13-3628

Khan v. Torres AES

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 20th 4 day of August, two thousand fourteen.

5

6 PRESENT: JOHN M. WALKER, JR.,

7 DENNIS JACOBS,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

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12 ANWAR KHAN, 

13 Petitioner,

14

15 -v.- 13-3628

16

17 TORRES AES, INSURANCE COMPANY OF THE

18 STATE OF PENNSYLVANIA, UNITED STATES

19 DEPARTMENT OF LABOR, 

20 Respondents.

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22

23 FOR PETITIONER: SANG J. SIM, Sim & Record LLP,

24 Bayside, New York.

25

26 FOR APPELLEES: Robert N. Dengler, Flicker,

27 Garelick & Associates, LLP, New

28 York, New York.

1
1 Petition for review of an order of the United States

2 Department of Labor Benefits Review Board.

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the petition be DENIED. 

6

7 Anwar Khan petitions for review of an order of the

8 United States Department of Labor Benefits Review Board

9 (“BRB”), affirming the administrative law judge’s (“ALJ”)

10 denial of benefits under the Longshore and Harbor Workers’

11 Compensation Act (“LHWCA”), as amended, 33 U.S.C. § 901 et

12 seq., as extended by the Defense Base Act, 42 U.S.C. § 1651

13 et seq. We assume the parties’ familiarity with the

14 underlying facts, the procedural history, and the issues

15 presented for review. 

16

17 “Our review is limited to whether the BRB made any

18 errors of law and whether substantial evidence supports the

19 ALJ’s findings of fact.” Rainey v. Dir., Office of Workers’

20 Comp., 517 F.3d 632, 634 (2d Cir. 2008). Substantial

21 evidence is “evidence that a reasonable mind might accept as

22 adequate to support a factual conclusion.” New Haven

23 Terminal Corp. v. Lake, 337 F.3d 261, 265 (2d Cir. 2003). 

24 We review any errors of law de novo. Id.

25

26 Khan argues the ALJ failed to apply the presumption of

27 33 U.S.C. § 920(a) to his disability claim. The ALJ

28 correctly applied the presumption in determining whether

29 Khan suffered from a work-related injury. However, the §

30 920(a) presumption does not apply in determining whether any

31 disability was caused or aggravated by a particular work32 related injury. A separate burden-shifting scheme governs

33 that inquiry. See Pietrunti v. Dir., Office of Workers’

34 Comp. Programs, 119 F.3d 1035, 1038 (2d Cir. 1997); Palombo

35 v. Dir., Office of Workers’ Comp. Programs, 937 F.2d 70, 73

36 (2d Cir. 1991). Under that scheme, the employee must first

37 establish that the disability was caused by a work-related

38 injury. See Palombo, 937 F.2d at 73. Here, the ALJ

39 reviewed the entirety of the record and found the report by

40 Doctor Brief to be more credible than the one provided by

41 Doctor Singh as to causation. Therefore, the BRB committed

42 no error of law and the ALJ’s findings were supported by

43 substantial evidence. See Pietrunti, 119 F.3d at 1042

44 (“Credibility findings of an ALJ are entitled to great

45 deference and therefore can be reversed only if they are

46 patently unreasonable.” (quotation marks omitted)). 

47

2
1 We have considered all of Khan’s remaining arguments

2 and find them to be without merit. The petition for review

3 is thus DENIED.

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

3