Giroir v. Conrad Indust Inc, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-60448
Summary Calendar
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ROBBIE GIROIR,
Petitioner,
VERSUS
CONRAD INDUSTRIES, INCORPORATED; ZURICH INSURANCE COMPANY;
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
_________________________
Petition for Review of an Order of
the Benefits Review Board
m 00-0761
_________________________
March 5, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The Administrative Law Judge (“ALJ”)
denied Robbie Giroir’s claim for benefits under
the Longshore and Harbor Worker’s Com-
pensation Act, 33 U.S.C. § 901 et seq.
(“LHWCA”), finding, after a formal hearing,
that Giroir had failed to prove that he had suf-
fered a harm caused, aggravated, or accelerat-
ed by employment conditions. The Benefits
Review Board (“Board”) affirmed. In his pe-
tition for review, Giroir argues only that sub-
stantial evidence does not support the ALJ’s
decision. Finding no reversible error, we deny
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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the petition for review.
I.
Giroir worked in a shipyard owned and
operated by Conrad Industries, Inc. (“Con-
rad”), first as a subcontractor with C-Fab
Industries and then as a shipfitter and em-
ployee of Conrad’s. As a shipfitter, Giroir
repaired iron on boats, cutting out old rusted
iron and putting in new iron. He routinely
cropped out the iron to be replaced, found a
piece to replace it, cut it to size, and tacked it
into place.
The witnesses agreed that shipfitters com-
monly carried small pieces of iron for distances
of up to 300 feet but disagreed over the aver-
age weight of these iron pieces. Giroir testi-
fied that he typically lifted fifty to sixty
pounds; Ricky Land, another fitter, testified
that shipfitters often lifted as much as their
own weight; and Herman Bailey, a shipyard
superintendent, testified that in over nineteen
years, he could not recall a fitter lifting and
carrying an object that weighed more than
thirty-five pounds.
In the early morning of November 28,
1997, Giroir participated in a barroom fight
that led to his arrest and conviction for simple
battery. Bradley Bergeron, an eyewitness to
the fight, testified that the fight degenerated
until Giroir and his opponent were wrestling
on the floor.
Giroir testified as follows: On December 3,
1997, David Fontenot, his foreman, ordered
him to carry a twelve-foot piece of angle iron
150 yards to a stairway at the stern of a vessel
in dry dock. Fontenot refused to allow him to
cut the angle iron on land to the desired seven-
foot length. Giroir had to carry the iron angle
manually because the shore side crane was
broken, and no other cranes were servicing the
dry dock.
While climbing the stairs on the stern of the
boat and carrying the angle iron on his back,
Giroir injured his back. He then carried the
angle iron up a passage inside the boat near the
bow, where he lowered it through a manhole
in the passageway and down into the number
2 starboard ballast tank. He took this lengthy
route because the manhole was the only means
of access to the number 2 starboard ballast
tank.
Conrad pointed to conflicting evidence on
all of these points during the hearing. Fon-
tenot denied that he ever would have instruct-
ed a fitter to cut the iron on board the ship
rather than on land. Land, one of Giroir’s
witnesses, testified that Giroir cut the angle
iron on the shore rather than waiting to cut it
on the ship. Shipyard records proved that the
manhole was not the only access to the ballast
tank; the workers had opened a four-by-five-
foot hole in the lower hull to permit access by
personnel and equipment. Finally, shipyard
managers testified that a crane and several
cherry pickers operated for nine-and-one-half
hours that day and remained available at all
times.
The medical experts disagreed about the
cause of Giroir’s injury. Stuart Phillips,
Giroir’s orthopedic surgeon, testified that the
industrial accident caused Giroir’s back injury,
but he admitted that his conclusion derived
primarily from Giroir’s self-reported medical
history. George Murphy, another orthopedic
surgeon, testified that a physician could not
determine whether the fight or the alleged
lifting incident caused the injury. The other
two doctors, specialists in family medicine and
neurosurgery, treated Giroir in December

