UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60474
Summary Calendar
COOPER/T. SMITH STEVEDORING CO.,
Petitioner,
VERSUS
EDWARD GILDS; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR,
Respondents.
Petition for Review of the Decision and Order of the
United States Department of Labor Benefits Review Board
BRB No. 98-1273
December 29, 1999
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*
Cooper/T. Smith Stevedoring Company, Inc. (“Cooper”) petitions
this court for review of a decision of the United States Department
of Labor Benefits Review Board awarding benefits to respondent
Edward Gilds. We affirm.
FACTS AND PROCEDURAL HISTORY
*
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opinion should not be published and is not precedent except under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.
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In October, 1993, Gilds was injured in the course and scope of
his employment with Cooper. As a part of the treatment for his
injuries, he was sent to a work-hardening program. On October 12,
1994, while working on the “quads machine” as a part of that
program, he felt pain in his right quadriceps muscle. It
immediately began to swell and the attendant put ice on it. On
October 17, 1994, Gilds was diagnosed with a knee effusion. The
pain resolved itself. On December 22, 1994, while stepping down
from a bar stool, Gild’s leg gave out and he felt immediate pain
and swelling, similar to that experienced after the work-hardening
incident. On January 11, 1995, Gilds was diagnosed with a ruptured
right quadriceps tendon. Gilds underwent corrective surgery on
January 23, 1995 and returned to work on March 27, 1995. The
central dispute is whether the ruptured tendon was caused or
aggravated by the work-hardening physical therapy. Gilds filed
a claim against Cooper for benefits pursuant to the Longshore and
Harbor Worker’s Compensation Act, 33 U.S.C. § 901-950 (1986)
(“LHWCA”). After a hearing, the Administrative Law Judge (“ALJ”)
ruled that Gilds was not entitled to benefits. Gilds appealed that
decision to the Benefits Review Board. The Benefits Review Board
vacated the ALJ’s denial of benefits on the grounds that the ALJ
had not applied the “Section 20(a) presumption.”1 The Benefits
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Section 20(a) of the LHWCA, 33 U.S.C. § 920(a), provides a
longshore claimant with a presumption that his disabling condition
is causally related to his employment under certain circumstances.
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Review Board remanded the claim for a determination of whether
Cooper had presented evidence sufficient to rebut the statutory
presumption of a compensable claim pursuant to 33 U.S.C. § 920(a)
(1986). On remand, the ALJ again determined that Gilds was not
entitled to LHWCA benefits for this injury, finding that Cooper
presented substantial evidence to rebut the Section 20(a)
presumption and that Gilds had not met his burden of proving by a
preponderance of the evidence that his tendon injury was caused,
contributed to, or aggravated by an employment related event.
Gilds appealed to the Benefits Review Board, which again
reversed. The Benefits Review Board panel reasoned that, in order
to rebut the Section 20 causation presumption, a medical opinion
must unequivocally state that no relationship exists between
claimant’s harm and his employment. Because both doctors who
testified for Cooper conceded that the pain incident in October
1994 could have been related to his January 1995 ruptured tendon,
the Benefits Review Board reversed the ALJ on the issue of
causation.
DISCUSSION
A. Standard of Review
We review the Benefits Review Board’s decision only to
determine whether it correctly concluded that the ALJ erred, that
is, whether the ALJ’s findings of fact are supported by substantial
evidence and are consistent with the law. See Boland Marine & Mfg.
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Co. v. Rihner, 41 F.3d 997, 1002 (5th Cir. 1995).
B. Rebutting the Section 20 Presumption
The circuit has recently clarified the burden imposed on an
employer who seeks to rebut the Section 20 causation presumption.
In Conoco, Inc. v. Director, O.W.C.P., 194 F.3d 684 (5th Cir.
1999), we reviewed a Benefits Review Board decision that held that
an employer had failed to adduce specific and comprehensive
evidence ruling out a causal relationship between claimant’s
employment and her injuries, and, thus, had failed to meet its
burden of proof on rebuttal. See id. at 690. We unequivocally
rejected the “ruling out” standard applied by the Benefit Review
Board in that case. See id. “‘To rebut this presumption of
causation, the employer was required to present substantial
evidence that the injury was not caused by the employment.’” Id.
(quoting Noble Drilling v. Drake, 795 F.2d 478, 481 (5th Cir.
1985)(emphasis in the original)).
Because the Benefits Review Board here employed a standard far
more stringent than the substantial evidence standard articulated
in Conoco, we find that it erred. However, Conoco also teaches
that such error is reviewed for harmlessness. See 194 F.3d at 690.
In order resolve the question of harmlessness, we conduct an
independent review of the record to see if the ALJ’s findings are
supported by substantial evidence, keeping in mind the deference
due the ALJ’s findings. See id. The ALJ relied on the testimony
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of two physicians and an inference drawn from the fact that Gilds
did not mention the earlier knee pain during his doctor visit on
January 11, 1995 when the tendon rupture was initially diagnosed.
After a review of the record as a whole, we find that the
Benefit Review Board’s use of an incorrect standard was harmless
error. One of the physicians opined that while the work-hardening
exercises did not “cause” the rupture, they probably caused a small
tear in Gilds’s knee and that this tear subsequently became one of
the causal factors in the later rupture. The other physician
testified initially, based solely on medical records, that the most
likely cause of the rupture was the a twisting when Gilds’s knee
gave out just three weeks before his surgery. However, when given
a hypothetical set of facts concerning Gilds’s October injury
(which facts were established by other evidence and which were not
included in the medical records the physician had previously
reviewed) the physician reversed himself and related the rupture to
the October injury. He explained that quadriceps ruptures are
usually due to a degenerative condition, that stress contributes to
a rupture and that the quadriceps machine put stress on the tendon.
The ALJ’s reliance on this doctor’s preliminary testimony that did
not take into consideration all the facts is misplaced. Further,
Gilds’s failure to mention the October injury during his January
diagnostic visit is not substantial evidence which would support
the ALJ’s determination that Cooper rebutted the Section 20
causation presumption. We therefore conclude that there is no
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substantial evidence in the record to support the ALJ’s denial of
Gilds’s claim for benefits.
CONCLUSION
Based on the foregoing, we find that the Benefits Review
Board’s error in applying the wrong standard of review was harmless
and affirm its finding that Cooper failed to rebut the Section 20
presumption on the issue of causation.
AFFIRMED.
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