BRB No. 98-1442


LOUIS NOEL                              )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                          )
                                        )
AVONDALE INDUSTRIES                     )    DATE ISSUED:   07/28/1999 
INCORPORATED                            )
                                        )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order of Larry W. Price, Administrative Law
     Judge, United States Department of Labor.

     William S. Vincent (Law Office of William S. Vincent), New Orleans,
     Louisiana, for claimant.

     Joseph J. Lowenthal, Jr., Wayne Zeringue, Jr., and Michelle A. Bourque
     (Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.), New
     Orleans, Louisiana, for self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
     Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
     Judge.


     PER CURIAM:

     Claimant appeals the Decision and Order (98-LHC-0559) 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, who was employed as a laborer by employer, alleged that he began to experience back pain on August
14, 1995, while carrying five gallon buckets of  "float coat."  Claimant continued to work through that day and the next,
August 15, 1995; however, claimant testified that he felt pain in his back and right leg upon waking up from a nap that
evening.  Claimant was off work on August 16, 1995, during which time he saw Dr. Nguyen. On August 17, 1995, claimant
asserts that he experienced additional pain after grinding rust in a confined area.  Claimant sought medical treatment, and
subsequently filed a claim under the Act seeking benefits based on these alleged incidents.

     In his Decision and Order, the administrative law judge determined that the alleged work incidents described by
claimant did not occur, and that, accordingly, claimant failed to establish a prima facie case sufficient to invoke
the Section 20(a), 33 U.S.C. §920(a), presumption.   Accordingly, the administrative law judge denied the benefits
sought by claimant.

     Claimant appeals, contending that the administrative law judge erred in  denying his claim for benefits.   Employer
responds, urging affirmance of the decision.

     It is well-established that claimant bears 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 his
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); Obert v. John
T. Clark  & Son of Maryland, 23 BRBS 157 (1990).  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 has established his prima facie case, he is entitled to invocation of the Section 20(a) presumption
linking his harm to his employment. See Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1990).  Upon
invocation of the presumption, the burden shifts to employer to rebut the presumption with substantial evidence that
claimant's condition was not caused or aggravated by his employment. See Swinton v. J. Frank Kelly, Inc.,
554 F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976).  If the administrative law judge
finds that the Section 20(a) presumption is rebutted, the administrative law judge must weigh all of the evidence and
resolve the causation issue based on the record as a whole. See Devine v. Atlantic Container Lines, G.I.E.,
23 BRBS 279 (1990).

     In rendering his decision, the administrative law judge analyzed claimant's testimony and determined that claimant's
allegations of work incidents in August 1995 which resulted in back pain lacked credibility.  In this regard, the
administrative law judge found that, although claimant testified that he reported a work-related accident to employer's first
aid department, the evidence of record shows that claimant initially denied any work-related trauma, and that he did not
report any job-related incident to Dr. Nguyen on August 16, 1995, to employer's first aid department, to the West Jefferson
Medical Center, or to Dr. Shultz on August 17, 1995, or to Dr.  Puente on August 21, 1995.  Rather, the administrative law
judge found that claimant first reported a work-related incident on September 6, 1995, three weeks after the alleged
occurrences at work.[1]   The administrative law judge considered claimant's failure
to promptly report any of the alleged work incidents to employer to be significant  in light of his knowledge of company
policy regarding the filing of injury reports.  Thus, the administrative law judge concluded that the alleged work-incidents
in August 1995 did not occur. See Decision and Order at 9-13. 

     In adjudicating a claim, it is well-established that an administrative law judge is entitled to evaluate the credibility
of all witnesses. See Calbeck v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert.
denied, 373 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962);
John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  The administrative law judge may
discredit a claimant's testimony to find that an alleged accident arising out of the course of claimant's employment did
not occur. See Bartelle v. McLean Trucking Co., 14 BRBS 166 (1981)(Miller, J., dissenting),
aff'd, 687 F.2d 34, 15 BRBS 1 (CRT)(4th Cir. 1982).  On the basis of the record before us, the
administrative law judge's decision to discredit the testimony of claimant is neither inherently incredible nor patently
unreasonable as his reasons for doing so are rational and supported by the evidence of record. See generally
Cordero v. Triple A Machine Shop, 580 F.2d 1331, 8 BRBS 744 (9th Cir. 1978), cert. denied, 440
U.S. 911 (1979).  We therefore affirm the administrative law judge's determination that claimant failed to establish that
the alleged occurrences in August 1995 occurred. See, e.g., Bolden, 30 BRBS at 73.  As
claimant failed to establish an essential element of his prima facie case, his claim for benefits was properly
denied. See U.S. Industries, 455 U.S. at 608, 14 BRBS at 631; Goldsmith v. Director, OWCP,
838 F.2d 1079, 21 BRBS 27 (CRT)(9th Cir. 1988).   

     Accordingly, the administrative law judge's Decision and Order is affirmed.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge



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Footnotes.
 1)The administrative law judge noted that thereafter, on December 9, 1995, claimant, although
complaining of neck and back pain, failed to mention the alleged work-related injury to Dr. Blamphin. 
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