## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-60448

Summary Calendar

_______________



### R OBBIE 

### G IROIR



### ,

Petitioner,

VERSUS



### C ONRAD 

### I NDUSTRIES



### , I NCORPORATED 

### ; Z URICH 

### I NSURANCE 

### C OMPANY 

### ;

D IRECTOR



### , O FFICE OF 

### W ORKER 

### ’ S 

### C OMPENSATION 

### P ROGRAMS



### ,

U NITED 

### S TATES 

### D EPARTMENT OF 

### L ABOR



### ,

Respondents.

_________________________

Petition for Review of an Order of

the Benefits Review Board



### m 00-0761

_________________________ March 5, 2002

Before J ONES

, S MITH , and

E MILIO M. G ARZA , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

The Administrative Law Judge (“ALJ”) denied Robbie Giroir’s claim for benefits under

the Longshore and Harbor Wor ker’s Compensation A c t, 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 employmen t co nditions. The Benefits

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

decision. Finding no reversible error, we deny * Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.2

the petition for review.

I.

Giroir wor ked in a shipyard owned and

operated by Conrad Industries, Inc. (“Conrad”), first as a

subcontractor with C-Fab

Industries a nd then as a shipfitter and employ ee of Conrad’s. As a shipfitter, Giroir

repaired iron o n 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 commonly carried small pieces of iron for distances

of up to 300 feet but disagreed over the average weight of these iron pieces. Giroir testified that he typically lift ed fift y t o sixty

pounds; Ricky

Land, another fitter, testified

that shipfitters often lift

ed as much as their

o wn weight; and Herman Bailey, a shipyard

superintendent, te st ified that in over nineteen

years, he could not recall a fitter lift ing and

carrying an o bject that weighed more than

thirty-five pounds.

In the e arly morning of November 28,

1997, Giroi

r participated in a barroom fight

that led to his arrest and conviction for simple

bat tery. Bradley Bergeron, an eyewitness t o

the fight, testified that the fi g ht degenerated

until Giroir and his oppone nt were wrestling

on the floor.

Giroir testified as follows: On December 3,

1997, David Fontenot, his foreman, ordere d

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

bo at 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 was the only means

of access to the number 2 st arboard ballast

tank.

Conrad pointed to conf

l icting evidence on

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

rather t han on land. Land, one of Giroir’s

witnesses, t est ified 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

manage rs testified that a crane and several

cherry pickers operated for nine-and-one-half

hours t hat 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 med ical

history. George Murphy, another orthopedic

surgeon, testified that a physician could not

determin e whether the fight or the alleged

lift ing incident caused the injury. The other

two doctors, specialists in family medicine and

neurosurgery, t r eated Giroir in December3

1997; neither of them could determine whether

the fight or lif

t ing the angle iron had caused

the injury.

II.

The ALJ found in

favor of Conrad. He

init ially 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 evide n ce that cast significant doubt on t h e existence of a workrelated injury. Conrad’s rebuttal evidence permitted the ALJ to evaluate the whol e record.

The ALJ found Conrad’s witnesses more credible than Giroir’s and rejected Phillips’s causation hypothesis.

The A L J granted Giroir’s motion for

reconsideration. Giroir objected to the ALJ’s

init ial, inaccurate statement that witnesses had

observed Giroir limping after the bar fight but

before the alleged industrial accident . The

ALJ corrected t his 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 conc l usions of

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

Board found that, despite the ALJ’s init ial

misstatement , substantial evidence supported

his decision and order.

III.

Giroir’s appeal boils do w n to a single argument: The ALJ’s initial conclusion that witnesses had observed Giroir’s injury afte r the

fight but before the a lleged 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

r ecord 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 empl o yment caused an injury.

U.S. Industries/Federal She et 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 makes this prima facie showing,

a rebuttable presumption arises that the

workplace accident caused or aggravated the

employee’s in

jury. Id. 1 The employer must

counter this presumption with “substantial evide nce” that the employment did not cause or

a ggravate the injury. C

onoco, 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. I

d. ; Lennon v. Wat erfront

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

B.

Giroir challenges only the AL J’s factual

finding that Giroir’s employment did not cause

or aggravate his back injury. We consider the

record as a whole to determine whether factual

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 su bst antial evidence

1 The LHWCA creates the presumption: “I n

any proceeding for the enforcement of a claim for

compensation under this cha p ter it shall be

presumed, in the absence of substantial evidence to

the contrary (a) [t]hat the c laim comes within the

provisions of this chapter.” 33 U.S.C. § 920(a).4

standard as “deferential,” Cono co, 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 scint illa

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 evide n ce 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

us to defer to certain types of judgments made

by the ALJ; we defer to the ALJ’s choice between confli ct ing evidence or testimony.

Avondale Shipyards

, 914 F.2d at 9 0-91.

When the ALJ cho o ses among reasonable,

competing inferences from the evidence, we

must adopt that inference. M ijangos v.

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

(5th Cir. 1992); Miller v. Central Dis p atch

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

accept the ALJ’s judgments about a witness’s

credibility unless they are “patently unreasonable.” H all 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 unrelat ed credibilit y

dete rminations made by the ALJ. On

reconsideration, the ALJ admitted the factual

mistake but found that other evidence

supported his decision.

Giroir fails effectively to c ontend wi th the

ALJ’s other resolutions of disputed f act:

(1) Giroir significant ly understated the

seriousness of the fight . Bergeron, an

eyewitnes s, explained that Giroir and his opponent landed and continued wrestling on

the barroom floor. Fontenot testified t hat

Giroir arrived at work after the fight with a

black eye, busted lip, and re quested ti m e off

because he was hurting. (2) Medical expert s

could not ru le out the fight, rather than an

industrial accident, as the cause of the back

injury. The ALJ found Murphy’s testimony

t hat the fight could have caused the back

injury more persuasive than Phillips’s opinion

that th e fight did not cause the injury.

Specifically, the court pointed out that Phillips

had relied heavily on Giroir’ s self-reported

medical histo ry and not mechanical tests or

diagnostic tool s. (3) Fontenot testified that he

would never have ord ered Gi roi r to carry a

twelve-foot length of angle iron; Fon t enot

himself had ruptured three disks p reviously

and stated that this increases his awareness of

heavy lift ing’s risks. Bailey test ified that in

nineteen years of emp l oyment, 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 th eir testimony not credible

because of inconsistencies and contradictions.

Workers had opened an access hole in the hull

that would have made it irrational for Giroir to

enter through the manhole; Giroir’s witnesses

of f ered contradi ctory testimony about whether

he cut t he 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 chronological mistake, the

ALJ pointed to ample evidence to support his

co nclusion that the fight, rather than the

alleged accident, caused Giroir’s injury. Many5

of the ALJ’s decisions rested on credibility

determinations and reasonable inferences from

the facts. Even if, a rguendo

, 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 Con rad’s witnesses

and disbelieve Giroir’s.

The petition for review is DENIED.