BRB Nos. 00-0490
and 01-0595
THOMAS RUSSELL )
)
Claimant-Petitioner )
)
v. )
)
SALMON WELDING, ) DATE ISSUED: 10/03/2001
INCORPORATED )
)
and )
)
MAJESTIC INSURANCE COMPANY )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeals of the Decision and Order Denying Benefits, Decision and Order
Denying Request for Reconsideration, and Decision and Order Denying
Petition for Modification of Paul A. Mapes, Administrative Law Judge,
United States Department of Labor.
Matthew S. Sweeting, Tacoma, Washington, for claimant.
Russell A. Metz (Metz & Associates, P.S.), Seattle, Washington, for
employer/carrier.
Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits, Decision and Order
Denying Request for Modification, and Decision and Order Denying Petition for
Modification (99-LHC-1487) of Administrative Law Judge Paul A. Mapes 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 began working for employer as a welder on December 14, 1998. He
alleged that he sustained a work-related injury to his neck and left shoulder
about 1:30 p.m. on December 22, 1998, when he was helping a co-worker
move a welding machine. Claimant continued to work and did not report the
incident to anyone that day. Employer, while agreeing that claimant developed a
cervical injury during December 1998, disputed that it is work-related. Claimant
underwent surgery on his neck in April 1999 resulting in his inability to work.
Claimant, therefore, sought continuing temporary total disability benefits under
the Act.
In his original Decision and Order Denying Benefits, the administrative law
judge found that claimant presented sufficient evidence to establish a prima
facie case for invocation of the presumption at Section 20(a) of the Act, 33
U.S.C. §920(a). Specifically, the administrative law judge stated that
claimant's testimony that he hurt his neck in a work accident was sufficient to
invoke the Section 20(a) presumption. The administrative law judge further found,
however, that employer produced substantial evidence to rebut the Section 20(a)
presumption. In this regard, the administrative law judge relied on the testimony
of claimant's co-worker, Mr. Browning, who denied that the incident with the
welding machine occurred as described by claimant. The administrative law judge
further relied on the testimony of employer's owner, Mr. Huizenga, that claimant
did not tell him of the work injury, and in fact, told him he hurt himself helping
a friend move, and of Mrs. Huizenga, the company's bookkeeper, that claimant's wife
told her that claimant lacked personal health insurance and desired that the claim
be handled under the State of Washington workers' compensation system. Weighing
this evidence against claimant's testimony, the administrative law judge concluded
that claimant did not establish that his injury is work-related.
Claimant filed a motion for reconsideration, which the administrative law
judge denied. The administrative law judge rejected claimant's contention that
he had erred by finding that claimant had the most financial incentive of all the
witnesses to be untruthful. The administrative law judge also found no merit in
claimant's contention that he erred in drawing an adverse inference from claimant's
failure to introduce into evidence the medical records of the physician who first
treated his alleged work-related injury.
Claimant appealed these decisions to the Board. BRB No. 00-0490. Prior to
the Board's consideration of the appeal, claimant filed a motion for modification
pursuant to Section 22 of the Act, 33 U.S.C. §922, alleging that he had
obtained new evidence demonstrating a mistake in fact in the administrative law
judge's decisions. By Order dated September 13, 2000, the Board dismissed
claimant's appeal, and remanded the case to the administrative law judge for
consideration of claimant's motion for modification.
In his Decision and Order Denying Petition for Modification, the
administrative law judge found that claimant's "new evidence," records of
claimant's visit to a clinic on December 28, 1998, could have been discovered prior
to the hearing by the exercise of due diligence. The administrative law judge
stated that claimant's submission of the records was merely a "backdoor" method of
retrying his case. The administrative law judge found that, in any event, the
clinic records do not support claimant's contention that an accident occurred at
work, as the doctor recorded "no injury event" in his notations. Thus, claimant's
motion for modification was denied.
Claimant appeals the administrative law judge's denial of his petition for
modification, BRB No. 01-0595, and in addition requested reinstatement of his
appeal in BRB No. 00-0490. By Order dated April 25, 2001, the Board reinstated
claimant's appeal in BRB No. 00-0490, and consolidated claimant's two appeals.
Claimant contends that the administrative law judge erred in finding that a work
accident did not occur that could have caused his cervical condition. Employer
responds, urging affirmance.
In order to be entitled to the Section 20(a) presumption, claimant must
establish a prima facie case by 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. See Bolden v. G.A.T.X. Terminals Corp., 30 BRBS
71 (1996); Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191 (1993); see
generally U.S. Industries/Federal Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982).
