Cummins v. Ingalls Shipbuilding

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 96-60807

(Summary Calendar)
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RICKY D CUMMINS,

Petitioner,

versus

INGALLS SHIPBUILDING, INC.; DIRECTOR, OFFICE
OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR,

Respondents.

Petition for Review of an Order of
the Benefits Review Board
July 17, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Petitioner Ricky Cummins appeals the decision of the Benefits

Review Board affirming the Administrative Law Judge’s (“ALJ”)

denial of compensation under the Longshoremen’s and Harbor Workers’

Compensation Act (“the Act”) for an alleged injury to Cummins’ back

*
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that this opinion should not be published and is not precedent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.
and hip. See 33 U.S.C. § 901 et. seq. The ALJ concluded that

“[t]he medical evidence of record is entirely insufficient to

support Claimant’s contention that he suffers any work related back

or hip condition; nor does it support his testimony that the

alleged back or hip conditions cause constant pain and prevent him

from lifting anything.”

Cummins contends that the ALJ erred in failing to apply the

statutory presumption that his alleged injuries were within the

provisions of the Act. See 33 U.S.C. § 920(a) (“In any proceeding

for the enforcement of a claim for compensation under this [Act] it

shall be presumed, in the absence of substantial evidence to the

contrary . . . [t]hat the claim comes within the provisions of this

[Act].”). Even assuming that Cummins alleged sufficient facts to

state a prima facie claim for compensation under the Act, Ingalls

Shipbuilding presented substantial evidence contradicting Cummins’

allegations of a back and hip injury related to his work accident,

and the ALJ explicitly discredited Cummins’ testimony. We find the

conclusion of the Supreme Court in U.S. Industries/Federal Sheet

Metal, Inc. v. Director, Office of Workers’ Compensation Programs,

445 U.S. 608, 102 S. Ct. 1312, 71 L. Ed. 2d 495 (1982) particularly

apt here:

Riley’s claim stated a prima facie case of
compensability; if the Administrative Law Judge had
believed Riley’s allegations, he would have found that
Riley’s attack of pain in the early morning of November
20 was caused by an injury suffered when Riley was
lifting duct work on the job on November 19. The judge,

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 however, disbelieved Riley’s allegations and marshaled
substantial evidence to support his findings.

Id. at 616, 102 S. Ct. at 1318. Similarly, in the case at hand,

the ALJ relied on the conclusions of three different doctors who

examined Cummins and concluded that his back injuries, if they

existed at all, were not causally related to his work accident.

One doctor explained that Cummins “[did] not have a ratable back

problem . . . because of the absence of any objective

abnormalities.” Except by asserting that the doctors’ opinions are

“unqualified,” Cummins does not attempt to rebut their conclusions

or present an alternative medical opinion. Accordingly, we affirm

the decision of the Benefits Review Board. AFFIRMED.

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