Employer's Insurance v. Clark, et al

*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opinion should not be published and is not precedent except under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
For the Fifth Circuit
No. 01-60906
Summary Calendar
EMPLOYER’S INSURANCE OF WAUSAU,
Petitioner,
VERSUS
PAUL CLARK; ROY ANDERSON CORPORATION; DIRECTOR, OFFICE OF
WORKERS COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order
of the Benefits Review Board
(01-163)
June 28, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
This is an appeal from an order of the Benefits Review Board
(“BRB”) awarding temporary total disability benefits to claimant,
Paul Clark. After reviewing the record and the briefs of the
parties, we find no reversible error and affirm. We summarize our

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reasons below:
1. The principle argument presented in this appeal relates to
the conflict between the testimony of the treating physician, Dr.
Johnson–who found no disability–and Dr. Knight, who found that
petitioner was disabled. We do not sit to reweigh the credibility
of medical witnesses. Substantial evidence supports the BRB’s
disability determination and its acceptance of the ALJ’s
credibility call on the medical witnesses.
2. The BRB determination of the claimant’s average weekly
wage is rational and supported by substantial evidence. We
therefore decline to disturb this finding.
3. We are also satisfied that the BRB did not err in
accepting the employer’s own testimony in determining which
corporate entity employed Mr. Clark. Mr. White, the corporate
representative of Roy Anderson, Corp. (“RAC”) testified that the
corporate entity Roy Anderson Building Corp. (“RABC”) was
established to employ all construction workers employed on vessels.
This arrangement permitted the employer to limit its insurance
coverage for exposure under the Longshoremen and Harbor Worker’s
Compensation Act(LHWCA) to employees of RABC. Mr. White testified
that Clark was erroneously shown as an employee of RAC and that all
employees such as Clark who were employed aboard vessels were
intended to be carried on the payroll of RABC so that these
employees would have the benefit of their insurance coverage for
liability under the LHWCA. This evidence, which was corroborated

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by other corporate records, fully supports the ALJ’s finding that
Clark was employed by RABC, which was insured by Employer’s
Insurance of Wausau.
Because we find no reversible error, the order of the Benefits
Review Board is
AFFIRMED.

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