United States Court of Appeals

Fifth Circuit



## FILED

March 17, 2004

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________

No. 03-60809

Summary Calendar

_______________



### C OOPER 

### /T. S MITH



### , I NC



### .,

AND



### A MERICAN 

### L ONGSHORE 

### M UTUAL 

### A SSOCIATION 

### , LTD,

Petitioners,

VERSUS



### R AYMOND 

### V ELES 

### ;

DIRECTOR



### , O FFICE OF 

### W ORKERS 

### ’ C OMPENSATION 

### P ROGRAMS



### ,

U.S. D EPARTMENT OF 

### L ABOR



### ,

Respondents.

_________________________

Petition for Review of an Order of

the Benefits Review Board



### m 02-0779

_________________________2

Before S MITH , D E M OSS and

S TEWART , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

I.

The claimant, Raymond Veles, worked as a longshoreman for the emp l oyer, Cooper

T/ Smith, Inc. (“Cooper”). During the course

of his work, on November 26, 1999, a “cheater pipe” broke loos e and collided with his

knee, causing him to fall. Veles duly informed

Cooper of his injury.

Som ewhat later, after pain lingered in his

knee, Veles visited his family physician, who

examine d t he resulting swollen, bruised knee

and recomm

e nded physical therapy. After

therapy and medication failed to provide relief

to pain, Veles’ treating orthopedist, Bryan,

gave him to an MRI, tentatively concluding he

had torn meniscus. An independent

Department of Labor physician, Butler,

concluded that the knee problems arose from

the aggravation of Veles’s pre-existing

ch o ndromalacia, a diagnosis confirmed by

Bryan during arthrosc opic surgery in

November 2000. As a result of back

problems, Veles als o had back surgery in

February 2002 under Gerzbein’s care.

II.

Veles filed his benefits claim pursuant to the

Longshore and Harbor Workers’

C o mpensation Act to secure payment from

respondents Coope r and the American

Lo ngshore Mutual Association. 33 U.S.C. §

901. The administ

rative law judge (“ALJ”) found Veles credi b le with respect to the

s ymptoms of his injury and relied on treating

physicians’ t estimony in finding that the

cheater pipe accident had exacerbated an existing medical condition to the extent that Veles

became unable to continue his longshore work.

Because the ALJ concluded that the injuries

arose from a work-related ac cident, that

Veles’s knee injury resulted in permanent disabilit y, and that his back injury resulted in a

temporary disabilit y, the ALJ co ncluded that

Veles was due appropriate benefits. The ALJ

also decided that Veles had reached maximum

medical improvement fo r his knee injury on

November 12, 2001, and keyed his receipt of

benefits accordingly, including temporary total

disabilit y payments from November 26, 1999,

to November 11, 2001, and perm anent total

disabilit y compensation thereafter. The

Benefits Review Board (“BRB”) affirmed.

Cooper and the carrier petit io n for review,

arguing that t he ALJ’s findings are not

supported by substantial evidence.

III.

We review decisions of the BRB for errors

of law. Like the BRB, we may gainsay the

ALJ’s findings o f fact only if they are

unsupported by substantial evidence.

Especially, we must respect the ALJ’s

evaluations of witness credibility, whether the

witness is lay or expert. C albeck v. Strachan

Shipping Co.

, 306 F.2d 693. We will not

interfere wi th the ALJ’s credibility

d eterminations unless they are “inherentl y

increditable or patently unreasonable.” D ir.,

OWCP v. Bethlehem Steel Corp

., 620 F.2d 60

(5th Cir. 1980). We look to whether the BRB

has applied the correct deferential standard of

review with respect to t h e ALJ’s findings of

fact, or equivalently that it has not substituted * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent exc ept under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.3

its own view for the ALJ’s. N ew Orleans

(Gulfw ide ) Stevedores v. Turner , 661 F.2d

1031 (Former 5th Cir. Nov. 1981).

A.

Respondents contend that the ALJ’s finding

that Veles sustained permanently disabling

work-related injuries is not supported by substantial evidence. Respondents dispute that

Veles’s knee and back problems arose from a

work-related injury. Cooper contends that the

“cheater pipe” accident resulted in a temporary

bruise, which acted to exacerbate neither

existing chondromalacia in h is knee or the

problems with his spine. Rather, respondents

assert that Vel e s is a malingerer and

exaggerated the extent of the injury to his

knee. They fault the ALJ for preferring the

t estimony of treating physicians over respondents’ expert witness and for crediting Veles’s

testimony with respect to the difficult ies

caused by his knee and back.

