Ceres Marine Terminals, Inc. v. DOWCP

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 14-0071,14-0071A. Copies to all parties and the district court/agency. [999780966]. [15-1041]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1041

CERES MARINE TERMINALS, INC.,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; SAMUEL JACKSON,
Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(14-0071)
Argued:

December 8, 2015

Decided:

March 24, 2016

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Petition for review denied by unpublished opinion.
Judge
Gregory wrote the opinion, in which Judge Duncan and Judge Floyd
joined.
ARGUED: Lawrence Philip Postol, SEYFARTH SHAW LLP, Washington,
D.C., for Petitioner.
Ira Michael Steingold, STEINGOLD &
MENDELSON, Suffolk, Virginia; Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
ON
BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Mark A. Reinhalter, Counsel for Longshore, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director, Office of Workers’ Compensation Programs, United
States Department of Labor.

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Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
This

case

accident.

arises

Samuel

Terminals,

Inc.

P.

from

a

horribly

Jackson,

(“CMT”),

was

an

tragic

employee

operating

a

of

work-related
Ceres

forklift

Marine

when

accidently struck and killed his coworker, Paula Bellamy.

he

After

this event, Jackson, who was diagnosed with posttraumatic stress
disorder (“PTSD”), filed a claim with the Director of the Office
of

Workers’

disability

Compensation

benefits

under

Programs
the

(the

Longshore

“Director”)

and

Harbor

for

Workers’

Compensation Act (“LHWCA” or the “Act”), 33 U.S.C. § 901.

The

Administrative Law Judge (“ALJ”) reviewing the claim determined
that Jackson was entitled to benefits and the Benefits Review
Board (the “Board”) affirmed.
CMT
arguing

now
that

petitions

for

a

bringing

person

review
a

of

the

claim

Board’s

under

the

decision,
LHWCA

is

required to satisfy the “zone of danger” test outlined by the
Supreme

Court’s

decision

in

Consolidated

Gottshall, 512 U.S. 532 (1994).

Rail

Corp.

v.

“Under this test, a worker

within the zone of danger of physical impact will be able to
recover for emotional injury caused by fear of physical injury
to himself, whereas a worker outside the zone will not.”
U.S. at 556.

512

Had the Board adopted such a test, CMT asserts,

Jackson would have been precluded from any recovery under the
LHWCA because he was not in the zone of danger and thus did not
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suffer a compensable injury.
ALJ

erred

medical

in

failing

examiner,

to

In addition, CMT contends that the

give

appointed

dispositive weight.

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the

report

pursuant

to

of

33

an

independent

U.S.C.

§ 907(e),

We disagree on both points and therefore

deny the petition.

I.
A.
On

March

28,

2011,

Jackson,

employed

by

CMT

as

a

longshoreman, was operating a forklift on a pier in Portsmouth,
Virginia, when he accidently struck and killed Bellamy.

At the

time, Jackson was transporting barrels of container pins when he
veered the forklift to his left to avoid being struck by a
hustler truck that was backing up and carrying a forty foot
container.

When he veered, he hit Bellamy, a spotter, who had

her back towards him.

Jackson did not see Bellamy, and did not

realize he had hit her until another spotter “hollered at [him]
to let [him] know that [he] had just ran over . . . somebody.”
J.A.

61.

Jackson

immediately

got

off

his

forklift

to

help

extricate Bellamy who was almost completely pinned underneath
the forklift.

Another forklift driver drove over and, with his

machine, raised the back end of Jackson’s forklift.

Jackson and

others worked to free Bellamy from under his forklift.

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Once they were able to lift the forklift, it was apparent
that

Bellamy’s

condition

was

dire:

Jackson

testified

that

“[Bellamy] was bleeding from her mouth.

Her arm was burned and

pretty

63.

mangled,

hanging

off.”

J.A.