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1997; neither of them could determine whether
the fight or lifting the angle iron had caused
the injury.
II.
The ALJ found in favor of Conrad. He
initially found that Giroir had proven a prima
facie case and that LHWCA’s presumption in
favor of recovery applied but that Conrad had
offered countervailing evidence that cast sig-
nificant doubt on the existence of a work-
related injury. Conrad’s rebuttal evidence per-
mitted the ALJ to evaluate the whole record.
The ALJ found Conrad’s witnesses more cred-
ible than Giroir’s and rejected Phillips’s caus-
ation hypothesis.
The ALJ granted Giroir’s motion for
reconsideration. Giroir objected to the ALJ’s
initial, inaccurate statement that witnesses had
observed Giroir limping after the bar fight but
before the alleged industrial accident. The
ALJ corrected this inaccuracy but remained
convinced that Giroir had failed to prove a
work-related accident.
Giroir appealed to the Board, which upheld
the ALJ’s findings of fact and conclusions of
law as rational, supported by substantial evi-
dence, and in accordance with the law. The
Board found that, despite the ALJ’s initial
misstatement, substantial evidence supported
his decision and order.
III.
Giroir’s appeal boils down to a single ar-
gument: The ALJ’s initial conclusion that wit-
nesses had observed Giroir’s injury after the
fight but before the alleged accident so taints
the decision that we must grant the petition for
review. Like the ALJ and the Board before us,
we conclude, however, that independent
record evidence supports the ALJ’s decision,
so we deny the petition.
A.
Under the LHWCA, the petitioner must al-
lege that working conditions or an accident in
the course of employment caused an injury.
U.S. Industries/Federal Sheet Metal, Inc. v.
Dir., OWCP, 455 U.S. 608, 615-16 (1982);
Port Cooper/T. Smith Stevedoring Co., Inc. v.
Hunter, 227 F.3d 285, 287 (5th Cir. 2000). If
the petitioner makes this prima facie showing,
a rebuttable presumption arises that the
workplace accident caused or aggravated the
employee’s injury. Id.1 The employer must
counter this presumption with “substantial evi-
dence” that the employment did not cause or
aggravate the injury. Conoco, Inc. v. Dir.,
OWCP, 194 F.3d 684, 690 (5th Cir. 1999). If
the employer rebuts the presumption with the
kind of evidence a reasonable mind would ac-
cept as adequate to support the conclusion, the
presumption falls away, and the ALJ will de-
termine the existence of an injury, and its re-
lation to employment, on the basis of the
whole record. Id.; Lennon v. Waterfront
Transp., 20 F.3d 658, 662 (5th Cir. 1994).
B.
Giroir challenges only the ALJ’s factual
finding that Giroir’s employment did not cause
or aggravate his back injury. We consider the
record as a whole to determine whether factual
findings are supported by substantial evidence.
James J. Flanagan Stevedores, Inc. v.
Gallagher, 219 F.3d 426, 429 (5th Cir. 2000).
We have described the substantial evidence
1 The LHWCA creates the presumption: “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 (a) [t]hat the claim comes within the
provisions of this chapter.” 33 U.S.C. § 920(a).

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standard as “deferential,” Conoco, Inc., 194
F.3d at 690, and “somewhat narrow,”
Avondale Shipyards, Inc. v. Kennel, 914 F.2d
88, 90 (5th Cir. 1990). Substantial evidence is
more than a scintilla and evidence that a
reasonable person would consider persuasive.
Louis Dreyfus Corp. v. Dir., OWCP, 125 F.3d
884, 886-87 (5th Cir. 1997). We must not
reweigh the evidence or substitute our
judgment for the ALJ’s, but we do have a duty
independently to review the record. Id.
The substantial evidence standard requires
us to defer to certain types of judgments made
by the ALJ; we defer to the ALJ’s choice be-
tween conflicting evidence or testimony.
Avondale Shipyards, 914 F.2d at 90-91.
When the ALJ chooses among reasonable,
competing inferences from the evidence, we
must adopt that inference. Mijangos v.
Avondale Shipyards, Inc., 948 F.2d 941, 945
(5th Cir. 1992); Miller v. Central Dispatch,
673 F.2d 773, 779 (5th Cir. 1982). Finally, we
accept the ALJ’s judgments about a witness’s
credibility unless they are “patently unreason-
able.” Hall v. Consol. Employment Sys., Inc.,
139 F.3d 1025, 1032 (5th Cir. 1998); Lennon,
20 F.3d at 663.
C.
Giroir argues that the ALJ’s chronological
misunderstanding undermines the entire deci-
sion, including unrelated credibilit y
determinations made by the ALJ. On
reconsideration, the ALJ admitted the factual
mistake but found that other evidence
supported his decision.
Giroir fails effectively to contend with the
ALJ’s other resolutions of disputed fact:
(1) Giroir significantly understated the
seriousness of the fight. Bergeron, an
eyewitness, explained that Giroir and his
opponent landed and continued wrestling on
the barroom floor. Fontenot testified that
Giroir arrived at work after the fight with a
black eye, busted lip, and requested time off
because he was hurting. (2) Medical experts
could not rule out the fight, rather than an
industrial accident, as the cause of the back
injury. The ALJ found Murphy’s testimony
that the fight could have caused the back
injury more persuasive than Phillips’s opinion
that the fight did not cause the injury.
Specifically, the court pointed out that Phillips
had relied heavily on Giroir’s self-reported
medical history and not mechanical tests or
diagnostic tools. (3) Fontenot testified that he
would never have ordered Giroir to carry a
twelve-foot length of angle iron; Fontenot
himself had ruptured three disks previously
and stated that this increases his awareness of
heavy lifting’s risks. Bailey testified that in
nineteen years of employment, he has never
seen an employee lift and move a piece of
angle iron measuring over six feet. (4) Giroir,
Land, and Bannon Canty testified as
eyewitnesses to the accident, but the ALJ
considered their testimony not credible
because of inconsistencies and contradictions.
Workers had opened an access hole in the hull
that would have made it irrational for Giroir to
enter through the manhole; Giroir’s witnesses
offered contradictory testimony about whether
he cut the angle iron on shore; and shipyard
managers and records reflected that cherry
pickers were available to transport large pieces
of angle iron. All of these subsidiary findings
led the ALJ to conclude that the fight, and not
an industrial accident, caused Giroir’s back
injury.
Setting aside the chronological mistake, the
ALJ pointed to ample evidence to support his
conclusion that the fight, rather than the
alleged accident, caused Giroir’s injury. Many

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of the ALJ’s decisions rested on credibility
determinations and reasonable inferences from
the facts. Even if, arguendo, we disagreed
with the ALJ, we could not determine that his
decision was not supported by substantial evi-
dence. Substantial record evidence supports
all of his subsidiary fact findings, and he rea-
sonably chose to believe Conrad’s witnesses
and disbelieve Giroir’s.
The petition for review is DENIED.

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