United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 2, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60617
Summary Calendar
LOUISIANA DOCK COMPANY, INC.,
Petitioner,
versus
CLIFTON A. PERTUIT; NATIONAL MAINTENANCE AND REPAIR
OF LOUISIANA; DIRECTOR, OFFICE OF WORKER’S
COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR,
Respondents.
Petition for Review of an Order of the
Benefits Review Board
BRB No. 02-0639
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Louisiana Dock petitions for review of a ruling by
the Benefits Review Board (“BRB”) on a claim filed under the
Longshore and Harbor Workers’ Compensation Act.1 The BRB affirmed
the decision of an Administrative Law Judge (ALJ) that Louisiana
Dock was liable for the compensation benefits and medical expenses
*
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this opinion should not be published and is not precedent except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.
1
33 U.S.C. § 901 et seq.
of one of its former employees, Clifton A. Pertuit. Louisiana Dock
contends that the ALJ’s decision is not supported by substantial
evidence and that the ALJ erred in finding Louisiana Dock to be
Pertuit’s last responsible employer. We disagree and AFFIRM.
I
The case revolves around the claims of Clifton A. Pertuit, a
crane operator, outside machinist, and propeller repairman who
began working for Louisiana Dock in 1977. In 1989, he injured his
back while lifting a propeller cone to center a wheel. He
underwent surgery to repair a herniated disc and returned to work
in 1990 with medical restrictions that limited the work he could
perform. Nonetheless, he occasionally experienced problems with
his back, and he was under the care of Dr. Gregg Bendrick. The
record indicates, moreover, that beginning in January 2000, his
condition began to worsen.
On May 15, 2000, Louisiana Dock sold its facility to
Respondent National Maintenance and Repair. Pertuit remained with
the shipyard as an employee of National Maintenance, with similar
duties and work assignments. Just under two months after the sale,
Pertuit obtained a letter from Dr. Bendrick stating that Pertuit
was unfit for work because of his deteriorating back. Shortly
thereafter, Pertuit filed a claim for compensation. Louisiana Dock
and National Maintenance each contended that the other was
responsible. Pertuit brought an action against both parties. The
ALJ found that Pertuit’s disabling back condition had resulted from
2
the natural progression of the injury he suffered in 1989 and
concluded that Pertuit’s work at National Maintenance had not
aggravated his condition. Accordingly, the ALJ concluded that
Louisiana Dock was responsible for his compensation and medical
benefits. On appeal, the Benefits Review Board affirmed the ALJ’s
decision.
II
The scope of our review of BRB decisions is narrow. “We
review a decision of the Benefit Review Board under the same
standard as it reviews the decision of the ALJ: Whether the
decision is supported by substantial evidence and is in accordance
with the law.”2 We “may not substitute our judgment for that of
the ALJ, nor reweigh or reappraise the evidence, but may only
determine whether evidence exists to support the ALJ's findings.”3
Moreover, “the ALJ’s decision need not constitute the sole
inference that can be drawn from the facts.”4
2
Empire United Stevedores v. Gatlin, 936 F.2d 819, 822 (5th
Cir. 1991) (quoting Odom Constr. Co. v. United States Dept. of
Labor, 622 F.2d 110, 115 (5th Cir. 1980), cert. denied, 450 U.S.
966 (1981)).
3
New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31
(5th Cir. 1997).
4
Avondale Industries v. Director, Office of Workers’
Compensation Programs, U.S. Dept. of Labor, 977 F.2d 186, 189 (5th
Cir. 1992).
3
III
Louisiana Dock’s primary contention is that the ALJ’s finding
that Pertuit’s condition is the natural progression of his 1989
injury is not supported by substantial evidence. After reviewing
the ALJ’s opinion and the evidence upon which it is based, we
cannot agree. The ALJ carefully reviewed the testimony of Pertuit
and his treating physician, Dr. Bendrick, as well as the testimony
offered by Dr. Appelbaum, a physician who examined Pertuit in 2001.
In particular, Pertuit testified that he did not aggravate his back
condition during the course of his employment with National
Maintenance and that he suffered no new accident there. He also
indicated that the discomfort his back injury caused him did not
increase during his time with National Maintenance. Dr. Bendrick
indicated that Pertuit’s back condition deteriorated significantly
in March 2000 and posited that his disability was the result of the
natural progression of his original back injury. Dr. Appelbaum
testified that Pertuit denied suffering any additional trauma or
accident during his work with National Maintenance. Given this
record, the ALJ’s conclusion that Pertuit’s disability resulted
from the natural progression of his original back injury is
supported by substantial evidence.
We recognize, as did the ALJ and the BRB, that there is
evidence in the record that could support Louisiana Dock’s claim
that Pertuit aggravated his injury while working at National
Maintenance. The ALJ specifically considered this evidence,
4
evaluated the testimony and medical opinions, assessed the
credibility of the testifying witnesses, and concluded that Pertuit
did not aggravate his injury at National Maintenance. As noted, we
“may not substitute our judgment for that of the ALJ, nor reweigh
or reappraise the evidence, but may only determine whether evidence
exists to support the ALJ's findings.”5 The ALJ’s findings are not
irrational and are supported by substantial evidence.
Louisiana Dock next argues that the ALJ made an error of law
by finding Louisiana Dock to be the last responsible employer after
concluding that Pertuit aggravated his condition at National
Maintenance. Louisiana Dock’s argument is unpersuasive for the
simple reason that the ALJ did not find that Pertuit’s back
condition was aggravated during his employment with National
Maintenance. As noted, there was evidence presented that could
have supported such a finding, but the ALJ rejected this evidence
and concluded that Pertuit did not aggravate his injury, suffer a
new incident, or sustain a new injury while working for National
Maintenance.
IV
Because there was sufficient evidence supporting the ALJ’s
finding, we AFFIRM the judgment of the Benefits Review Board.
AFFIRMED.
5
New Thoughts Finishing Co., 118 F.3d at 1030-31.
5