IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60216

AMERADA HESS CORP; LIBERTY MUTUAL INSURANCE CO

Petitioners

v.

DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, US

DEPARTMENT OF LABOR; EDDIE D DOVER

Respondents

Petition for Review of a Decision and Order of the

United States Benefits Review Board

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Amerada Hess Corp. and its insurer, Liberty Mutual Insurance Co.

(collectively, “Hess”), petition this court to reverse the decision and order of the

Benefits Review Board (“BRB”) that affirmed the decision of the Administrative

Law Judge (“ALJ”) to award disability benefits to Eddie Dover under the

Longshore and Harbor Workers’ Compensation Act(“LHWCA”). For the reasons

that follow, we VACATE the ALJ’s award of medical expenses for Dover’s heart

condition and the ALJ’s finding that Dover is totally and permanently disabled,

and REMAND for a determination of whether Dover’s heart condition naturally

or unavoidably resulted from the treatment he received for his work-related back

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-60216

1 Dover does not contest the ALJ’s decision that Hess is not responsible for covering his

surgery for the sexual side effects because he did not notify Hess before undergoing this

surgery.

2

injury, and for reconsideration of whether Dover is totally and permanently

disabled. We DENY review of the attorney’s fee award.

I.

On July 22, 1997, Dover injured his back and groin while working for Hess

as a maritime employee. He saw Dr. Barnett the next day, and again a week

later. He attempted to continue working by completing tasks that involved only

light duty, but stopped working in May 1998. Hess paid Dover workers’

compensation benefits and medical payments under the LHWCA. 

Dover was treated initially with pain medication. In November 1997,

Dover received a steroid injection from Dr. Baker. He received a series of three

lumbar epidural steroid injections in March 1998. In August 1998, Dover had

surgery for his back pain. Unfortunately, the surgery did not alleviate the pain.

He received another series of three steroid injections in September 1999. There

is no indication in the record that Dover received any more steroid injections

after September 1999, although Dr. Baker’s records refer to a “trigger point

injection in left paraspinal region” in notes dated December 28, 1999. Dover

testified that he also took steroids orally. By November 1999, Dover had gained

forty pounds. Dover also suffered sexual side effects from the steroids that led

him to seek another surgery performed by Dr. Ringer in early 2001.1 He was

prescribed medication for hypertension and depression. Dover reached

maximum medical improvement following the back surgery on March 13, 2001.

In March 2005, Hess reduced Dover’s disability payments and refused to pay for

various medical treatments.

At the hearing before the ALJ, Dover testified that after receiving steroid

injections, he gained a significant amount of weight, going from 160 pounds at
No. 07-60216

3

the time of his injury in July 1997 to 200 pounds in November 1999, and about

240 pounds at the time of the hearing in September 2005. Dover testified that

Dr. Baker told him he had to take the steroid injections because, if he did not,

Hess would stop paying for his medical treatment. According to Dover, he

signed a paper informing him that steroids could cause kidney failure, heart

failure, liver failure, and sexual side effects. That paper, however, was not

introduced into evidence in the administrative proceedings. Dover also testified

that he began having heart problems after his back surgery and that he has had

four heart attacks, one of which occurred while he was in Dr. Ringer’s office.

There is no mention of a heart attack in any of the medical records of Dr. Ringer

that were submitted. Dover attributed the heart condition to his weight gain,

which he attributed to the steroid injections used to treat his back injury. Dover

testified that he saw Dr. Barnett because he was coughing continuously and had

something wrong with his lungs. According to Dover, Dr. Barnett found Dover’s

blood pressure to be elevated and found his heart racing at 120 beats per minute.

Dover said that when he told Dr. Barnett he was receiving steroid injections for

his back injury, Dr. Barnett said, “steroids will do that to you.” Dr. Barnett died

before the hearing, and Dover did not introduce any medical records from Dr.