Jackson

further

testified that Bellamy’s leg was wrapped around the axle of the
forklift.
full

view

For about ten minutes, Bellamy’s condition was in
until

approximately

emergency

one

vehicles

arrived.

people

gathered

hundred

By
at

this
the

time,
scene,

including ambulance and fire truck personnel and CMT employees.
During the entire time that the first responders worked to save
Bellamy, Jackson stood ten to fifteen feet away, with a clear
view of her.
After the ambulance left for the hospital, Jackson spent
the rest of the day reporting the accident to the Portsmouth
Police

Department,

Virginia

International

Terminals

Police

Department, the Occupational Safety and Health Administration,
and

CMT

officials.

conversation

with

Jackson

Gregory

testified

Concepcion,

the

that

after

superintendent

his
for

CMT, he sought medical attention.
B.
Jackson saw several medical professionals for mental health
treatment

after

the

March

2011

accident.

Jackson

visited

Dr. Margaret Stiles, his primary care physician, on March 29,
2011, one day after the incident.
5

Dr. Stiles noted that Jackson

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was

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“acutely

extremely

treated him for PTSD.

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upset,

stressed,”

and

J.A. 351, 354, 360.

diagnosed

and

At and around this

time, Dr. Stiles recommended that Jackson not return to work
because of his condition.

On April 6, 2011, Dr. Stiles referred

Jackson to Gregory Griffin, a licensed clinical social worker,
for counseling.

Griffin recommended brief supportive crisis-

debriefing counseling and that Jackson not return to work for
four to six weeks.

Griffin diagnosed Jackson with an adjustment

reaction with depressed mood.
After Jackson’s family noticed “dramatic changes” in his
behavior,

they

collectively

Dr. Norbert Newfield.
psychologist,
Dr. Newfield

“persuade[d]”

J.A. 286-87.

first

evaluated

found

that

to

see

Dr. Newfield, a clinical

Jackson

Jackson

Jackson

on

July

11,

2011.

suffered

from

PTSD

with

significant levels of anxiety and depression resulting from the
work-related accident.

Over the course of his treatment – from

mid-2011 through 2013 – Dr. Newfield usually saw Jackson on a
weekly basis, sometimes twice a week.
almost
Jackson
levels

a

year

was
of

after

still

guilt,

the

accident,

experiencing
shame,

and

Dr.

extremely

grief

6

On February 20, 2012,

that

Newfield
bad

noted

nightmares

prevented

him

that
and
from

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returning to work.

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Dr. Newfield monitored Jackson for suicide

as well. 1
Dr.

Patrick

conducted

an

September

14,

Thrasher,

independent
2011,

and

a

psychiatrist

medical

retained

examination

reviewed

Jackson’s

of

by

CMT,

Jackson

medical

on

records.

Dr. Thrasher diagnosed Jackson with PTSD and major depression,
and he concluded that these diagnoses were causally related to
the work accident.
Jackson’s
returning
aggressive

Dr. Thrasher stated that the severity of

depression
to

work.

and
Dr.

psychiatric

PTSD

rendered

Thrasher

treatment

further
and

him

incapable

stated

that

psychotherapy,

of
with

Jackson

might be able to return to work within six to twelve months.
After

reviewing

updated

medical

records,

Dr.

Thrasher,

on

February 12, 2012, noted that Jackson was undermedicated, and
recommended a more aggressive psychotropic treatment targeting
Jackson’s depressive symptoms and sleep disturbance.
Based

on

Dr.

Thrasher’s

recommendation

that

Jackson

was

undermedicated, CMT requested, pursuant to 33 U.S.C. § 907(e),
an independent medical examination to determine if Jackson was
1

Dr.
Newfield
referred
Jackson
to
a
psychiatrist,
Dr. Deborah
Giorgi-Guarnieri.
Dr.
Giorgi-Guarnieri
began
treating Jackson on November 14, 2011.
Dr. Giorgi-Guarnieri’s
notes indicate that she treated Jackson every two to four weeks.
Dr. Giorgi-Guarnieri recorded that Jackson had been battling
depression and anxiety and suffered from flashbacks and
nightmares.
Dr. Giorgi-Guarnieri continued to see Jackson for
medication management.
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receiving proper medical care.
Office

of

Workers’

psychiatrist

Dr.

examination.