Once the Section 20(a) presumption is invoked, employer may rebut it by producing
substantial evidence that claimant's employment did not cause, accelerate,
aggravate or contribute to his injury. See American Grain Trimmers v. Director,
OWCP, 181 F.3d 810, 33 BRBS 71(CRT)(7th Cir. 1999); cert.
denied, 120 S.Ct. 1239 (2000); Swinton v. J. Frank Kelley, Inc., 554
F.2d 1075, 4 BRBS 466 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). If
such evidence is produced, the presumption no longer applies and the administrative
law judge must weigh the competing evidence as a whole, with claimant bearing the
burden of persuasion. Universal Maritime Corp. v. Moore, 126 F.3d 256,
31 BRBS 119(CRT)(4th Cir. 1997); see also Director,
OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT)(1994).
Claimant first contends the administrative law judge erred in finding that
employer produced substantial evidence to rebut the Section 20(a) presumption.[1] Claimant testified that he was injured when a
co-worker, Mr. Browning, "lost his balance" as he was carrying a welding machine
down an empty stairway shaft, thereby causing claimant to drop the machine and
suddenly put tension onto a rope being held by claimant as he stood on a platform
overlooking the stairway shaft. Tr. at 34-39. Claimant testified further that he
immediately felt severe pain at the top of his left shoulder and the back of his
neck, causing him to sit down for about three to five minutes to recover.
Id. at 39. Claimant maintained that he finished his shift, although the
pain bothered him and that he told Mr. Huizenga about the accident that day on
their ride home. Id. at 43. Claimant also testified he told Mrs. Huizenga
about the accident on December 24, 1998, when he picked up his paycheck, and
reiterated the claim of injury to Mr. Huizenga on December 28 and December 31.
Id. at 49, 52, 54.
In finding that employer rebutted the Section 20(a) presumption, and in
weighing the evidence as a whole, the administrative law judge relied on the
testimony of Mr. and Mrs. Huizenga and Mr. Browning that the accident did not occur
as claimant alleged and that it was not reported in the manner to which claimant
testified. Contrary to claimant's contention, this evidence is sufficient to rebut
the Section 20(a) presumption as it constitutes substantial evidence that the work
accident, and claimant's reporting thereof, did not occur as claimant alleged. Mr.
Browning testified he and claimant were moving a welding machine on the date in
question, but that he was not attempting to move the machine down the stair shaft
as such a maneuver would be very dangerous. Tr. at 117. He also denied losing
his balance. Id. at 108. Mr. Huizenga testified that claimant did not
mention a work accident to him until December 31, id. at 19, and that
claimant had told him on December 28 that he hurt his neck and back helping a
friend move. Id. at 20. Mr. Huizenga further stated that he observed
claimant wrestling without discomfort with Mr. Huizenga's four year old son when
claimant picked up his check on December 23; Mrs. Huizenga also testified to this
activity. Id. at 138, 158.[2] In
addition, Mrs. Huizenga denied that claimant told her about a work injury. She
testified that claimant's wife called her on January 8, 1999, and told her that
claimant had no personal health insurance and intended to make a claim for a work
injury.[3] Mrs. Huizenga also stated claimant
requested that the claim be reported as a state workers' compensation claim.
Id. at 159. As this evidence is sufficient to establish that the accident
did not occur in the manner alleged and that claimant did not report the accident
as he testified, we affirm the administrative law judge's finding that employer
rebutted the Section 20(a) presumption. See Port Cooper/T. Smith Stevedoring Co.
v. Hunter, 227 F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000).
On weighing the evidence as a whole, the administrative law judge found that
claimant's testimony was entitled to less weight than the testimony of the other
witnesses for several reasons. The administrative law judge did not believe that
claimant's former co-worker, an experienced chief engineer, would have attempted
to personally carry the welding machine down the stair shaft as claimant testified.
The administrative law judge also found that to credit claimant's testimony would
require that he find that the other three witnesses were untruthful, which the
administrative law judge declined to do. The administrative law judge further found
that claimant's failure to produce the treatment records of the first physician to
treat his neck injury suggested that those records might contradict claimant's
testimony, and that claimant, of the four witnesses at the hearing, had the
greatest financial interest in testifying untruthfully. Thus, he concluded that
claimant did not establish that his injury is work-related.