Barnett. In his deposition, Dover testified, without record support, that the

steroids and Vioxx caused his hypertension and heart problems because he

didn’t have heart problems until he took “that stuff.” He testified that he has

trouble sleeping because his back hurts and thatit sometimes takes three or four

days for him to fall asleep. There are no medical records in the administrative

record to indicate that Dr. Barnett ever treated Dover for heart problems.

Dover testified that he takes daily medication for back pain, hypertension,

and depression, and that he carries nitroglycerine pills for his heart and

monitors his blood pressure at home. Dover testified that Dr. Basi, an internist

who also treated Dover for his back pain, tried to refer him for heart treatment,
No. 07-60216

4

but when Dover expressed reluctance due to insurance coverage, Dr. Basi had

Dover sign a form stating that if Dover “[fell] over dead outside, [his] wife won’t

sue” the doctor. Dover’s exhibits contain a report of Dr. Basi dated November

19, 2004. That report mentions Dover’s back pain, the need for an MRI and for

blood tests to check liver and kidney function secondary to taking pain

medications, and symptoms of depression, probably secondary to chronic back

pain, which will require medication. The report, however, contains no mention

of any heart problems or conditions and does not mention any need to refer

Dover for heart treatment.

Dover’s medical records indicate an increase in his blood pressure and the

prescription of medication for hypertension, but he did not introduce any medical

records or testimony from any of his doctors regarding his alleged heart

condition or four heart attacks. Dover testified that he has not sought other

employment since his injury. 

Dover’s wife also testified about Dover’s weight gain and heart problems

following the steroid injections.

The ALJ found both Dover and his wife credible, and concluded that there

was nothing in the record to contradict their testimony regarding Dover’s heart

condition and treatment. 

The ALJ also found that Dover presented substantial evidence to invoke

the presumption of causation in § 20(a) of the Act and that Hess presented no

evidence to rebut the presumption. Therefore, the ALJ determined that

treatment for the heart condition is a reasonable and necessary expense of his

compensable back injury. 

The ALJ rejected Hess’s claim that Dover was only partially disabled and

that suitable alternative employment existed. The ALJ concluded that although

Dover might be able to work in some capacity, particularly part-time, Hess failed

to show that it was more likely than not that Dover could reasonably perform
No. 07-60216

5

alternative work. The ALJ therefore concluded that Dover is permanently and

totally disabled. The ALJ denied Hess’s motion for reconsideration. 

On appeal, the BRB affirmed the ALJ’s decision. The BRB held that

Dover’s testimony, supported by the testimony of his wife, that he experienced

heart problems post-injury is sufficient to establish the “harm” element of his

prima facie case. The BRB noted that Hess did not challenge the existence of

Dover’s heart condition prior to the issuance of the ALJ’s decision, and that

Hess, in its motion for reconsideration, did not challenge the credibility of

Dover’s testimony regarding the existence of a post-injury heart condition.

Instead, according to the BRB, Hess acknowledged the existence of the heart

condition, but sought reconsideration of the presumed causal link between it and

Dover’s work injury. The BRB stated that if Dover’s heart problems arose as a

consequence of the steroid injections he received as treatment for his work

injury, the heart problems were work-related. The BRB rejected Hess’s

contention that the ALJ erred in invoking the presumption based on the lack of

scientific proof linking Dover’s heart condition to his steroid treatment, holding

that such evidence is not necessary for invocation of the presumption. The BRB

also determined that Hess had not presented any evidence to rebut the

presumption. The BRB affirmed the ALJ’s finding that Hess did not establish

the availability of suitable alternate employment, and held that the ALJ

reasonably concluded that Dover was not capable of full-time employment. It

therefore affirmed the award of total disability benefits to Dover. Hess timely

petitioned for review. We have jurisdiction to review the BRB’s decision

pursuant to 33 U.S.C. § 921(c).

II.

