Mendoza v. Marine Personnel Co., Inc.

United States Court of Appeals,

Fifth Circuit.

No. 94-40780

Summary Calendar.

Bernardo MENDOZA, Petitioner,

v.

MARINE PERSONNEL COMPANY, INC., Cigna Insurance Company, and
Director, Office of Workers Compensation of the United States
Department of Labor, Respondents.

March 6, 1995.

Petition for Review of an Order of the Benefits Review Board.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Claimant, Bernardo Mendoza, petitions for review of an order

of the Benefits Review Board ("BRB") upholding the decision

administrative law judge ("ALJ"), who found that claimant was

permanently partially disabled rather than permanently totally

disabled. Concluding that the BRB did not err, we deny the

petition for review.

I.

Mendoza was working as a welder/fitter for Marine Personnel

Company ("Marine") when he was injured in November 1987. Mendoza

had Dr. Thomas Padgett perform lumbar laminectomy back surgery in

April 1988. A second back surgery was performed by Padgett and Dr.

Richard Moiel in August 1989. Following recuperation time, Padgett

concluded that claimant had reached maximum medical improvement on

April 23, 1990. He assessed the permanent disability at 40% and

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indicated that claimant could not return to his previous occupation

or any work that required repeated lifting over 20 pounds or

repeated bending. He also opined that claimant's prognosis for

returning to any type of gainful employment was doubtful.

Claimant did not return to work. Dr. Thomas O. Moore, who had

examined claimant before the second surgery, re-examined claimant

in July 1991 and concluded that claimant could perform light to

medium degree work. Employer and carrier, Cigna Insurance Company,

hired William Quintanilla, a vocational rehabilitation specialist,

to interview the claimant and survey the Houston labor market for

suitable employment opportunities.

Claimant, instead, sought total disability compensation under

the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§

901-950. Employer paid claimant's temporary total disability

compensation from the time of the injury until the formal hearing

in front of the ALJ in September 1991. Employer also paid

claimant's medical expenses.

The ALJ determined that claimant had met his burden of showing

that he was unable to return to his former employment. The ALJ

also found that employer had established that suitable alternate

employment was available to claimant and that claimant had not

exercised due diligence in attempting to secure such employment.

The ALJ held that claimant was temporarily totally disabled

from the date of the injury through the date of maximum medical

recovery, April 23, 1990. The ALJ held that claimant was also to

be compensated for a total disability from April 23, 1990, through

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August 28, 1991, the date on which suitable alternate employment

was established.

The ALJ determined that claimant's wage earning capacity after

August 28, 1991, was $170 per week. The ALJ subtracted this figure

from claimant's pre-injury average weekly wage of $192 to determine

the claimant's loss of wage-earning capacity. Claimant was awarded

weekly compensation benefits of two-thirds of the loss of

wage-earning capacity. The BRB found that the ALJ's determinations

were supported by substantial evidence and affirmed the award.

II.

This court reviews the decisions of the BRB for errors of law

and applies the same substantial evidence standard that governs the

BRB's review of the ALJ's factual findings. P & M Crane Co. v.

Hayes, 930 F.2d 424, 428 (5th Cir.1991). We must affirm the BRB's

decision "if it correctly concluded that the ALJ's findings are

supported by substantial evidence and are in accordance with the

law." Id.

The ALJ determined that, while claimant could not return to

his old job, he could perform some light duty work. The ALJ

specifically found that claimant was capable of lifting up to ten

pounds repetitively and up to twenty pounds intermittently. The

ALJ also determined that claimant could sit for thirty minutes and

stand for one hour.

Padgett testified on direct examination at his deposition that

claimant was unable to work but later contradicted that testimony

on cross-examination by assigning specific work restrictions to

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claimant. Padgett indicated that claimant could perform a job that

did not require him to lift more than twenty pounds or perform any

repeated bending or stooping.

The ALJ specifically discounted Padgett's direct testimony and

credited the cross-examination testimony, because the restrictions

assigned directly corresponded to those listed in the April 23,

1990, letter. The ALJ declined to credit Dr. Moore's testimony,

which indicated that claimant was able to perform a greater range

of tasks. Claimant testified at the hearing that there were no

jobs that he could perform.

The ALJ determined that two of the jobs that Quintanilla had

identified in his labor market survey were compatible with the

restrictions assigned by Padgett and were reasonably available to

claimant. The ALJ also found that claimant had failed to exercise

due diligence in seeking to obtain alternate employment.

Claimant argues that the ALJ's factual findings were not

supported by substantial evidence. Specifically, claimant argues

that the ALJ erroneously found that he was capable of performing

some types of work. Claimant argues that the ALJ's evaluation of

Padgett's testimony was incorrect and that the ALJ failed to accord

proper weight to claimant's own testimony about his physical

condition. Claimant asserts that the ALJ did not examine the

record "as a whole" but chose to consider only parts of it.

The ALJ is the factfinder and "is entitled to consider all

credibility inferences." Avondale Shipyards, Inc. v. Kennel, 914

F.2d 88, 91 (5th Cir.1988). The ALJ's selection among inferences

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is conclusive if supported by the evidence and the law. The ALJ

determines the weight to be accorded to evidence and makes

credibility determinations. Mijangos v. Avondale Shipyards, 948

F.2d 941, 945 (5th Cir.1991). Moreover, where the testimony of

medical experts is at issue, the ALJ is entitled to accept any part

of an expert's testimony or reject it completely. Kennel, 914 F.2d

at 91.1

Claimant's argument has no merit. The ALJ in this case wrote

a careful and thorough opinion. The finding that claimant is able

to perform certain types of light duty work is supported by

substantial evidence including claimant's own doctor's testimony.

The ALJ's opinion indicates that he considered claimant's testimony

as well as the testimony of both Padgett and Moore.

Claimant's challenge to the calculation of his award is also

meritless. The ALJ properly followed the procedures set out in 33

U.S.C. § 908(c)(21).

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Claimant argues that all factual doubts must be resolved in
his favor pursuant to Wheatley v. Adler, 407 F.2d 307, 312
(D.C.Cir.1968). Under this "true doubt rule" as stated in this
circuit:

"[T]he factfinder operates under the statutory policy
that all doubtful fact questions are to be resolved in
favor of the injured employee because the intent of the
statute is to place the burden of possible error on
those best able to bear it." Noble Drilling Co. v.
Drake, 795 F.2d 478, 481 (5th Cir.1986). In effect,
the statute eases the ordinary preponderance of the
evidence standard applicable in most civil suits. Id.

Kennel, 914 F.2d at 90-91. We note here that the "true
doubt rule" has been explicitly rejected by the Supreme
Court. Director, OWCP v. Greenwich Collieries, --- U.S. ---
-, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).

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The petition for review is DENIED.

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