Nathaniel McKenzie v. Universal Maritime Services

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2309
NATHANIEL MCKENZIE,
Petitioner,
versus
UNIVERSAL MARITIME SERVICES; SIGNAL MUTUAL
INDEMNITY ASSOCIATION, LIMITED; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0114)
Argued: November 28, 2006 Decided: March 7, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Petition for review granted; vacated and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge King and
Judge Duncan joined.
ARGUED: Bruce Bennett Eisenstein, EISENSTEIN, EISENSTEIN &
EISENSTEIN, Baltimore, Maryland, for Petitioner. Lawrence Philip
Postol, SEYFARTH & SHAW, L.L.P., Washington, D.C., for Respondents.
ON BRIEF: Michael C. Eisenstein, EISENSTEIN, EISENSTEIN &
EISENSTEIN, Baltimore, Maryland, for Petitioner.
Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Nathaniel McKenzie has filed a petition for review of the
Decision and Order of the Benefits Review Board (“BRB”) denying his
claim for disability benefits under the Longshore and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901 et seq. We
grant the petition for review, vacate the BRB’s order, and remand
for further proceedings.
On February 26, 2003, McKenzie, while working for Universal
Maritime Services (“Universal”), slipped and fell on his back,
striking his head on the asphalt. At home that evening, McKenzie
asked his wife to check the back of his head because he felt like
it was bleeding. Mrs. McKenzie did not find any blood, but she
noted that the area felt soft to the touch. The following day,
McKenzie worked a normal shift. When Mrs. McKenzie came home that
evening, she found McKenzie lying down, which he normally did not
do after work. Mrs. McKenzie also noticed on both February 26 and
27 that McKenzie seemed tired and that he did not play the lottery,
which was part of his normal routine.
On the morning of February 28, McKenzie went outside to brush
snow from his automobiles. When McKenzie came inside, he told his
wife that he had a headache and asked her for some of her migraine
medication. After Mrs. McKenzie gave him some medicine, McKenzie
went downstairs to the kitchen to get water. Mrs. McKenzie then
heard a noise and found McKenzie leaning up against the dishwasher.

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Mrs. McKenzie led McKenzie upstairs to the bedroom and placed him
on the bed. When McKenzie attempted to get up, he fell onto the
floor, but he did not hit his head. At this point, an ambulance
was called for. The ambulance crew helped McKenzie back into bed
and told Mrs. McKenzie to watch him and call again if his symptoms
worsened.
Shortly afterward, Mrs. McKenzie noticed that McKenzie’s left
arm was dragging and his left side appeared weak. Mrs. McKenzie
again called for an ambulance, and McKenzie was transported to a
hospital, where a CT scan revealed that he had an acute subdural
hematoma. During emergency surgery, a surgeon removed an acute,
traumatic right subdural hematoma from McKenzie’s head. After
surgery, McKenzie was in a coma for approximately one week and was
placed on a ventilator. McKenzie gradually improved and returned
home several months later. McKenzie continued to suffer residual
effects from this incident, including being confined to a
wheelchair.
McKenzie thereafter filed a claim for disability benefits
under the LHWCA. Universal contested McKenzie’s eligibility for
benefits, and the claim was referred to an administrative law judge
(“ALJ”). Following a hearing, the ALJ issued a Decision and Order
denying the claim. The ALJ initially found that McKenzie
established a prima facie case sufficient to invoke the statutory
presumption that his injury was caused by the February 26 fall.

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See 33 U.S.C. § 920(a) (“In 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.”); Universal
Maritime Corp. v. Moore, 126 F.3d 256, 262 (4th Cir. 1997) (“an
employee seeking to have the benefit of the statutory presumption
must first allege (1) an injury or death (2) that arose out of and
in the course of (3) his maritime employment”). However, the ALJ
further found that Universal produced substantial evidence
sufficient to rebut the presumption, and he then concluded that
McKenzie’s hematoma did not arise out of his employment with
Universal. See Moore, 126 F.3d at 262 (“If an employer does not
offer substantial evidence to rebut the presumption, . . . the
presumption provided by § 20 will entitle a claimant to
compensation. When the employer, however, does offer evidence
sufficient to justify denial of a claim, the statutory presumption
‘falls out of the case’ and does not remain as evidence that is
weighed in finding facts.”). The BRB affirmed.
In his analysis, the ALJ correctly noted an apparent
inconsistency in the record concerning whether McKenzie fell on
February 28 while he was cleaning snow from his automobiles. J.A.
11. Despite noting this inconsistency, the ALJ’s analysis did not

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1The mention of a fall on February 28 is likely accountable to
misreview of ambulance notes by subsequent health care personnel.
At oral argument, counsel for Universal could not point to any
first-hand evidence of a fall on February 28.
2However, Dr. Lancelotta did not explain his conclusion in
light of the fact that McKenzie’s clotting factors were normal at
the time of his acute hematoma. Moreover, Dr. Lancelotta did not
account for McKenzie’s abnormal behavior on February 26 and 27.
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reveal that there is no first-hand evidence of such a fall. 1 This
is significant because Dr. Charles Lancelotta, on whose opinion the
ALJ primarily relied, acknowledged that the majority of hematomas
are caused by trauma, but when pressed on this point, indicated
that McKenzie’s hematoma could have been caused by the putative
fall on February 28. J.A. 149. Of course, this latter assertion
is not supported by the record.
Leaving aside Dr. Lancelotta’s opinion based on the assertion
of a fall on February 28, which is not supported by the record, his
testimony merely asserts that McKenzie’s hematoma was either
spontaneous or resulted from McKenzie’s use of blood thinners.2
However, as the ALJ noted, “[h]ypothetical theories, inferences or
speculation are insufficient to rebut the presumption” that the
hematoma was job-related. J.A. 14.
Because the ALJ did not properly analyze the testimony, we
vacate the denial of compensation and benefits, and we remand this
case to the Board for further proceedings consistent with this

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3This direction does not suggest that the ALJ acted
improperly. However, the remand will require a review of
additional facts in the record and a reassessment of expert
testimony about which the ALJ has already formed an opinion.
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opinion. We direct that the Board reassign this case to a
different ALJ on remand. 3
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED

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