In deciding whether the knee and bac k injuries were work-related, the ALJ properly

undertook

the presum

pti on-shifting framework

describe d by section 20(a). 1 The claimant

established his prima facie case, t he defense

rebutted, and the ALJ heard arg uments from both sides concerning the whole record.

The key testimony before the ALJ included

Department o f Labor physician Butler’s

t estimony that the pre-existing condition o f

chondromalacia was exacerbated by the

accident and that Veles’s back problems were

int ensified by his resulting limp; and Cooper’s

examining physician Fultz’s admission that the

pre-existing condition of chondromalacia had

likely been exacerbated by the accide nt. S ee

Conoco, Inc

. 194 F.3d 684, 3 3 BRBS 187

(CRT) (holding that employer is liable for aggravation of

pre-existing injury). The ALJ

credited the testimony of Gertzbein, who concluded that the back injury al so flowed from

the accident as a result of Vel es’s resulting

limp. The ALJ noted that Bryan believed, at

least as of

July 11, 2001, that there was

nothing he could do to improve the function of

the knee. Importantly, the ALJ also heard

Veles’s desc ript ion of the accident and the

symptoms of his injury, and the ALJ found his

testimony to be straightforward and credible.

The ALJ’s findings are supported by

substantial evidence, and the BRB acted properly in refusing to gainsay them. Though respondents point to Fultz’s doubts that the back

injury flowed from Veles’s limp, and point to

claimant’s alleged “hypersensitivity” to pain, it

was wi t hin the ALJ’s purview to exercise his

judgment in evaluating witnesses’ credibility

and in assembling the evidence p resented to

him. Merely because different determinations

of credibility could hav e led to different

conclusions, does not mean that the ALJ’s fact

find ing was unsupported by substantial

evidence.

B.

In assessing the point at which Veles’s disabilit y became pe rmanent, the ALJ analyzed 1 A claimant must establish a prima facie case

that the accident occurred at the place of

employment and could have caused harm or pain or aggravated a pre-existing condition, which the employer may rebut by producing substanti al evidence

that the injury is not related to employm ent. S ee,

e.g., Gooden v. Dir., OWCP

, 135 F.3d 1066, 32

BRBS 59 (CRT) (5th Cir. 1998); Conoco, Inc. v.

Dir., OWCP

, 194 F.3d 684, 33 BRBS 187 (CRT)

(5th Cir. 1999). If the employer rebuts, the burden

of persuasion shifts to the claimant to show

ca usation, based on the record as a whole. S ee,

e.g., Universal Maritime Corp, v. Moore

, 126

F.3d 256, 31 BRBS (CRT) (4th Cir. 1997).4

the time when his knee injury reached

“max imum medical improvement.” The respondents dispute the ALJ’s finding that

maximum medical improvement had been

reached on November 12, 2001, whe n

treatment, including s urgeries, were undertaken thereafter.

Maximum medical improvement may have

be en reached, however, before the end of a

series of surgical tre at ments, when the later

surgeries will not improve the claimant’s ability to perform. Sketoe v. Dolphin Titan Int’l

, 28 BRBS 212 (1994). Moreover, even where

a doctor’s prognosis indicates that a condition

may improve, but whe re t he condition has a

lasting and infinit

e duration, the ALJ may yet

conclude that a claimant has reached maximum

medical improvement. B rown v . Bethlehem

Steel

, 19 BRBS 200 (1987). The ALJ relied

on the testimony of Vel es’s treati ng doctors

over that of Cooper’s expert in determining

that Ve les reached maximum medical

improvement with respect to his knee on November, 12, 2001. There is substant ial

evidence to support the ALJ’s finding.

C.

Respondents contend the ALJ err ed in

awarding t o t al disability benefits, saying that

the ALJ did not rely on substantial evidence of

Veles’s inabilit

y to return to his usu al work.

The ALJ heard G e rtzbein’s testimony that

V eles’s knee condition will prevent him fr o m returning to his former, physically demanding

jo b. Given the infirmity of Veles’s knee, the

ALJ relied on substantial evidence in deciding

that Veles was permanently unfit for longshore

work.

Once a claimant establishes inabilit y to return to his usual work, the employer may take

u p t he burden of showing the availability of suitable alternative work. See Turner

. Veles

demonstrated that he was functionally illiterate

and unable to perform any work at the time the

record closed, and respon dents presented no

evidence of suitable alternate employment.

The ALJ relied on substantial evidence in concluding that Veles was totally disabled.

The petition for review is DENIED.