BRB No. 00-0761
ROBBIE GIROIR )
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Claimant-Petitioner )
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v. )
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CONRAD INDUSTRIES, ) DATE ISSUED: 04/06/2001
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INCORPORATED )
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and )
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ZURICH INSURANCE COMPANY )
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Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order - Denying Benefits and the Order on
Claimant's Motion for New Trial and/or Reconsideration of Larry W.
Price, Administrative Law Judge, United States Department of Labor.
James E. Cazalot, Jr. and H. Edward Sherman (Law Offices of H. Edward
Sherman), New Orleans, Louisiana, for claimant.
Patrick E. O'Keefe (Montgomery, Barnett, Brown, Read, Hammond & Mintz,
L.L.P.), New Orleans, Louisiana, for employer/carrier.
Before: SMITH and McATEER, Administrative Appeals Judges, and NELSON,
Acting Administrative Appeals Judge.
PER CURIAM:
Claimant appeals the Decision and Order - Denying Benefits and the Order on
Claimant's Motion for New Trial and/or Reconsideration (1999-LHC-441) of
Administrative Law Judge Larry W. Price rendered on a claim filed pursuant to the
provisions of the Longshore and Harbor Workers' Compensation Act, as amended, 33
U.S.C. §901 et seq. (the Act). We must affirm the findings of fact and
conclusions of law of the administrative law judge which are rational, supported
by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant, a shipfitter for employer, alleges that a specific work incident
occurred on December 3, 1997, which caused his current back condition.
Specifically, claimant testified that he injured his back while carrying a twelve
foot piece of angle iron from employer's foreman's shed, located approximately 100
to 150 yards from the ship in which he was working, up a flight of stairs into the
ship and, ultimately, down a manhole into a starboard ballast tank. Claimant
reported this alleged incident to employer on December 4, 1997, and was thereafter
diagnosed as having sustained a herniated disc.
In his Decision and Order, the administrative law judge found that claimant
failed to establish that his present back problems are due to an injury sustained
during the course and scope of his employment with employer; accordingly, he denied
compensation.[1] Claimant thereafter sought
reconsideration of the administrative law judge's decision or, alternatively, a new
trial. In an Order issued April 4, 2000, the administrative law judge addressed
the contentions raised in claimant's motion, but denied the relief requested.
On appeal, claimant argues that the administrative law judge erred in weighing
the evidence and concluding that claimant did not suffer a work-related injury on
December 3, 1997. Alternatively, claimant asserts that since the administrative
law judge issued his decision five and one-half months after the formal hearing,
a new trial is warranted so that the administrative law judge could observe
claimant's demeanor for a second time. Employer responds, urging affirmance.
After review of the administrative law judge's Decision and Order in light of
the evidence of record, we reject claimant's assertion that the administrative law
judge erred in finding that his back condition is not work-related. Claimant has
the burden of proving the existence of an injury or harm and that a work-related
accident occurred or that working conditions existed which could have caused the
harm, in order to establish a prima facie case. See U.S.
Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS
631 (1982); Bolden v. G.A.T.X. Terminals Corp., 30 BRBS 71 (1996);
Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1993). It is claimant's
burden to establish each element of his prima facie case by affirmative
proof. See Kooley v. Marine Industries Northwest, 22 BRBS 142 (1989); see
also Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT)
(1994). Once claimant establishes his prima facie case, Section 20(a), 33
U.S.C. §920(a), of the Act provides claimant with a presumption that his
condition is causally related to his employment. See Merrill v. Todd Pacific
Shipyards Corp., 25 BRBS 140 (1991); Gencarelle v. General Dynamics
Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS 13(CRT) (2d Cir.
1989). Once claimant has invoked the presumption, the burden of proof shifts to
employer to rebut it with substantial countervailing evidence. Conoco v.
Director, OWCP, 194 F.3d 684, 33 BRBS 187(CRT) (5th Cir. 1999); O'Kelley v.
Dept. of the Army/NAF, 34 BRBS 39 (2000). If the presumption is rebutted, the
administrative law judge must weigh all the evidence and render a decision
supported by substantial evidence. See Del Vecchio v. Bowers, 296 U.S. 280
(1935).
In his decision, the administrative law judge stated that inasmuch as claimant
established the existence of a back condition and testified that this condition
occurred while he was working for employer, claimant was entitled to the benefit
of the Section 20(a) presumption. The administrative law judge, citing to
employer's evidence which casts doubt on whether the alleged incident as described
by claimant in fact occurred, then determined that employer rebutted the
presumption. Next, the administrative law judge weighed all of the evidence
addressing claimant's assertion that, on December 3, 1997, he carried a twelve foot
piece of angle iron from employer's foreman's shed to the starboard ballast tank
within the vessel on which he was working.
In the instant case, the administrative law judge, after addressing claimant's
testimony in detail, discredited that testimony in concluding that the existence
of working conditions as described by claimant on December 3, 1997, did not occur.
