Jack Kellison v. Dutra Group

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JACK KELLISON, No. 17-71143

Petitioner BRB No. 16-0242

v.
MEMORANDUM*
DUTRA GROUP, SEABRIGHT
INSURANCE COMPANY, and
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,

Respondents

Appeal from the Benefits Review Board

Argued and Submitted June 4, 2018
Pasadena, California

Before: FISHER and OWENS, Circuit Judges, and MOLLOY,** District Judge.

Jack Kellison petitions for review of the Benefits Review Board’s (“Board”)

order affirming an administrative law judge’s (“ALJ”) decision denying medical

and indemnity benefits under the Longshore and Harbor Workers’ Compensation

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
Act, 33 U.S.C. §§ 901–50. Kellison alleges orthopedic and respiratory injuries

sustained during his life-long career as a waterfront pile driver. He settled with all

of his former employers except the last in time, Respondent Dutra Group. We

have jurisdiction over Kellison’s petition under 33 U.S.C. § 921(c), and we affirm.

The Board reviews ALJ decisions under the substantial evidence standard,

Stevedoring Servs. of Am. v. Director, OWCP, 297 F.3d 797, 801 (9th Cir. 2002),

and must accept the ALJ’s findings “unless they are contrary to the law, irrational,

or unsupported by substantial evidence,” Haw. Stevedores, Inc. v. Ogawa, 608

F.3d 642, 648 (9th Cir. 2010) (citation omitted). We in turn “review the Board’s

decision for errors of law and adherence to the substantial evidence standard and

may affirm on any basis in the record.” Duhagon v. Metro. Stevedore Co., 169

F.3d 615, 618 (9th Cir. 1999) (per curiam). We thus “conduct an independent

review of the administrative record to determine whether the Board adhered to its

standard of review.” Marine Power & Equip. v. Dep’t of Labor, 203 F.3d 664, 667

(9th Cir. 2000). Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Lockheed

Shipbuilding v. Director, OWCP, 951 F.2d 1143, 1145 (9th Cir. 1991) (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)).

1. The ALJ’s denial of benefits for all of Kellison’s orthopedic conditions

applied the correct legal standard and is supported by substantial evidence. First,

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the ALJ’s causation analysis was consistent with the aggravation standard outlined

in Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. (Price), 339

F.3d 1102, 110405 (9th Cir. 2003). In Price, the medical testimony showed that

Price’s one day of work aggravated his preexisting injury. Id. at 1105. Here, the

ALJ concluded that there was no work-related aggravation of Kellison’s injuries,

however minimal.

Second, the ALJ’s decision that Dutra rebutted the § 920(a) presumption

with substantial evidence is supported by the record. “[I]t is within the ALJ’s

prerogative, as finder of fact, to credit one witness’s testimony over that of

another.” Ogawa, 608 F.3d at 650 (quoting Duhagon, 169 F.3d at 618). Here, the

ALJ determined that Dr. Greenfield, Dutra’s expert, was more credible than Dr.

Stark, Kellison’s expert, because even though both had limited exposure to

Kellison, Dr. Greenfield took his own x-rays and relied more heavily on medical

records and objective evidence and less on Kellison’s self-reporting. Because the

ALJ found Kellison not credible, her reluctance to rely on evidence based on his

self-reporting was rational. Kellison has not shown that the ALJ’s reasons for

crediting Dr. Greenfield’s explanations were “inherently incredible or patently

unreasonable.” Id. Nor was Dutra required to “‘rule out’ all other possible causes

of injury in order to rebut the presumption under 33 U.S.C. § 920(c).” Schwirse v.

Director, OWCP, 736 F.3d 1165, 1172 (9th Cir. 2013).

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 Finally, once Dutra rebutted the § 920(a) presumption, “the burden shift[ed]

to [Kellison] to prove entitlement to benefits by a preponderance of the evidence.”

Id. at 1171 n.2. The ALJ weighed the evidence for each orthopedic injury,

ultimately concluding Kellison failed to carry his burden. Kellison insists that the

ALJ’s ultimate findings were irrational because she found that while Kellison’s

orthopedic injuries pre-existed his employment at Dutra and were exacerbated by

his post-Dutra exercise, his intervening work at Dutra did not aggravate,

accelerate, or contribute to them. While Kellison’s statements regarding work-

related pain while at Dutra were sufficient to establish a prima facie case of

cumulative injury, it was not sufficient to establish by a preponderance of the

evidence the requisite causal link between his actual work at Dutra and his injuries.

Id. Longshore jurisprudence has consistently recognized that the “natural

progression of [an] initial injury” is distinct from an aggravation of that injury.

Price, 339 F.3d at 1105.

2. The ALJ found that while Kellison was entitled to the § 920(a)

presumption regarding his chronic obstructive pulmonary disorder (“COPD”),

Dutra successfully rebutted it, and that weighing the evidence as a whole, Kellison

failed to establish that his work at Dutra aggravated his COPD. Her decision is

supported by substantial evidence.

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 First, the ALJ’s factual determination that his COPD was not an

occupational disease because Kellison failed to show the work environment had a

peculiar degree of exposure was supported by substantial evidence. See Port of

Portland v. Director, OWCP, 192 F.3d 933, 939 (9th Cir. 1999).1 Second, as

determined by the ALJ, there are no records of Kellison having respiratory

problems between February 2009 and 2011. And, by the time he left Dutra,

Kellison’s respiratory symptoms had actually improved. The weight of the

evidence therefore does not support Kellison’s aggravation argument. Moreover,

even if Dr. Harrison’s and Dr. Bressler’s competing opinions as to whether

Kellison’s work at Dutra aggravated his COPD were in equipoise, that is not

sufficient for Kellison to meet his burden. See Director, OWCP v. Greenwich

Collieries, 512 U.S. 267, 280 (1994) (explaining that the Administrative Procedure

Act places the burden of persuasion squarely on the claimant).

AFFIRMED.

1
Even if Kellison’s COPD was an occupational disease, he would not be entitled
to relief against Dutra under an occupational disease theory because he was
diagnosed with COPD prior to working for Dutra. “If the disability is an
occupational disease . . . the responsible employer is the one last exposing the
worker to injurious stimuli prior to the date the worker became aware of suffering
from the occupational disease.” Price, 339 F.3d at 1105 (emphasis added); see
also Port of Portland, 192 F.3d at 940. Thus, any alleged error on the part of the
ALJ in analyzing his COPD as cumulative trauma, as opposed to an occupational
disease, would be harmless. Ogawa, 608 F.3d at 648.

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