In light of this request, the

Compensation

Paul

Mansheim

Programs
for

an

referred

Jackson

independent

to

medical

Dr. Mansheim evaluated Jackson on November 15,

2012, and reviewed Jackson’s medical records, as well as the
results of a standardized personality assessment inventory test.
In his December 8, 2012 report, Dr. Mansheim stated that the
diagnoses suggested by the personality assessment inventory test
were

extremely

broad

and

suggested

major depressive disorder.
the

[PTSD]

threat

diagnosis”

to

accident.

himself”
J.A. 154.

schizophrenia,

and

Dr. Mansheim, however, “rule[d] out

because

and

PTSD,

Jackson

“was

never

“did
in

not

experience

danger”

during

a

the

Dr. Mansheim further opined that Jackson

demonstrated “significant evidence of malingering, attempting to
appear

more

Dr. Mansheim

ill

than

concluded

is

actually

that

the

case.”

Jackson

was

able

to

J.A.
work

155.
as

a

longshoremen.
After

reviewing

Dr.

Mansheim’s

report,

CMT

–

who

had

voluntarily paid Jackson temporary total disability benefits –
terminated its payments on December 17, 2012.
C.
Jackson filed a claim for disability benefits under the
LHWCA, alleging that he suffered from PTSD as a result of the

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work-related incident. 2

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CMT disputed the claim, arguing that

Jackson was not entitled to compensation under the LHWCA for a
psychological

injury

because

he

did

not

sustain

a

physical

injury or was placed in immediate risk of physical injury by the
incident.

In

danger.

CMT

other

words,

further

Jackson

contended

was

that

not

in

the

the

ALJ

zone

should

of

give

dispositive weight to Dr. Manshiem’s conclusion that Jackson did
not suffer from PTSD.
In his November 13, 2013 decision, the ALJ rejected CMT’s
“contention

that

a

claimant

cannot

recover

for

psychological

injury unless he sustains a physical injury or is placed in
immediate

risk

of

harm.”

J.A.

44.

The

ALJ

held

that

“[l]ongshore case law has established that a claimant can obtain
benefits for a work-related psychological injury,” and declined
“to carve out a negligence law based exception whereby claimants
are

not

entitled

to

benefits

if

2

they

are

emotionally

harmed

In addition to filing a claim under the LHWCA, Jackson
filed
a
claim
with
the
Virginia
Workers’
Compensation
Commission.
The commission denied Jackson’s claim for medical
benefits and compensation, holding that Jackson was not in the
zone of danger.
See Jackson v. Ceres Marine Terminals, Inc.,
769 S.E.2d 276, 277 (Va. Ct. App. 2015).
The Court of Appeals
of Virginia reversed, declining to adopt a zone of danger test
under Virginia law.
The court held that “psychological injury
must be causally related to either a physical injury or an
obvious sudden shock or fright arising in the course of
employment, without a specific requirement that the claimant be
placed at risk of harm.”
Id. at 280.
The court remanded the
case back to the commission to apply the correct legal standard.
That case is currently pending.
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without

being

physically

harmed

or

threatened

with

physical

harm.”

Id.

Addressing the medical evidence, the ALJ first

refused, as contrary to Board precedent, to accord dispositive
weight to Dr. Manshiem’s opinion.

After weighing the evidence,

the ALJ found that Jackson suffered from PTSD which was causally
related to the March 28, 2011, work incident.

The ALJ concluded

that, because Jackson “is suffering from work-accident related
PTSD,” he was entitled to temporary total disability benefits
and medical benefits under the LHWCA.

Id. at 50.

CMT appealed, raising the same arguments to the Board.
its

November

25,

2014

opinion,

the

Board

rejected

In

CMT’s

contention that the zone-of-danger test precluded Jackson from
recovery in this case.
is

a

“tort

concept

The zone-of-danger test, the Board held,
which

does

not

apply

to

compensation provisions of the Longshore Act.”
Board

stated

critical
between

that

CMT’s

distinction,
tort

actions,

“argument

[as

fails

recognized

which

rely

on

in

to

the

workers’

J.A. 10.