In rendering this determination, the administrative law judge initially addressed
claimant's testimony that Mr. Fontenot, claimant's foreman, specifically ordered
him to carry a twelve foot piece of angle iron to his work area in the starboard
ballast tank. The administrative law judge found, however, that employer's time
sheets indicate that Mr. Land, claimant's witness to his alleged conversation with
his foreman on December 3, 1997, was not present at the vessel on that date and
that, accordingly, Mr. Land's testimony was of questionable credibility.[2] Next, the administrative law judge acknowledged
Mr. Fontenot's testimony that, since he himself suffers from three ruptured spinal
discs, he is aware of the dangers associated with heavy lifting and that he had
never seen anyone carry a twelve foot piece of angle iron; rather, Mr. Fontenot
testified that such pieces would be transported to the starboard ballast tank's
access hole by a crane. Mr. Fontenot stated that he could not recall the
conversation alleged by claimant to have occurred on December 3, 1997. Lastly,
the administrative law judge found claimant's testimony difficult to reconcile with
the testimony of Mr. Bailey, employer's superintendent, who testified that while
it is common to hand carry items weighing between 30 and 40 pounds, he has never
seen a twelve foot piece of angle iron moved by hand. The administrative then
credited the testimony of Mssrs. Fontenot and Bailey, and concluded that claimant's
testimony regarding the issuance of a specific order to carry a twelve foot piece
of angle iron lacked credibility.
Next, the administrative law judge addressed claimant's testimony regarding
the alleged act of carrying the angle iron in question. Claimant testified that
he was required to hand carry the twelve foot piece of angle iron to his work
station within the starboard ballast tank since the main crane for his side of the
shipyard was inoperable. In this regard, claimant testified that the only way to
access the starboard ballast tank was through a manhole located in an interior
hallway of the vessel and that, as there was no light in this ballast tank, he was
required to bring a lighting source with him. Contrary to claimant's testimony,
the administrative law judge found that employer established that there were multiple cranes as well as cherry pickers
available to move angle iron at employer's facility on December 3, 1997, as evidenced by the one-half hour of crane
time and nine hours of cherry picker time billed to employer's project on that day.[3] Moreover, the administrative law judge found that employer's project records indicate that prior to
December 3, 1997, an access hole had been cut into the side of the vessel so that light and work materials could enter
the starboard ballast tank, and that this access hole was enlarged on the day of claimant's alleged work-injury.[4] As he found employer's witnesses and documentary evidence to be
credible, the administrative law judge concluded that claimant's inability to remember the presence of either the cranes
or the access hole to the starboard ballast tank "appears to be a deliberate attempt to mislead this Court."[5] See Decision and Order at 15.
Based upon the foregoing findings, the administrative law judge concluded that claimant failed to establish the
existence of working conditions or an accident on December 3, 1997, which could have caused his back injury. After
review of the record, we affirm the administrative law judge's finding because it is rational, supported by substantial
evidence, and in accordance with law. See O'Keeffe, 380 U.S. 359. We note that the evidence as to whether
the alleged event at work occurred should have been weighed in determining whether the Section 20(a) presumption was
invoked. See Darnell v. Bell Helicopter, Inc., 16 BRBS 98 (1984) aff'd sub nom. Bell Helicopter, Inc.
v. Jacobs, 746 F.2d 1342, 17 BRBS 13(CRT) (8th Cir. 1984); Jones v. J.F. Shea Co., 14 BRBS 207
(1981). Any error is harmless, however, as the administrative law judge weighed the relevant evidence. See
generally Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000).
As claimant failed to establish either the working conditions claimed, an essential element of his prima facie
case, or any reversible error made by the administrative law judge in evaluating the conflicting evidence and making
credibility determinations, the administrative law judge's denial of benefits is affirmed.
Lastly, we reject claimant's contention that the administrative law judge's decision should be vacated and a trial
ordered before a new administrative law judge because of the five and one-half month period between the date of the
formal hearing and the issuance of the administrative law judge's Decision and Order. Claimant has not affirmatively
established that this delay resulted in prejudice to him. See Garvey Grain Co. v. Director, OWCP, 639 F.2d
366, 12 BRBS 821 (7th Cir. 1981); Ramirez v. Southern Stevedores, 25 BRBS 260 (1992).
Accordingly, the Decision and Order - Denying Benefits and the Order on Claimant's Motion for a New Trial
and/or Reconsideration of the administrative law judge are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
J. DAVITT McATEER
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1)In so finding, the administrative law judge did not address the other unresolved issues before
him regarding the nature and extent of claimant's disability, claimant's wage-earning capacity, claimant's average weekly
wage at the time of the alleged incident, and claimant's entitlement to medical treatment. Decision and Order at 3.
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2)Moreover, the administrative law judge noted that, contrary to claimant's version of events,
Mr. Land testified that claimant had cut the angle iron to a length of eight feet, and that the conversation between claimant
and Mr. Fontenot occurred prior to Thanksgiving Day. Additionally, Mr. Land testified that he saw, but did not hear, the
alleged conversation in question.
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3)The administrative law judge specifically found that employer's billing records were checked
daily by both employer and the vessel owner's on-site representative, who apparently had no objections concerning the
billing charges set forth for work performed on December 3, 1997.
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4)Regarding this access hole, Mr. McElroy, employer's project manager, testified that in late
November 1997 a 4 by 5 foot hole was cut into the vessel's hull for ventilation and ease of access purposes; on December
3, 1997, this hole was enlarged to measure 4 by 8 feet. Furthermore, Mr. McElroy testified that it was not possible to be
present in the starboard ballast tank and not be aware of the presence of the access hole cut in the vessel's hull.
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5)For these same reasons, the administrative law judge declined to rely upon the testimony of
Mr. Canty, who testified that he witnessed claimant carrying the angle iron up a flight of stairs onto the vessel on December
3, 1997.
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NOTE: This is an UNPUBLISHED LHCA Document.
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