150 yards to a stairway at the stern of a vessel

in dry dock. Fontenot refused to allow him to

cut the angle iron on land to the desired sevenfoot length. Giroir had to carry the iron angle

manually because the shore side crane was

broken, and no other cranes were servicing the

dry dock. 

While climbing the stairs on the stern of the

boat and carrying the angle iron on his back,

Giroir injured his back. He then carried the

angle iron up a passage inside the boat near the

bow, where he lowered it through a manhole

in the passageway and down into the number

2 starboard ballast tank. He took this lengthy

route because the manhole wasthe onlymeans

of access to the number 2 starboard ballast

tank.

Conrad pointed to conflicting evidence on

all of these points during the hearing. Fontenot denied that he ever would have instructed a fitter to cut the iron on board the ship

rather than on land. Land, one of Giroir’s

witnesses, testified that Giroir cut the angle

iron on the shore rather than waiting to cut it

on the ship. Shipyard records proved that the

manhole was not the only access to the ballast

tank; the workers had opened a four-by-fivefoot hole in the lower hull to permit access by

personnel and equipment. Finally, shipyard

managers testified that a crane and several

cherry pickers operated for nine-and-one-half

hours that day and remained available at all

times.

The medical experts disagreed about the

cause of Giroir’s injury. Stuart Phillips,

Giroir’s orthopedic surgeon, testified that the

industrial accident caused Giroir’s back injury,

but he admitted that his conclusion derived

primarily from Giroir’s self-reported medical

history. George Murphy, another orthopedic

surgeon, testified that a physician could not

determine whether the fight or the alleged

lifting incident caused the injury. The other

two doctors,specialistsin family medicine and

neurosurgery, treated Giroir in December
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1997;neither ofthemcould determinewhether

the fight or lifting the angle iron had caused

the injury.

II.

The ALJ found in favor of Conrad. He

initially found that Giroir had proven a prima

facie case and that LHWCA’s presumption in

favor of recovery applied but that Conrad had

offered countervailing evidence that cast significant doubt on the existence of a workrelated injury. Conrad’s rebuttal evidence permitted the ALJ to evaluate the whole record.

The ALJfoundConrad’s witnessesmore credible than Giroir’s and rejected Phillips’s causation hypothesis.

The ALJ granted Giroir’s motion for

reconsideration. Giroir objected to the ALJ’s

initial, inaccurate statement that witnesses had

observed Giroir limping after the bar fight but

before the alleged industrial accident. The

ALJ corrected this inaccuracy but remained

convinced that Giroir had failed to prove a

work-related accident.

Giroir appealed to the Board, which upheld

the ALJ’s findings of fact and conclusions of

law as rational, supported by substantial evidence, and in accordance with the law. The

Board found that, despite the ALJ’s initial

misstatement, substantial evidence supported

his decision and order.

III.

Giroir’s appeal boils down to a single argument: The ALJ’s initial conclusion that witnesses had observed Giroir’s injury after the

fight but before the alleged accident so taints

the decision that we must grant the petition for

review. Like the ALJ and the Board before us,

we conclude, however, that independent

record evidence supports the ALJ’s decision,

so we deny the petition.

A.

Under the LHWCA, the petitioner must allege that working conditions or an accident in

the course of employment caused an injury.

U.S. Industries/Federal Sheet Metal, Inc. v.

Dir., OWCP, 455 U.S. 608, 615-16 (1982);

Port Cooper/T. Smith Stevedoring Co., Inc. v.

Hunter, 227 F.3d 285, 287 (5th Cir. 2000). If

the petitioner makesthis prima facie showing,

a rebuttable presumption arises that the

workplace accident caused or aggravated the

employee’s injury. Id.1 The employer must

counter this presumptionwith “substantial evidence” that the employment did not cause or

aggravate the injury. Conoco, Inc. v. Dir.,

OWCP, 194 F.3d 684, 690 (5th Cir. 1999). If

the employer rebuts the presumption with the

kind of evidence a reasonable mind would accept as adequate to support the conclusion, the

presumption falls away, and the ALJ will determine the existence of an injury, and its relation to employment, on the basis of the

whole record. Id.; Lennon v. Waterfront

Transp., 20 F.3d 658, 662 (5th Cir. 1994).

B.

Giroir challenges only the ALJ’s factual

finding that Giroir’s employment did not cause

or aggravate his back injury. We consider the

record as a whole to determine whetherfactual

findings are supported by substantial evidence.