Hess presents four issues for review. It argues (1) that the ALJ’s finding

that Dover’s heart condition is causally related to his work injury is not

supported by substantial evidence; (2) that the presumption of causation in the
No. 07-60216

6

LHWCA does not apply to lay assertions attempting to link secondary and

tertiary physical problems (weight gain and a heart condition) to steroid

injections used to treat a back injury; (3) that the ALJ ‘s decision that Dover is

permanently and totally disabled is not supported by substantial evidence; and

(4) that the ALJ erred by awarding attorney’s fees. “This court . . . reviews

decisions by the BRB to determine whether it has adhered to its proper scope of

review -- i.e., whether the ALJ’s findings of fact are supported by substantial

evidence and are consistent with the law.” Gulf Best Elec., Inc. v. Methe, 396

F.3d 601, 603 (5th Cir. 2004).

III.

We address Hess’s first two issues together, dealing with whether the

presumption of causation was properly applied to Dover’s claim for the medical

expenses of his heart condition, and whether there is substantial evidence to

support the ALJ’s finding that Dover’s heart condition was causally connected

to his work-related back injury. Next, we consider whether there is substantial

evidence to support the ALJ’s determination that Dover is permanently and

totally disabled. Finally, we address the issue of attorney’s fees.

A.

Hess argues that the presumption of causation does not apply to

subsequent, non-work-related conditions that follow an initial work injury, and

that there is not substantial evidence to support the ALJ’s determination that

Dover’s heart condition was caused by the steroid injections that were used to

treat his back injury. Hess argued before the ALJ and the BRB, as well as in

this court, that the lay testimony of Dover and his wife was insufficient to

establish a causal link between Dover’s heart condition and the steroids he

received as treatment for his back injury. Instead, Hess contended, scientific or

medical evidence is required to establish that Dover’s heart problems were

caused by the steroids. Accordingly, Hess preserved for review its argument that
No. 07-60216

7

the ALJ and the BRB erred by presuming a causal link based solely on the lay

testimony of Dover and his wife.

In determining whether there was error, we begin with the language ofthe

statute. The LHWCA provides that “compensation shall be payable under this

chapter in respect of disability . . . of an employee, but only if the disability . . .

results from an injury. . . .” 33 U.S.C. § 903(a). “Disability” is defined, in

relevant part, as an “incapacity because of injury.” 33 U.S.C. § 902(10). “Injury”

is defined as an “accidental injury or death arising out of and in the course of

employment, and such occupational disease or infection as arises naturally out

of such employment or as naturally or unavoidably results from such accidental

injury. . . .” 33 U.S.C. § 902(2). An employer must “furnish such medical,

surgical, and other attendance or treatment, nurse and hospital service,

medicine, crutches, and apparatus, for such period as the nature of the injury or

the process of recovery may require.” 33 U.S.C. § 907(a). The Supreme Court

has determined that the phrases “arising out of” and “in the course of” are

separate requirements to establish an injury: “the former refers to injury

causation; the latter refers to the time, place, and circumstances of the injury.”

See U.S. Industries/Federal Sheet Metal, Inc. v. Director, Office of Workers’

Compensation Programs, 455 U.S. 608, 615 (1982). “Not only must the injury

have been caused by the employment, it also must have arisen during the

employment.” Id. To make a claim for compensation under the LHWCA, an

injured employee “must timely file a claim with the Deputy Commissioner.” Id.

at 613. The claimant must “timely give the Deputy Commissioner and his

employer notice of his injury,” and “‘[s]uch notice . . . shall contain . . . a

statement of the time, place, nature, and cause of the injury.’” Id. (quoting 33

U.S.C. § 912(b)).

The presumption of causation that the ALJ applied in this case is set out

in Section 20(a) of the LHWCA. It states that “[i]n any proceeding for the
No. 07-60216

8

enforcement of a claim for compensation under this chapter it shall be presumed,

in the absence of substantial evidence to the contrary-- . . . [t]hat the claim

comes within the provisions of this chapter.” 33 U.S.C. § 920(a). To invoke the

presumption, a claimant must make a prima facie showing that (1) he suffered

a “harm” and (2) a condition of the workplace “could have caused, aggravated,

or accelerated” the harm. Conoco, Inc. v. Director, Office of Workers’

Compensation Programs, 194 F.3d 684, 687 (5th Cir. 1999). If the claimant

presents a prima facie case as to these two elements, then an ALJ may presume

that the work conditions caused the harm, unless the employer can rebut the

presumption “through facts -- not mere speculation -- that the harm was not

work-related.” Id. at 687-88. If the employer rebuts the presumption, it drops

out of the case and causation is determined by looking at the totality of the

evidence. See Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285,

288 (5th Cir. 2000). 

