UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 98-60701
Summary Calendar
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HALLIBURTON ENERGY SERVICES,
Petitioner,
VERSUS
RONALD A. BOURG,
and
DIRECTOR, OFFICE OF WORKER’S COMPENSATION PROGRAMS, U.S.
DEPARTMENT OF LABOR,
Respondents.
___________________________________________________
Petition for Review of an Order
of the Benefits Review Board
(98-0258)
___________________________________________________
June 30, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Ronald Bourg was employed by Halliburton Energy Services
(“Employer”) as a cementer/mixer. On May 24, 1993, while
performing his duties on an offshore oil rig, Bourg experienced
chest pains, shortness of breath, and dizziness. He was admitted
to the hospital where he was treated for congestive heart failure.
Thereafter, Bourg was diagnosed with cardiomyopathy, a disease of
*
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this opinion should not be published and is not precedent except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.
the heart muscle. He then sought benefits under the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901, et
seq. (“LHWCA”). The Administrative Law Judge (“ALJ”) awarded Bourg
temporary total disability compensation from May 24, 1993, until
December 9, 1996, and permanent total disability compensation
thereafter. The Benefits Review Board (“BRB”) affirmed the award.
Employer petitions this Court for review of the decision of the
BRB.
Under the LHWCA, the BRB must treat the ALJ’s findings of fact
as conclusive if supported by substantial evidence on the record as
a whole. Crum v. General Adjustment Bureau, 738 F.2d 474, 477
(D.C. Cir. 1984). When reviewing the BRB’s decision, this Court
must determine whether the BRB adhered to the applicable scope of
review; whether the BRB committed any errors of law; and whether
the ALJ’s findings are supported by substantial evidence on the
record as a whole. Id.
Employer first contends that the ALJ and the BRB erred in
finding that Employer did not rebut the presumption under Section
20(a), 33 U.S.C. § 920(a). Under Section 20(a), a claimant is
entitled to a presumption that his claim comes within the
provisions of the LHWCA if he establishes: (1) that he suffered an
injury and (2) that the accident occurred in the course of
employment or that conditions existed at work that could have
caused the harm. Gooden v. Director, OWCP, 135 F.3d 1066, 1068
(5th Cir. 1998). Upon invocation of the presumption, the burden
shifts to the employer to rebut the presumption with substantial
evidence that the claimant’s condition was not caused or aggravated
2
by his employment. Id. If the employer rebuts the presumption,
then the ALJ must weigh all the evidence of record to resolve the
causation issue. Id.
The ALJ and the BRB correctly found that Bourg established a
prima facie case and was thus entitled to the Section 20(a)
presumption. Bourg established the existence of a harm by showing
that after undergoing acts of physical exertion while working for
Employer, he experienced shortness of breath, chest pains, and
dizziness such that he required admission to the hospital where he
was treated for congestive heart failure. Employer’s argument that
Bourg did not establish that he sustained an injury because he only
suffered symptoms of his preexisting cardiomyopathy is without
merit. It is well-recognized that an aggravation of a preexisting
condition may constitute a compensable injury. See Crum, 738 F.2d
at 478.
The evidence of record, specifically the testimony of Dr.
Richard Abben and Dr. Thomas Giles, shows that although Bourg’s
work did not cause his cardiomyopathy, his work for Employer
accelerated and aggravated his underlying heart condition causing
him to experience symptoms sooner than he otherwise would have.
Both Drs. Abben and Giles testified that Bourg’s work shortened the
“window of time” Bourg had before the symptoms began to manifest
themselves. In light of this evidence, Bourg showed that he
suffered a harm arising out of his employment.
The ALJ and the BRB were further correct in their findings
that Employer did not rebut the presumption by establishing through
substantial evidence that there was a lack of causal connection
3
between the injury and the employment. The evidence, as stated
above, shows that although Bourg’s work did not cause his
underlying heart condition, his work did precipitate the onset of
his symptoms. Employer offered no substantial evidence to the
contrary.
Because we find that the ALJ’s and the BRB’s findings that
Employer failed to rebut the Section 20(a) presumption and that
therefore Bourg’s present medical condition is causally connected
to his employment, we find no error in the conclusion of both the
ALJ and the BRB that Bourg’s symptoms are a compensable injury
under the LHWCA.
Employer next contends that any disability suffered by Bourg
after his discharge from the hospital on June 4, 1993, cannot be
attributed to Employer. A review of the record, however, shows
that Bourg has undergone numerous hospitalizations for his heart
condition since the incident on May 24, 1993, including the
implantation of defibrillators. As the BRB noted, it is clear that
if a claimant’s employment played a role in the manifestation of
his disease, the entire resultant disability is compensable.
Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986);
Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046 (5th Cir. 1983).
As Bourg’s present medical condition is causally connected to his
employment with Employer, we find no error in the ALJ’s and Board’s
conclusion that Bourg is entitled to total disability benefits.
For the foregoing reasons, the decision of the BRB is
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AFFIRMED.2
2
After this appeal was submitted to this Court, the United
States Department of Labor sent a letter to the Court dated April
7, 1999, stating that in the event this Court affirms the BRB’s
affirmance of the ALJ’s award of permanent total disability
benefits commencing on December 10, 1996, the Director of the
Office of Worker’s Compensation Programs concedes to application of
section 8(f), and payment by the Special Fund, 33 U.S.C. § 908(f),
§ 944. The letter also stated that the payments by the Special
Fund would commence 104 weeks after December 10, 1996, the date on
which Bourg’s condition became permanent.
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