* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 25, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61172

Summary Calendar

NABORS OFFSHORE DRILLING INCORPORATED

Petitioner

v.

CHRISTOPHER SMOOT; Director, Office of Workers

Compensation Programs, U S DEPARTMENT OF LABOR

Respondents

Petitioner for Review of an Order from the Benefits Review Board

BRB Nos. 06-0283, 06-0283A

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Christopher Smoot was injured on January 4, 2004 while taking down a

gas buster pipeline, which flipped, hitting him on the head. Smoot was treated

for a fractured skull, persistent headaches, and psychological injuries. He filed

for benefits under the Longshore and Harbor Worker’s Compensation Act, 33

U.S.C. § 901, et seq. (the “Act”). The Administrative Law Judge (“ALJ”) awarded

Smoot temporary total disability from January 4, 2004 through May 25, 2005
No. 06-61172

2

and ongoing temporary partial disability thereafter based on Smoot’s ongoing

psychological problems resulting from his injuries. The ALJ also ordered

Smoot’s employer, Nabors Offshore Corporation (“Nabors”),to pay an additional

10 percent on unpaid installments of compensation pursuant to 33 U.S.C. §

914(e) and to pay for all reasonable and necessary future medical expenses

arising from Smoot’s employment-related psychological injuries. Finally, the

ALJ awarded attorney’s fees and expenses. The Benefits Review Board (“BRB”)

affirmed this award. Nabors appeals claiming that insufficient evidence

supports the ALJ’s award of disability payments. Nabors also challenges (1) the

finding that Smoot is entitled to all reasonable and necessary future medical

expenses resulting from his psychological injuries; (2) the award of penalties

pursuantto 33 U.S.C. § 914(e); and (3)the award of attorney’s fees and expenses.

This Court reviews decisions of the BRB under the same standard the

BRB uses to review the ALJ: whether the decision is supported by substantial

evidence 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 or re-weigh evidence; its review is

limited to determining “whether evidence exists to support the ALJ’s findings.”

Id.

There is a presumption that a claim comes within the provisions ofthe 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 prima facie showing of

causation. Port 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 Nabors to rebut this presumption. Id.
No. 06-61172

3

at 288. The record also supports the ALJ’s finding that Nabors did not rebut the

presumption that Smoot’s ongoing psychological problems were causally related

to his workplace accident. Also, three separate medical experts opined that

Smoot’s psychological condition precludes his return to work, providing ample

support for the ALJ’s finding that Smoot was totally disabled through May 25,

2005 and partially disabled thereafter. Although there was conflicting medical

testimony in this regard, it is not the role of this court to re-weigh the evidence

or make credibility determinations. Mijangos 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.” Mendoza v. Marine Pers. Co., 46 F.3d 498, 500 (5th Cir. 1995). The

record in this case also supports the ALJ’s award of future medical benefits for

his psychological condition. Finally, with respect to the Section 14(e) penalty

assessment and the award of attorney’s fees and expenses, Nabors’ sole

argumentis thatthese portions ofthe ALJ’s award are erroneous because Smoot

is not disabled and is not entitled to medical benefits. Because we affirm the

finding that Smoot was totally disabled through May 25, 2005 and partially

disabled thereafter, these arguments lack merit.

The order of the Benefits Review Board is AFFIRMED.