* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not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 June 6, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

05-60259 Summary Calendar RICHARD MCBRIDE, Peti tioner,

versus HALTER MARINE, INCORPORATED, RELIANCE NATIONAL INDEMNITY COMPANY, in liquidation, by and through the MISSISSIPPI INSURANCE GUARANTY ASSOCIATION, DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U S DEPARTMENT OF LABOR, Respondents.

Peti tion for Review of an Order of the Benefits Review Board (04-0508)
Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. CARL E. STEWART, Circuit Judge: * Richard McBride (“McBride”), an employee of Halter Marine, Inc. (“Halter”), seeks review of an order of the Benefits Review Board (“BRB”) affirming the Administ rati ve Law Judge’s (“ALJ”) fo urth and final judgment that McBride’s alleged psychological condition is not causally related to2

on-the-job injuries sustained by McBride in early 1994. Because the ALR’s holding and BRB’s affirmance are anchored by substantial evidence supporti ng such a determ

inat io n, this peti

tion fo r review is denied, and the decision of the BRB is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND McBride, a shipfit ter wit h Halter, as serts that on March 3, 1994, he was assaul ted by a supervisor fo r being out of his designated area; McBride, then thirty-three, explains that he went to this area to obtai

n eye lugs. As a result of the assault, McBride claims that he experienced neck, shoulder, th

roat and back pains and headaches. Furthermore, McBride claims that on April 13, 1994, he was “flipping over bulkheads” when he was lift ed of f of his feet, injuri

ng his ankle and further injuring his neck and back. As a result of these injuries, McBride init ially sought treatment from Halter’s doctor and the emergency room ; he was given anti-inflammat ory medications and muscle relaxers to help him cope wit h the pain. Thereafter, McBride consulted his personal physician, Dr. Longnecker, an orthopedic physician, who performed x-rays, prescribed physical therapy, and determ ined on May 5, 1994, that McBride was not well enough to conti nue working at Hal

ter. After McBride’s MRI came back

normal and the physical therapist noted difficult y co rrelati ng McBride’s subjective complaints with the physical findings, Dr. Longnecker determ ined that McBride could return to work at “light duty ” at Halter on July 19, 1 994; he also stated that he did not anticipate McBride having a permanent disabilit y and assigned only tem porary restrictions fo r six to eight weeks, aft er which McBride would be free to return to normal duty

. Dr. Longnecker’s final diagno sis was “acute and chronic ligament ous muscular inj ury .” Fi nally, a subsequent report issued by Dr. Longnecker noted that McBride had no permanent impairment or permanent limitations of any kind.3

As a result of his on-the-job injury, McBride was paid tem porary total disabilit y benefit s fo r the period that he was under Dr. Longnecker’s care. Upon returning to “light duty,” Halter found alt ernative work fo r McBride paying him his regular wage, but in accordance wit h com pany policy, Halter required that McBride undergo drug screening because he had been away from work fo r mo re than thi rty days. The drug test showed posi ti ve for cocaine, and, as a result, McBride was term inat ed, per com

pany policy. Aft er hi s terminat io n, McBride, however, continued to pursue a claim for additional

com pensation. Initially, he disputed the validity of the drug screen and contested the extent of his physical injuries. Thereafter, more than two and a half years aft er McBride was injured, at the first administ rati

ve hearing regarding this mat ter McBride alleged that he had also suffered psychological injuries. This was the first time McBride had made this allegation, and the hearing was, therefore, conti nued to allow him sufficient time to develop evidence of a psychological injury. A hearing on the merit s was finally heard before an ALJ on March 11, 1997, th ree years aft er McBride’s injury; McBride appeared pro se. At the hearing, McBride submit ted evidence regarding his physical and psychological treatment. He int roduced evidence f rom Dr. Hearne, a clinical psychologist who began treati ng McBride in Octobe r 1996 and diagnosed McBride with Post Traumati c Stress Di sorder (“PTSD”), determ ining t hat McBride could not be gainfully employed. Because Dr. Hearne’s office was located more than 150 miles from McBride’s home, Dr. Hearne referred McBride to Dr. Gutpa, even though Dr. Gutpa lived approximately three hours from McBride’s residence. Dr. Gutpa examined McBride in November of 1996 and subsequently testi fied that he did not review the tests or reports of Dr. Hearne. Instead, based on the history presented to him by McBride,1 The ALJ’s final order noted that Dr. Maggio’s credentials boosted his credibilit y; Dr. Hearne