The

acknowledge

the

Consolidated

common

law

Rail],

fault

and

negligence principles, and worker’s compensation claims, which
are

not

governed

established,

the

by

those

Board

principles.”

concluded,

“that

Id.
a

It

is

well

work-related

psychological impairment, with or without an underlying physical
harm, may be compensable under the Act.”

10

Id. at 9-10.

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In

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addition,

Dr. Mansheim’s

the

Board

opinion

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rejected

should

be

CMT’s

given

contention

dispositive

that

weight,

holding that Dr. Mansheim’s opinion “should be weighed along
with the other medical opinions in the record.”
Because

the

ALJ

properly

weighed

the

evidence,

Id. at 12.
the

Board

affirmed the ALJ’s finding that Jackson sustained a compensable
work-related injury.

II.
CMT has petitioned this Court for review, and we possess
jurisdiction pursuant to 33 U.S.C. § 921(c).

In reviewing the

Board’s decision, we must determine “whether the Board observed
its

statutorily-mandated

factual findings.”
Stallings,

250

standard

for

reviewing

the

ALJ’s

Newport News Shipbldg. & Dry Dock Co. v.

F.3d

868,

871

quotations and citations omitted).

(4th

Cir.

2001)

(internal

We are also guided by the

principle that an ALJ’s factual findings “shall be conclusive if
supported by substantial evidence in the record considered as a
whole.”

33 U.S.C. § 921(b)(3).

Substantial evidence requires

“more than a scintilla but less than a preponderance.”

Norfolk

Shipbldg. & Drydock Co. v. Faulk, 228 F.3d 378, 380–81 (4th Cir.
2000).

Further, an ALJ’s findings “may not be disregarded on

the basis that other inferences might have been more reasonable.
Deference

must

be

given

the

fact-finder’s
11

. . .

credibility

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assessments, and . . . the scope of review of ALJ findings is
limited.”

Newport News Shipbldg. & Dry Dock Co. v. Tann, 841

F.2d 540, 543 (4th Cir. 1988).

In reviewing legal issues, the

Board’s “adjudicatory interpretation of the LHWCA is entitled to
no special deference, and is subject to our independent review.
However,

a

reasonable

Director

should

be

interpretation

respected.”

of

the

Stallings,

LHWCA

250

F.3d

by

the

at

871

(internal quotations and citations omitted).

III.
The

LHWCA

compensation
light

of

statute

the

compensation

was

enacted
for

Supreme
statutes

to

create

longshoremen

Court’s

and

decision

constitutionally

injured maritime workers.

compensation

federal
harbor

that
could

workers’

workers,

state
not

in

workers’
apply

to

See Nogueira v. N.Y., New Haven &

Hartford R. Co., 281 U.S. 128 (1930).
workers’

a

legislation,

between employer and employee.

The LHWCA, like most

represents

a

compromise

“Consistent with the central

bargain of workers’ compensation regimes - limited liability for
employers; certain, prompt recovery for employees - the LHWCA
requires that employers pay benefits voluntarily, without formal
administrative proceedings.”

Roberts v. Sea-Land Servs., Inc.,

132 S. Ct. 1350, 1354 (2012).

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In other words, the LHWCA strikes a balance between the
competing interests of injured workers and their employers in
which the certainty of benefits is exchanged for tort immunity.
See Morrison-Knudsen Constr. Co. v. Dir., OWCP, 461 U.S. 624,
636 (1983); Potomac Elec. Power Co. v. Dir., OWCP, 449 U.S. 268,
281-82 & n.24 (1980).

The LHWCA, therefore, “imposes liability

without fault and precludes the assertion of various common-law
defenses . . . .”

Potomac Elec. Power Co., 449 U.S. at 281; see

also

§ 904(b)

33

U.S.C.

(“Compensation

shall

be

payable

irrespective of fault as a cause for the injury.”).
To be entitled to benefits under the LHWCA, a claimant must
have sustained an injury within the meaning of the Act.

See 33

U.S.C. § 903(a) (“Compensation shall be payable under this [Act]
in respect of disability . . . of an employee, but only if the
disability

. . .

results

from

an

injury.”);

see

also

Metro.

