Cooper/T Smith Inc, et al v. Veles, et al

United States Court of Appeals
Fifth Circuit
F I L E D
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
_________________________

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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 “cheat-
er 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.
Veles filed his benefits claim pursuant 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 exist-
ing medical condition to the extent that Veles
became unable to continue his longshore work.
Because the ALJ concluded that the injuries
arose from a work-related accident, that
Veles’s knee injury resulted in permanent dis-
ability, 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 temporary total
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 de-
termined 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.

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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 the ALJ’s finding
that Veles sustained permanently disabling
work-related injuries is not supported by sub-
stantial 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 respon-
dents’ 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 in-
juries 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 ALJ included
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 ag-
gravation of pre-existing injury). The ALJ
credited the testimony of Gertzbein, who con-
cluded 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 prop-
erly in refusing to gainsay them. Though re-
spondents point to Fultz’s doubts that 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’s fact
finding was unsupported by substantial
evidence.
B.
In assessing the point at which Veles’s dis-
ability 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 harm or pain or
aggravated a pre-existing condition, which the em-
ployer 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).

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the time when his knee injury reached
“maximum medical improvement.” The re-
spondents dispute the ALJ’s finding that
maximum medical improvement had been
reached on November 12, 2001, when
treatment, including surgeries, were un-
dertaken 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 abil-
ity to perform. Sketoe v. Dolphin Titan Int’l,
28 BRBS 212 (1994). Moreover, even where
a doctor’s prognosis indicates that a condition
may improve, but where t he condition has a
lasting and infinite duration, the ALJ may yet
conclude that a claimant has reached 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 No-
vember, 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 re-
turn 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 was functionally illiterate
and unable to perform any work at the time the
record closed, and respondents presented no
evidence of suitable alternate employment.
The ALJ relied on substantial evidence in con-
cluding that Veles was totally disabled.
The petition for review is DENIED.

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