* Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 28, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 03-60301

(Summary Calendar)

_________________

A&B INDUSTRIES OF MORGAN CITY; LOUISIANA WORKERS’ COMPENSATION CORP.,

Petitioners,

versus

DAVID ARSENAULT; DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,

US DEPARTMENT OF LABOR,

Respondents.

Petition for Review of a Final Order

of the Benefits Review Board

No. 02-0450

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

David Arsenault fell approximately thirty-five feet and was struck in the f ace with a chain-2-

during a workplace accident. Arsenault suffered mult iple fractures to the right side of his face, a

fract ured pelvis, and broken teeth. Arsenault filed for benefits under the Longshore and Harbo r

Worker’s Compensation Act, 33 U.S.C. § 901 et seq (the “Act”). The Administrative Law Judge

(“ALJ”) awarded Arsenault ongoing disability payment based upon his ongoing chronic back pain,

blurred vision, and migraine headaches. The Benefits Review Board (“BRB”) affirmed this award.

A&B Industries appeals claiming that insufficient evidence supports the ALJ’s award of ongoing

disabilit y payment s. A&B Industries also challenges the ALJ’s calculation of Arsenault’s weekly

wage under 33 U.S.C. § 910(c).

This Court reviews decision of the BRB under the same standard the BRB uses to review the

ALJ: whether the decision is supported by substantial eviden ce and is in accordance with the law.

SGS Control Servs. v. Dir. Office of Worker’s Comp. Programs

, 86 F.3d 438, 440 (5th Cir. 1996).

This Court may not substitute its judgment for that of the ALJ, reweigh, or reappraise evidence thus

its r eview is limited to determining “whether evidence exists to support the ALJ’s findings.” I d.

Sufficient evidence exists in this record to support the ALJ’s findings. There is a presumption that

a claim comes within the provisions of the Act in the absence of substantial evidence to the contrary.

33 U.S.C. § 920(a); Port Cooper/T. Smith Stevedoring Co. v. Hunter , 227 F.3d 285, 287 (5th Cir.

2000). To trigger this presumption, the plaintiff must make a p rima facie showing of causation. P ort

Cooper

, 227 F.3d at 287

. A plaintiff meets this burden by proving “(1) that he or she suffered harm,

and (2) that

. . . an accident occurred at work, that could have caused, aggravated, or accelerated the

condition.” Id. The record in this case supports the ALJ’s determination that the presumption was

triggered, thus shifting the burden to A&B Industries to rebut this presumption. Id . at 288.

There was conflicting medical testimony regar ding Arsenault’s ongoing injuries. The ALJ-3-

“determines the weight to be accorded to evidence and makes credibility determinations.” M ijangos

v. Avondale Shipyards

, 948 F.2d 941, 945 (5th Cir. 1991). Moreover, if “the testimony of medical

experts is at issue, the ALJ is entitled to accept any part of an expert’s testimony or reject it

completely.” M

endoza v. Marine Pers. Co.

, 46 F.3d 498, 500 (5th Cir. 1995). In this case, the

evidence supports the ALJ’s finding that A&B Industries did not rebut the presumption that David

Arsenault’s ongoing health problems were causally related to his workplace accident.

A&B Industries also challenges the ALJ’s calculation of Arsenault’s weekly wage. The ALJ

based its weekly wage calculation on evidence in the record and correctly performed that calculation

in accordance with 33 U.S.C. § 910(c).

The order of the Benefits Review Board is AFFIRMED.