holds a doctorate in psychology. 4 Dr. Gutpa diagnosed McBride wit h majo r depression, psychotic sympt oms, and PTSD and determ ined that McBride was totally disabled. Thereafter, on February 7, 1997, Halter had McBride evaluated by Dr. Maggio, a boardcerti fied doctor in psychiatry and neurology. 1 In preparation for this evaluation, Dr. Maggio reviewed McBride’s extensive medical records. From this information and aft er meeting wit h McBride, Dr. Maggio di agnosed him with “adjustment disorder with mixed emotions of anxiety and depression, substance induced psychosis and pe rsonalit y diso rder not otherwi se specified with features of paranoia.” He also determined t hat McBride was not disabled by this condition, could return to work, and had no sympt oms or indicators of PTSD. In the ALJ’s original decision on April 17, 1997, he determ ined that McBride suffered two mino r injuries while employed at Halter and concluded that McBride’s version of the accounts was “certainly exaggerated.” The ALJ did determine, however, that McBride was entitled to tem porary total disabilit y benefit s from April 14, 1994, when he fir st took leave from work, th

rough Septem

ber 18, 1994, the date that McBride was allo wed to return to work by the treati

ng physician provided by Halter. The ALJ denied benefits for the remainder of the ti me finding McBride to be “properly terminated for violating company rules” because Halter provided suitable alt ernative employment on Septem ber 19, 1994, and McBride failed the drug test administ ered by Halter. Finally, t he ALJ considered the evidence offered by Drs. Hearne and Gutpa, but chose to accept the medical opi nio n of Dr. Maggio inst ead; he determ ined that McBride’s alleged psychological condition was unrelated to his work injury.2 To become eligible fo r disabilit y and medical benefit s under the Longshore and Harbor Wo rkers’

Com pensation Act a claimant must establish causation between the injury and his jo b. This is often referred to as a § 20(a) presumption, “which assumes that his injury is causally related to his employment .” Ingalls Shipbuilding, Inc. v. Dir., Office of Worker’s Comp. , 105 Fed. Appx. 567, 571 (5th Cir. 2004) (unpublished).

5 McBride appealed the ALJ’s findings, and the BRB, on June 5, 1998, reversed the ALJ’s

or der as to the causation of the psychological condition and remanded the case for the ALJ to reconsider the psychological evidence. The BRB also explained that fo r the ALJ to determine that the § 20(a) presumption in 33 U.S.C. § 920(a) had been rebutted, 2 the ALJ must “unequivocally state that no relationship exists between an injury and Claimant ’s emplo y ment ” and that Dr. Maggio’s report, upon which the ALJ relied, failed to establish that “claimant’s employ ment did not cause claimant ’s condition nor aggravate, accelerate, or combine with an underlying condition.” On remand, in the ALJ’s second decision dated April 26, 1999, the ALJ indicated that he was

com pelled by the BRB to find that McBride’s psychological condition consti tuted a work-related injury. Therefore, the ALJ qualified his second holding by stating that “the Board has clearly substituted it s opi

nio n fo r that of this fact-finder who presided over the Heari ng, who heard the testi mo ny and observed the demeanor of a less than candid Claimant .” The ALJ then stated that “this clo sed record conclusively establishes Claimant can return to work at Hal ter’s facility, that he did return to work, underwent drug screening and failed the test and was properl y t erminated on Septem ber 18, 1994, fo r illicit drug use.” Finally, he determ ined that because McBride had never requested or received approval for treatment of his alleged psychological problems, Halter was not6

required to pay past and future medical care for the psychological problems. Accordingly, the ALJ again denied McBride’s claim for additional compensation. On May 7, 1999, McBride filed an appeal of the decision on reconsideration and filed a quasinotice of appeal wit h attached newspaper clippings, let ters from physicians, and a com plaint from an unrelated lawsuit. The BRB then remanded the case to the ALJ with inst ructi ons that McBride’s

mo dificat io ns be treated as a mo tio n fo r modi fication. On January 18, 2000, the ALJ denied

mo dificat io n on the basis that the medical evidence submit ted by McBride had already been admit ted int o evidence or was irrelevant. McBride then filed another appeal; it was consolidated with the ALJ’s decision on mo dificat io n. On January 10, 2001, the BRB responded by vacating t he ALJ’s decision that McBride’s psychological condition was not disabling and remanded the case indicating that the ALJ’s decision was not supported by substantial evidence. The BRB specifically took issue with the ALJ basing his finding on the fact that McBride’s psychological condition did not arise until two years aft er the injury and poi nt ed to the prescription fo r anxiety medication as evidence to dispute the ALJ’s reasoning. The BRB also vacated the ALJ’s denial of mo dificat io n, as it f ound that the ALJ erroneously determined that some of the newly submit ted records had previously been admit ted int o evidence. The BRB vacated the ALJ’s denial of payment fo r past medical expenses and determ ined that the ALJ did not address evidence duri ng the hearing that McBride was referred to a mental health care provider by his orthopedist or that McBride requested payment of bills incurred while seeking ment al health care. Therefore, on remand, the BRB held that the ALJ must determine “whether [Halter] had previously refused authorization of Claimant ’s ment al health treatment, and, if s o, wh ether such refusal released Claimant from the obligation of conti