The Supreme Court has stated that it “is clear [that] the [Section 20(a)]

presumption applies to the claim.” U. S. Industries, 455 U.S. at 612-13

(emphasis added).“A prima facie ‘claim for compensation,’ to which the statutory

presumption refers, must at least allege an injury that arose in the course of

employment as well as out of employment.” Id. at 615. Once an employee

establishes that his injury was work-related, he is entitled to all reasonable and

necessary medical expenses related to that injury. See 33 U.S.C. § 907.

It is undisputed that Dover’s claim for compensation under the LHWCA

(Claimant’s Exhibit 7) stated a prima facie case of compensability: his claim is

simply that he was injured on the job when he hurt his back and groin. Proof of

an injury and an accident at work or conditions at work that could have caused

the injury triggers the § 20(a) presumption that the injury is work-related and

thus compensable. Accordingly, it is undisputed that the § 20(a) presumption
No. 07-60216

9

of causation applies to the back and groin injury described in the claim form that

Dover submitted.

Because the statutory presumption applies only to the claim, and because

the claim in this case does not reference a work-related heart injury, the ALJ

and the BRB erred in applying it to Dover’s alleged heart condition. See U.S.

Industries, 455 U.S. at 613 (“the presumption by its terms cannot apply to a

claim that has never been made”). Instead, the medical expenses of Dover’s

heart condition are compensable under the LHWCA only if Dover’s heart

condition “naturally or unavoidably” resulted from the treatment for his workrelated injury. See 33 U.S.C. § 902(2).

The ALJ cited the correct standard: that an employer is liable for all

medical expenses which are the natural and unavoidable result of a claimant’s

work injury. However, the ALJ did not find that Dover’s heart condition was the

natural and unavoidable result of his back injury at work. Instead, the ALJ

credited Dover’s and his wife’s testimony that he suffered from a heart condition

and that the heart condition developed after his work injury and steroid

injections, and the ALJ then immediately invoked the § 20(a) presumption to

link this heart condition with his work conditions simply because the steroid

injections could have caused Dover’s heart condition. As a result, the ALJ’s

decision is not in accordance with the applicable law. The question whether

Dover’s heart condition “naturally or unavoidably” resulted from weight gain

attributable to the steroid injections he received as treatment for his back injury

is for the ALJ to decide on remand. It appears to us that such a finding would

benefit from, if not require, support of medical experts. 

Indeed, the ALJ stated that a claimant establishes a prima facie case for

compensable medicaltreatment where a qualified physician indicates that such

treatment is necessary for a work-related condition. Yet, no qualified physician

testified to that effect. Instead, the ALJ relied on Dover’s lay testimony that one
No. 07-60216

2

Included in Hess’s exhibits is a July 23, 1997 prescription for an antibiotic used to

treat urinary tract infections. This tends to corroborate Dover’s statement that he saw Dr.

Barnett for a urinary tract infection and cardiac problems on July 23, 1997, the day after his

back injury.

10

doctor told him “steroids will do that to you” and his testimony that another

doctor told him that he might “drop dead.” Neither of those doctors testified at

the hearing or otherwise offered support for such advice or opinion.

The ALJ found nothing in the record to contradict the testimony of Dover

and his wife regarding the cause of Dover’s heart condition. The record,

however, contains evidence that raises questions, certainly with respect to

causation. In Dover’s pre-hearing report, he listed Dr. Barnett as a witness.

