BRB No. 01-0869
GENE AUTRY WILSON )
)
Claimant-Petitioner )
)
v. )
)
NABORS OFFSHORE CORPORATION ) DATE ISSUED: 08/07/2002
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order of Lee J. Romero, Jr., Administrative
Law Judge, United States Department of Labor.
John Michael Morrow, Jr. (Morrow, Morrow, Ryan & Bassett), Opelousas,
Louisiana, for claimant.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and GABAUER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (2000-LHC-1764) of Administrative Law
Judge Lee J. Romero, Jr., 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., as extended by the Outer Continental Shelf Lands Act, 43 U.S.C.
§1331 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 worked as a floorhand for employer on an oil rig in the Gulf of
Mexico. On May 11, 1999, claimant alleged he slipped and fell about ten feet while
descending a ladder; his safety harness "jerked" him back into the air causing him
to strike his body against a mud trough. Although no one witnessed the accident,
claimant was able to summon a co-worker to remove him from the safety harness, as
claimant hung suspended above the deck floor. Claimant was examined by Dr. Cenac
on May 12, 1999, who returned claimant to full duty, after x-rays to claimant's hip
and back were normal. Claimant returned to Dr. Cenac on May 19, 1999, complaining
of numbness in his right foot and increasing low back pain. Dr. Cenac ordered
various diagnostic tests, prescribed physical therapy, and restricted claimant to
light duty work based solely on claimant's subjective complaints of pain.
Claimant worked for five days in employer's light duty program, but was
terminated by employer on June 15, 1999, for failure to contact employer on May 31,
1999 or to return to work on that date. At the hearing, claimant argued that,
when Dr. Tassin, his family physician, examined him on May 25, 1999, the doctor
told claimant he could not return to his usual employment because of his May 11,
1999, work accident. Dr. Tassin also restricted claimant from driving long
distances, which meant claimant was unable to reach employer's light duty program
in Houma, Louisiana; claimant contends he so advised employer by phone, prior to
his termination. Claimant further contended that Dr. Lorio, an orthopedic
specialist, who first examined claimant on July 8, 1999, continued to restrict
claimant from performing his duties as a floorhand. On January 31, 2000, Dr. Lorio
returned claimant to light duty work.
In his Decision and Order, the administrative law judge relied on the
stipulation of the parties that a workplace incident occurred on May 11, 1999, and
claimant's testimony that he sustained a harm, to find the evidence sufficient to
establish invocation of the presumption under Section 20(a) of the Act, 33 U.S.C.
§920(a), that claimant's injury is work-related. The administrative law judge
also found that Dr. Cenac's opinion is sufficient to establish rebuttal of the
presumption, as Dr. Cenac opined that claimant did not sustain any injury from the
May 11, 1999, incident. He relied on claimant's various negative diagnostic tests,
his examinations of claimant, and his review of medical records from other
physicians. After weighing the evidence as a whole, the administrative law judge
concluded that the opinions of Dr. Cenac and Dr. Bunch, that claimant is not
disabled by any work injury, outweighs the opinions of Drs. Tassin and Lorio, and
Ms. Mullins, each of whom opined that claimant was unable to perform the heavy
manual duties of a floor hand, because of injuries claimant sustained in the work
accident. The administrative law judge concluded that these latter opinions are
deserving of little weight because they are derived from claimant's testimony,
which the administrative law judge found is not credible.[1] Accordingly, the administrative law judge denied benefits.
On appeal, claimant contends that the administrative law judge erred in not
crediting the opinions of Drs. Tassin and Lorio that claimant was temporarily
totally disabled from May 11, 1999 until January 31, 2000. Claimant also contends
that the administrative law judge erred in finding that claimant is not totally
disabled from returning to his usual employment. Employer has not responded to
this appeal.
We affirm the denial of benefits, as the administrative law judge's weighing
of the evidence is rational and his decision is supported by substantial evidence.
Dr. Cenac opined that claimant had no injury or disability from the work accident.