Stevedore Co. v. Rambo, 515 U.S. 291, 294 (1995) (stating that
the LHWCA “is a comprehensive scheme to provide compensation in
respect

of

disability

or

death

of

an

employee

. . .

if

the

disability or death results from an injury occurring upon the
navigable waters of the United States”).

Section 902(2) of the

LHWCA provides,
The term “injury” means accidental injury or
death arising out of and in the course of
employment, and such occupational disease or
infection as arises naturally out of such
employment or as naturally or unavoidably
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results from such accidental injury, and
includes an injury caused by the willful act
of a third person directed against an
employee because of his employment.
33 U.S.C. § 902(2).
Injuries are presumed to be work related under 33 U.S.C.
§ 920 after the claimant establishes a prima facie case that the
injury not only was caused by the employment, but that it also
arose during employment.

See U.S. Indus. Fed. Sheet Metal, Inc.

v. Dir., OWCP, 455 U.S. 608, 615 (1982) (“Not only must the
injury have been caused by the employment, it also must have
arisen

during

the

employment.”).

“Once

the

presumption

is

invoked, the burden shifts to the employer to rebut it through
facts

-

not

related.”

mere

speculation

-

that

the

harm

was

not

work

Conoco, Inc. v. Dir., OWCP, 194 F.3d 684, 687-88 (5th

Cir. 1999).

“If the ALJ finds that the employer rebutted the

presumption, then the ALJ must weigh all of the evidence to
determine

whether

employment.”

the

harm

was

caused

by

the

claimant’s

Ramsey Scarlett & Co. v. Dir., OWCP, 806 F.3d 327,

331 (5th Cir. 2015).

IV.
In

its

arguments.

petition

for

review,

CMT

makes

two

primary

First, CMT argues that Jackson did not suffer a

compensable injury within the meaning of the LHWCA because he

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was not in the zone of danger; that is, only those who suffer a
physical injury or were within the zone of danger of physical
impact

can

recover

for

a

work-related

psychological

injury.

Because Jackson was outside of the zone of danger, CMT asserts,
he

did

not

suffer

any

compensable

injury

under

the

LHWCA.

Second, CMT contends that the ALJ committed error by failing to
give Dr. Mansheim’s opinion dispositive weight.

The Director

maintains, on the other hand, that it is well established that
psychological injuries – with or without physical injury or the
threat of physical injury – are compensable under the LHWCA.
The Director further contends that Dr. Mansheim’s opinion was
not entitled to dispositive weight and is not binding on the
factfinder.

For the reasons explained below, we agree with the

Director on both issues.
A.
CMT

does

not

dispute

that

Jackson

psychological injury under the LHWCA.

can

recover

for

a

Rather, CMT contends that

Jackson cannot, under the LHWCA, recover for a psychological
injury unless he sustains a physical injury or was placed in
immediate risk of physical harm.

In support of this argument,

CMT relies exclusively on the zone-of-danger test set forth by
the Supreme Court in Consolidated Rail – a case that did not
involve the statute at issue in this case.

CMT’s contention is

not only inconsistent with the statute’s text, the structure of
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the statute, and precedent but is also contradicted by the very
reasoning

of

the

case

on

which

it

relies

so

heavily

–

Consolidated Rail.
The LHWCA plainly does not encompass such a limitation by
its

express

terms.

The

LHWCA

does

not

distinguish

between

psychological and physical injuries – the statute simply says
“injury.”

See 33 U.S.C. § 902(2) (defining “injury,” without

limitation, as any “accidental injury or death arising out of
and in the course of employment”).

Nowhere in the statute is

there a requirement that psychological injuries be accompanied
by actual or threatened physical harm.
could

have

easily

written

the

statute

requirement, but it did not.

To be sure, Congress
to

contain

such

a

We therefore refuse to “amend

[the] statute under the guise of statutory interpretation, a
task we are not at liberty to perform.”

Newport News Shipbldg.

& Dry Dock Co. v. Hall, 674 F.2d 248, 251 (4th Cir. 1982).
good reason.
established

For

The zone-of-danger test is, after all, a “wellcommon-law

concept

of

negligence.”

