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

_______________

COOPER/T. SMITH, INC.,

AND

AMERICAN LONGSHORE MUTUAL ASSOCIATION, LTD,

Petitioners,

VERSUS

RAYMOND VELES;

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

U.S. DEPARTMENT OF LABOR,

Respondents.

_________________________

Petition for Review of an Order of

the Benefits Review Board

m 02-0779

_________________________
2

Before SMITH, DEMOSS and

STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

I.

The claimant, Raymond Veles, worked as a

longshoreman for the employer, Cooper

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

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

knee, causing him to fall. Veles duly informed

Cooper of his injury.

Somewhat later, after pain lingered in his

knee, Veles visited his family physician, who

examined the resulting swollen, bruised knee

and recommended 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

chondromalacia, a diagnosis confirmed by

Bryan during arthroscopic surgery in

November 2000. As a result of back

problems, Veles also had back surgery in

February 2002 under Gerzbein’s care.

II.

Velesfiled his benefits claimpursuant to the

Longshore and Harbor Workers’

Compensation Act to secure payment from

respondents Cooper and the American

Longshore Mutual Association. 33 U.S.C. §

901. The administrative law judge (“ALJ”)

found Veles credible with respect to the

symptoms of his injury and relied on treating

physicians’ testimony in finding that the

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

became unable to continue hislongshore work.

Because the ALJ concluded that the injuries

arose from a work-related accident, that

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

temporary disability, the ALJ concluded that

Veles was due appropriate benefits. The ALJ

also decided that Veles had reached maximum

medical improvement for his knee injury on

November 12, 2001, and keyed his receipt of

benefits accordingly, including temporarytotal

disability payments from November 26, 1999,

to November 11, 2001, and permanent total

disability compensation thereafter. The

Benefits Review Board (“BRB”) affirmed.

Cooper and the carrier petition for review,

arguing that the 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 of 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. Calbeck v. Strachan

Shipping Co., 306 F.2d 693. We will not

interfere with the ALJ’s credibility

determinations unless they are “inherently

increditable or patently unreasonable.” Dir.,

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 the ALJ’s findings of

fact, or equivalently that it has not substituted

* 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.
3

its own view for the ALJ’s. New Orleans

(Gulfwide) Stevedores v. Turner, 661 F.2d

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

A.

Respondents contend that theALJ’sfinding

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 his knee or the

problems with his spine. Rather, respondents

assert that Veles is a malingerer and

exaggerated the extent of the injury to his

knee. They fault the ALJ for preferring the

testimony of treating physicians over respondents’ expert witness and for crediting Veles’s

testimony with respect to the difficulties

caused by his knee and back.

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

undertook the presumption-shifting framework

described by section 20(a).1 The claimant

established his prima facie case, the defense

rebutted, and the ALJ heard arguments from

both sides concerning the whole record.

The key testimony before the ALJincluded

Department of Labor physician Butler’s

testimony that the pre-existing condition of

chondromalacia was exacerbated by the

accident and that Veles’s back problems were

intensified 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 accident. See

Conoco, Inc. 194 F.3d 684, 33 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 also flowed from

the accident as a result of Veles’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 description 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 doubtsthat the back

injury flowed from Veles’s limp, and point to

claimant’s alleged “hypersensitivity” to pain, it

was within the ALJ’s purview to exercise his

judgment in evaluating witnesses’ credibility

and in assembling the evidence presented to

him. Merely because different determinations

of credibility could have led to different

conclusions, does not mean that the ALJ’sfact

finding was unsupported by substantial

evidence.

B.

In assessing the point at which Veles’s disability became permanent, 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 harmor pain or

aggravated a pre-existing condition, which the employer may rebut by producing substantial evidence

that the injury is not related to employment. See,

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

causation, based on the record as a whole. See,

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

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

maximum medical improvement had been

reached on November 12, 2001, when

treatment, including surgeries, were undertaken thereafter. 

Maximum medical improvement may have

been reached, however, before the end of a

series of surgical treatments, 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 indicatesthat a condition

may improve, but where the condition has a

lasting and infinite duration, the ALJ may yet

conclude that a claimant hasreached maximum

medical improvement. Brown v. Bethlehem

Steel, 19 BRBS 200 (1987). The ALJ relied

on the testimony of Veles’s treating doctors

over that of Cooper’s expert in determining

that Veles reached maximum medical

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

evidence to support the ALJ’s finding.

C.

Respondents contend the ALJ erred in

awarding total disability benefits, saying that

the ALJ did not rely on substantial evidence of

Veles’s inability to return to his usual work.

The ALJ heard Gertzbein’s testimony that

Veles’s knee condition will prevent him from

returning to his former, physically demanding

job. 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 inability to return to his usual work, the employer may take

up the burden of showing the availability of

suitable alternative work. See Turner. Veles

demonstrated that he wasfunctionallyilliterate

and unable to performanywork at the time the

record closed, and respondents presented no

evidence of suitable alternate employment.

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

The petition for review is DENIED.