His opinion is based on the results of various tests he conducted, as well as those
conducted by other medical professionals, which were completely negative for
objective signs of injury. EXs B, P. Dr. Cenac also stated that claimant did
not sustain a soft tissue injury due to the lack of evidence of any mechanical
dysfunction supporting claimant's subjective complaints. EX P at 19. Dr. Bunch,
who has a Ph.D. in anatomy and neuroanatomy, conducted a functional capacities
evaluation (FCE) on claimant on August 30, 2000. EXs A, D. His physical
examination of claimant was completely negative for any impairments, as were the
neurological and musculoskeletal tests. Claimant demonstrated the ability to work
at the medium level with a partial capacity for heavy work; Dr. Bunch stated that
this result was self-limited by claimant's subjective complaints of pain.[2]
On the other hand, Dr. Tassin stated that claimant sustained soft tissue
injuries which would resolve over a period varying from "a couple of weeks to a
couple of months." EX S at 12. Dr. Lorio stated that claimant has a soft tissue
injury, and that he cannot return to his usual work as demonstrated by the results
of the FCE conducted by Sandra Mullins, a physical therapist. EXs D, Q. This
FCE demonstrated that claimant could work only at the medium level, with a maximum
lifting ability of 35 pounds. EXs E, R. Dr. Cenac stated that the FCE conducted
by Ms. Mullins was suspect in that Ms. Mullins did not account for signs that there
may be a non-organic basis for claimant's complaints of pain. EX P at 28; see
n. 2, supra.
The administrative law judge found that the opinions of Drs. Cenac and Bunch
outweigh the opinions of Dr. Tassin, Dr. Lorio and Ms. Mullins. The
administrative law judge stated that the medical evidence and diagnoses proffered
in support of claimant's case are based solely on claimant's subjective complaints,
which he discredited. The administrative law judge emphasized that none of the
various diagnostic tests administered disclosed any objective findings of trauma
or injury. Thus, he found the opinions of Dr. Cenac and Dr. Bunch better
supported by the underlying test results, and therefore, better reasoned.[3] In adjudicating a claim, it is well established
that an administrative law judge as the trier-of-fact is entitled to weigh the
medical evidence and to draw his own inferences from it, and he is not bound to
accept the opinion or theory of any particular witness. Calbeck v. Strachan
Shipping Co., 306 F.2d 693 (5th Cir.1962), cert. denied, 372 U.S. 954
(1963); John W. McGrath Corp. v. Hughes 289 F.2d 403 (2d Cir.
1961). To the extent that claimant seeks a re-weighing of the evidence, such is
beyond our scope of review. Director, OWCP v. Jaffe New York Decorating, 25
F.3d 1080, 28 BRBS 30(CRT)(D.C. Cir.1994); Miffleton v. Briggs Ice Cream
Co., 12 BRBS 445 (1980), aff'd, No. 80-1870 (D.C. Cir.1981). Moreover,
the administrative law judge's decision to discredit claimant's testimony
concerning his level of pain is not "inherently incredible" or "patently
unreasonable." Cordero v. Triple A. Machine Shop, 580 F.2d 1331, 8 BRBS 744
(9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). The administrative law
judge discussed claimant's conflicting deposition and hearing testimony, including
that concerning previous injuries claimant sustained. The administrative law
judge also relied on videotape surveillance evidence showing claimant performing
work in excess of his stated capabilities. Decision and Order at 25-26. Thus,
as the administrative law judge fully weighed the evidence, and as his weighing is
rational and the credited opinions of Drs. Cenac and Bunch constitute
substantial evidence to support his conclusion, we affirm the administrative
law judge's determination that claimant did not sustain any injury or disability
as a result of the work accident.
Accordingly, the Decision and Order of the administrative law judge denying
benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1)For example, the administrative law judge found claimant's
testimony to be incredible as it contained numerous inconsistencies, i.e.,
what parts of his body he injured in the incident, and because surveillance
videotapes introduced by employer showed claimant performing tasks relevant to
performing his job as a floorhand that he asserted the accident left him unable to
perform.
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2)The psychological testing performed on claimant by Dr. Bunch
demonstrated a high probability that there are non-organic reasons for claimant's
complaints, which could be malingering for secondary gain, symptom magnification,
or psychological or psychosomatic disorders. EX 0 at 23. Dr. Cenac testified that
he believed claimant to be malingering.
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3)The administrative law judge also credited Dr. Bunch's opinion
over that of Ms. Mullins, as he is more highly credentialed.
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NOTE: This is an UNPUBLISHED LHCA Document.
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