nuing to seek approval fo r his subsequent ment al health treatment.” The BRB did,7

however, affirm the ALJ’s finding that McBride’s travel ex penses and medical benefits should be limit ed to reasonable costs that would have been incurred at a medical facilit y in McBride’s lo calit y. On remand again to the ALJ, McBride mo ved to reopen the record to submit an August 20, 2001, report of Dr. Longnecker stati ng that McBride would not be capable of gainful employment and that even though he had not examined McBride since January 1998, in his opi nio n, McBride had psychiatric problems that should be treated by a psychiatrist. Dr. Longnecker’s report assigned, for the fir st ti me, a 5% whole body disabilit y fo r McBride. Halter opposed this motion, but t he ALJ granted McBrid e’s motion to reopen allo wing Halter to take the deposition testimony of Dr. Longne cker and obtai

n other supplemental reports or rebuttal evidence. Halter took Dr. Longnecker’s deposition and entered it int o evidence. At this t ime, Dr. Maggio conducted another evaluation of McBride and diagnosed him wit h Chr onic Paranoid Schizophrenia (“CPS”). He concluded, however, that there was no connection between McBride’s psychological condition and his work-injuries; Halter also entered this report into evidence. On April 11, 2002, the ALJ issued another decision. He awarded temporary total disability benefit s to McBride in a payment of mo re than $100,000 on the basis of his alleged psychological injury from the date of the accidents th rough the present and conti nuing. The ALJ found that McBride was capable of work and was capable of work in 1994, as Dr. Longnecker had not examined McBride in more than five years and had at one time released him to return to work with “no objective finding to support any permanent disability.” As for McBride’s psychological claims, the ALJ stated that he believed his init ial order awarding benefit s, dated April 17, 1997, was correct ; however he stated that he felt com pelled to find that “as the Board has held th e Claimant ’s psychological problems constitute, as a mat ter of law, a work-related i njury, that is ‘the law of the8

case.’” Further, the ALJ stated that “with the utmost of trepidat io n and apprehension . . . I respectfully suggest that the Board erred in it s June 5, 1998, decision

. . . . [but] I am constrained to accept that ruling, thereby resulting in this decision and com pensation award.” Accordingly, the ALJ noted that McBride requested aut hori zati on for his psychological treatment, Halter refused and, therefore, Halter shoul d be liable for the costs of those medical expenses, subject to the aforement io ned locality determination. The ALJ also determined that the supplemental medical evidence regarding his ment al health care warranted mo dificat io n stati ng that, “t he Board obviously disagrees with the Employer and I am constrained to follow the Board’s directions herein.” On May 9, 2003, aft er the ALJ’s third deci sio n in t his mat ter, both Hal ter and McBride appealed to the BRB; Halter appealed regarding the issue of McBride’s psychological condition, and McBride challenged, fo r the fir st ti me, the ALJ’s average weekly wage determ inat io n used to com

pile his ult imat e damage award. The BRB agreed with Halter that the law of the case doctrine should not have precluded the ALJ from considering Halter’s new evidence and revisiting the issue of the causal connection between McBride’s psychological condition and his employment

. The BRB remanded th e case f

or the ALJ “to consider whether Dr. Maggio’s new report provides substantial credible evidence that Claimant ’s psychological condition was not caused or aggravated by his employment and, th us, supports mo dification of the Board’s prior holding that Employer had not rebutted the Section 20(a) presumption.” The BRB di sagreed with Halter’s contention that the ALJ erred in finding that McBride was unable, from a psychological standpoint, to perform the alt ernate posi tion identified wit hin Halter’s f a cilit y and agreed wit h the ALJ’s determ inat io n that McBride’s medical treatment was rational and supported by substantial evidence. Therefore, the BRB held that the ALJ did not err in finding Halter liable fo r McBride’s past medical care and affirmed the ALJ’s calculation3 By this ti me the original ALJ, Judge DiNardi, had reti red; the mat ter was then reassigned to ALJ C. Richard Avery. 9 regarding McBride’s average weekly wage, determ ining that McBride was estopped from raising it because he had not previously raised it as an issue on appeal. On remand to the ALJ 3 fo r the fourth and final time, the ALJ reopened the record to allo w McBride to address the issue of the causal relationship between McBride’s psychological condition and his employment