Consolidated

Rail, 512 U.S. at 555 (quotations and alterations omitted).

The

rules of the common law for tort actions, however, generally do
not apply to cases arising under LHWCA – a “no-fault workers

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compensation scheme.” 3

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See Newport News Shipbldg. and Dry Dock

Co. v. Brown, 376 F.3d 245, 249 (4th Cir. 2004).
Further,

courts

interpreting

§ 902(2)

of

the

LHWCA

have

held that claimants can recover for a work-related psychological
injury, and have never mandated actual or threatened physical
harm to be a prerequisite for coverage.

See, e.g., Pedroza v.

Dir., OWCP, 624 F.3d 926, 931 (9th Cir. 2009) (“It is well
settled that a psychological impairment, which is work related,
is presumed to be compensable under the Act.

Therefore, to

receive the benefit of this § 920(a) presumption, the claimant
must prove not only that he has a psychological impairment, but
that an accident occurred, or working conditions existed, which
could have caused the impairment.” (citation omitted)); Dir.,
OWCP v. Potomac Elec. Power Co., 607 F.2d 1378, 1385 (D.C. Cir.
1979); Am. Nat’l Red Cross v. Hagen, 327 F.2d 559, 561 (7th Cir.
1964).
e.g.,

Nor has the Board endorsed such a limitation.
J.A.

at

9-10

(“[I]t

is

well

established

that

a

See,
work-

related psychological impairment, with or without an underlying
physical harm, may be compensable under the Act.”).

3

We recognize that, under certain limited circumstances,
the longshore worker may seek damages in a statutory negligence
action from the owner of the vessel on which he was injured
under 33 U.S.C. § 905(b).
This case does not present such
circumstances.
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Moreover,
misplaced.

CMT’s

reliance

Pg: 18 of 22

on

Consolidated

Rail

is

wholly

In Consolidated Rail, a case in which a railroad

worker experienced severe psychiatric problems after witnessing
the death of a fellow worker while on the job and was required
to continue working within sight of the coworker’s body, the
Supreme

Court

held

that

claims

for

negligent

infliction

of

emotional distress are cognizable under the Federal Employers’
Liability Act (“FELA”).
it

believed

infinite

might

liability

512 U.S. at 550.

otherwise
for

be

But to curtail what

“unpredictable

defendants,”

id.

at

and

552,

nearly

the

Court

adopted the zone-of-danger test developed as common law in many
jurisdictions.

Id. at 554-55.

The Court expressly stated that

FELA was not a workers’ compensation statute and emphasized that
the

basis

of

an

employer’s

liability

under

FELA

negligence, which turns on common-law principles.

is

its

Unlike the

statute at issue here, FELA “does not make the employer the
insurer of the safety of his employees while they are on duty.
The basis of his liability is his negligence, not the fact that
injuries occur.”
Co.,

329

U.S.

Consolidated

Id. at 543 (quoting Ellis v. Union Pac. R.
649,

Rail

is

653

(1947)).

inapposite

to

compensation benefits under the LHWCA.

18

Thus,
a

by

claim

its
for

terms,
workers’

Appeal: 15-1041

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Because

Filed: 03/24/2016

we

are

not

Pg: 19 of 22

free

to

engraft

on

the

statute

a

requirement that Congress did not place there, we decline to
adopt the zone-of-danger test.
B.
CMT next contends that the ALJ erred in failing to give the
report

of

Dr.

Mansheim,

an

independent

medical

examiner

appointed pursuant to 33 U.S.C. § 907(e), dispositive weight.
We disagree, as there is nothing in the plain language of the
statute

that

indicates

that

Congress

intended

to

give

the

opinion of an independent medical examiner dispositive weight or
to make the examiner’s opinion binding on the parties.
Section 7(e) provides in part,
In the event that medical questions are
raised in any case, the Secretary shall have
the power to cause the employee to be
examined by a physician employed or selected
by the Secretary and to obtain from such
physician a report containing his estimate
of the employee’s physical impairment and
such
other
information
as
may
be
appropriate.
Any party who is dissatisfied
with such report may request a review or
reexamination of the employee by one or more
different physicians employed or selected by
the Secretary.
The Secretary shall order
such review or reexamination unless he finds
that it is clearly unwarranted.
33

U.S.C.

statute

as

§ 907(e)
CMT

(emphasis

does,

we

added).

would

Were

nullify

the

we

to

second

read
clause

the
of

§ 907(e), which provides the opportunity for further review by
another

physician

if

a

party
19

is

dissatisfied

with

the

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independent medical examiner’s opinion.
CMT’s

invitation

to

do

so,

as

the

We therefore decline
second

clause

clearly

indicates that the independent medical examiner’s opinion is not
binding on the ALJ or the parties.