Questions of witness credibility are for the administrative law judge as the
trier-of- fact, 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), and determinations in this
regard must be affirmed unless they are "inherently incredible" or "patently
unreasonable." Cordero v. Triple Machine Shop, 580 F.2d 1331, 8 BRBS 744
(9th Cir. 1978), cert. denied, 440 U.S. 911 (1979). In this case, claimant
has not raised any reversible error in the administrative law judge's weighing of
the conflicting evidence or in his assignment of weight to the witnesses' testimony
based on perceived motive. See generally Goldsmith v. Director, OWCP, 838 F.2d
1079, 21 BRBS 30(CRT) (9th Cir. 1988). Moreover, the administrative law judge is permitted
to draw an adverse inference against a party who does not produce evidence within
his control. See, e.g., Denton v. Northrop Corp., 21 BRBS 37 (1988). Thus,
as it is rational and supported by substantial evidence, we affirm the
administrative law judge's initial denial of benefits.
We also affirm the administrative law judge's denial of claimant's petition
for modification. Section 22 of the Act provides the only means for changing
otherwise final decisions. Modification may be granted if claimant demonstrates
a mistaken determination of fact, "whether demonstrated by wholly new evidence,
cumulative evidence, or merely further reflection upon the evidence initially
submitted." O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 256
(1971), reh'g denied, 404 U.S. 1053 (1972); see also Banks v. Chicago
Grain Trimmers Association, Inc., 390 U.S. 459, reh'g denied, 391 U.S.
929 (1968). In support of his petition for modification, claimant
introduced into evidence the clinic records from December 28, 1998, which, claimant
contended, supported his claim
of an injury occurring at work on December 22. The administrative law judge denied
the petition for two reasons. First, the administrative law judge stated that
claimant should have introduced these records into evidence at the initial hearing.
He did not believe claimant's counsel's assertion that the failure to produce them
initially was due to claimant's inability to recall the name or location of the
clinic; rather he deemed it to be a litigation strategy based on the belief that
the records did not aid claimant's claim. Decision on Modif. at 4. This finding
is rational, and is affirmed. See, e.g., General Dynamics Corp. v. Director, OWCP
[Woodberry], 673 F.2d 23, 14 BRBS 636 (1st Cir. 1982); Kinlaw v. Stevens Shipping & Terminal Co., 33
BRBS 68 (1999), aff'd mem., 238 F.3d 414 (4th Cir. 2000) (table).
Second, the administrative law judge rationally found that the newly admitted
clinic notes do not establish a mistake in fact. Specifically, the administrative
law judge found that the treating doctor's notation that there was "no injury
event" is inconsistent with claimant's testimony alleging the occurrence of a
sudden accident that immediately caused neck symptoms, and also is inconsistent
with claimant's hearing testimony that he told the doctor "what happened." The
administrative law judge concluded that claimant's assertion that he did not tell
the doctor about the cause of his condition because he did not want to file a
workers' compensation claim is not credible. Inasmuch as the administrative law
judge rationally found that claimant did not establish a mistake in fact in his
initial decisions, we affirm the administrative law judge's denial of claimant's
petition for modification, and the consequent denial of benefits. See generally
Winston v. Ingalls Shipbuilding, Inc., 16 BRBS 168 (1984).
Accordingly, the administrative law judge's Decision and Order Denying
Benefits, Decision and Order Denying Request for Reconsideration, and Decision and
Order Denying Petition for Modification are affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
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Footnotes.
1)The sole issue presented here concerns whether the accident
alleged by claimant in fact occurred. Claimant bears the burden of proving this
fact as an element of 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). Thus, the administrative law judge here could have
simply weighed all the evidence, pro and con, prior to invoking
Section 20(a). Instead, he invoked Section 20(a) based on claimant's testimony,
found it rebutted by contrary evidence produced by employer, and then weighed all
the evidence, with claimant bearing the burden of persuasion. Since the
administrative law judge fully weighed the evidence, properly allocating the burden
of persuasion, we will review this case within the framework he utilized in order
to determine whether the conclusion that the accident did not occur as alleged is
supported by substantial evidence. See Port Cooper/T. Smith Stevedoring Co. v. Hunter, 227
F.3d 285, 34 BRBS 96(CRT) (5th Cir. 2000).
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2)Claimant also testified he played with the Huizengas' son. Tr.
at 48.
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3)The administrative law judge found Mrs. Huizenga's testimony
corroborated by a letter she wrote on January 11, 1999, to carrier explaining that
claimant had no personal health insurance, and was intending to file a workers'
compensation claim. Emp. Ex. 5.
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NOTE: This is an UNPUBLISHED LHCA Document.
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