. At this point, McBride t erminated the attorney he had retained for his last appeal and proceeded pro se again; he offered numerous affidavits and documents into the record. On January 13, 2004, the ALJ issued a decision denying McBride’s claim fo r p ast and future psychological benefit s; he opi ned that even if McBride were suffering from a severe psychological condition, McBride’s condition was not caused by the incident at Halter. In reviewing the medical reports, the ALJ determ

ined that Dr. Maggio’s report rebutted the presum ption and that Drs. Hearne’s and Gutpa’s diagnos es were based on mere “distorted history given to them by the Claimant .” McBride filed a mo tion fo r reconsideration of the ALJ’s decision and also filed a peti tion fo r review wit h t he BRB. On February 9, 2004, the ALJ denied McBride’s motion for reconsideration and on February 10, 2004, the BRB issued it s order dismissing McBride’s appeal as premature due to his pending mo tion fo r reconsideration before the ALJ. On February 25, 2004, McBride requested that his peti

tion fo r review be reinstated. The BRB, in its final decision, thereafter affirmed the ALJ’s decision on remand and the order denying McBride’s mo tion fo r reconsideration. As a result,4 In correspondence filed on October 6, 2005, the Director, Office of Wo rkers’ Com pensation Programs, United States Department of Labor, who had been a party to this litigation, notified the clerk’s of fice that it would not be participating in the proceedings surrounding McBride’s peti tion fo r review. 10 McBride sought review in this court; alo ng wit h his peti tion fo r review, McBride submit ted a mo tion to appoi nt a guardian ad litem or lawyer specifically to facilitate the filing of his appellate brief. 4

II. STANDARD OF REVIEW Under the Longshore and Harbor Wo rkers’ Com pen sati on A ct (“LHWCA”), the BRB is required to accept the ALJ’s findings of fact and conclusions of law if they are supported by substantial evidence and in accordance wit h the law. 33 U.S.C. § 921(b)(3) (2000). The BRB is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it , and parti es shall not submit new evidence to the Board. 20 C.F.R. § 802.301 (2006). “This court, in turn, reviews decisions by the BRB to determ ine whether it has adhered to it s proper scope of review–i.e., whe t her the ALJ’s findings of fact are supported by substantial evidence and are consistent wit h t he law.” G ulf Best Elec., Inc. v. Methe , 396 F.3d 601, 603 (5th Cir. 2004) (citing H.B. Zachry Co. v. Quinones , 206 F.3d 474, 477 (5th Cir. 2000)). III. DISCUSSION The ALJ is the factfinder and “is entitled to consider all credibilit y inferences.” Mendoza v. Marine Pers. Co., Inc. , 46 F.3d 498, 500 (5th Ci r. 1995). The ALJ determines the weight to be accorded to evidence and makes credibility determinations. Mijangos v. Avondale Shipyards , 948 F.2d 941, 945 (5th Cir. 1991). Moreover, when the testimony of a medical expert is at issue, the ALJ is entitled to accept any part of the expert’s testi mo ny that he choo ses; he can even reject it

com pletely. M

endoza , 46 F.3d at 501. The ALJ is not bound to accept the opinion or theory of any11

particular medical examiner; in fact, “he is e nt it led to weigh the medical evidence including the relative credibilit y of the com peti ng experts and to draw from that evidence the inferences he deems

mo st reasonable in light of the evidence as a whole and the com mo n sense of the situation.” Hullinghorst Indus., Inc. v. Carroll , 650 F.2d 750, 759-60 (5th Cir. 1981) (citation omitted). Under the LHWCA, a claimant has the burden of proving the fo llo wing elements to receive coverage: “(1) an injury was suffered, and (2) the injury occurred in the course of employment or was caused , aggravated or accelerated by conditions at the work place.” O rtco Contractors, Inc. v. Charpentier , 3 32 F.3d 283, 287 (5th Ci r. 2003). Where, as in the present case, the claimant has established entitlement to i nvocation of the § 20(a) presumption–that the claimant is entitled to coverage–the burden shifts to the employer to rebut it with substantial evidence that the claimant ’s condition was not caused or aggravated by his employment

