M-I LLC, et al v. DOWCP, et al

Filing

UNPUBLISHED OPINION FILED. [11-60694 Affirmed] Judge: FPB , Judge: CES , Judge: SAH. Mandate pull date is 08/06/2012 [11-60694]

Case: 11-60694

Document: 00511886013

Page: 1

Date Filed: 06/13/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
June 13, 2012

No. 11-60694
Summary Calendar

Lyle W. Cayce
Clerk

M-I LLC, doing business as M-I SWACO; ACE AMERICAN INSURANCE
COMPANY,
Petitioners
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR; SHANNON FREDERICK, Widow of Blake
Frederick,
Respondents

Petition for Review of an Order of the
Benefits Review Board
BRB No. 11-0135

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Decedent Blake Frederick worked for M-I, LLC (“M-I”). On November 20,
2006, during the course and scope of his employment, decedent appeared to pass
out and was unresponsive for a period of time. The decedent subsequently
complained of difficulty breathing and was taken by ambulance to the hospital

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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where he remained until November 28, 2006. On December 12, 2006, the
decedent was taken to a hospital emergency room where he died.
Decedent’s wife, Shannon Frederick (the “claimant”), filed a claim for
benefits pursuant to the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. § 901 et seq. An administrative law judge (“ALJ”), in a lengthy and
detailed 17-page order, awarded benefits to the claimant, and the Benefits
Review Board (“the Board”), in an unanimous three-judge five-page order,
affirmed the award. M-I appeals the Board’s decision, arguing that insufficient
evidence supports ALJ’s award determination. M-I argues that the evidence
demonstrates that decedent’s cause of death was unrelated to his work
environment.
This court reviews decisions of the Board under the same standard the
Board uses to review the ALJ: whether the decision is supported by substantial
evidence and is in accordance with the law. SGS Control Servs. v. Dir., Office of
Workers’ Comp. Programs, 86 F.3d 438, 440 (5th Cir. 1996). “We may not
substitute our judgment for that of the ALJ, nor may we reweigh or reappraise
the evidence, instead we inquire whether there was evidence supporting the
ALJ’s factual findings.” Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227
F.3d 285, 287 (5th Cir. 2000) (internal quotation marks and citation omitted).
“As for findings of fact, we have repeatedly acknowledged that the ALJ, as sole
factfinder, is entitled to consider all credibility inferences and his selection
among inferences is conclusive if supported by the evidence and the law.”
Bollinger Shipyards, Inc. v. Dir., Office of Worker’s Comp. Programs, 604 F.3d
864, 871 (5th Cir. 2010) (internal quotation marks and citation omitted).
There is a presumption that a claim comes within the provisions of the Act
in the absence of substantial evidence to the contrary. 33 U.S.C. § 920(a); Port
Cooper, 227 F.3d at 287 (“[I]nherent in [§ 920(a)] is the presumption that an
injury is causally related to a worker's employment.”).
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To trigger this

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presumption, the claimant must make a prima facie showing of causation. Id.
“To invoke the Section 920(a) presumption, a claimant must prove (1) that he or
she suffered harm, and (2) that conditions existed at work, or an accident
occurred at work, that could have caused, aggravated, or accelerated the
condition.” Id. (citation omitted). If a plaintiff establishes this prima facie case,
the burden shifts to the employer to rebut the presumption by pointing to
“substantial evidence establishing the absence of a connection between the
injury and the employment.” Id. at 288.

“If the employer rebuts the

presumption, then the issue of causation must be decided by looking at all the
evidence of record,” Gooden v. Dir., Office of Workers’ Comp. Programs, 135 F.3d
1066, 1068 (5th Cir. 1998), with claimant maintaining the ultimate burden of
persuasion by a preponderance of the evidence. Dir. Office of Workers’ Comp.
Programs v. Greenwich Collieries, 512 U.S. 267, 277-78 (1994).
In this case, the ALJ made several determinations in accordance with the
aforementioned law. The record supports the ALJ’s first determination that the
claimant made a prima facie showing of causation. The ALJ credited the
testimony of the claimant’s witnesses in finding that the decedent was exposed
to lime dust and diesel fuel while at work, and that those exposures constituted
working conditions that caused or could have caused the damage to the
decedent’s pulmonary artery, which ultimately led to his demise. The record
also supports the ALJ’s second determination that M-I rebutted the triggered
presumption by presenting contrary doctors’ opinions that denied an association
between inhalation injuries and pulmonary blood clots.
Resolving this appeal, finally, the record also supports the ALJ’s third
determination, affirmed unanimously by the three-judge Board, that decedent’s
work conditions caused his death. The ALJ heard live testimony from Dr. Emil
Laga, who opined that decedent’s exposure to lime dust and diesel fumes caused
damage to the pulmonary artery, which, because of a systematic inflammatory
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response syndrome (“SIRS”) response in the decedent, created the blood clot that
led to his death. The ALJ explicitly found Dr. Laga’s testimony “clear and
credible,” noting preliminarily that Dr. Laga was “a board certified forensic
pathologist and toxicologist who has performed over 5000 autopsies and testified
in about 500 proceedings . . . .” The ALJ also highlighted and explained that Dr.
Laga’s trial testimony was “comprehensive” and “supported by medical records”
as well as by medical records which had been unavailable to him at the time of
the original autopsy reports. Further, the ALJ stated that, “[t]o the extent that
other physicians are not aware or deny any connection between clotting and
chemical exposure, I do not credit such testimony finding rather the more
informed and credible testimony of Dr. Laga to be more persuasive and in line
with the medical records and requirements of SIRS.” We accord deference to the
ALJ’s firsthand credibility and evidence weighing determinations. See Mendoza
v. Marine Personnel Co., Inc., 46 F.3d 498, 500-01 (5th Cir. 1995) (citation
omitted) (“The ALJ determines the weight to be accorded to evidence and makes
credibility determinations. Moreover, where the testimony of medical experts
is at issue, the ALJ is entitled to accept any part of an expert’s testimony or
reject it completely.”).
Accordingly, since the ALJ’s decision is supported by substantial evidence
in the record and is in accordance with the law, the decision of the Benefits
Review Board is AFFIRMED.

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