ITT CORP., Employer; INSURANCE CO. OF THE STATE OF PENNSYLVANIA, Carrier v. Walter A. West; Director, Office of Workers Compensation Programs

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ITT CORP., Employer; INSURANCE CO.
OF THE STATE OF PENNSYLVANIA,
Carrier,
Petitioners,
v.
WALTER A. WEST; DIRECTOR,
OFFICE OF WORKERS
COMPENSATION PROGRAMS,
Respondents.
No. 11-70331
BRB No. 02-175963
MEMORANDUM*
On Petition for Review of an Order of the
Benefits Review Board
Submitted February 14, 2013 **
Pasadena, California
FILED
FEB 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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*** The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
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Before: BERZON and WATFORD, Circuit Judges, and RAKOFF, Senior District
Judge.***
ITT Corp. petitions for review of the Benefits Review Board’s order
affirming the decision of the administrative law judge (ALJ) to grant Walter
West’s claim for disability and medical benefits under the Defense Base Act, 42
U.S.C. § 1651 et seq.
The ALJ properly found that West made a prima facie showing that he
suffered a work-related injury and was therefore entitled to the statutory
presumption of eligibility. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651
(9th Cir. 2010). For purposes of the prima facie analysis, the ALJ made a
reasonable determination that West’s August 2008 back injury was the natural
progression of his March 2008 leg injury and the lumbar surgery that it required.
See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 457 (9th Cir. 1954).
ITT makes two attempts to rebut the statutory presumption. First, ITT
argues that the light packing activity in which West engaged in August 2008
constituted an intervening cause that severed the causal connection to his work-
related injury. However, the ALJ properly determined that, because it was not

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negligent for West to engage in light packing, any worsening of West’s condition
that followed was a “natural or unavoidable” result of the primary injury. See id.
Second, ITT argues that it satisfied its rebuttal burden by showing that
West’s leg injury was actually the result of a preexisting back condition. The ALJ
likely erred in discounting the credibility of Dr. Richmond at the rebuttal stage
instead of determining whether a reasonable factfinder could have credited his
opinion. See Haw. Stevedores, 608 F.3d at 651. However, the ALJ went on to
conclude in the alternative, based on the record as a whole and ignoring the
statutory presumption, that West had established a compensable work-related
injury. At this step of the analysis, the ALJ was permitted to discount Dr.
Richmond’s credibility. He also properly relied on Dr. van Dam’s opinion and
noted the concession of Dr. Dodge, ITT’s own expert, that some percentage of
West’s injury was attributable to his work for ITT. Because we find no error in
this alternative conclusion, any error the ALJ made with respect to Dr. Richmond’s
opinion at the rebuttal stage was harmless. See id. at 651-52.
PETITION FOR REVIEW DENIED.

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