The dates of treatment are specified as July 23, 1997 (the day after Dover’s onthe-job injury) and July 30, 1997. According to Dover’s pre-hearing report, Dr.

Barnett “originally treated claimant for urinary tract infection and cardiac

problems; returned one week later for same problem and doctor admitted there

was back injury.”2 A similar statement appears in Dover’s answers to

interrogatories. In these documents, Dover appears to admit that he saw Dr.

Barnett for “cardiac problems” on July 23, 1997, the day after his back injury,

and months before he received any steroid injections for the back injury.

Contrary to the ALJ’s conclusion, these statements in Dover’s pleadings seem to

contradict the testimony of Dover and his wife that his heart problems did not

begin until after he received steroid injections for his back injury.

Furthermore, the BRB’s decision to affirm the ALJ’s ruling reflects its

view that to invoke the presumption, Dover had to make a prima facie case by

showing (1) a harm (i.e., the mere existence of a heart condition) and (2)

conditions of the workplace that could have caused the harm (i.e., that the

steroid injections for the back injury simply could have caused the heart

condition). Although this mode of analysis is proper for Dover’s back injury

because it arose “out of and in the course of” his employment, it is improper for
No. 07-60216

11

a secondary injury because it skips over the statutory requirement that a

secondary injury “naturally or unavoidably” result from the first injury. On

remand, the ALJ must determine whether Dover’s heart condition “naturally or

unavoidably” resulted from his back injury.

In sum, we hold that the statute does not support a presumption that any

medical condition that an injured claimant suffers after a work-related injury is

caused by the work-related injury. Furthermore, not all “secondary” injuries are

covered under the LHWCA simply because the claimant demonstrates a

subsequent harm that could have stemmed from the covered injury. Instead, to

receive benefits under the LHWCA for a subsequent injury, the claimant must

present substantial evidence that the secondary condition “naturally or

unavoidably” resulted from the first covered injury, as is required by the
No. 07-60216

3 Although its decisions are not consistent, the BRB has applied this method of

analyzing claims for subsequent injuries. See Bailey v. Bethlehem Steel Corp., 20 BRBS 14,

1987 WL 107384, at *2 (1987) (“When an employee sustains an injury at work which is

followed by the occurrence of a subsequent injury or aggravation outside work, employer is

liable for the entire disability and for medical expenses due to both injuries if the subsequent

injury i[s] the natural or unavoidable result of the original work injury.”); see also Ortiz v.

Intermarine USA, 2002 WL 31039513, at *23 (2002) (ALJ held that “claimant must establish

that medical expenses are related to the compensable injury and are reasonable and

necessary,” and that employer was “liable for all medical expenses which are the natural and

unavoidable result of the work injury, and not due to an intervening cause.”)

Our court has likewise held that where there is a subsequent non-work-related event

following an initial work injury, the relevant inquiry is whether the second injury resulted

naturally or unavoidably from the work injury. See Mississippi Coast Marine, Inc. v. Bosarge,

637 F.2d 994, 1000 (5th Cir. 1981) (“A subsequent injury is compensable if it is the direct and

natural result of a compensable primary injury, as long as the subsequent progression of the

condition is not shown to have been worsened by an independent cause.”); Atlantic Marine, Inc.

v. Bruce, 661 F.2d 898, 901 (5th Cir. 1981) (holding that substantial evidence supported the

ALJ’s finding that stress and anxiety over back pain from work-related injury caused

claimant’s heart attack, and citing Bosarge in support of holding that claimant’s

arteriosclerosis was not a supervening cause of his heart attack); Bludworth Shipyard, Inc. v.

Lira, 700 F.2d 1046, 1051 (5th Cir. 1983) (quoting 1 A. LARSON, THE LAW OF WORKMEN’S

COMPENSATION § 1300 (1980)) (“When the primary injury is shown to have arisen out of and

in the course of employment, every natural consequence that flows from the injury likewise

arises out of the employment, unless it is the result of an independent intervening cause

attributable to claimant’s own intentional conduct.”). Other courts have similarly construed

the language of the statute. See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 458

(9th Cir. 1954) (reversing and remanding with instructions to determine “whether the second

injury was or was not the natural or the unavoidable result of the first injury”).