Rather, the independent

medical examiner’s opinion must be weighed along with the other
medical opinions of record, as the Board has repeatedly held.
See Cotton v. Newport News Shipbldg. & Dry Dock Co., 23 B.R.B.S.
380, 387 (1990); Shell v. Teledyne Movible Offshore, Inc., 14
B.R.B.S. 585 (1984).
Our interpretation of this provision is not only consistent
with other circuits but is also consistent with the position
advanced by CMT in a separate case.

In Ceres Marine Terminal v.

Hinton, 243 F.3d 222 (5th Cir. 2001), CMT argued, “an opinion of
a Department of Labor IME is entitled to great weight.
not

to

say

dispositive.”

that

the

Department

of

Labor

IME’s

This is

opinion

is

Compare Br. of Pet., Ceres Marine Terminal v.

Hinton, 243 F.3d 222 (5th Cir. 2001) (No. 00-60171), 2000 WL
34004373, at *46, with CMT’s Br. at 40 (“Dr. Mansheim’s opinion
should have been dispositive.

. . .

Indeed, isn’t the whole

purpose of a section 7(e) evaluation to resolve the case?”).
The

Fifth

Circuit

rejected

CMT’s

argument,

holding

that

the

ALJ’s conclusions – after weighing all the medical evidence,
including the independent medical examiner’s report - must only

20

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Pg: 21 of 22

be “supported by substantial evidence in the record as a whole.”
Hinton, 243 F.3d at 225.
CMT further argued in Hinton that if the ALJ “is going to
reject the Department of Labor IME’s opinion, the [ALJ] needs a
very good reason for doing so.”
34004373 at *46.

Br. of Pet., Hinton, 2000 WL

Here, CMT should take solace in the fact that

the ALJ provided several “good reason[s]” in giving less weight
to

Dr.

Mansheim’s

Dr. Mansheim’s

opinion.

One

unsubstantiated

reason,

statement

among

that

the

many,

was

traumatic

event experienced by Jackson – the prime actor in this incident
–

would

not

meet

the

criteria

for

PTSD

because,

if

Jackson

qualified, then more than half the population would meet the
diagnosis, as that population has seen an image of a mangled
body.

The

population

ALJ

concluded

experience

that

raise

“Dr.

concerns

well-reasoned and well-documented.”

Manshiem’s
that

his

J.A. 49.

estimates
report

is

on
not

Indeed.

Because the statute clearly does not contemplate an ALJ
giving dispositive weight to an independent medical examiner’s
opinion, we decline to “amend [the] statute under the guise of
statutory interpretation.”

Hall, 674 F.2d at 251.
C.

In weighing the evidence as a whole, the ALJ found the
opinions of Jackson’s treating psychologist, Dr. Newfield, and
CMT’s

expert

psychiatrist,

Dr.
21

Thrasher,

credible;

both

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physicians diagnosed Jackson with PTSD and concluded that this
diagnosis was causally related to the work accident.
further

found

that

those

opinions

outweighed

Dr.

The ALJ
Mansheim’s

opinion that Jackson did not meet the criteria for a diagnosis
of

PTSD.

CMT’s

arguments

on

appeal,

in

effect,

seek

a

reweighing of the evidence, which we are not empowered to do.
Thus, the ALJ’s conclusion that Jackson suffered a work-related
psychological injury is amply supported by substantial evidence
when the record is considered as a whole.

V.
For the foregoing reasons, CMT’s petition must be denied.

PETITION FOR REVIEW DENIED

22