James J. Flanagan Stevedores, Inc. v.

Gallagher, 219 F.3d 426, 429 (5th Cir. 2000).

We have described the substantial evidence

1 The LHWCA creates the presumption: “In

any proceeding for the enforcement of a claim for

compensation under this chapter it shall be

presumed, in the absence ofsubstantial evidence to

the contrary (a) [t]hat the claim comes within the

provisions of this chapter.” 33 U.S.C. § 920(a).
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standard as “deferential,” Conoco, Inc., 194

F.3d at 690, and “somewhat narrow,”

Avondale Shipyards, Inc. v. Kennel, 914 F.2d

88, 90 (5th Cir. 1990). Substantial evidence is

more than a scintilla and evidence that a

reasonable person would consider persuasive.

Louis Dreyfus Corp. v. Dir., OWCP, 125 F.3d

884, 886-87 (5th Cir. 1997). We must not

reweigh the evidence or substitute our

judgment for the ALJ’s, but we do have a duty

independently to review the record. Id.

The substantial evidence standard requires

usto defer to certain types of judgments made

by the ALJ; we defer to the ALJ’s choice between conflicting evidence or testimony.

Avondale Shipyards, 914 F.2d at 90-91.

When the ALJ chooses among reasonable,

competing inferences from the evidence, we

must adopt that inference. Mijangos v.

Avondale Shipyards, Inc., 948 F.2d 941, 945

(5th Cir. 1992); Miller v. Central Dispatch,

673 F.2d 773, 779 (5thCir. 1982). Finally, we

accept the ALJ’s judgments about a witness’s

credibility unless they are “patently unreasonable.” Hall v. Consol. Employment Sys., Inc.,

139 F.3d 1025, 1032 (5th Cir. 1998); Lennon,

20 F.3d at 663.

C.

Giroir argues that the ALJ’s chronological

misunderstanding undermines the entire decision, including unrelated credibilit y

determinations made by the ALJ. On

reconsideration, the ALJ admitted the factual

mistake but found that other evidence

supported his decision.

Giroir fails effectively to contend with the

ALJ’s other resolutions of disputed fact:

(1) Giroir significantly understated the

seriousness of the fight. Bergeron, an

eyewitness, explained that Giroir and his

opponent landed and continued wrestling on

the barroom floor. Fontenot testified that

Giroir arrived at work after the fight with a

black eye, busted lip, and requested time off

because he was hurting. (2) Medical experts

could not rule out the fight, rather than an

industrial accident, as the cause of the back

injury. The ALJ found Murphy’s testimony

that the fight could have caused the back

injury more persuasive than Phillips’s opinion

that the fight did not cause the injury.

Specifically, the court pointed out that Phillips

had relied heavily on Giroir’s self-reported

medical history and not mechanical tests or

diagnostic tools. (3) Fontenot testified that he

would never have ordered Giroir to carry a

twelve-foot length of angle iron; Fontenot

himself had ruptured three disks previously

and stated that this increases his awareness of

heavy lifting’s risks. Bailey testified that in

nineteen years of employment, he has never

seen an employee lift and move a piece of

angle iron measuring over six feet. (4) Giroir,

Land, and Bannon Canty testified as

eyewitnesses to the accident, but the ALJ

considered their testimony not credible

because of inconsistencies and contradictions.

Workers had opened an access hole in the hull

that would have made it irrationalfor Giroir to

enter through the manhole; Giroir’s witnesses

offered contradictory testimonyabout whether

he cut the angle iron on shore; and shipyard

managers and records reflected that cherry

pickers were available to transport large pieces

of angle iron. All of these subsidiary findings

led the ALJ to conclude that the fight, and not

an industrial accident, caused Giroir’s back

injury.

Setting aside the chronologicalmistake, the

ALJ pointed to ample evidence to support his

conclusion that the fight, rather than the

alleged accident, caused Giroir’sinjury. Many
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of the ALJ’s decisions rested on credibility

determinations and reasonable inferencesfrom

the facts. Even if, arguendo, we disagreed

with the ALJ, we could not determine that his

decision was not supported by substantial evidence. Substantial record evidence supports

all of his subsidiary fact findings, and he reasonably chose to believe Conrad’s witnesses

and disbelieve Giroir’s.

The petition for review is DENIED.