Crescent Towing & Salvage Co. v. Collins, 228 F. App’x 447 (5th Cir. 2007)

(unpublished), is not necessarily inconsistent. In that case, the claimant suffered a back injury

at work and claimed that a later episode of atrial fibrillation was triggered by an epidural

steroid injection he received as treatment for the back injury. Our court stated:

The fact that Collins suffered an injury is undisputed, and

Collins’s board-certified cardiologist stated that it is much more

likely than not that the claimant’s initial episode of atrial

fibrillation was triggered by the epidural injection. His opinion

qualifies as substantial evidence to supportthe ALJ’s finding that

the Section 20(a) presumption was triggered.

Id. at 449. The cardiologist’s testimony was substantial evidence that the episode of atrial

fibrillation “naturally or unavoidably” resulted from the claimant’s treatment for his workrelated back injury. To the extent that Crescent Towing could be interpreted as approving

application of the statutory presumption to the episode of atrial fibrillation, it is inconsistent

12

statute.3 As we have indicated, the ALJ should consider whether such a finding
No. 07-60216

with our prior precedent, and we therefore must reject it.

4

In the same letter, Hess’s counsel asked the BRB to issue an order awarding Dover’s

counsel $6,082.31 for his work before the BRB.

13

requires expert testimony.

B.

We now turn to consider the ALJ’s determination that Dover is totally and

permanently disabled. In the light of our remand for a determination whether

Dover’s heart condition naturally or unavoidably resulted from the medication

he received for his on-the-job back injury, and because we cannot say

conclusively that the ALJ’s finding that Dover had a compensable heart

condition did not affect the ALJ’s determination that Dover is totally and

permanently disabled, we VACATE the finding of total and permanent disability

and REMAND for further consideration and such further proceedings as the ALJ

determines are necessary. 

C.

We now turn to consider Hess’s final argument, which is that there is no

statutory basis for the ALJ’s award of attorney’s fees, because Hess paid benefits

and followed all of the OWCP’s recommendations. Dover contends that Hess

waived this issue when it failed to appeal the fee award to the BRB.

The ALJ’s Decision and Order allowed Dover’s attorney 30 days within

which to file a fee application. Dover’s counsel filed a fee petition seeking

$19,094.65. On May 17, 2006, Hess’s counsel advised the court, by letter, that

the parties had agreed to settle the fee issue for $16,282.15.4 Based on the

parties’ agreement, the ALJ ordered Hess to pay the agreed amount to Dover’s

attorney. Hess did not appeal the ALJ’s fee award to the BRB. Accordingly,

Hess has waived any issue with respect to the award of attorney’s fees. See

Ingalls Shipbuilding, Inc. v. Dir., OWCP, 976 F.2d 934, 938 (5th Cir. 1992).

III.
No. 07-60216

14

For the foregoing reasons, we VACATE the ALJ’s award of medical

expenses for Dover’s heart condition and the ALJ’s finding that Dover is totally

and permanently disabled, and REMAND for a determination of whether

Dover’s heart condition naturally or unavoidably resulted from the treatment he

received for his work-related back injury, and for reconsideration of whether

Dover is totally and permanently disabled. We DENY review of the attorney’s

fee award.

VACATED in part and REMANDED; REVIEW DENIED in part.
No. 07-60216

15

REAVLEY, Circuit Judge, concurring:

I concur in the judgment of the majority but disagree with the conclusion

that the presumption created by § 20(a) of the Longshore and Harbor Workers

Compensation Act (LHWCA) is inapplicable to Dover’s alleged heart condition

because Dover’s claim was limited to a back injury and the claim did not

reference a work-related heart injury. I would apply the presumption as long as

Dover presented sufficient evidence to establish a prima facie case, but because

Dover did not present such a case on the current record I concur.