. Id. If the ALJ finds that the § 20(a) presumption is rebutted, the presumption drops from the case, and the ALJ must decide the causation issue based on the evidence considered as a whole, wit h the claimant bearing the ult imat e burden of persuasion. Port Cooper/T.Smith Stevdoring Co. v. Hunter , 227 F.3d 285, 288 (5th Cir. 2000). Accordingly, we agree wit h the reasoning of the ALJ and the BRB’s final determ inat io n in this case–that Halter’s expert, Dr. Maggio, presented mo re convincing evidence regarding McBride’s health conditions than McBride’s experts, Drs. Hearne and Gupta. Dr. Maggio’s report rebutted the presumption of causation as to McBride’s alleged psychological condition. The ALJ’s decision is supported by Drs. Hearne and Gutpa’s overall non-participation in the critical events that unfolded in the case. For example, neither reviewed McBride’s medical records; each of their testi

mo nies alerted the ALJ that they “based their opinions of causation solely on the5 For example, the record reflects that Dr. Hearne noted that McBr ide had been hit in the head

repeatedly by his supervisor wit h a blunt object. This allegation did not come from medical records or wit ness testimony; it came from McBride, and was inconsistent with the account of the incident that McBride shared wit h Dr. Gutpa. Moreover, as thei r testi mo nies reflect, neither doctor was aware that McBride had been terminated from Halter for failing to pass a drug test.

6 In addition to the medical reports, McBride int roduced his personal affidavit and affidavit s from his mo ther, Queen Ester Cardin; his sist er-i n-law, Patricia Liddell; his son, Ricky McBride (who was eleven at the ti

me his fat her’s work-related incident occurred); two friends, Marvin J. Hutchins and 12 distorted hist ory given to them by” McBride. 5 Furthermore, the ALJ noted that both Drs. Hearne and Gutpa di agnosed McBride wit h PTSD based on the incorrect or “exaggerated stressors described” by McBride; neit her doctor even reviewed the tests administered by the oth er. Applying t he same scruti ny, the ALJ determ

ined that because Dr. Maggio took into account McBride’s version of the facts and reviewed the medical records and accounts of the events from wit nesses, his testi mo ny and medical opi

nio n regarding McBride’s psychological condition was the mo st credible. In his reports to the ALJ in 1997 and 2001, Dr. Maggio concluded that McBride did not have PTSD. Instead, in 2001, but not in 1997, he diagnosed McBride wit h CPS and de scri bed that condition as a “major psychiatric condition that has a thought disorder and a feeling disorder” and is a majo r psychiatric illness. Most i

mportantly, however, is that Dr. Maggio noted there is “no connection whatsoever between [McBride’s] work-related incident and emergence of his [CPS] over a five year period” and that McBride’s work injury “did not aggravate, exacerbate or contri bute to his condition.” He noted that CPS “is probably genetic and is a mixture of nature” and explained that, in 1997, McBride did not have CPS; he explained that McBride began showing clinical manifest ations of the psychological disorder “o nly recently.” Furthermore, the testimonies of Drs. Hearne and Gutpa did not produce evidence to contradict Dr. Maggio’s testi mo ny re garding CPS, nor did the testi mo nies of any of McBride’s other witnesses. 6Curti s Wilso n, Jr., and his wife, Blondine McBride. 13 Therefore, we agree wit h the ALJ’s determ inat io n that “Dr. Maggio’s opinion that claimant suffers from [CPS] which was neit her caused nor aggravated by work conditions, was well-reasoned and consistent wit h the facts regarding [McBride’s] March 3, 1994, and April 13, 1994, workplace incidents.” As the BRB reasoned, “the administrative law judge [in this case] set forth and evaluated all of the evidence of record, and his inferences drawn from the record evidence are reasonable”; accordi ngly, it held that Halt e r “is not liable fo r the payment of com pensation or medical benefit s related to the treatment of claimant ’s psychological condition.” Because we find that both the ALJ’s and BRB’s fi

nal ho ldings are supported by substantial evidence that there is no causal connection between McBride’s psychological condition and his work-related i njuries, we deny this petition for review and affirm the decision of the BRB. Finally, we decline to review McBride’s mo tion to appoi nt an attorney or a guardian ad lit em because his request is mo ot. McBride qualified his motion, filed on August 19, 2005, by stating that he needed assistance to “help file the brief” and “befo re fil[ ing] the brief.” He made no other mention of additional reasons prom pti ng him to make this request. Therefore, because McBride filed his brief on November 30, 2005, his request for a guardian ad litem or an attorney is dismissed as mo ot; we need not consider whether it is within the jurisdiction of this court to actually accommodate such a request. IV. CONCLUSION For the fo regoi

ng reasons we DENY the peti tion fo r review and AFFIRM the decision of the BRB.