The § 20(a) presumption provides that “[i]n any proceeding for the

enforcement of a claim for compensation under this chapter it shall be presumed,

in the absence of substantial evidence to the contrary– . . . [t]hat the claim comes

within the provisions of this chapter.” 33 U.S.C. § 920(a). “A prima facie ‘claim

for compensation’to which the statutory presumption refers, must at least allege

an injury that arose in the course of employment as well as out of employment.”

U.S. Indus./Fed. Sheet Metal, Inc. v. Dir., OWCP, 455 U.S. 608, 615–16, 102 S.

Ct. 1312, 1318 (1982).

Dover claimed that he suffered a work-related back injury, and he testified

that the steroid treatment for his back resulted in his heart condition. We have

recognized that “‘“[w]hen the primary injury is shown to have arisen out of and

in the course of employment, every natural consequence that flows from the

injury likewise arises out of the employment, unless it is the result of an

independent intervening cause attributable to claimant’s own intentional

conduct.’” Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046, 1051 (5th Cir. 1983)

(quoting 1 A. Larson, THE LAW OF WORKMEN’S COMPENSATION § 1300 (1980)).

Because Dover’s claimed back injury indisputably arose out of his employment,

any injury resulting from treatment for that injury should also be presumed to

have arisen out of the employment and the primary injury. See Mattera v. M/V

MARY ANTOINETTE, 20 BRBS 43 (1987) (back injury sustained during
No. 07-60216

16

vocational testing following a compensable arm injury was covered under the

LHWCA because the employee “would not have been undergoing vocational

rehabilitation testing if he had not injured his arm during the course of his

employment, and thus, we hold thatthe alleged back injury also arose out of and

in the course of his employment”); Weber v. Seattle Crescent Container Corp., 19

BRBS 146 (1986) (a neck injury sustained during a medical examination for a

work-related hearing loss “necessarily arises out of and in the course of

employment”).

The problem in the instant case is the proof that Dover’s secondary injury

(the heart condition) resulted from the treatment for his primary, work-related

injury (the back injury). Dover was asked at the hearing before the ALJ if he

had any heart problems prior to the accident on July 22, 1997. He responded,

“No.” He was then asked when he started having heart problems. Dover replied

as follows:

It was after my surgery. Now I went to Dr. Barnett there because

I had something wrong with my lungs there, a continuous coughing.

I went in there to get something, some medication for it. And he

checked my blood pressure and it’s way up there and my heart’s a

racing real fast, a hundred; I think about a 120 beats a minute or

something like that. He told me it wasn’t – it wasn’t my blood

pressure. He said, “That’s your heart doing that.” And I told him

all the steroid injections I had and he said, “Steroids will do that to

you.”

In finding that Dover’s heart condition was work-related, the ALJ relied in part

on Dover’s testimony about Dr. Barnett’s confirmation that the steroids could

have caused his heart problems. The ALJ found that nothing in the record

contradicted Dover’s testimony. But the only record evidence concerning Dr.

Barnett shows that Dover saw Dr. Barnett on July 23 and July 30, 1997, before

Dover received steroid injections. On this record, Dover could not have told Dr.

Barnett about the steroid injections and Dr. Barnett could not have stated that
No. 07-60216

17

steroids caused Dover’s heart condition. In addition, as the majority opinion

notes, Dover’s answers to interrogatories stated that Dr. Barnetttreated him for

a urinary tract infection and cardiac problems, suggesting that any heart

condition may have predated the back injury.

The ALJ, as the fact finder, may resolve conflicts in the evidence. Atlantic

Marine, Inc. v. Bruce, 661 F.2d 898, 900 (5th Cir. 1981). Although the ALJ here

found Dover to be a credible witness, there is no indication that he took conflicts

in the evidence into account. Based on the current record, Dover failed to show

a sufficient nexus between the steroid treatment for his back injury and his

secondary heart condition to establish a prima facie case. Therefore, I concur in

the judgment to vacate the order of the BRB affirming the ALJ.